Delhi District Court
Indra Verma vs Vinod Verma @ Vinod Kumar on 13 January, 2025
IN THE COURT OF AYUSH SHARMA: CIVIL JUDGE,
EAST DISTRICT, KARKARDOOMA COURTS, DELHI
Date of Institution of Suit: September 16th, 2008
Reserved on: December 3rd, 2024
Pronounced on: January 13th, 2025
SUIT NO: 8264/16
IN THE MATTER OF: -
SMT. INDRA VERMA
W/O SH. MANOJ KUMAR VERMA
R/O E-35, GALI NO. 17,
MADHU VIHAR, DELHI-110092 ...PLAINTIFF
Through: Sh. Satish Sharma,
Advocate.
VERSUS
SH. VINOD VERMA @ VINOD KUMAR
S/O SH. HARI SINGH VERMA
R/O E-35, GALI NO. 17, 1ST AND 2ND FLOOR
MADHU VIHAR, DELHI-110092 ...DEFENDANT
Through: Sh. J.K Sinha,
Advocate.
JUDGMENT
1. The present suit has been filed for recovery of possession, damages for illegal use and occupation and permanent injunction in respect of immovable property viz. first and second floor, comprising one room and a kitchen on the first floor and one room along with a bathroom and toilet on the second floor, of property bearing no. E-35, Gali No. 17, Madhu Digitally signed by AYUSH Suit No 8264/16 Pg 1 of 28 AYUSH SHARMA SHARMA Date:
2025.01.13 14:31:49 +0530 Vihar, Delhi-110092 (hereinafter 'suit property'), more specifically shown in red colour in the site plan attached with the plaint.
2. Brief facts mentioned in the pleadings of the parties are mentioned as under:
Case of Plaintiff 2.1 The plaintiff's case, as outlined in the plaint, is that she is the lawful owner and in possession of suit property. The suit property was purchased by the plaintiff by her own funds. The defendant is the brother of plaintiff's husband who was previously residing in property No. F-14, Madhu Vihar.
Because of some issue/problem, the plaintiff allowed the defendant to reside as a licensee on the first and second floors of the suit property, comprising one room and a kitchen on the first floor and one room along with a bathroom and toilet on the second floor, without any consideration, charges, or rent.
2.2 The plaintiff and her husband later expressed their intention to use the suit property for their family's needs. They requested the defendant to vacate the property, but despite repeated demands and requests, the defendant failed to do so.
2.3 In March 2008, the defendant allegedly got installed an electricity connection in his own name by falsifying documents in collusion with officials of BSES Yamuna Power Ltd, without obtaining the plaintiff's consent or permission.
2.4 On 01.05.2008, the plaintiff sent a legal notice to the defendant through their counsel via registered post (Regd. A.D.) and U.P.C., asking him to hand over physical, peaceful, and vacant possession of the suit property. However, the defendant neither replied to the notice nor vacated the property. The plaintiff also filed several complaints with the electricity department/BSES requesting the disconnection of the defendant's Digitally signed by AYUSH Suit No 8264/16 Pg 2 of 28 AYUSH SHARMA SHARMA Date:
2025.01.13 14:31:55 +0530 electricity supply but it yielded no result. 2.5 On 05.09.2008, the plaintiff convened a meeting involving mutual friends, relatives, and respected members of the community, during which she again requested the defendant to vacate the suit property. The defendant, however, outrightly refused to comply and allegedly threatened to sublet, assign, or transfer possession of the property to a third party. The plaintiff asserts that, following the termination of the license, the defendant has no legal right, title, or interest in the property and is obligated to vacate it.
2.6 By way of the present suit, the plaintiff has sought a decree of possession qua the suit property; a decree of permanent injunction restraining the defendants from creating any third party rights in the suit property; recovery of Rs. 21,000/- @ Rs. 3,000/- per month from the date of legal notice i.e. 01.05.2008 till 30.11.2008 and pendente lite and future damages for use and occupation for suit property at the rate of Rs. 3000/-
per month.
Case of Defendant 2.7 The defendant has contested the suit by filing written statement ('WS'). In the WS, the defendant contends that the plaintiff's suit is liable to be dismissed under the provisions of Order VII Rule 11 CPC for failing to disclose a valid cause of action against the defendant. It is asserted that plaintiff no. 1 claims to have purchased the suit property from plaintiff no. 2, Shri Manoj Kumar, on 05.03.1997, who in turn claims to have bought the property from Shri Yadav Mohan in 1985. However, no prior property documents have been presented to establish how Shri Yadav Mohan acquired ownership of the suit property. Consequently, it is asserted that Shri Yadav Mohan was not the lawful owner and, therefore, lacked the legal authority to sell the property.
Digitally
signed by
AYUSH
Suit No 8264/16 Pg 3 of 28 AYUSH SHARMA
SHARMA Date:
2025.01.13
14:32:00
+0530
2.8 The defendant further asserts that the plaintiff is neither the owner
of the property nor is there a licensor-licensee relationship between the plaintiff and the defendant. It is further claimed that the plaintiff rely on a General Power of Attorney and an unregistered agreement to sell, accompanied by a receipt for Rs. 40,000/- to claim ownership of the suit property, which are not valid transfer documents as per section 54 of the Transfer of Property Act, 1882. Additionally, the defendant asserts that the recorded owner in the revenue records of the suit property is Shri Ram Mhar, son of Shri Mathura Prasad, as per the defendant's knowledge. 2.9 It is further alleged that the plaintiff has not approached the court with clean hands and have suppressed material facts. The defendant highlights that plaintiff's husband applied for a water connection from the Delhi Jal Board in 1994 and submitted an affidavit claiming ownership of only 30 sq. yards of the suit property. The plaintiff's husband also filed an application for depositing water/sewage development charges, claiming ownership for the same 30 sq. yards. The defendant alleges that the plaintiff is now fraudulently claiming ownership of 100 sq. yards based on false and fabricated documents.
