Delhi High Court
Shri Arjan Dev vs Shri Om Parkash on 28 November, 1991
Equivalent citations: AIR 1992 DELHI 202, (1993) 1 CURLJ(CCR) 82, (1992) 2 RRR 309, (1992) 2 RENCR 26, (1992) 2 PUN LR 74
Author: D. P. Wadhwa
Bench: D. P. Wadhwa, D. K. Jain
ORDER D. P. Wadhwa, J.
1. This is an appeal by the defendant against the judgment and decree dated 6 July 1991 of the Additional District Judge whereby the suit of the plaintiff for possession and for damages amounting to Rs. 2,250/- was decreed being the mesne profits from the date of notice till date of filing of the suit with proportionate costs. The defendant was further directed to pay future damages at the rate of Rs. 500/- per month w.e.f. 9 March 1987 till the date of decree amounting to Rs. 26,000/- and covering the period up to 8 July 1991 provided the plaintiff makes up the deficiency in court fee. It was also ordered that the defendant shall pay further mesne profits till the date he vacates the suit property.
2. The plaintiff filed the suit for recovery of possession and mesne profits amounting to Rs. 18,000/ - against the defendant who is his younger brother. The plaintiff said he was the owner of property bearing No. 4D/ 37, Old Rajinder Nagar, New Delhi, which he had purchased from the Ministry of Rehabilitation, Government of India, New Delhi. A perpetual lease deed respecting the land underneath was executed in his favor on 22 January 1970 and was duly registered. A supplemental deed conveying the property was also executed in his favor on 29 May 1973 which was said to be effective from I January 1954. The plaintiff said his mother, his two other brothers one of them being the defendant and three sisters migrated from Pakistan to India at the time of partition of the country when the plaintiff himself was employed in the Indian Navy and was posted at Singapore. He said on his request the aforesaid property was allotted to him by the Naval Headquarters he being in the employment of defense forces. He said rent of this property was being paid by his mother to whom he used to send money. The defendant at that time was a minor and was staying with his mother and so also the sisters. The other brother is elder to the plaintiff. He was not staying in this house. The mother of the parties died in 1964. The plaintiff was married in 1964 and the defendant in 1966. After the marriage of the defendant, it appears, certain disputes arose in the family. The defendant separated his kitchen as earlier all the family members were having a common kitchen. The plaintiff sought a voluntary retirement from the Navy in the year 1959 and then settled in Delhi. The defendant at the time of filing the suit was in occupation of one room measuring 8'x 12' and a kitchen measuring 8'x 8' in the property in question. The plaint also recites that when the family migrated from Pakistan a compensation of Rs. 61,466/ - was passed in lieu of the properties left by the deceased father of the parties in Pakistan. This amount was separated into four shares, i.e. the mother an d three sons, each one getting his separate amount in cash from the Ministry of Re habilitation. Plaintiff said he was the sole owner of the property in question. He served a notice on the defendant to vacate the portion in his occupation. The defendant did not do so. The plaintiff also claimed damages for the past three years at the rate of Rs. 1,000/, per month. Since the defendant did not comply with the notice the plaintiff filed this suit claiming possession as well as, seeking recovery of damages at the rate of Rs. 500/ - per month for the last three years. He valued the suit property at Rs. 33,000/ -.
3. Defendant in his written statement said that the suit property was not properly -valued and that the court of the Additional District Judge had no jurisdiction to try that suit. He denied the case set up by the plaintiff. He said plaintiff was not the owner and that the property was a joint family property of all the legal heirs of their late father as the property had been purchased/ acquired out of the compensation pool. Defendant said plaintiff was only a co-sharer in the said property to the extent as provided under the Hindu Succession Act. He said the plaintiff was in fact unable to pay anything towards price of the property as he was drawing a meager salary and indulged in various vices and could not save anything and it was their mother who was running the household from the savings of their deceased father and also from the earnings of their sister Kaushalya who was then employed as a teacher. Defendant said he was in occupation of the property in his own right. He, therefore, denied that he was a licensee. The defendant admitted that he got claim of Rs. 5,081 / - out of the claim accepted by the Department of Rehabilitation respecting the properties left by his deceased father in Pakistan. He, however, said he gave his share to his mother for the marriage of his sister and while the claim of the plaintiff was adjusted against the suit property some amount from the claim of the mother was - also adjusted towards value of this property. He, therefore, said that it was a joint property of all the legal heirs of his deceased father. Defendants then said that the entire cash received against his share of claim by his eldest brother Sriniwas Seth was also given by him to their mother for the wedding of their sister Dantyanti which took place in March' 1956. Defendant s aid that separate claim was made by all the legal heirs in order to get more cash by way of compensation. The defendant lastly raised the plea of his becoming owner by way of adverse possession. To the written statement the plaintiff filed his replication. On the pleas, thus, raised the court framed the following issues:
1. Whether the suit has been properly valued, if so, its effect? OPP
2. Whether defendant was licensee of the plaintiff, if so, its effect? OPP
3. Whether the plaintiff is entitled to mesne profits as claimed. at the rate' of Rs.500/- p.m.? OPP
4. Whether the property is joint family property as alleged by, the defendants, if so, to what effect? OPD
5. Whether the defendant has perfected his title over the portion in his occupation by way of adverse possession? OPD
6. Whether the plaintiff is entitled to possession as claimed? OPP
7. Relief.
4. The learned Additional District Judge decided all the issues in favor of the plaintiff and decreed the suit. The evidence in the case is both oral and documentary. Oral evidence is statement of the plaintiff (PW-1) and two witnesses produced by him. These two witnesses are not of much relevance, They, however, stated that the property in question was allotted to the plaintiff out of defense quota. PW-2 Rushi Ram was himself allotted such a property. Defendant examined himself and also the third brother of the parties S. N. Seth (DW-2). The documents consist of (1) Deed of conveyance of building constructed on leasehold site in favor of the plaintiff (Ext.PWI); (2) Perpetual lease deed of the plot underneath (also Ext. PW 1/ 1); (3) Supplemental Deed (Ext. PW 1/ 2); (4) Certificate of payment of interim compensation to DW-2 (Ext. PW 1/ 3); (5) Certificate of payment of interim compensation paid to the defendant (Ext. PWI/4); -(6) Site plan (Ext.PWI/5); and (7) Notice dated 23 October 1986 addressed by plaintiff's counsel to the defendant (Ext. PW 1/ 6).
5. We have examined the record of the case and the impugned judgment. We find that the learned Additional District Judge has taken correct view of the facts of the case and the law applicable thereto.
6. It was pointed out that on the first issue the trial Court had observed that it was not pressed by the defendant wholeheartedly and perhaps appears to have been given up. The defendant in his written statement said that the value of the suit property was more than Rs. 5 lakhs. At the same time, however, he has said that the damages at the rate of Rs. 500/- month were excessive. In his statement the defendant, however, said that the value of the property was between, Rs. 15 lakhs to Rs. 18 lakhs and at the time when the suit was filed in 1987 its price was around Rs. 10 lakhs. He seems to be referring to the market value of whole of the house. We are not concerned with that. The question is what is the value of the suit property comprising one room and one kitchen in whole of the property. No document has been brought, on record evidencing the market value of. the suit property since it is only a small room measuring 8'x 12'and a kitchen measuring 8'x 8', in our opinion the market value given by the plaintiff has to be accepted. The property has been constructed on a leasehold plot of land and a small room and a kitchen in the property cannot be sold separately and its market value is difficult to assess separately. This issue has been rightly decided in favor of the plaintiff.
