Delhi District Court
Lala Kanshi Ram Gupta vs Sh. Raghubar Dayal Garg on 24 November, 2018
IN THE COURT OF SHRI RAJ KUMAR: PRESIDING OFFICER:
MOTOR ACCIDENT CLAIMS TRIBUNAL, WEST(01) DELHI
Suit No. 608314/16
1. Lala Kanshi Ram Gupta
S/o Late Sh. Lala Badlu Ram(Deceased)
Through his Legal Heirs
the Plaintiffs no.2 and 3.
2. Sh. Jagdish Rai Aggarwal
S/o Late Kanshi Ram
3. Sh. Ved Prakash
S/o Lala Kanshi Ram(Deceased)
Through his Legal Heirs
a) Smt. Prem Lata W/o Late Sh. Ved Prakash
b) Sh.Manish Gupta S/o Sh. Ved Prakash
c) Smt. Veenu Mittal D/o Sh. Ved Prakash
All R/o House no. 25, Road no. 41, West Punjabi
Bagh, Delhi 110 026 ...... Plaintiffs
Vs.
1. Sh. Raghubar Dayal Garg
2. Sh. Satya Prakash Gupta
Both sons of Late Sh. Lala Kanshi Ram
Both R/o House no. 25, Road no. 41, West Punjabi
Bagh, Delhi 110 026 ...... Defendants
Date of institution of the suit : 13.10.1993
Date on which order was reserved : 25.09.2018
Date of decision : 24.11.2018
Suit No. 608314/16 Page 1 of 24
SUIT FOR MANDATORY INJUNCTION
JUDGMENT
1. At the very outset, it becomes pertinent to mention here that the ld. Predecessor of this court disposed off the abovesaid suit vide judgment and decree dated 26.09.2013. But thereafter, RCA bearing no. 22/2013 was preferred by the defendants before the Appellate Court of the Ld. SCJ/RC(West), THC Delhi and the Ld. Appellate Court vide orders dated 03.03.2014 was pleased to set aside the judgment and decree dated 26.09.2013 and remand back the present suit to the Trial Court after framing of three additional issues. This is how the present suit is being again taken up for disposal vide this judgment.
2. Now, coming to the factual matrix, the facts in brief, necessary for the disposal of the present suit filed by the plaintiffs as disclosed in the plaint are that the plaintiffs are the joint owners of the property bearing no. 25, Road no. 41, measuring 2209.26 sq. yards, Punjabi Bagh, Delhi by virtue of a registered sale deed dated 22.10.1964 duly registered with the office of the SubRegistrar, Delhi. 2.1 It has been further stated that the defendants are the sons of the plaintiff no.1(who expired during the pendency of the present suit) and the real brothers of the plaintiff no.2 Sh. Jagdish Rai Aggarwal and the deceased plaintiff no.3 Sh. Ved Prakash(who also expired during the pendency of the present suit).
2.2 It has been further stated that earlier the defendants were living separately and somewhere in 1971 or 1972, they were evicted by Suit No. 608314/16 Page 2 of 24 their landlord in Shakti Nagar, Delhi. It has been further stated that then the defendants came to the plaintiffs and requested them to allow them to stay in the suit property till they were able to arrange some suitable accommodation. It has been further stated that the plaintiffs allowed the defendants and their family members to stay with them in the portion as shown in red colour in the attached site plan of the abovesaid property. 2.3 It has been further stated that the relationship in between the parties to the present suit got strained and the defendants started creating nuisance to the plaintiffs. It has been alleged that the defendants started abusing the plaintiffs without any provocation. It has been further alleged that this all started in January 1992 when the plaintiffs no.2 and 3 raised a wall in the said property as shown in green colour in the site plan with the consent of the plaintiff no.1. It has been further alleged that the defendant no.1 and his family members falsely claimed 1/6 th share in the said property. It has been further stated that instead of settling the dispute peacefully, a suit for Permanent Injunction was instituted which is pending disposal before the court of Sh. A.K. Mehandirata, the then Ld. Sub Judge, Delhi.