2.10 The defendant further claims the suit should be dismissed as the land is vested with the DDA according to the revenue records of Mandawali Fazalpur, Delhi. Furthermore, it is asserted that the defendant, having resided in the suit property since 1985, has acquired ownership through adverse possession.
2.11 The defendant denies the contents of the plaint, including the claims of ownership by the plaintiff, the allegations of the defendant residing as a licensee, and the repeated requests by the plaintiff for the defendant to vacate the property. It is asserted that the defendant resides in the property in his own right as the owner and not as a licensee. The defendant also Digitally signed by AYUSH Suit No 8264/16 Pg 4 of 28 AYUSH SHARMA SHARMA Date:
2025.01.13 14:32:06 +0530 denies the allegations regarding the procurement of an electricity connection through false documents, claiming that some of the documents were provided by the plaintiffs themselves. Additionally, it is claimed that the suit has not been properly valued for court fee and jurisdiction, as the suit property is valued at more than Rs. 5 lakhs, and the requisite court fee has not been paid.
Plaintiff's Replication 2.12 In the replication submitted by the plaintiff, she assert that the defendant has, in one of the documents, already admitted that the suit property belongs to the plaintiff and being the brother of plaintiff's husband, the defendant was permitted to reside in the suit property as a licensee. The plaintiff denies the allegation that she applied for a water connection with the Delhi Jal Board in 1994, claiming ownership of 30 sq. yards of the suit property. She contend that the document presented by the defendant in this regard is forged and fabricated. The plaintiff further argues that in 1986, the defendant was residing in his own property within the same locality, making it impossible for him to acquire ownership of the suit property through adverse possession. She states that the defendant was allowed to reside in the suit property temporarily because his own house was uninhabitable. However, the defendant later sold his property and is now attempting to unlawfully claim ownership of the suit property, which belongs to the plaintiff. The plaintiff further reiterate the contents of the plaint while rejecting the assertions made in the written statement submitted by the defendant.
Relevant proceedings before Court
3. On 09.02.2009, the plaintiff filed an application under Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC), which was allowed on 01.09.2009.
Digitally signed by AYUSH Suit No 8264/16 Pg 5 of 28 AYUSH SHARMA SHARMA Date:
2025.01.13 14:32:11 +0530
4. On 02.04.2011, admission and denial of documents were conducted, and issues were framed in the suit.
5. On 19.09.2011, the defendant filed an application under Sections 33, 35, and 38 of the Indian Stamp Act, 1899, seeking to impound the plaintiff's documents for payment of stamp duty and penalty. This application was dismissed on 19.11.2012.
6. On 23.08.2013, the plaintiff filed an application under Order VII Rule 14 CPC to bring additional documents on record, which was dismissed vide order dated 09.01.2014.
7. On 24.03.2014, the plaintiffs filed an application under Sections 63 and 65 of the Indian Evidence Act, 1872, to lead secondary evidence. This application was allowed on 03.05.2014.
8. On 01.09.2014, the plaintiff filed an application under Section 151 CPC, seeking an order to restrain the defendant from making any additions or alterations to the suit property. On 01.12.2014, the plaintiff's application under Order XXXIX Rule 1 and 2 CPC for a temporary injunction to prevent the defendant from creating third-party rights in the suit property was allowed. On the same date, the plaintiff's application under Section 151 CPC was disposed of with directions to maintain the status quo until further orders.
9. On 03.04.2017, the defendant filed an application under Section 151 CPC, seeking permission to carry out necessary repairs in the suit property.
On 08.05.2017, the plaintiff filed an application under Order XII Rule 6 CPC. On 25.08.2017, both parties' counsels submitted that they would not press their applications, and the applications were kept pending until further orders.
10. On 14.09.2017, plaintiff no. 2 was removed from the array of parties.
Digitally
signed by
AYUSH
Suit No 8264/16 Pg 6 of 28 AYUSH SHARMA
SHARMA Date:
2025.01.13
14:32:16
+0530
11. On 15.04.2019, the defendant filed an application under Section 151 CPC, seeking an order restraining the plaintiff from undertaking further construction in the suit property. This application was dismissed on 01.08.2019, with the direction that the plaintiff may continue construction on the portion in their possession but not on the suit property.
12. On 11.03.2020, the defendant filed applications under Order VII Rule 10 CPC and Order VII Rule 11 CPC. These applications were later withdrawn on 29.05.2023.
13. On 14.09.2023, the plaintiff's right to lead further evidence (PE) was closed, and the matter was listed for defendant's evidence (DE).
