Delhi District Court
Through His Attorney/Wife vs Sh. Darshan Singh Chadha on 20 November, 2013
IN THE COURT OF MS. ANJU BAJAJ CHANDNA
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
C.S. No. 550/08
Unique I. D. No. 02401C1172062006
Sh. Jaspal Singh Chadha,
S/o Late Sh. Dhian Singh Chadha,
R/o P.O. No.74, DKMU Safat, Quwait.
Through his Attorney/wife
Smt. Savinder Kaur,
101, Narang Colony, New Delhi.
......Plaintiff
Versus
Sh. Darshan Singh Chadha,
S/o Late Sh. Dhian Singh Chadha,
R/o 2nd Floor, House No101,
Narang Colony, Janakpuri,
New Delhi.
.......Defendant
SUIT FOR POSSESSION, DAMAGES/MESNE PROFITS WITH
CONSEQUENTIAL RELIEF OF INJUNCTION.
CS No.550/08
Jaspal Singh Chadha Vs. Darshan Singh Chadha 1/33
Date of institution of suit : 01.10.2004
Date of reserving the judgment : 24.10.2013
Date of pronouncement of judgment : 20.11.2013
JUDGMENT
1. The plaintiff Jaspal Singh Chadha has brought the present suit against the defendant Darshan Singh Chadha, seeking possession and damages/mesne profits with consequential relief of injunction with respect to property no.101, Narang Colony, Janak Puri, New Delhi.
2. The suit has been filed by the plaintiff through his wife/attorney Savinder Kaur. It is the case of the plaintiff that Late Sh. Dhian Singh Chadha (father of the plaintiff and defendant) purchased two properties i.e. Flat No.33/474, New Moti Nagar, New Delhi and plot no. 101, Narang Colony, Janak Puri, New Delhi and they were the self acquired properties of the father of the parties. The plaintiff at the time of filing the suit was settled in Quwait and Sh. Dhian Singh Chadha (father of the parties) died on 23.03.2002 while staying with plaintiff at Quwait. The property no. 33/474, New Moti Nagar, New Delhi was given to defendant and conveyance deed was executed in favour of CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 2/33 defendant on 04.07.1991. The defendant sold out the said property on 12.07.1991 to Sh. Dharminder Singh S/o Sh. Bakshish Singh. The second property i.e. suit property bearing no. 101, Narang Colony, Janak Puri, New Delhi was agreed to be sold to the plaintiff by Dhian Singh Chadha and plaintiff built up two and half storied building with his own funds on the said plot. In the year 1985, the plaintiff permitted the defendant to live on barsati floor in the suit property on compassionate grounds as defendant's daughter died in 1984 riots. According to the plaintiff, the conveyance deed with respect to the suit property was executed by DDA in his favour on 03.07.1996 and same was registered on 04.07.1996. The electricity and water connections were also installed in the name of the plaintiff and property has been assessed to house tax in the name of the plaintiff. In the family meeting held on 04.07.1996, defendant was asked to vacate the suit premises to which he agreed to vacate within two years. The right of the defendant to reside in the suit property was only permissive as he was licensee without paying any charges but the defendant failed to vacate the same despite repeated requests and demands. In the year 2004, the defendant incited the plaintiff's tenant namely, Sh. Mohan Kailash Jolly to file false and CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 3/33 frivolous suit against the plaintiff. The defendant also threatened and obstructed the plaintiff and his family members from using the terrace of the barsati floor. The plaintiff served a registered AD/UPC notice dated 28.08.2004 upon the defendant calling upon him to hand over the vacant and peaceful possession of the suit property to the plaintiff and to pay the damages/use and occupation charges w.e.f. 01.10.2004 but the defendant has failed to make any compliance to the said notice. Rather, the defendant threatened the plaintiff's wife to transfer the possession of the suit property to some other person by creating third party interest. It is also alleged that defendant invited local property dealer on 19.09.2004, who visited the suit property and started negotiating for the purposes of creating third party interest but the situation was saved due the intervention of the plaintiff's wife.