2.4 The plaintiffs have alleged that the defendants have no right, title and interest in the abovesaid property and the possession of the defendants was merely permissive. It has been further stated that the plaintiffs do not want to keep the defendants in the suit property any more. It has been further stated that the plaintiffs also sent the notice dated 06.04.1993 to the defendants but of no use and hence the present suit.
3. On the basis of the abovesaid allegations as contained in the Suit No. 608314/16 Page 3 of 24 plaint, the plaintiffs have prayed that a decree of mandatory injunction be passed directing the defendants to vacate and hand over the physical possession of the suit property as shown in red colour annexed with the plaint to the plaintiffs. The plaintiffs have also prayed for the costs of the suit.
4. Written statement has been filed on record by the defendant no.1 stating therein that the present suit is false and frivolous. It has been further stated that the defendant no.1 has already instituted a suit for Permanent injunction regarding the same property and as such, the present suit is liable to be stayed U/s 10 of the CPC. It has been further stated that the present suit is bad for nonjoinder of Sh. Om Prakash Gupta, who is also one of the share holders.
4.1 The defendant no.1 has taken the stand the property bearing no. 25, Road no. 41, Punjabi Bagh, Delhi is owned by five brothers and their father and the answering defendant has 1/6th share in the property. It has been denied that the possession of the defendants is merely permissive. It has been asserted that the said property was constructed in the year 19711972 and since then, it is jointly owned by the answering defendant. The defendant no.1 has claimed 1/6th share in the abovesaid property. The defendant no.1 has prayed that the present suit be dismissed with special costs.
4.2 Written statement has also been filed on record by the defendant no.2 but the stand of the defendant no.2 is almost the same as is the stand of the defendant no.1. The defendant no.2 has stated that the suit property is the joint property of HUF, though the sale deed is in the name of the plaintiffs. The defendant no.2 has also asserted that he has Suit No. 608314/16 Page 4 of 24 1/6th share in the suit property and that he has been living in the suit property in his own right.
4.3 The defendant no.2 has further stated that the suit of the plaintiffs is time barred. The defendant no.2 has further stated that he is also the owner of the suit property by way of adverse possession as he is in possession of the suit property since the year 19711972. The defendant no.2 has further stated that the abovesaid property is owned by five brothers and their father. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiffs be dismissed with special costs.
4.4 Separate replications to the separate written statements have been filed on record by the plaintiffs, reiterating and reaffirming the stand taken by the plaintiffs in the plaint and denying the contents of the written statements.
5. Vide orders dated 16.11.1994, the following issues were framed by the Ld. Predecessor of this Court: 1 Whether the suit is liable to be stayed U/s 10 of the CPC? OPD 2 Whether the suit is barred by time? OPD 3 Whether the plaintiff is entitled to mandatory injunction? OPP 4 Relief.
6. Perusal of the record of the case reveals that the following additional issue as issue no.4 was also framed by the Ld. Predecessor of this court on 17.05.1996:
Issue no.4 Whether the defendants are in possession of the suit property as owners thereof? OPD Suit No. 608314/16 Page 5 of 24
7. As stated herein above, the Ld. Appellate Court vide orders dated 03.03.2014 was pleased to frame the following three additional issues in the present matter:
1 Whether the plaintiffs are entitled to possession of the suit property upon the basis of will dated 12.11.1999 executed by late Lala Kanshi Ram? OPP 2 Whether the suit of mandatory injunction simpliciter is maintainable in its present form? OPD 3 Whether the suit has been properly valued for the purpose of court fees? OPD EVIDENCE:
8. The plaintiffs have examined the plaintiff no.3 Sh. Ved Prakash as PW1 and in his evidence by way of affidavit Ex.PW1/A on record, he has reiterated and reaffirmed the stand as taken by the plaintiffs in the plaint. He has filed on record the copy of the Will dated 12.11.1999 executed by the deceased plaintiff no.1 in favour of the plaintiffs no.2 and 3 as Ex.PW1/1, the Release deed dated 31.07.1956 as mark P1, Another Release Deed dated 31.07.1956 as Ex.PW1/3, the copy of notice dated 06.04.1993 as Ex. PW1/4, its postal receipts and AD card as Ex.PW1/4A and Ex.PW1/4B, the copy of the orders dated 08.10.2002 passed in suit no. 1038/1997, which is a suit for Partition as Ex.PW1/5, the House Tax Receipts dated 31.10.2002 and 31.03.2002 as Ex.PW1/6 and Ex.PW1/7 and the Water Consumption Bill dated 16.05.1983 as Ex.PW1/8.