14. On 12.12.2023, the defendant's evidence (DE) was closed, and the case was listed for final arguments.
Issues
15. On the basis of pleadings, vide order dated 02.04.2011, following issues were framed viz.,
(i) Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP
(ii) Whether the plaintiff is entitled to a decree of possession as prayed for? OPD
(iii) Whether the plaintiff is entitled to any damages as prayed for? OPP
(iv) Whether the plaintiff is entitled to any mesne profits and if so, at what rate? OPP
(v) Whether the suit of the plaintiff is devoid of any cause of action? OPD
(vi) Relief Digitally signed by Suit No 8264/16 Pg 7 of 28 AYUSH AYUSH SHARMA SHARMA Date:
2025.01.13 14:32:21 +0530 Plaintiff's evidence
16. In order to substantiate her case, plaintiff examined herself as PW1 and her husband Sh. Manoj Kumar Verma as PW2.
17. PW1 Indira Verma tendered her evidence by way of affidavit Ex. PW1/A and relied upon the documents viz. GPA and other ownership documents dated 05.03.1997 Ex. PW1/1 (Colly), lease deed dated 02.09.2000 Ex. PW1/2, copy of complaints dated 25.02.2003 and 02.07.2008 Ex. PW1/3 (Colly), copy of complaints dated 27.03.2008, 28.03.2008, 07.05.2008 and 29.09.2008 Ex. PW1/4 (Colly), copy of legal notice dated 01.05.2008 along with UPC and postal receipt Ex. PW1/5 (Colly), copy of receipt dated 09.11.2004 Mark A and site plan Ex. PW1/7.
18. PW2 Manoj Kumar Verma tendered his evidence by way of affidavit Ex. PW2/A and relied upon the documents produced by PW1 and the following documents viz. copy of GPA and other ownership documents dated 26.07.1985 Ex. PW2/1 (Colly) (OSR), original rent agreement/lease deed dated 20.10.1995 Ex. PW2/2, original rent agreement dated 30.06.1997 Ex. PW2/3, original of no objection letter dated 03.03.1997 Ex. PW2/4, original handwritten undertaking dated 28.07.1991 Ex. PW2/5, original undertaking dated 12.07.2008 Ex. PW2/6, house tax receipts Ex. PW2/7 (Colly), original electricity bill Ex. PW2/8, original of complaint dated 24.02.1997 Ex. PW2/9, original of complaint dated 07.04.1998 Ex. PW2/10, original copy of estimated charges deposited to DVB Ex. PW2/11, original complaint dated 20.02.1998, 02.02.1998 and 04.02.1998 Ex. PW2/13 (Colly), copy of DVB receipt dated 27.11.1998 Mark A. Defendant's evidence
19. In order to substantiate the case, defendant examined himself as DW1, Sh. GS Meena, Kanoongo, District Magistrate Office (East) as DW2 Digitally signed by AYUSH Suit No 8264/16 Pg 8 of 28 AYUSH SHARMA SHARMA Date:
2025.01.13 14:32:27 +0530 and Sh. Mahesh Babu, Record Keeper from the Office of Sub-Registrar VIII A, Preet Vihar, Delhi as DW3.
20. DW1 Vinod Kumar Verma tendered his evidence by way of affidavit Ex. DW1/A.
21. DW2 Sh. GS Meena, Kanoongo, from the Office of District Magistrate Office (East) produced the certified copy of Khasra Girdavri/DLRA for the year 2013-14 in respect of Khasra no. 1381/89 of Village Mandawali, Fazalpur, Delhi-92 Ex. DW2/A (Colly).
22. DW3 Sh. Mahesh Babu, Record Keeper from the Office of Sub- Registrar VIII A, Preet Vihar, Delhi produced the Notification for the year 2008 issued by Government of NCT of Delhi regarding valuation of land and properties for its registration under the Registration Act, 1908 along with authority letter Ex. DW3/A (Colly) and Ex. DW3/B respectively. Submissions
23. Sh. Satish Sharma, Ld. LAC for plaintiff, advanced the following submissions:
23.1 The plaintiff asserts ownership of the suit property through a General Power of Attorney (GPA) and other supporting documents, Ex.
PW1/1 (Colly), executed in her favour by her husband, Shri Manoj Kumar, on 05.03.1997. Shri Manoj Kumar had earlier acquired the property from Shri Yadav Mohan in 1985 vide GPA and related ownership documents dated 26.07.1985, Ex. PW2/1 (Colly).
23.2 The defendant's status as a licensee in the suit property was terminated through a legal notice dated 01.05.2008, Ex. PW1/5 (Colly). 23.3 The defendant's claim that the plaintiff is not the rightful owner of the suit property is based on conflicting and unsupported assertions. These include the absence of prior property documents to establish how Shri Yadav Mohan acquired ownership, the claim that the defendant is a co- Digitally signed by AYUSH AYUSH SHARMA Suit No 8264/16 Pg 9 of 28 SHARMA Date:
2025.01.13 14:32:32 +0530 owner because the property belonged to their mother, and the argument that the land on which the suit property is situated was acquired by the Delhi Development Authority (DDA). The claims made in the written statement, suggestions put to PW1 and PW2, and the evidence affidavit of DW1, are inconsistent and fail to establish any legal right, title, or interest in favour of the defendant over the suit property. 23.4 Furthermore, the defendant's claims of co-ownership and adverse possession are mutually contradictory. A claim of adverse possession cannot be initiated unless the co-ownership claim is first renounced. 23.5 The evidence presented by the defendant, including the testimony of official witnesses (DW2 and DW3), to demonstrate that the land on which the suit property is situated was acquired by the government and to establish the circle rate, does not substantiate the defendant's case. In fact, as per the defendant's own suggestion to PW1, the alleged acquisition of the land was de-notified on 05.01.2015. Additionally, the objection regarding circle rate is irrelevant since the court has the authority to grant relief for possession or mandatory injunction if the licensor-licensee relationship is proven.