3. In view of these facts and circumstances, the plaintiff has prayed for a decree of possession with respect to barsati floor of property no. 101, Narang Colony, Janak Puri, New Delhi as shown in red colour in the site plan and also decree for damages w.e.f. 01.10.2004 alongwith future damages @ Rs.6000/ per month till handing over of the CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 4/33 possession. The plaintiff has also sought injunction, thereby restraining the defendant from handing over the possession of the suit property either in part or in full to any person and from creating any third party interest therein.
4. The defendant contested the suit by filing written statement taking preliminary objections that suit property was never transfered in favour of the plaintiff and it is the joint property of both the plaintiff and the defendant. The agreement to sell and subsequent conveyance deed are stated to be null and void having not been executed and signed by father of the parties Sh. Dhian Singh Chadha. The plaintiff was not in India at the time of execution of the documents. It is also stated that Will dated 14.10.1992 had been withheld by the plaintiff from the Court, which was registered and the suit property was bequeathed to the plaintiff by virtue of the said Will. It is also contended that transfer of the suit property by virtue of Will and by virtue of documents like agreement to sell etc. cannot stand together. The defendant has referred to the report of handwriting expert Mrs. R.K. Vij to dispute signatures of his father Sh. Dhian Singh Chadha on the documents. The defendant has also CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 5/33 claimed having contributed towards the construction of the suit property. The defendant has further taken the objection with respect to cause of action, suppression of material facts, suit being based on forged and fabricated documents, improper valuation of the property and suit having not been filed by a proper and competent person. The objections with respect to maintainability and suit having been filed beyond the period of limitation have also been taken.
5. The defendant has also claimed that he has acquired right and title over the property through adverse possession. On merits, the averments of the plaintiff as contained in the plaint are specifically denied. With respect to property no. 33/474, New Moti Nagar, New Delhi, it is submitted that it was alloted to the defendant for consideration vide conveyance deed duly executed. The suit property has been purchased with the money contributed by the defendant and plaintiff has made no contribution at all. It is also stated that construction has also been raised with the contribution of the defendant. It is denied that property no. 33/474, New Moti Nagar, New Delhi, was given to the defendant. The agreement to sell of the suit property is also disputed by CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 6/33 the defendant and it is claimed that same is false and forged. It is denied that defendant was permitted to live on the barsati floor on compassionate grounds. With respect to electricity connection, it is submitted that it has been fraudulently got transfered by the plaintiff in his name. The conveyance deed dated 03.07.1996 is stated to have been obtained by the plaintiff on the basis of false and forged documents. According to the defendant, suit property does not belong to the plaintiff. The family meeting dated 04.07.1996 is also denied and further the fact that defendant ever agreed to vacate the suit premises. Denying all other averments of the plaintiff as contained in the plaint, the defendant has prayed for dismissal of the suit with costs.
6. The plaintiff filed replication to the written statement of the defendant reiterating the averments of the plaint and controverting those of the written statement. The plaintiff also admitted the Will executed by father dated 14.10.1992.
7. From the pleadings of the parties, following issues were framed vide order dated 26.04.2005 : CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 7/33
1)Whether plaintiff is entitled to a decree of recovery of possession against the defendant in respect of barsati floor of property bearing no. 101, Narang Colony, Janakpuri, New Delhi as shown red in the site plan? OPP
2)Whether plaintiff is entitled to a decree of damages/mesne profit against the defendant in respect of occupation of barsati floor of property bearing no. 101, Narang Colony, Janakpuri, New Delhi w.e.f.
01.10.2004 at the rate of Rs.6000/ p.m. till the date of handing over possession? OPP
3)Whether plaintiff is entitled to the relief of injunction as prayed for? OPP
4)Whether the agreement to sell and subsequent conveyance deed are nonest, null and void since they are not signed and executed by late Sh. Dhian Singh Chadha in favour of plaintiff? OPD
5)Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD
6)Whether this court lacks pecuniary jurisdiction?