7. Issues 2 and 4 have been dealt with together in the impugned judgment. There is no evidence that the suit property is joint family property or that the parties were messing together as a Joint Hindu Family. The documents both marked Ext. PW 1'/ 1 And Ext. PW I / 3 clearly show that it is the plaintiff who is owner of the property. in fact in the documents both marked Ext. PW I/ I the defendant himself has signed as a witness. There is no rebutting the evidence of the plaintiff that the house was allotted to him at the time of partition of the country at his instance when he was serving in the Indian Navy and posted at, Singapore. The claim of the legal heirs of the deceased Dewan Chand Sethi as per Hindu Law existing at that time was accepted by the rehabilitation authorities for Rs. 61,466/-. The claimants were the widow of the deceased Dewan Chand Sethi and his three sons, two of them being the plaintiff and defendant in the suit. The share of all these four legal heirs was assessed at Rs. 15,366.50. Each of the legal heirs got interim compensation, separately, the defendant also getting his share of.Rs.5,081/-. Admittedly, the plaintiff got his claim adjusted towards price of the suit property, and Rs. 200/-. out of the claim of the mother of the parties was also adjusted towards price of the house. Assuming that the compensation received by the defendant and the eldest son S. N. Seth were spent on the wedding of their sister, is hardly sufficient evidence to show that the house was a joint family property. The fact that the claim of the mother to the extent of Rs. 200/- was associated with that of the plaintiff towards purchase price of the house is also no circumstance to hold that it is ajoint family property. Again the fact that the defendant was living with his mother as family member along with sisters of the parties when the plaintiff was posted out is not a circumstance in any way to hold existence of a Joint Hindu Family. The defendant was minor at the time of partition of the country. He was staying with the mother. He got married. Two years earlier the plaintiff got married. Since the family could not pull on together the defendant started his kitchen separately, that could not mean that there was disruption in the status of Joint Hindu Family. No value can be attached to the statement of DW-2, the third brother of the parties, that the house was a joint family property. The defendant never objected that this third brother DW-2 was also necessary in the suit and he did not claim any issue on that account as 'well. There is no document to show that the defendant at any point of time claimed the house to be a Joint Hindu Family Property. In the presence of the documents the oral testimony of the defendant and his brother S. N. Seth (DW-2) has no value. Then Mr. Makhija, learned counsel for the defendant, said that there could not be any license as license could only be created by a contract and the whole basis of the suit was wrong. Under Section 52 of the Indian Easements Act, 1882, license is defined. It says where one person grants to another a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the' absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license. It is not necessary that for purpose of creation of license any instrument be. written. Defendant as a younger brother of the plaintiff had been living in his house with their mother as a family member. When he got married and started his kitchen separately, he continued to stay in the house with the permission of the plaintiff. It did not give any right of easement or interest in the property to the defendant. Under Section 54 of the aforesaid Act, the grant of license may be express or implied from the conduct of the grantor. The defendant was living in the house as brother of the plaintiff and was, therefore, a licensee. The defendant was, therefore, staying in the suit property as a licensee which license was revoked by the plaintiff. This was by notice dated 23 October 1986 (Ext. PWI /6) given by the plaintiff. With these two issues (Issues 2 and 4), issue No, 5 is also connected. The defendant has been unable to prove that he has become owner of the suit property by way of adverse possession. Mere statement that lie has been living in the suit property for over 12 years is certainly not enough to perfect the title by means of adverse possession. The case of the defendant is that he separated his kitchen in 1967 and he claimed himself to be the owner of the suit property and, therefore, the suit which was filed only on 9 March 1987 did not lie against the defendant having become the owner of the suit property. There is no substance in the stand of the defendant. In fact the defendant cannot take two contradictory positions which cannot stand together. He cannot say he has interest in the property as a member of the Joint Hindu Family and at the same time say that he is the owner by way of adverse possession. As noted above, no documentary evidence has been brought on record to show that the defendant ever claimed the suit property to be his exclusive property or advanced any hostile title to that of the plaintiff. This plea appears to be more in desperation than anything else. Issues 2, 4 and 5 are in favor of the plaintiff.
8. On issue No. 3, we find that when the defendant himself values the property for Rs. 5 lakhs and more the amount of damages claimed at the rate of Rs. 500/- are not excessive. We accept the statement of the plaintiff that considering the location of the suit property the plaintiff could have got rent at this rate. The fact that at the time of allotment the rehabilitation authority was charging rent of whole of this property in a few rupees every month is of no relevance. This issue is again in favor of the plaintiff.
9. In this view of the matter, the plaintiff is entitled to claim possession of the suit property as well as the damages claimed.
10. Before parting with this judgment we may note that the defendant as younger brother of the plaintiff has been living in the house since the time the property was allotted. We, therefore, feel that he should be granted some time to hand over possession of the suit property to the plaintiff. We think six months period is sufficient for this purpose. The counsel for the plaintiff states on instructions from the plaintiff who is present in court that in case the defendant hands over peaceful and vacant possession of the suit property to the plaintiff within six months from today, the plaintiff will forego his claim for damages as decreed and also future damages as well till the date of vacation. We feel this is a fair offer and we bind the plaintiff to this undertaking, Accordingly, this appeal fails and is dismissed , but we leave the parties to bear their own costs in this appeal. Six months time is 'granted to the defendant (appellant) to vacate the suit property and hand over peaceful and vacant possession of the same. In case this is not done, the plaintiff (respondent) will be entitled to execute the decree for possession as well as for damages as granted by the trial Court.
Appeal dismissed.