23.6 Since the defendant initially gained possession of the suit property through the plaintiff, as acknowledged in document Ex. PW2/5, any claim asserting government ownership of the property is barred under Section 116 of the Indian Evidence Act, 1872.
23.7 In support of his submissions, he relied upon the judgment of Hon'ble Supreme Court in Swadesh Ranjan Sinha v. Haradeb Banerjee AIR 1992 SC 1590, judgment of Hon'ble Delhi High Court in Bidhan Chand Biswas v. Prakash Chand Bansal & Ors. RSA 131/2014 and Shiv Prakash v. Mool Chand & Ors. RSA 173/2017.
Digitally signed by AYUSH Suit No 8264/16 Pg 10 of 28 AYUSH SHARMA SHARMA Date:
2025.01.13 14:32:38 +0530
24. Sh. Jai Kumar Sinha, Ld. LAC for defendant, principally raised the following contentions:
24.1 The suit property was owned by the mother of the plaintiff's husband and the defendant, who passed away intestate. Consequently, the plaintiff's husband and the defendant, as her legal heirs, are co-owners of the suit property.
24.2 The defendant claims ownership of the suit property by adverse possession, as he has been in possession of the property since 1985. The claim of adverse possession is directed against the government as the suit property has been acquired by the government. 24.3 The suit property falls under category "F" according to the classification by the Government of NCT of Delhi. In 2007-2008, the circle rate for the suit property was Rs. 16,100/- per square yard, making the total value of the property exceed Rs. 5 lakhs. This valuation is beyond the pecuniary jurisdiction of this court. 24.4 The plaintiff has failed to establish ownership of the suit property, as Mr. Yadav Mohan, from whom the plaintiff's husband purportedly purchased the property, was not the rightful owner. Furthermore, the documents presented from 1985, Ex. PW2/1 (Colly), are forged and fabricated.
24.5 In support of his submissions, he relied upon the judgment of Hon'ble Supreme Court in Bachhaj Nahar v. Nilima Mandal & Ors. AIR 2009 SC 1103, Jharkhand State Housing Board v. Didar Singh & Ors.
(2019) 17 SCC 692 and judgment of Hon'ble Delhi High Court in Shiv Prakash v. Mool Chand & Ors. RSA 173/2017.
Analysis
25. I have heard the submissions and perused the record along with the judgments filed by the parties. Since, issues no. (ii) and (v) are interlinked Digitally signed by AYUSH Suit No 8264/16 Pg 11 of 28 AYUSH SHARMA SHARMA Date:
2025.01.13 14:32:44 +0530 and involve common discussion of facts and law, they have been taken conjointly first, for analysis. The onus of proving second issue is on plaintiff and fifth issue is on defendant. Issue No. (ii) and (v) (on recovery of possession and cause of action)
26. The plaintiff's case is based on the assertion that the defendant occupies the suit property as a licensee, whose license has been terminated, thereby entitling the plaintiff to recover possession. However, the defendant disputes this claim, challenging the plaintiff's ownership of the suit property. The defendant's objections to the plaintiff's ownership are as follows:
(i) Mr. Mohan Yadav, from whom the plaintiff's husband purchased the suit property, was not the rightful owner, and the documents executed in 1985 in favour of the plaintiff's husband Ex. PW2/1 (Colly), are forged and fabricated.
(ii) He is a co-owner of the suit property being the legal heir of his mother and plaintiff's husband who was the owner of the suit property.
(iii) The land on which the suit property is located was acquired by the government and the defendant acquired ownership of the suit property through adverse possession, being in continuous occupation since 1985.
All the claims of the defendant to dispute the title of plaintiff have been discussed one by one.
Mr. Mohan Yadav was not the rightful owner and documents executed in favour of plaintiff's husband Ex. PW2/1 (Colly) are forged and fabricated.
27. The plaintiff has presented in evidence several documents, including a General Power of Attorney (GPA), an agreement deed, and a receipt, all Digitally signed by Suit No 8264/16 Pg 12 of 28 AYUSH AYUSH SHARMA SHARMA Date:
2025.01.13 14:32:50 +0530 dated 26.07.1985, Ex. PW2/1 (Colly). These documents were executed by Mr. Mohan Yadav in favour of the plaintiff's husband. During her cross- examination, PW1 (the plaintiff) testified that her husband was fully aware of the person from whom the suit property was purchased, as well as the consideration amount involved in the transaction. Additionally, PW2 (the plaintiff's husband) strongly denied the defendant's allegations during his cross-examination. He refuted the claim that the ownership documents of the suit property were originally in the name of their mother or that he had fabricated forged documents for the suit property. He also denied the defendant's specific allegation that the documents Ex. PW2/1 (Colly) were forged or that they did not bear the signature of Mr. Mohan Yadav.