OPD CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 8/33
7)Whether the suit has not been filed verified by a competent person? OPD
8)Whether the suit is barred by limitation? OPD
9)Whether without prejudice to submissions made by defendant, the defendant has also acquired right over the suit property by virtue of adverse possession?
10)Relief.
The issue no.7 was thereafter was recasted vide order dated 18.07.2005 in the following form:
7)Whether the suit has been signed, verified and filed by a competent person? OPP
8. The plaintiff in order to prove his case has examined himself as PW1 by tendering his affidavit in evidence. The plaintiff reiterated the averments of the plaint and relied upon Special Power of Attorney in favour of his wife EX PW1/A, agreement to sell dated 28.12.1984 EX PW1/B, General Power of Attorney dated 06.04.1987 EX PW1/C, Will dated 14.10.1992 of late Sh. Dhian Singh Chadha EX PW1/D, conveyance deed dated 03.07.1996 EX PW1/E, perpetual sublease dated 23.11.1973 executed by Delhi Administration in favour of Sh. CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 9/33 Dhian Singh Chadha EX PW1/F, no objection given by Narang Cooperative House Building Society EX PW1/G and verification letter EX PW1/H, receipt of house tax EX PW1/I, another Will dated 28.08.1997 EX PW1/J and its English translation is EX PW1/J1, the passbook pertaining to NRI Account of the plaintiff EX PW1/K, site plan of the suit portion EX PW1/L, notice EX PW1/M, UPC receipt EX PW1/N, receipt of registered A/D EX PW1/O and A/D is EX PW1/P. PW1 has been crossexamined at length on behalf of the defendant.
9. Ms. Amarjeet Kaur, appeared as PW2 and tendered her affidavit in evidence EX PW2/1. PW2 is the sister of the parties and daughter of late Sh. Dhian Singh Chadha. She supported the case of the plaintiff and proved agreement to sell (EX PW1/B) dated 28.12.1984 as signed by her. The witness also stated that construction of three stories on the plot of A101, Narang Colony, New Delhi was made by the plaintiff from his own funds and defendant has only been licensee in the property. The witness also identified her signatures on EX PW1/C (General Power of Attorney). PW2 has been crossexamined at length on behalf of the defendant.
CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 10/33
10. PW3 Sh. Kawaljit Singh Kohli, is the relative of the plaintiff. He tendered his affidavit EX PW3/1 and proved the agreement to sell EX PW1/B, bearing his signatures. The witness has been cross examined.
11. PW4 Sh. Inderjit Singh s/o late Sh. Harbans Singh, is the family friend of father of the parties Sh. Dhian Singh Chadha. He tendered his affidavit in evidence EX PW4/A and he is witness to the General Power of Attorney EX PW1/C, attesting witness to the Will dated 14.10.1992 EX PW1/D and also to the subsequent Will dated 28.08.1997 EX PW1/J. The witness has been crossexamined on behalf of defendant.