9. In the crossexamination, PW1 has stated that at the time of Suit No. 608314/16 Page 6 of 24 the execution of the Release Deed mark P1, he was 14 years old. PW1 further states that the copy of the release deed was handed over to him in the year 1956 itself. PW1 further states that in the year 1964, he was doing a job at Jaipur and getting Rs. 300/ per month as salary. PW1 further states that he paid Rs. 7000/ to purchase the property at Punjabi Bagh in cash only.
10. PW1 further states that the source of income of his father was from the business of Jai Bharat Trading Company. PW1 further states that the Will was executed at home by his father and the said Will was signed by his father before the Registrar. PW1 further states that at the time of the execution of the Will before the Registrar, one Sh. Vinod Kumar Aggarwal and one more person were present. PW1 has further stated that in Jai Bharat concern, originally the partners were late Lala Kanshi Ram, Sh. Ram Chander Gupta, Sh. Chaturbhuj Garg and Sh. Rattan Lal Garg.
11. The plaintiffs have further examined the plaintiff no.2 Sh. Jagdish Rai Aggarwl and this witness, in his evidence by way of affidavit Ex.P2 has reiterated and reaffirmed the stands as taken by the plaintiffs in the plaint. He has filed on record the site plan as Ex.PW2/1, the carbon copy of the letter dated 25.04.1997 written to SHO PS Punjabi Bagh as Ex.PW2/2, the letter dated 24.07.2005 issued by the MCD as Ex.PW2/3, the receipt dated 02.01.1992 with respect to the property tax as Ex.PW2/4, the photocopy of the certificate of Higher Secondary Education Delhi to Sh. Jagdish Rai Aggarwal as Ex.PW2/5(OSR), the photocopy of provisional certificate issued to Sh. Jagdish Rai Aggarwal as mark X1, the photocopy of the property tax receipt for the year 1972 Suit No. 608314/16 Page 7 of 24 73 as mark X2, the photocopy of the property tax receipt bearing no. 618052 as mark X3, the photocopy of the property tax receipt bearing no. 831018 as mark X4, the photocopy of the Water bill for the period from 14.02.1993 to 16.05.1983 as mark X5, the photocopy of the orders dated 15.07.1961 passed by the Assistance Registrar Community Society, Ajmer as Ex.PW2/6, the photocopy of the ration card as mark X6, the photocopy of Release Deed dated 31.07.1956 and the photocopy of another Release Deed dated 31.07.1956 are marked as mark X7 and X8, the certified copy of the sale deed dated 22.10.1964 as Ex.PW2/7.
12. PW2 was cross examined on 05.05.2010 and thereafter on 04.04.2018 also, after the remanding back of this matter by the Ld. Appellate Court vide orders 03.03.2014.
13. PW2 in the crossexamination has admitted it to be correct that the defendants no.1 and 2 are the sons of Late Lala Kanshi Ram, who expired at Delhi on 06.01.2001. PW2 further states that his father was doing business in the name of Jai Bharat Trading Company as partner. PW2 further states that he does not know when the said firm was commenced but roughly, it commenced in the year 1949. PW2 further states that he does not know as to from where the capital was invested in the firm by late Lala Kanshi Ram.
14. PW2 further states that the property in dispute was purchased in the year 1964 by his father and the plaintiffs. PW2 further states that he joined as Inspector of the Cooperative Society in the year 1961 and he worked till the year 1966. PW2 further states that in the year 1961, his salary was about Rs. 350/ per month. PW2 has denied the suggestion that on 12.11.1999, late Lala Kanshi Ram was not in a Suit No. 608314/16 Page 8 of 24 condition to execute the Will. PW2 has admitted it to be correct that M/s Jai Bharat Trading Company has not been dissolved till date and the assets of the said company have not been apportioned till date. PW2 further states that he was not present at the time when the Will of Lala Kanshi Ram was written. PW2 further states that Lala Kanshi Ram did not know how to read and write English language but he could sign in English language. PW2 further states that the Will dated 12.11.1999 is a registered Will and the same cannot be forged and fabricated.