28. A close examination of the testimonies of PW1 and PW2 reveals that the cross-examinations of these witnesses failed to produce any material evidence to undermine the credibility or authenticity of the documents in question. Furthermore, the defendant has failed to present any substantive evidence beyond unsubstantiated allegations to support his claims or cast doubt on the validity of the documents submitted by the plaintiff. There is no record of who owned the suit property prior to Mr. Mohan Yadav, nor any evidence to establish that the mother of the plaintiff's husband and the defendant purchased the property, or that Mr. Mohan Yadav was not the rightful owner. These omissions further undermine the defendant's position. In this regard, reference can be made to the judgment of the Hon'ble Supreme Court in Swadesh Ranjan Sinha v. Haradeb Banerjee1. The Court in that case held that the plaintiff is only required to demonstrate that they hold a better title than the defendant; it is not necessary for the plaintiff to prove that their title is the absolute best 1 AIR 1992 SC 1590 Digitally signed by AYUSH Suit No 8264/16 Pg 13 of 28 AYUSH SHARMA SHARMA Date:
2025.01.13 14:32:55 +0530 of all possible titles. The plaintiff's ownership is deemed valid against all parties except the true owner. The Court further observed that an owner's rights are rarely absolute, and the real question to be addressed is whether the plaintiff possesses a superior right or interest in comparison to the person challenging their title. In light of this precedent, it is evident that the plaintiff has established a better title to the suit property than the defendant. The defendant's objections to the plaintiff's ownership are therefore without merit and cannot be sustained. Plea of co-ownership
29. At the outset, it is important to note that there is no assertion or pleading in the written statement to the effect that the suit property was owned by the mother of the plaintiff's husband and the defendant, and that upon her demise, the defendant became a co-owner of the suit property as a legal heir. This claim was never advanced in the written statement. Furthermore, no suggestion was made to PW1 during cross-examination that the suit property was owned by her mother-in-law. This defence was introduced for the first time during the cross-examination of PW2. The relevant portion of PW2's cross-examination is as follows:
"It is wrong to suggest that the suit property was purchased in the name of my mother. It is wrong to suggest that my mother had allowed me to reside in the suit property along with other family members as she has purchased the suit property. It is further wrong to suggest that my mother, as being the owner of the suit property, permitted the defendant to reside in the suit property. It is wrong to suggest that the papers regarding the ownership of the suit property which were in the name of my mother was kept by me and I withhold those documents and prepare the forged documents of suit property and filed in the Digitally signed by AYUSH Suit No 8264/16 Pg 14 of 28 AYUSH SHARMA SHARMA Date:
2025.01.13 14:33:00 +0530 present suit."
30. This plea was reiterated by DW1 in his affidavit of evidence Ex. DW1/A, wherein he deposed in paragraph 1 that:
"The suit property was owned by mother of the plaintiff and defendant which was purchased by the father of plaintiff & defendant who died intestate without transferring the suit property to any 3rd person. The plaintiff and defendant along with other brothers became co-owner of the suit property having their respective joint & undivided shares."
31. It is significant to note that the suggestion made by the defendant regarding co-ownership, based on the claim that the suit property was owned by the mother of the plaintiff's husband and the defendant, and the evidence presented in the affidavit Ex. DW1/A, are entirely beyond the pleadings. It is a fundamental rule that in a civil suit, the relief to be granted can be only with reference to the prayers made in the pleadings. No amount of evidence, on a plea that is not forwarded in the pleadings, can be looked into to grant any relief.2 In the decision in Ram Sarup Gupta (dead) by LRs v. Bishnu Narain Inter College & Ors.3, the Hon'ble Apex Court held:
"...It is well established that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it."2
Bachhaj Nahar v. Nilima Mandal & Anr. (2008) 17 SCC 491 3 (1986) 2 SCC 555 Digitally signed by AYUSH Suit No 8264/16 Pg 15 of 28 AYUSH SHARMA SHARMA Date:
2025.01.13 14:33:05 +0530
32. Therefore, the evidence presented by the defendant regarding co- ownership is beyond the scope of the pleadings and cannot be taken into consideration. Even if such facts had been pleaded, the defendant has provided no evidence to substantiate the claim that the mother of the plaintiff's husband and the defendant was the owner of the suit property or when or from whom she purchase it. The assertion remains unsupported and unsubstantiated. Additionally, a document in the form of a no- objection letter dated 03.03.1997, Ex. PW2/4, is on record. This document, executed by the mother and father of the plaintiff's husband and the defendant, explicitly states that the plaintiff's husband is the owner of the suit property and that they, along with all legal heirs, have no right, title, or interest in the property. Notably, no questions were raised on this document during the cross-examination of PW1 and PW2 by the defendant. Thus, the defendant's plea of co-ownership is not only beyond the pleadings but is also wholly unsubstantiated. Land on which the suit property is situated is acquired by government and Plea of adverse possession
33. The defendant's position regarding his status in the suit property is contradictory and unclear. On one hand, he claims co-ownership of the property, and on the other, he asserts ownership through adverse possession. It is a well-settled legal principle that claims of lawful ownership and adverse possession are mutually exclusive. Once a party asserts ownership of the property by lawful means, it cannot simultaneously claim ownership through adverse possession. The Hon'ble Digitally signed by AYUSH Suit No 8264/16 Pg 16 of 28 AYUSH SHARMA SHARMA Date:
2025.01.13 14:33:11 +0530 Supreme Court in Karnataka Board of Wakf v. Government of India4 set forth the legal position and held:
"The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 that is similar to the case in hand, this Court held: "As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right there under and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."
(Underlining added)
34. Thus, the pleas of lawful title and adverse possession are fundamentally incompatible. Viewed from another perspective, the defendant's written statement lacks the foundational pleadings necessary to substantiate a claim of adverse possession. Apart from a bare statement in paragraph 9, there is no evidence to show that the defendant's possession became hostile to the plaintiff's knowledge, or that the plaintiff acquiesced in the defendant's illegal possession for the statutory period of 4 (2004) 10 SCC 779 Digitally signed by AYUSH Suit No 8264/16 Pg 17 of 28 AYUSH SHARMA SHARMA Date:
2025.01.13 14:33:17 +0530 12 years. On the contrary, the record contains several complaints made to the police and electricity utility authorities regarding the defendant's illegal occupation of the suit property, such as the complaint dated 24.02.1997 (Ex. PW2/9), complaint dated 07.04.1998 (Ex. PW2/10), and multiple complaints dated 20.02.1998, 02.02.1998, and 04.02.1998 (Ex.