12. PW5 Sh. Brij Mohan Singh, Clerk Vijaya bank Branch, New Krishna Park, New Delhi, brought the record pertaining to NRI account and proved the passbook EX PW1/K and copy of statement of account EX PW5/1. The witness has also been crossexamined. CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 11/33
13. On the other hand, the defendant examined himself as DW1. He tendered his affidavit in evidence. Defendant stated in his affidavit that agreement to sell dated 28.12.1984, on the basis of which the plaintiff has filed the present suit is forged and fabricated document. The same is not singed by late Sh. Dhian Singh Chadha and at the time of execution of this document, plaintiff was not in India. No consideration of Rs.30,000/ was ever paid by the plaintiff. The defendant has also claimed that Sh. Dhian Singh Chadha was not competent to sign and execute any such agreement because defendant is the owner of the property as consideration amount for purchase of the plot was paid jointly by the father of the defendant and the defendant and construction over the same was also raised with the funds of the defendant. Initially, two rooms on the ground floor were built in the year 1973 and further construction with respect to first floor and portion of second floor was raised in the year 1979 and the funds for construction were provided by the defendant and therefore the defendant is the owner of the suit property. The General Power of Attorney, alleged to have been executed in favour of the plaintiff is also termed as forged and fabricated document as has not been executed by Sh. Dhian Singh Chadha. CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 12/33 According to the defendant, if Sh. Dhian Singh Chadha has executed the agreement to sell and General Power of Attorney, there was no occasion to execute the Will dated 14.10.1992 and otherwise also Sh. Dhian Singh Chadha had no right to execute the said Will since he was not the owner of the suit property. The Will dated 14.10.1992 is also stated to be forged and fabricated document. The defendant has referred to the report of handwriting expert with respect to signatures on the documents relied upon by the plaintiff and it is asserted that signatures are not of late Sh. Dhian Singh Chadha. The defendant has also raised questions with respect to genuineness of the stamp paper on which the General Power of Attorney has been executed. With respect to property no. 33/474, New Moti Nagar, New Delhi, the defendant has claimed that it was the property of the defendant and the conveyance deed was executed in his favour. The defendant has relied upon water connection bills EX DW1/3, telephone connection in his name EX DW1/4, correspondence in the name of the defendant received at the suit property EX DW1/5 to EX DW1/7, the letter of gas connection EX DW1/8, documents showing address of the defendant as that of suit property EX DW1/9 and EX DW1/10, passport of defendant EX DW1/11, voter identity card of CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 13/33 defendant EX DW1/12, ration card EX DW1/13, renewal form of ration card EX DW1/14, LIC policy in the name of the defendant EX DW1/15. The defendant has been crossexamined at length on behalf of the counsel for the plaintiff.
14. DW3 Sh. Inderjit Singh s/o Late Sh. Niranjan Singh is the resident of Narang Colony, Janakpuri, Delhi and known to the plaintiff and defendant and also to the father of the parties. The witness has tendered his affidavit in evidence and submitted that defendant is occupying the suit property as owner of the same. The witness has been crossexamined.
15. DW4 Sh. Paramjit Singh, is also the resident of same colony and stated that defendant is occupying the suit property as owner. This witness has also been crossexamined.
16. DW5 Sh. Kailash Chand Mogha, UDC from the office of Collector of Stamps/SDM, deposed that record of stamp vendors of December, 1984 and April, 1987 have been destroyed. CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 14/33
17. The handwriting expert Ms. R.K. Vij has been examined as DW5. She tendered her affidavit as EX D5 and relied upon her report EX DW5/1 and documents EX DW5/2 to EX DW5/22 and EX DW5/2A to EX DW5/22A. The witness has been crossexamined at length on behalf of the plaintiff.
18. On conclusion of evidence of both the sides,matter was fixed for arguments. I have heard Sh. H.S. Arora, Ld. counsel for plaintiff, Sh. Neeraj Tyagi, Ld. counsel for defendant and given due consideration to the facts and circumstances of the case, nature of controversy, pleadings and evidence of the parties.
19. My findings on the above mentioned issues are as follows: Issue No(1) Whether plaintiff is entitled to a decree of recovery of possession against the defendant in respect of barsati floor of property bearing no.
