Delhi District Court
Smt. Laxmi Devi vs Sh. Ravi Shankar on 29 July, 2011
IN THE COURT OF MS. SEEMA MAINI :
ADJ (3) NORTH: TIS HAZARI COURTS: DELHI
In re :
RCA No. 55/10
Unique Case ID No. 02401C0338902010
In the matter of:
Smt. Laxmi Devi, W/o Sh. Khem Chand,
D/o Late Sh. Surajmal,
R/o Flat No. 44, J.J. DDA Flats,
New Ranjit Nagar, New Delhi-08.
....Appellant
VERSUS
Sh. Ravi Shankar, S/o Sh. Tulsi Ram,
R/o A-330, New Ranjit Nagar,
New Delhi-08.
....Respondent
Date of filing of the Appeal : 03.08.2010 Date of reservation for Order : 03.06.2011 Date of Order : 29.07.2011
APPEAL AGAINST THE IMPUGNED JUDGMENT DATED 07.07.2010 PASSED BY SH. RAJKUMAR, CJ, NORTH, DELHI IN CASE NO. 1608/08, TITLED AS SH. RAVI SHANKAR VS. SMT. LAXMI DEVI APPEARANCE:
Sh. Dhirender Singh, counsel for Appellant Sh. Rakesh Srivastava, counsel for respondent JUDGMENT/ORDER:-
1. Vide this judgment/order, I shall dispose off the instant appeal bearing RCA No.55/10, preferred by the appellant/defendant (defendant in the original suit) RCA No. 55/10 page no.1/7 against the respondent/plaintiff, challenging the impugned judgment/decree dated 07.07.2010, passed by the Ld. Trial Court in civil suit no. 1608/08, titled as Sh. Ravi Shankar Vs. Smt. Laxmi Devi.
2. The brief facts, relevant for the disposal of the appeal, as revealed from the trial court record, are that the plaintiff (respondent herein), filed a suit for recovery of Rs. 1,08,000/-, as damages/mesne profits for the use of the property against the defendant/appellant (appellant herein) with the assertions that the plaintiff was the lawful owner of the built up property, I.e. Janta Flat bearing no. A- 350, New Ranjit Nagar, DDA, New Delhi, comprising of one room, kitchen, balcony, bathroom and latrine in the total built up area of 25 sq. yds, by virtue of a Will executed by Late Smt. Imarti Devi, wife of Late Sh. Suraj Mal. Late Smt. Imarti Devi was the grand mother of the plaintiff and she was allottee of the suit property by DDA vide possession slip b earing no. 3151 Book No. Q dated 01.09.1976, and she was given the physical possession of the said flat by the DDA. The defendant is the daughter of Smt. Imarati Devi and was residing in the suit property alongwith Smt. Imarati Devi. After the death of Smt. Imarati Devi, the plaintiff, the defendant and the other family members were in joint possession of the said flat. During the life time of the grand mother, the plaintiff was rendering services to her and Smt. Imarati Devi being much pleasant to the plaintiff, executed a Will, out of love and affection, which was duly registered in favour of the plaintiff on 24.07.1995 in the office of Sub-Registrar, Delhi. As per the Will, after the demise of Smt Imarati Devi, the plaintiff became the absolute and exclusive owner of the in question.
3. It was stated that on 10.01.1997, the plaintiff was dispossessed from the flat bearing no. A-350, New Ranjit Nagar, DDA Colony, New Delhi and thereafter, sicne the death of Smt. Imarti Devi, the defendant has been in illegal, unauthorized and forceful possession of the said flat. It was stated that the defendant has no right, title or interest in the suit property, of which the plaintiff was the exclusive and absolute owner. The plaintiff filed a petition under Indian Succession Act for the probate of the said Will and the said petition was pending in the Court of Sh. V.K. Gupta, Ld. ADJ, Delhi, but during the course of the trial, the petition has been allowed and the Will has been probated in favour of the plaintiff, after deciding the objections, which were raised by the other defendants, including the RCA No. 55/10 page no.2/7 defendant/appellant herein.
4. It was stated that the plaintiff has also filed a separate suit for possession against the defendant, in respect of the suit property, which is yet pending disposal, while the defendant has filed a suit against the plaintiff for declaration that the Will in favour of the plaintiff was null and void. It was stated that the defendant was in illegal and unauthorized possession of the suit property and has thus liable to pay the mesne profit/user charges/damages @ Rs. 3000/- per month to the plaintiff. It was stated that though the amount of damages comes to a high figure, but the plaintiff claims the damages for 36 months (three years) immediately prior to filing of the suit, amounting to Rs. 1,08,000/- besides praying for damages alongwith pendentelite interest @ 18% per annum and future interest from the date of the suit till realization.
5. The defendant failed to file the written statement within the stipulated period, before the Trial Court and her defence was therefore, struck off.