PW2/13 [Colly]). These complaints clearly demonstrate that the plaintiff consistently opposed the defendant's possession and did not acquiesce to it.
35. Moreover, in the defendant's affidavit of evidence (Ex. DW1/A), no plea has been raised regarding adverse possession or the acquisition of the land by the government. During PW2's cross-examination, it was suggested that the entire locality of Madhu Vihar had been acquired by the DDA under the Land Acquisition Act and later de-notified on 05.01.2015. However, this suggestion undermines the defendant's position, as it confirms that after the de-notification, the plaintiff retained ownership of the suit property and continues to hold a better title than the defendant. The defendant has not presented any evidence of an award passed by the government or an order taking possession of the suit property. In Bidhan Chand Biswas v. Prakash Chand Bansal & Ors.5 RSA 131/2014, the Hon'ble Delhi High Court held:
"9. On behalf of the appellants/defendant no.1 it was also argued before the courts below that the Union of India had acquired the property and consequently suit was bound to fail, and this aspect has been rightly rejected by the first appellate court by making the following observations in the impugned judgment:-
"46. In the impugned order, the learned Trial Court while placing reliance on the evidence of DW-3, DW-
5
Neutral Citation: 2014:DHC:2679
Digitally
signed by
AYUSH
Suit No 8264/16 Pg 18 of 28 AYUSH SHARMA
SHARMA Date:
2025.01.13
14:33:22
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6 has held that since Government of India was shown to be the recorded owner of the land falling in khasra No. 790/610 where the suit property was situated, Smt. Dharamwati Shukla had no right to execute any document of title in favour of the plaintiff No.2. While going through the written statement of the defendant no. 1, I could not find any averment made in the same to the effect that the suit property stood on acquired land belonging to the Government and as such Smt. Dharamwati Shukla not being the owner thereof had no right to execute any document of title in favour of the plaintiff No.2. This was thus never the case of the defendant no.1 set up in his written statement. The evidence led by the defendant no.1 in this regard, i.e. the land in question belonging to the State, was beyond his pleadings. In the case of Kattinokkula Murali Krishna V. Veeramalla Koteswara Rao, reported in (2010) 1 SCC 466 the Hon'ble Supreme Court was pleased to hold that it was a settled principle of law that evidence beyond the pleadings can neither be permitted to be adduced nor can such evidence be taken into consideration. Thus the evidence led by the defendant no.1 regarding the suit property standing on government land being beyond pleadings cannot and could not have been taken into consideration.
47. Even if the defendant no.1 had pleaded these facts, the question which arises is whether by virtue of the same, it could be held that the plaintiff would not be entitled to any relief. In the case of Swadesh Ranjan Sinha versus Haraded Banerjee reported in (1991) 4 SCC 572, the Hon'ble Supreme Court was pleased to hold that all that the plaintiff needs to prove is that he has a better title than the defendant. He has no burden to show that he has the best of all possible titles. His ownership is good against all the world except the Digitally signed by AYUSH Suit No 8264/16 Pg 19 of 28 AYUSH SHARMA SHARMA Date:
2025.01.13 14:33:27 +0530 true owner. It was further held that the rights of an owner are seldom absolute and the question is whether he has a superior right or interest vis-a-vis the person challenging it. The same principle of law has been reiterated by the Hon'ble High Court in the case of Ramesh Chand (supra). Hence in the opinion of this Court, the question that any person apart from Smt. Dharamwati Shukla was owner of the suit property was immaterial as both the parties had claimed title to the suit property from her. Even otherwise, since the defendant no.1 was admittedly a tenant under Smt. Dharamwati Shukla and had claimed to have purchased the suit property from her, he as stopped from denying her title to the suit property.
48. The plaintiff having a superior right than the defendant No.1 was entitled to the relief of declaration of title in respect of the suit property qua the defendant No. 1. This declaration would not bind the Union of India or any other true owner of the property as it was not a party to the suit. If the Union of India or any other true owner of the property has a better title than the plaintiff no.2, the documents of title relied upon by plaintiff no.2 would not come in its come in its way to seek any relief in respect of the suit property."
10. In addition to the aforesaid conclusions of the first appellate court, and with which I agree, it also needs to be stated that the Union of India does not become owner of an acquired property unless possession is taken by the Union of India under Section 16 of the Land Acquisition Act, 1894. In the present case, it is not proved on behalf of the appellants/defendant no.1 that the Union of India had taken possession of the suit property under Section 16 of the Land Acquisition Act. Once that is so, Smt. Dharamwati Shukla and thereafter the respondent no.1/plaintiff no.1 and Digitally signed by AYUSH Suit No 8264/16 Pg 20 of 28 AYUSH SHARMA SHARMA Date:
2025.01.13 14:33:33 +0530 thereafter the respondent no.2/plaintiff no.2 accordingly continued to remain owner of the suit property. (Underlining added)
36. In light of the above, the defendant's claim of adverse possession and the land has been acquired by government is baseless and unsustainable. His entire strategy appears to be an attempt to retain possession of the suit property by raising unsubstantiated and contradictory claims. Accordingly, the defendant's plea is without merit and is rejected.