101, Narang Colony, Janakpuri, New Delhi as
shown red in the site plan? OPP
CS No.550/08
Jaspal Singh Chadha Vs. Darshan Singh Chadha 15/33
20. The plaintiff by way of present suit seeks possession of the suit property from the defendant on the ground that plaintiff is the owner of the suit property and defendant being licensee is liable to vacate the premises on service of notice of termination of license. In order to prove his ownership, plaintiff has relied upon agreement to sell dated 28.12.1984 EX PW1/B, General Power of Attorney dated 06.04.1987 EX PW1/C, Will dated 14.10.1992 EX PW1/D and Will dated 28.08.1997 EX PW1/J (translated copy of EX PW1/J1) and the conveyance deed dated 03.07.1996 EX PW1/E. All these documents have been produced in original in the court and the plaintiff and his witnesses have testified on the same. The witnesses to agreement to sell, General Power of Attorney and both the Wills have been examined by the plaintiff namely, Ms. Amarjit Kaur (PW2), Sh. Kanwaljit Singh Kohli (PW3) and Sh. Inderjit Singh (PW4) and all the witnesses have consistently and categorically proved the execution of documents in favour of the plaintiff. The witnesses have been crossexamined at length on behalf of the defendant but the defendant has not been able to impeach their testimony to his benefit. The witnesses have confidently denied the suggestions that agreement to sell, General Power of Attorney CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 16/33 and Wills do not bear the signatures of late Sh. Dhian Singh Chadha or that the signatures of late Sh. Dhian Singh Chadha are forged. The witnesses have been able to stand through the test of crossexamination in a consistent and cogent manner. The plaintiff and his witnesses substantiated the entire averments contained in the plaint through their affidavits to the effect that the documents mentioned above were executed by Dhian Singh Chadha in favour of the plaintiff, thereby transferring all rights, title and interest in the suit property in favour of the plaintiff.
21. On examination of the testimony of the material witnesses as well as documents proved by them, I do not find any reason to disbelieve them as no irregularity or illegality is found either in their testimony or in the documents. The material documents showing the transfer of ownership in the suit property in favour of the plaintiff are duly proved by way of oral and documentary evidence. The conveyance deed EX PW1/E also confirms the case of the plaintiff and the ownership of the plaintiff is established. At no point of time, this conveyance deed has been challenged by the defendant despite having due knowledge of the CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 17/33 same admittedly, since the year 2002. The Wills dated 14.10.1992 and 28.08.1997 have been duly proved with the testimony of attesting witness Sh. Inderjit Singh (PW4) and the witness remained consistent and categorical while deposing about the circumstances at the time of execution of the Wills. There is nothing on record to doubt the credibility of this crucial witness. By virtue of the Wills, the property in question has been given to the plaintiff by his father late Sh. Dhian Singh Chadha, who has been the undisputed original allottee of the property. On examination of all the documents proved on record, no doubt is left that plaintiff is the exclusive owner of the suit property.
22. On the other hand, the defendant has claimed to be the owner of the suit property but the defendant has failed to substantiate his claim. It is important to note that defendant has not remained consistent as to his rights in the property in question. The defendant claimed joint ownership as well as exclusive ownership and also the acquisition of ownership by adverse possession in his pleadings and evidence. All the claims of the defendant have fallen apart and he has failed to bring sufficient and cogent evidence on record in support of his pleadings and contentions.
CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 18/33
23. The defendant claimed exclusive ownership by stating that he paid the amount directly to the DDA for the purchase of the plot and also contributed towards construction of the suit property. But no document or any other witness has been examined on record to prove this fact. The defendant has claimed coownership with respect to suit property and stated that he is living therein in his own rights. The defendant, however, has failed to rebut the evidence of the plaintiff to his benefit and the documents such as agreement to sell, General Power of Attorney, both the Wills and conveyance deed have not been demolished despite lengthy crossexamination of the plaintiff and his witnesses. In fact, the defendant himself introduced the fact about the Will dated 14.10.1992, in his written statement EX PW1/D, whereby the property in question was bequeathed to the plaintiff and in the entire pleadings, the defendant has not questioned the genuineness of this Will which is otherwise duly registered and duly proved on record. By virtue of both the Wills dated 14.10.1992 and 28.8.1997, the property in question stands transfered in favour of the plaintiff and defendant has no ground to challenge or controvert the said Wills.
CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 19/33
24. The defendant has relied upon the report of handwriting expert EX DW5/1, wherein the signatures on the agreement to sell, General Power of attorney, Will dated 14.10.1992, have been reportedly different and not written by the writer/person, who signed admitted documents such as ration card (EX DW1/13), perpetual lease deed (EX PW5/F). On careful analysing the testimony of DW5 including the crossexamination and her report, I find that it is not convincing to conclude that the documents proved by the plaintiff do not bear the signatures of late Sh. Dhian Singh Chadha. The witness made the comparative study of signatures on the basis of admitted documents i.e. perpetual lease deed and ration card but only the photocopy of ration card was provided, which is not the proper means to make the comparative study. With respect to the perpetual lease deed EX PW1/F, I am of the opinion that admitted signatures pertained to the year 1973, whereas the questioned signatures on the documents of the plaintiff pertained to the years 1984, 1987 and 1992. There is natural difference in signatures of a person that occurs due to lapse of time and in view of strong evidence of the witnesses, who had witnessed late Sh. Dhian Singh Chadha signing the said documents, the evidence of handwriting expert DW5 is not CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 20/33 convincing and conclusive. The handwriting expert PW5 Ms. R.K. Vij has herself admitted that all the signatures on the documents (EX PW1/B, C, D & J) are done by one and the same person. Also on careful examination of these documents, I find that same are signed by late Sh. Dhian Singh Chadha as the signatures are done in natural flow and there is no material difference on comparison with the signatures appearing on admitted documents. I do not find any concrete evidence on record so as to doubt the execution of documents relied upon by the plaintiff.
25. The defendant has contradicted his own pleadings by stating in his crossexamination that his father had not executed any Will in respect of the property. The witness admitted photograph of his father on EX PW1/D but denied his signatures. The defendant, thereafter contradicted this very statement by stating that he has no knowledge whether his father had or had not executed this Will during his life time. There is no reason to disbelieve the plaintiff and his witnesses particularly PW2 Ms. Amarjeet Kaur, who happens to be the real sister of both the parties. Admittedly, she is having cordial relations with the defendant and her signatures on General Power of Attorney EX PW1/C CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 21/33 are admitted. According to the crossexamination of defendant, Will dated 28.08.1997 EX PW1/J does not bear the handwriting of his father and the document is allegedly manipulated by the plaintiff. However, no such specific suggestion has been given either to plaintiff during his crossexamination or to the attesting witness Sh. Inderjit Singh (PW4) and in this way defendant has failed to remain consistent on his defence. The defendant has failed to demolish the Wills, proved on record by the plaintiff in accordance with the provisions of Evidence Act, which establish the plaintiff is the owner of the suit property.
26. It has also been contended by counsel for the defendant during the course of arguments that agreement to sell EX PW1/B cannot be relied upon since plaintiff was not in India at the time of its execution and further because the said agreement is unregistered. However, I find no force in these arguments. The execution of agreement to sell stands duly proved with the statements of the plaintiff and his witnesses. It is although admitted by the plaintiff that he was not in India on 28.12.1984 but it has also been consistently maintained by the plaintiff and his witnesses that plaintiff signed that agreement subsequently on coming to CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 22/33 India. The agreement was not required to be registered as per the provisions of Registration Act as it pertains to the period prior to the coming of amendment of 2001, brought in the Registration Act.