6. The plaintiff examined three Pws in all. He himself entered the witness box as PW1 and testified on oath, all the averments, made by him in the suit. He brought on record the certified copy of the Will of Late Smt. Imarati Devi dated 24.07.1995 in favour of the plaintiff as Exh. PW1/1, the death certificate of Late Smt. Imarati Devi as Exh. PW1/2. The site plan, showing the suit property is Exh. PW1/3, the possession slip, issued by the DDA in favour of late Smt. Imarati Devi in respect of the suit proerty is Exh PW1/4, the certified copy of the statement of Sh. Mahender Kumar Sharma, UDC, who appeared in another suit titled as Ravi Shankar Vs. Laxmi Devi, preferred by the plaintiff, seeking the possession of the suit premises is Exh. PW1/5. The certified coy of the order dated 03.11.2007, vide which the petition for probate in respect of the Will, preferred by the plaintiff, has been allowed has been brought on record as Exh. PW1/6. The certified copy of the plaint of the suit for possession, declaration and permanent injunction with respect to the suit property, preferred by the plaintiff and presently pending in the Court of Sh. Dharmender Rana, Ld. CJ, Delhi is Exh. PW1/7, the certified copy of another suit, preferred by the plaintiff against the defendant, for injunction, for restraining the defendant from making any illegal and unauthorized construction, additions and RCA No. 55/10 page no.3/7 alterations in the suit property is Exh. PW1/8, wherein the defendant has given a statement in favour of the plaintiff that she will not raise any construction, additions and alterations in the suit property, which has been brought on record as Exh. PW1/9. He also testified on oath that the above suit was disposed of vide order dated 21.11.2003, passed b y the Court of Sh. Sanjay Jindal, Ld. CJ, Delhi, copy of which has been brought on record as Exh. PW1/10. He also deposed that in the vicinity, such similarly suit properties were fetches a rent @ Rs.3000/- p.m and therefore, the plaintiff was liable to fetch the mesne profits/damages @ Rs. 3000/- p.m, for the period prayed for.
7. PW2, PW3 and PW4 Sh. Jagan Nath, Sh. Om Prakash and Sh. Vinod, who were the neighbours of the plaintiff, deposed that the suit property could fetch a rent of Rs. 3000/- p.m. exclusive of electricity charges.
8. After hearing the counsels for the parties, the impunged judgment dated 07.07.2010 was passed by the Ld. Civil Judge, Delhi.
9. In the grounds of appeal, the appellant admitting the relationship of the plaintiff and the defendant with Smt. Imarati Devi and the fact that late Smt. Imarati Devi had executed the Will, which was got registered on 24.07.1995, in favour of the plaintiff. The appellant also admitted that the plaintiff had filed a separate suit for getting the Will probated and that her defence was struck off, but asserted that late Smt. Imarati Devi was allotted the suit property in the capacity of a tenant and that subsequently she applied for lease hold rights, but did not deposit the requisite fee/charges and therefore, she was never allotted the suit property, as owner of the same. It was stated that after her demise, the appellant, who was the occupant of the suit property, applied for free hold rights, with the Slum and JJ Department and after depositing the requisite fee, the suit property was transferred in the name of the appellant by the Slum Department.
10. In the grounds of appeal, it was stated that the impugned judgment, passed by the Ld. Trial Court is against the law, facts and evidence and has been passed on conjunctures and surmises and was liable to be set aside. It was stated that the Ld. Trial Court has erred in not noticing the illegal infirmity that the claim of the plaintiff was based on the Will dated 24.07.1995, executed by late Smt. Imarati RCA No. 55/10 page no.4/7 Devi in his favour on the day, when she was not even the owner of the suit property and that she was living in the property in the capacity of a lessee and therefore, did not have any title in her name in respect of the suit property, which she could have transferred in favour of the respondent, vide the Will. It was also stated that the plaintiff has not claimed late Smt. Imarati Devi as owner of the suit property and therefore, neither was the plaintiff, the owner of the same and even till date, the property has not been transferred or mutated in the name of the plaintiff/respondent, since the execution of the Will does not confer any ownership rights. It was stated that the Ld. Trial Court has wrongly assumed the ownership rights of the plaintiff in the suit property without testing the same on the basis of some documentary evidence. The Ld. Trial Court had not bothered to ascertain as to the maintainability of the suit and had given undue weightage to the fact that the Will of late Smt. Imarati Devi had been probated by the Court. It was urged that the Ld. Trial Court had wrongly held that the appellant is liable to pay the mesne profits/damages to the respondent without examining the rate of rent, prevailing in the locality and that the grant of interest was also uncalled for. It was stated that the Ld. Trial court had not applied its judicial mind and therefore, the judgment/decree dated 07.07.2010 is liable to be set aside.