37. In addition to this, on the evidence presented in the present case, I find that the defendant has not been able to establish any of their pleas and/ or a better title than the plaintiff. A brief analysis of the evidence of plaintiff and defendants' presented in the present case is outlined below:
a. During cross-examination, PW1 testified that the present suit was filed to evict the defendant from the suit property, which measures 100 square yards. She deposed that her mother-in-law and father-in-
law had been residing with her since the purchase of the property in 1985. She also stated that her husband was aware of the person from whom the property was purchased and the consideration amount paid, but she herself did not know who executed and signed the documents in her favour. She admitted that her husband was aware of all the details.
b. During cross-examination, PW2 deposed that he had been in possession of the suit property since 1985 and that his parents also resided there. He denied that the property had been purchased in his mother's name or that his mother had allowed family members to reside there. He also denied forging documents related to the suit Digitally signed by AYUSH Suit No 8264/16 Pg 21 of 28 AYUSH SHARMA SHARMA Date:
2025.01.13 14:33:39 +0530 property. He identified one of the witnesses to the GPA (Ex. PW2/1) as Vijender Verma but could not recall the other witness. He denied the claim that the documents Ex. PW2/1 (Colly) did not bear the signature of Mr. Mohan Yadav. PW2 stated that the property documents had been lost but were returned by someone 3-4 years earlier. He further testified that he had sold the property to his wife in 1997 for a consideration of Rs. 40,000-50,000 to repay a loan. He admitted that Ex. PW2/5 was executed when he became a partner in the machines purchased by the defendant and that they had agreed to run the machines jointly. PW2 also stated that the defendant had sold his house at F-14, Madhu Vihar, Delhi, and was seeking accommodation, which is why he and his wife allowed the defendant to reside in the suit property. While he admitted that the electricity connection was in the defendant's name, he asserted that it was obtained using forged documents. He denied that his father owned the suit property or that a ration card was issued in his father's name. He also denied authorship of the affidavit marked as A/D-3 and the letter to the Executive Engineer marked as A/D-4. PW2 acknowledged that part of Madhu Vihar was acquired by the DDA, but not the entire locality.
c. During cross-examination, DW1 testified that he inherited a 1/4th share of the suit property upon his mother's death. He denied that his mother was not the owner of the property and that the plaintiff, or her husband before her, owned it through registered documents. DW1 further deposed that he entered the property as a licensee on 28.05.1996.
Digitally signed by AYUSH Suit No 8264/16 Pg 22 of 28 AYUSH SHARMA SHARMA Date:
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38. The cross-examination of PW1 and PW2 did not yield any evidence to support the defendant's claims. Notably, during the admission/denial of documents and the cross-examination of PW2, the defendant admitted to the writing and signatures on document Ex. PW2/5, which explicitly states that the defendant resides in the suit property owned by the plaintiff's husband. Furthermore, during cross-examination, the defendant himself admitted that he entered the suit property as a licensee on 28.05.1996. It is also noteworthy that during the cross-examination of PW2, contradictory suggestions were made by the defendant's counsel. At one point, it was suggested that the suit property was owned by the mother of the plaintiff's husband and the defendant, while later it was suggested that the property was owned by the father of the plaintiff's husband and the defendant.
These inconsistent claims further undermine the credibility of the defendant's case and highlight the lack of clarity or consistency in his assertions regarding the ownership of the suit property.
39. In light of the material on record, it is evident that the defendant has failed to substantiate his claims of adverse possession or title. The judgment cited by the counsel for the defendant in Shiv Prakash v. Mool Chand & Ors.6, RSA 173/2017, is, in all fairness, not applicable to the facts and circumstances of the present case. In that judgment, it was held that the suit for rendition of accounts was not maintainable because the plaintiff failed to establish any independent title to the immovable property and could not prove that the defendant was permitted to enter the property as a licensee. However, the judgment itself outlined two exceptions to this principle: where the plaintiff is in settled possession of the property and/or where the relationship between the parties is that of a licensor and licensee.
6
Neutral Citation: 2024:DHC:323 Digitally
signed by
AYUSH
AYUSH SHARMA
Suit No 8264/16 Pg 23 of 28 SHARMA Date:
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40. In the present case, the defendant's possession of the suit property arose through the plaintiff and her husband, and his status in the property is that of a licensee. Once it is established that the defendant entered the property through the plaintiff, any claim challenging the plaintiff's title or asserting adverse possession becomes untenable and is further barred by Section 116 of the Indian Evidence Act. The underlying policy of section 116 is that where a person has been brought into possession as a tenant by the landlord and if that tenant is permitted to question the title of the landlord at the time of the settlement, then that will give rise to extreme confusion into the matter of relationship of landlord and tenant and so the equitable principle of estoppel has been incorporated by the legislature in the said section.7
41. The defendant has failed to prove his defences, and at most, his status can only be considered that of a licensee in the suit property as he acquired possession of the suit property through the plaintiff. The plaintiff terminated the license through a dated 01.05.2008, Ex. PW1/5 (Colly), the service of which the defendant has not disputed. Since all conditions for the recovery of possession have been met and the defendants have not proven their claim of adverse possession (and/or of title), issues (ii) and
(v) are decided in favour of the plaintiff.
42. Apart from the merits (which have already been discussed and addressed), the counsel for the defendant also raised an objection, arguing that this court lacks the pecuniary jurisdiction to adjudicate the present suit. He contended that the suit property falls under category "F" as per the classification by the Government of NCT of Delhi. According to him, the circle rate for the suit property in 2007-2008 was Rs. 16,100/- per square 7 Bansraj Laltaprasad Mishra v. Stanley Parker Jones (2006) 3 SCC 91.