27. The next question now arises whether the plaintiff is entitled to seek recovery of possession from the defendant. It is not disputed that defendant is in possession of barsati floor of the property as shown in red colour in the site plan EX PW1/L. It is also admitted by the defendant that he came to reside in the suit property after the death of his daughter in the year 1985. The defendant has not been able to show any right in the suit property and it stands proved with the statements of plaintiff and his witnesses that defendant was inducted in the property by granting license/permission to reside. The plaintiff validly terminated the license by serving notice EX PW1/M and service has been duly proved. The filing of the suit itself is the termination of the license. In the circumstances, the defendant is under obligation to vacate the suit property and to handover the possession to the plaintiff. I, therefore hold that plaintiff is entitled to the decree of possession against the defendant with respect to the suit property. The issue is accordingly disposed of. CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 23/33 Issue No(2) Whether plaintiff is entitled to a decree of damages/mesne profit against the defendant in respect of occupation of barsati floor of property bearing no. 101, Narang Colony, Janakpuri, New Delhi w.e.f. 01.10.2004 at the rate of Rs.6000/ p.m. till the date of handing over possession? OPP
28. The plaintiff has sought damages/mesne profits @ Rs.6000/ per month w.e.f. 01.10.2004 till the handing over of possession. It has already been concluded in the findings of Issue no1 that defendant is a licensee and is required to vacate the suit property on termination of license. The notice dated 28.08.2004 terminating the license, was served upon the defendant. The plaintiff has claimed damages @ Rs.6000/ per month. It is the contention of the plaintiff that market rate of rent with respect to the suit portion is more than Rs.6000/. The plaintiff earlier filed a suit against his tenant Sh. Mohan Kailash Jolly, who was occupying first floor of the property and vide judgment dated 05.07.2010, passed by Ld. ADJ in civil suit no. 265/05/04, the damages @ Rs.7000/ to 9000/ per month were granted in favour of the plaintiff. Otherwise, CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 24/33 also, it is a matter of common knowledge that rental rates in Delhi are very high. The claim of Rs.6000/ per month has not been specifically rebutted or challenged by the defendant during the crossexamination of the plaintiff. Also no evidence is brought on record to show that the premises would fetch rent less than Rs.6000/ per month. Therefore, I am of the opinion that plaintiff has been able to make out the case of rate of damages @ Rs.6000/ per month and therefore, I hold that plaintiff is entitled to the decree of damages @ Rs.6000/ per month with respect to the suit portion against the defendant w.e.f. 01.10.2004 till the handing over of the possession and issue is answered accordingly.
Issue No(3)
Whether plaintiff is entitled to the relief of
injunction as prayed for? OPP
29. The plaintiff is the exclusive owner of the suit property by virtue of various documents proved on record. Issue no1 has already been decided in favour of the plaintiff. The defendant has also been held to be licensee in the suit property and therefore he has no right to create CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 25/33 any third party interest or to deal with the suit property in any manner whatsoever. I, therefore grant the injunction in favour of the plaintiff and restrain the defendant, his agents, successors etc. from creating any third party interest in the suit property. The issue is answered accordingly.
Issue No(4) Whether the agreement to sell and subsequent conveyance deed are nonest, null and void since they are not signed and executed by late Sh. Dhian Singh Chadha in favour of plaintiff? OPD
30. The burden of proving this issue has been upon the defendant and defendant was required to establish on record that agreement to sell, conveyance deed are null and void having not been signed and executed by late Sh. Dhian Singh Chadha. The defendant failed to bring sufficient and cogent evidence on this aspect. There is no concrete evidence on record to indicate that agreement to sell and conveyance deed can be termed as null and void. Keeping in view my findings with respect to issue no1, I hold that agreement to sell and CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 26/33 conveyance deed are duly proved on record and the defendant has failed to controvert and rebut the said evidence. I, therefore hold that agreement to sell and conveyance deed are proper and legal documents and issue is decided against the defendant.
Issue No(5) Whether the suit has not been properly valued for the purposes of court fee and jurisdiction?
OPD
31. The onus of proving this issue also has been upon the defendant. The plaintiff has valued the suit property for the purposes of court fees and jurisdiction at Rs.15 Lakhs for the relief of possession. The plaintiff has stated during his crossexamination that value of the property has been Rs.70 Lakhs but the portion under the possession of defendant is Rs.15 Lakhs. The plaintiff denied the suggestion that value of property is one crore or that value of the portion of the defendant is Rs.30 Lakhs. The defendant in his affidavit has stated that value of the portion under the occupation of defendant has been more than Rs.30 CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 27/33 Lakhs but no evidence in support of the same has been brought on record. In the circumstances, the valuation done by the plaintiff is accepted and therefore it is held that suit has been properly valued for the purpose of court fees and jurisdiction. The issue is decided against the defendant.
Issue No(6) Whether this court lacks pecuniary jurisdiction?
OPD
32. The pecuniary jurisdiction of this court is up to Rs.20 Lakhs and since the valuation of the portion of defendant is accepted at Rs.15 Lakhs, this court has pecuniary jurisdiction to decide the case. The issue is decided against the defendant.