15. The plaintiffs have further examined Sh. Ramesh Chander Gupta as PW3 and this witness in his examinationinchief has stated that the photocopy of the Release Deed bears his signatures at point X. This witness has further stated that he knows both the brothers Sh. Raghubar Dayal Garg and Sh. Satya Prakash and both the said brothers were living together in a rented accommodation bearing house no. 24/24, Shakti Nagar, Delhi and from there, they shifted to Punjabi Bagh in the year 197273.
16. The plaintiffs have further examined Sh. Dinesh Kumar, an attesting witness to the Will as PW4. This witness has stated that he identifies the signatures of the Executor of the Will, the signatures of Sh. Vinod Kumar Aggarwal and his own signatures on the Will, which has been exhibited as Ex.PW4/4 in his examinationinchief.
17. In the crossexamination, PW4 states that Lala Kanshi Ram was about 80 to 85 years old at the time of the execution of the Will. PW4 further states that his grandfather and Lala Kanshi Ram were friends for the last more than 50 years. PW4 further states that he was called for endorsing upon the Will by Lala Kanshi Ram. PW4 further Suit No. 608314/16 Page 9 of 24 states that Lala Kanshi Ram was of sound health when he was called. PW4 further states that at the relevant time, when he reached at the residence of Lala Kanshi Ram, apart from him, one Mr. Vinod and Lala Kanshi Ram ji and one or two their family members were present. PW4 further states that his signatures were obtained on the Will at the house of Lala Kanshi Ram. PW4 further states that first of all, he put his signatures on the Will and he had gone through the Will before signing the same. PW4 further states that thereafter Lala Kanshi Ram signed the same. PW4 further states that he met Lala Kanshi Ram at Agarsen hospital before his death. PW4 further states that Mr. Vinod Kumar signed the Will in the last.
18. The defendant no.1 Sh. Raghubar Dayal Garg has examined himself as DW1 and in his evidence by way of affidavit Ex.DW1/1, he has reiterated and reaffirmed the stand as taken by him in his written statement.
19. DW1 in his crossexamination states that he does not know as to when and how the HUF business came into existence. DW1 further states that the HUF business was closed w.e.f. 1980 on account of the disputes. DW1 further states that the smaller HUF business was also started in the year 1948. DW1 further states that he has no written proof regarding the investment of capital in the smaller HUF business. DW1 further states that no writing was executed with respect to the closing of the HUF business in the year 1980. DW1 admits that he had received the amount of Rs. 14,000/ but he states that the said amount was received by him on account of the remuneration. DW1 further states that there was no larger or smaller firm. DW1 further states that he cannot produce any Suit No. 608314/16 Page 10 of 24 partnership deed pertaining to M/s Jai Bharat Trading Company. DW1 further states that he has not placed on record any documentary proof to show the ownership of Lala Badloo Ram in respect of the properties as stated by him in his affidavit.
20. The defendant no.2 Sh. Satya Prakash Gupta has also examined himself as DW2 and in his evidence by way of affidavit Ex.DW2/1, he has reiterated and reaffirmed the stand as taken by him in his written statement.
21. DW2 in the crossexamination has denied his signatures on the release deed dated 31.07.1956. DW2 further states that he has filed the written statement in the present case but the same does not bear his signatures. However, DW2 admits his signatures on his written statement in the same cross examination. DW2 further staets that he cannot tell as to how much amount was contributed by him in purchasing the property situated at Punjabi Bagh. DW2 further states that he does not know as to whether his father had written any Will or not. DW2 further states that his father expired on 06.02.2001.
22. The defendants have examined Sh. Chander Prakash Garg and Sh. Ramesh Chander Gupta as DW3 & DW4. Both these witnesses in their examinationinchief have stated that Lala Kanshi Ram was not aware of English language. Both these witnesses have further stated that Raghubar Dayal Garg, Ved Prakash and Satya Prakash used to stay in the Punjabi Bagh property.