Digitally
signed by
Suit No 8264/16 Pg 24 of 28 AYUSH
AYUSH
SHARMA
SHARMA Date:
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yard, making the total value of the property exceed Rs. 5 lakhs, which would place it beyond the pecuniary jurisdiction of this court. However, this objection is baseless and cannot be sustained. The fundamental principle is that once a licensee, always a licensee, and a licensee cannot deny or exclude the possession of the licensor. This suit is essentially for possession, and the plaintiff is not barred from seeking recovery of possession simply because the relief has not been framed as a mandatory injunction.
43. Moreover, it is pertinent to note that no such issue was raised when the issues in the suit were framed on 02.04.2011. It is settled position of law that as per Section 21 (1) of CPC, the objection as to pecuniary jurisdiction has to be raised at the first instance and prior to the framing of issues; failing which the said objection is deemed to have been waived. The Hon'ble Supreme Court in the case of Harshad Chiman Lal Modi Vs. DLF Universal Ltd. and Anr.8 held:
"30. We are unable to uphold the contention. The jurisdiction of a court may be classified into several categories. The important categories are (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and
(iii) Jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject matter of the suit by reason of any limitation 8 (2005) 7 SCC 791 Digitally signed by AYUSH Suit No 8264/16 Pg 25 of 28 AYUSH SHARMA SHARMA Date:
2025.01.13 14:33:58 +0530 imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is nullity."
44. Consequently, the defendant's objection regarding the lack of pecuniary jurisdiction is no longer valid for consideration based on the aforementioned reasons.
Issue no. (iii) and (iv) (Recovery of Rs. 21,000/- on account of damages and pendente and future damages @ Rs. 2000/- per month).
45. The plaintiff has claimed damages of Rs. 21,000/- @ Rs. 3,000/- per month from the date of legal notice i.e. 01.05.2008 till 30.11.2008 and pendente lite and future damages for use and occupation for suit property at the rate of Rs. 3000/- per month. On 29.05.2023, the Ld. Legal Aid Counsel for the plaintiff stated that she does not wish to press for pre-suit mesne profits as no court fees has been paid. However, the perusal of the file reflects that the plaintiff has paid the appropriate court fees of Rs. 2,832/- on the pre suit damages. Since Issue No. (ii) has been decided in favour of the plaintiff as the defendant has failed to prove his claim of adverse possession and/or title, the plaintiff is entitled to damages of Rs. 21,000 @ Rs. 3,000/- per month from the date of legal notice i.e. 01.05.2008 till 30.11.2008, as well as pendente lite and future damages. The defendant did not cross-examine the plaintiff regarding the rate and quantum of damages claimed. Moreover, taking judicial notice of the prevailing rent rates in Delhi, I find that the claim for damages at Rs. 3,000/- per month is reasonable. Accordingly, damages of Rs. 21,000/- for the use and occupation of the suit property from the date of legal notice i.e. 01.05.2008 till 30.11.2008, along with pendente lite and future damages at the same rate, are awarded to the plaintiff until the suit property is handed Digitally signed by AYUSH AYUSH SHARMA Suit No 8264/16 Pg 26 of 28 SHARMA Date:
2025.01.13 14:34:02 +0530 over to her. The issues are decided in favour of the plaintiff and against the defendant.
Issue no. (i) (on permanent injunction)
46. The plaintiff has sought a permanent injunction against the defendant to prevent them from creating any third-party rights in the suit property. Since Issue No. (ii) has been decided in favour of the plaintiff, it follows that the defendant has no rights in the suit property. Therefore, the plaintiff is entitled to a permanent injunction against the defendant. The issue is accordingly decided in favour of the plaintiff. Relief
47. In view of the above discussion, the suit of the plaintiff stands decreed with the following reliefs:
i. The defendant is directed to handover the vacant and peaceful possession of the suit property viz. first and second floor, comprising one room and a kitchen on the first floor and one room along with a bathroom and toilet on the second floor, of property bearing no. E-35, Gali No. 17, Madhu Vihar, Delhi-110092 (hereinafter 'suit property'), more specifically shown in red colour in the site plan attached with the plaint, within 30 days from today. ii. Defendant shall pay a sum of Rs. 21,000/- (@Rs. 3000/- per month) to the plaintiff on account of damages for use and occupation of the suit property from the date of legal notice i.e. 01.05.2008 till 30.11.2008 iii. Defendant shall also pay use and occupation charges @ Rs. 3000/-
per month from the date of filing of suit till handing over possession of the suit property to the plaintiff subject to payment of deficient court fees.
Digitally
signed by
AYUSH
Suit No 8264/16 Pg 27 of 28 AYUSH SHARMA
SHARMA Date:
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iv. The defendant is permanently restrained from creating any third
party interest or parting with the possession of the suit property. v. Costs of the suit are also awarded in favour of the plaintiff. Decree sheet be drawn. File be consigned to record room after due compliance. Digitally signed AYUSH by AYUSH SHARMA Pronounced in open court SHARMA Date: 2025.01.13 14:34:14 +0530 On January 13th 2025 (AYUSH SHARMA) CJ/EAST/KARKARDOOMA DELHI/13.01.2025 This judgment contains 28 pages and each page has been signed by me.
Suit No 8264/16 Pg 28 of 28