Issue No(7)
Whether the suit has been signed, verified and
filed by a competent person? OPP
CS No.550/08
Jaspal Singh Chadha Vs. Darshan Singh Chadha 28/33
33. The present suit has been filed by the plaintiff through his wife and attorney Ms. Savinder Kaur Chadha. The attorney in favour of the wife is placed on record. It has been the contention of the defendant that wife of the plaintiff has not been in knowledge of the facts and circumstances of the case but there is no basis for this contention. The suit has been filed by the attorney of the plaintiff but thereafter plaintiff himself joined and appeared in evidence. There is no reason to conclude that suit has not been filed and verified by the competent person. The issue is accordingly decided against the defendant. Issue No(8) Whether the suit is barred by limitation?
OPD
34. The defendant has taken the objection with respect to limitation in his written statement as well as in his affidavit. The defendant occupied the suit premises in the year 1985 as licensee. The notice dated 28.08.2004 EX PW1/M, terminating the license was served CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 29/33 upon the defendant. It is further evident from EX PW1/N, EX PW1/O, EX PW1/P that notice was duly served upon the defendant. The suit has been filed on 30.09.2004 and is well within the period of limitation. There is no evidence on record to suggest that suit is barred by limitation for which the plaintiff otherwise had 12 years to bring the suit as per the Limitation Act. The issue is decided accordingly against the defendant. Issue No(9) Whether without prejudice to submissions made by defendant, the defendant has also acquired right over the suit property by virtue of adverse possession?
35. The defendant has claimed ownership with respect to the suit property but there is no justification in the alternative claim of the defendant for acquisition of ownership on the basis of adverse possession. It has been held in L.N. Aswathama & Anr. Vs. P. Prakash, JT 2009 (9) SC 527 as under : CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 30/33 "17. The legal position is no doubt well settled. To Establish a claim of title by prescription, that is adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.
Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence."
The law therefore is clear that claim of the title and adverse possession cannot operate together. The defendant in contradiction to his earlier pleadings of exclusive and joint ownership has pleaded that he has become owner of the premises by way of adverse possession. The defendant claims his possession to the hostility of the plaintiff. However, CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 31/33 no such plea has been taken up or raised either during the evidence of the plaintiff or his witnesses. The plaintiff has claimed that defendant was permitted to reside in the suit property on compassionate grounds. During the crossexamination of the plaintiff, no suggestion was given to him that the possession of the defendant was not permissive or that it was hostile. In fact, the defendant has not controverted or challenged the testimony of the plaintiff and his witnesses on the aspect that defendant was permitted to reside in the suit property on compassionate grounds. It is clear from the evidence brought on record that defendant was a licensee in the suit property and therefore no question of acquisition of ownership by virtue of adverse possession arises. The plea of the defendant with respect to adverse possession is devoid of any merit or substance. The issue is accordingly decided against the defendant and in favour of the plaintiff.
RELIEF
36. In view of my findings with respect to the above mentioned issues, I hold that plaintiff is entitled to the decree of possession, mesne CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 32/33 profits and permanent injunction. Accordingly, the decree for possession is granted in favour of the plaintiff and defendant is directed to vacate and hand over vacant and physical possession of the suit property i.e. barsati floor of property no. 101, Narang Colony, Janak Puri, New Delhi as shown in red colour in the site plan EX PW1/L to the plaintiff by 31st December, 2013. The plaintiff is also held entitled to mesne profits and damages @ Rs.6000/ per month w.e.f. 01.10.2004 till 31.12.2013 or till the handing over of the possession by the defendant. The defendant is also hereby permanently restrained from creating any third party interest in the suit property.
37. The suit of the plaintiff is decreed in aforesaid terms.
Decree sheet be prepared and file be consigned to record room. Announced in open Court on 20th Day of November, 2013.
(ANJU BAJAJ CHANDNA) Addl. Distt. Judge(Central)01, Tis Hazari Courts, Delhi.
CS No.550/08 Jaspal Singh Chadha Vs. Darshan Singh Chadha 33/33