23. DW3 has stated in his examination in chief that Lala Kanshi Ram used to stay in a separate house at Peeragarhi and he used to say that he will give his entire property to the defence and as such, he could not Suit No. 608314/16 Page 11 of 24 have executed any Will.
24. DW4 has stated in his examinationinchief that Lala Kanshi Ram used to resident at Mangol Puri.
25. In the crossexamination, DW3 states that he had visited Lala Kanshi at Peeragarhi.
26. In the crossexamination, DW4 states that earlier the behavior of Satya Prakash and Raghubar Dayal was not good with Lala Kanshi Ram but he does not know about their conduct at a later stage. DW4 was shown the certified copy of the Will and he admitted that the photograph on the Will Ex. PW1/1 was that of Lala Kanshi Ram. However, DW4 has failed to tell as to whether the said Will was bearing the signatures of Lala Kanshi Ram or not. DW4 further states that he has no evidence to show that Lala Kanshi Ram used to stay at Mangolpuri. DW4 further states that he had visited Lala Kanshi Ram in the hospital before his death. DW4 has admitted it to be correct that Ved Prakash and Jagdish Rai used to look after their father Lala Kanshi Ram.
27. After the remanding back of this matter by the Ld. Appellate Court, the defendants have also examined Sh. Raju Singh, Record Incharge from Maharaj Agarsen Hospital, Punjabi Bagh Delhi as DWX on 26.02.2015. In his evidence by way of affidavit Ex.DWX/A, this witness has stated that he was not able to submit the record pertaining to admission and discharge of Lala Kanshi Ram as the same was not available. He has placed on record the copy of the orders dated 05.07.2010 which contains the policy for retention of the hospital records as Ex.DWX/1.
28. I have carefully gone through the entire material available on Suit No. 608314/16 Page 12 of 24 record and heard the rival submissions of both the Ld. Counsels for the parties. I have also meticulously perused the written final arguments filed by the Ld. Counsel for the defendants no.1 and 2.
29. My issue wise findings on the aforesaid issues are as under: ISSUE NO.1
30. The onus to prove issue no.1 has been placed upon the defendants. Perusal of the record of the case reveals that issue no.1 was treated as an preliminary issue and was decided by the Ld. Predecessor of this court in favour of the plaintiff vide orders dated 12.08.1997. As such, the abovesaid issue does not survive for adjudication any more as the findings on the said issue have already become final. ISSUE NO.3 framed on 16.11.1994, Additional issue framed on 17.05.1996 and Issue no.1 framed by the Ld. Appellate Court on 03.03.2014.
31. All these issues are being taken up together for disposal as the same are connected interse and overlap each other.
32. The plaintiffs have placed on record the certified copy of the sale deed dated 22.10.1974 in the form of Ex.PW2/7. The said sale deed is in favour of the plaintiffs in the capacity of a joint owners. The defence of the defendants is to the effect that the abovesaid suit property was purchased out of the funds of M/s Jai Bharat Trading Company though the said sale deed was executed in favour of the plaintiffs. It has been further argued that the business of M/s Jai Bharat Trading Company was a HUF business and the real character of the said property remained as the HUF property.
Suit No. 608314/16 Page 13 of 2433. It becomes pertinent to mention here that Sh. Satya Prakash, who is the defendant no.2 in the present suit instituted the suit bearing no. 608605/16 titled as Satya Prakash Gupta Vs. Lala Kanshi Ram, which is a suit for Partition. The plaintiff Satya Prakash Gupta in the said suit has mentioned the list of the properties including the property situated at Punjabi Bagh which is the subject matter of the said suit, which are liable for Partition. The abovesaid suit has already been dismissed by this court vide separate orders announced in the said suit as on date itself.
34. Now, in the case in hand, to my mind, the onus to prove that the property situated at Punjabi Bagh was the HUF was upon the defendants.
35. Now, if the crossexamination of DW1 and DW2 is carefully gone through, it becomes evidently and apparently clear that nothing has been placed on record by the defendants to show that M/s Jai Bharat Trading Company was constituted as the HUF business concern. To my mind, both the DWs have stated that nothing has been placed on record by them to show that the business of M/s Jai Bharat Trading Company was the HUF business or the properties allegedly purchased by the said firm were the HUF properties. Even the existence of the properties owned by bigger HUF of Sh. Badloo Ram has not been proved as per the crossexamination of DW1 and DW2. As such, to my mind, the defendants have utterly failed to prove on record their stand that the suit property was a joint property of the HUF.
36. In the written final arguments, it has been argued that incorrect site plan has been placed on record by the plaintiffs. It has to be seen that the site plan placed on record by PW2 has been exhibited as Suit No. 608314/16 Page 14 of 24 Ex.PW2/1 and the portion in possession of the defendants has been shown in red colour.
37. The settled law is that if the defendants dispute the correctness of the site plan of the plaintiffs, then it is incumbent upon the defendants to file and prove on record their own site plan. In the case in hand, no site plan of their own has been placed on record by the defendants. As such, to my mind, the correctness of the site plan filed by the plaintiffs cannot be disputed.
38. Ld. Counsel for the defendants has relied upon the authorities titled as Deepak Gupta Vs. Parveem Kumar Gupta cited in CRP no. 194/2010 on 11.07.2012, 2012(6) AD, Delhi 440, the authority titled as Devender Lal Mehta Vs. Dharmender Mehta, cited as 2009(160) DLT 22, the authority titled as Dhannu Lal and others Vs. Ganesh Ram and another cited as III (2015) SLT 604, the authority titled as Yamnam Ongbi Tampha Ibemma Devi Vs. Yumnam Joy Kmar Singh passed by the Hon'ble Supreme Court of India cited as 2009(4) SCC 780, the authority titled as Neeraj Katyal Vs. State and others cited as 2016(229) DLT 466, the authority titled as Sheikh Anis Ahmad Vs. State cited as 2011(5) ILR(Delhi) 55, the authority titled as Seth Beni Chand Vs Smt. Kamla Kunwar and others cited as (1976) 4 SCC 554, the authority titled as Goculchand Gandhi Chandratan Gandhi Vs. Smt. Jamuna Bai cited as AIR (33) 1946 Calcutta 168, the authority titled as Timanavva Dundappa Budihal Vs. Channava Appaya Kanasgeri cited as AIR(35) 1948 Bombay 322, the authority titled as Surender Kumar Grover Vs. State cited as 2011(177) DLT 188, the authority titled as Hardev Singh Vs. Gurmail Singh cited as (2007) 2 SCC 404, the authority titled as Kashibai W/o Suit No. 608314/16 Page 15 of 24 Lachiram and another Vs. Parwatibai W/o Sh. Lachiram and others cited as 1995(6) SCC 213.
39. Ld. Counsel for the defendants has vehemently argued that the Will dated 12.11.1999 has not been proved at all. It has been further argued that the medical records have been placed on record in the form of Ex.PW6/1 of Late Lala Kanshi Ram to show that he was not having sound physical and mental condition to execute the Will.
40. It has to be seen that in the other suit bearing no. 608605/16 titled as Satya Prakash Gupta Vs. Lala Kanshi Ram, the certified copy of the orders dated 24.11.11 in the form of Ex.PW1/D4 passed in RFA(OS) no. 23/2010 titled as Satya Prakash Gupta Vs. Vikas Gupta and others has been filed which clearly states that the orders dated 09.02.2010 passed by the Hon'ble Single Judge of the Hon'ble High Court of Delhi was challenged before the Hon'ble Division Bench and the Hon'ble Division Bench was pleased to dismiss the appeal vide orders dated 24.11.11. A bare perusal of the said orders reveals that the Will and two Release Deeds were the subject matters of the judgment dated 09.02.2010 and the appeal dated 24.11.2011.
41. To my mind, the validity of the Will dated 12.11.1999 and two Release Deeds dated 31.07.1956 has already been upheld by the Hon'ble High Court of Delhi and as such, the defendant cannot dispute either the validity of the Will dated 12.11.1999 or the validity of two Release Deeds dated 31.07.1956 executed by the defendants no. 1 and 2.
42. Further more, it has to be seen that PW4 is the material witness on the aspect of the Will. PW4 has categorically stated that he had signed the said Will dated 12.11.1999, the testator had also signed Suit No. 608314/16 Page 16 of 24 the said Will and the said attesting witness namely Sh. Vinod had also signed the Will in his presence.
43. PW4 has been cross examined at length but nothing material has come out during the crossexamination of PW4 so as to discredit his testimony.
44. DW4 Sh. Ramesh Chander Gupta is the witness examined by the defendants. In his crossexamination, he has categorically stated that the behavior of the defendants was not good with Lala Kanshi Ram. The said witness has identified the photograph of Lala Kanshi Ram on the Will dated 12.11.1999. He has not denied the signatures of Lala Kanshi Ram on the said Will. He has admitted it to be correct that Sh. Ved Prakash and Sh. Jagdish Rai used to look after their father Lala Kanshi Ram.
45. As such, to my mind, the abovesaid testimony of DW4 strengthens the case of the plaintiffs and demolishes the version as put forward by the defendants.
46. Of course, the medical record of Lala Kanshi Ram has been placed on record by PW6 but to my mind, it has not been sufficiently proved on record that Lala Kanshi Ram was not having sound physical and mental condition on the date of the execution of the Will or that he was not in a position to execute the Will dated 12.11.1999. Not even a single suggestion has been given to PW4 to the effect that the health of Lala Kanshi Ram was not good at the time of the execution of the Will.
47. As such, to my mind, the plaintiffs have been able to prove the Will dated 12.11.1999 and two Release Deeds dated 31.07.1956.
48. The plea of adverse possession had also been taken by the Suit No. 608314/16 Page 17 of 24 plaintiffs but it has to be seen that the abovesaid plea is merely a vague plea in the absence of anything substantial.
49. So far as law of adverse possession is concerned, the law is well settled in the various judgments of the Hon'ble Superior courts.
50. In Saroop Singh v. Banto and Ors. (2005) 8 SCC 330, the Hob'ble Apex Court has held as under: "In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. ......."Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus.
The said statement of law was reiterated in T. Anjanappa and Ors. v. Somalingappa and Anr. 2006) (8) Scale 624 : (2006) 7 SCC 570, wherein it was observed :
"It is wellrecognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of Suit No. 608314/16 Page 18 of 24 title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."
51. The defendants have utterly failed to specify as to since when their possession became hostile not only against the plaintiffs but against the whole of the world. In the ratio of the above stated authorities, to my mind, the defendants have utterly failed to prove the plea of adverse possession.
52. In the light of the abovesaid discussion, to my mind, the plaintiffs have been able to prove that they are entitled for the relief of Mandatory Injunction and that they are entitled to the possession of the suit property on the basis of Will dated 12.11.1999 executed by Lala Kanshi Ram. Accordingly, issue no.3 framed on 16.11.1994, issue no.1 framed on 03.03.2014 by the Ld. Appellate Court are decided in favour of the plaintiffs and against the defendants. Additional issue no.4 framed on 17.05.1996 is decided against the defendants. ISSUE NO.2 FRAMED ON 16.11.1994
53. The onus to prove this issue has been placed upon the defendants.
54. The defendants have taken the objection that the present suit is barred by the law of limitation.
55. It has to be seen that the plaintiffs have placed on record the Suit No. 608314/16 Page 19 of 24 copy of the legal notice dated 06.04.1993 as Ex.PW1/4 demanding the possession from the defendant no.4.
56. Under issue no.3, it has already been held that the possession of the defendants is merely permissive and the defendants have been residing in the said property merely in the capacity of licensees only. The present suit has been instituted by the plaintiffs on 13.10.1993.
57. As such, to my mind, the defendants have failed to specify as to how the present suit is barred by the law of limitation. Accordingly, issue no. 2 is decided in favour of the plaintiffs and against the defendants.
ISSUE NO.2 AND 3 FRAMED BY THE LD. APPELLATE COURT ON 03.03.2014
58. Ld. Counsel for the defendants have vehemently argued that the suit of the mandatory injunction simpliciter is not maintainable because the plaintiffs have sought for the relief of the possession under the garb of mandatory injunction. It has been further stated that appropriate court fees have not been paid by the plaintiffs. The defendants in their written final arguments have relied upon the orders dated 11.07.2012 passed in CRP. no. 194/2010 titled as Deepak Gupta Vs. Praveen Kumar Gupta and have argued that the suit as framed is not maintainable.
59. The present suit was instituted by Lala Kanshi Ram when he was alive and he was the plaintiff no.1 in the present suit. The defendants no.1 and 2 are the sons of the Lala Kanshi Ram.
60. Under issue no.3, it has already been held that the possession Suit No. 608314/16 Page 20 of 24 of the defendants in the said suit property is merely as that of a licensee. It has to be seen the suit for mandatory injunction against a licensee by cancellation of his license is maintainable and no advalorem court fees are payable in the said suit. Particularly, when a person is residing with his parents in the house owned by the parents, he cannot claim any legal character much less the character of a licensee.
61. While holding so, I am fortified by the ratio of the following judgments:
(1) cited as 2006 (4) RCR (Civil) page no. 777, 2007 (1) PLR page no.
398 titled as Jagdish Vs. Brij Lal : "Court Fee Act, 1870, Section 7 (V) Injunction suit Suit for possession by way of mandatory injunction against the licensee by cancellation of his licence is maintainable No ad valorem court fee is payable on such a suit."
(2) cited as 1993(1) Civ. C.C. 497: 1993 AIR (Allahabad) 138 titled as Ajab Singh Vs. Shital Puri: "Specific Relief Act, 1963, Sections 38, 39.
Termination of license A Suit for mandatory injunction against licence for delivery of possession, filed without undue delay is maintainable."
(3) AIR 1995 Bomb. 210 titled as Conrad Dias of Bombay Vs. Joseph Dias of Bombay, wherein it has been held that: "Licencee person residing with parents in house He is not licensee.
A person who is residing with the Suit No. 608314/16 Page 21 of 24 parents in the house cannot claim any legal character much leas, the character of a licensee as defined in Section 52, but he is residing simpliciter as a member of the family and nothing more and nothing less.
Specific Relief Act (47 of 1963), Section 38 Frame of suit Suit by owner of house who was in joint possession alongwith defendant son, for injunction restraining defendant from entering or remaining in house Held, since defendant had no legal right to continue to stay in house, suit as framed was perfectly proper."
62. In the light of the abovesaid discussion, to my mind, the issue no.2 and 3 as framed on 31.03.2014 by the Ld. Appellate Court are decided against the defendants and in favour of the plaintiffs. RELIEF:
63. In view of my findings on the abovesaid foregoing issues, the suit of the plaintiffs is hereby decreed and a decree of mandatory injunction with the directions to the defendants to hand over the peaceful and vacant possession of the suit property as shown in red colour in the site plan Ex.PW2/1 consisting of the portion of basement, mezzanine floor and garage to the plaintiffs in respect of House no. 25 Road no. 41 measuring 2209.26 sq. yards, West Punjabi Bagh, Delhi 110 026 is hereby passed.
The costs of the suit are also awarded in favour of the plaintiffs. Decree sheet be prepared accordingly by the Reader after Suit No. 608314/16 Page 22 of 24 payment of additional court fees, if any. File be consigned to record room.
Announced in the open court (RAJ KUMAR) on this 24th day of November 2018. JUDGE MACT01(WEST) Tis Hazari Courts, Delhi.
Digitally
signed by
RAJ
RAJ KUMAR
KUMAR Date:
2018.11.29
13:58:53
+0530
Suit No. 608314/16 Page 23 of 24
CS no. 608314/16
24.11.2018
Present : None.
Vide my separate judgment of even date, announced in the open court today, the suit of the plaintiffs has been decreed.
The costs of the suit are also awarded in favour of the plaintiff.
Decree sheet be prepared accordingly by the Reader, after payment of the additional court fees, if any.
File be consigned to Record Room after due compliance.
(Raj Kumar) Judge : MACT-01(West) Delhi/24.11.2018 Suit No. 608314/16 Page 24 of 24