11. No formal reply to the appeal has been filed on behalf of the respondent.
12. I have heard Sh. Dhirender Singh, counsel for appellant and Sh. Rakesh Srivastava counsel for respondent, perused the trial court record, and have gone through the legal prepositions of law and considered the rival contentions of the parties.
13. As per the own admissions of the defendant/appellant, it was late Smt. Imarati Devi, who was the allottee and had given the plaintiff, the possession of the suit property, comprising of Janta Flat bearing no. A-350, New Ranjit Nagar, New Delhi by the DDA. It is also not disputed that late Smt. Imarati Devi executed the registered Will dated 24.07.1995 in favour of the respondent, which has now been probated in favour of the plaintiff. The certified copy of the judgment of the Ld. ADJ, Sh. V.K. Gupta, dated 03.11.2007, Exh. PW1/6, clearly shows that the present defendant/appellant was one of the objector in the said Will and after tackling and RCA No. 55/10 page no.5/7 overruling her objections, the Will in question had been probated in favour of the plaintiff. The assertions and submissions of the appellant/defendant that the proerty had subsequently been transferred in her name, by the department of Slum(DDA), could not be authenticated by her, as she did not file her written statement in the suit before the Ld. Trial Court, leading to striking out of her defence. The said assertion and the substantive evidence, if any, in this respect, did not see the light of the day, before the Ld. Tiral Court. The said assertions being made for first time in the appeal, and that too, without basis, are inconsequential and cannot be considered. Therefore, for all purposes and the factual matrix that crystallized was that late Smt. Imarati Devi was an allottee and put in possession of the suit property bearing no. A-350, New Ranjit Nagar, New Delhi and qua the rest of the world, it was she who had a title and interest in the suit property. Any other person other than late Smt. Imarati Devi, if allowed to be in possession and in use of the suit property, would be in the capacity of a licensee. By the execution of the Will dated 24.07.1995, in favour of the plaintiff/appellant, the right and title of late Smt. Imarati Devi in the suit property were bequeathed to the plaintiff and the said title and interest was a superior title qua the rest of the world, except DDA. The plaintiff/appellant thus steped into the shoes of late Smt. Imarati Devi, the allottee of the suit property by the DDA and therefore, qua the defendant, who was in possession of the suit property in the capacity of a mere licensee, it was the plaintiff, who had a better title and interest in the suit property, vide the registered Will, which was also probated in his favour, after the objections, made by the defendant/appellant were dismissed vide order dated 03.11.2007 Exh. PW1/6.
14. It is to be kept in mind that ownership of the property and a person's title/interest in the property are two different issues and in the instant case, it is the title of the defendant/appellant in the suit property by means of a Will by late Smt. Imarati Devi that holds precedence over the right, if any, that of the appellant/defendant. It is a well settled principle of law that no one can be allowed to enjoy one's property without paying its user charges and the defendant/appellant being in possession of the suit property, as a mere licensee, is definitely liable to pay the user charges to the holder of the title and right in the suit property, whether in the capacity of an owner or in the capacity of a successor in interest of the original lessee.
RCA No. 55/10 page no.6/715. The plaintiff in his testimony as PW1 and the three independent witnesses PW2 to PW4, have all testified on oath that similarly suit properties, as the suit property in the vicinity and the locality could easily fetch a rent of Rs.3000/- p.m. The ever suing property rates in Delhi and also the fact that the suit property comprise of a separate unit comprising of one room, one kitchen, latrine, bathroom in the total built up area of 25 sq. yards in New Ranjit Nagar, Delhi could easily fetch Rs. 3000/- p.m. It has been agitated that defendants no. 2 to 4 are the witnesses, being the neighbours of the plaintiff. It is to be kept in mind that their testimony is in respect of the rent, which similarly situated properties, may be fetching in the vicinity and locality, in which they were staying and they were the best witnesses, who could have been brought into the witness box by the plaintiff. Just because the said witnesses, happened to be the neighbours of the plaintiff, is not a reason to discard their testimonies, especially when no other reason could be ascribed, as to why they should not be believed.
16. In my opinion, therefore, the plaintiff is entitled to recover user charges/mesne profits from the appellant/defendant @ Rs.3000/- p.m for the legally recoverable period i.e for three years prior to the institution of the suit. Since the defendant is continue to use the suit premises, during the pendency of the suit, pendetelite user charges/damages had been rightly awarded. I see no infirmity in the order of the Ld. Trial Court, which has been passed on the correct provisions of law. The interest has been rightly awarded to the plaintiff and even on that score, I find no infirmity in the order.
17. Accordingly, I find the appeal without merits, which is therefore, dismissed. Both the parties are left to bear their own costs. Copy of the order be placed in the trial court record while another copy be placed in the appeal file and both the files be consigned to record room.
ANNOUNCED IN THE OPEN COURT on 29th day of July, 2011 (SEEMA MAINI) ADJ-3 (NORTH):DELHI RCA No. 55/10 page no.7/7 RCA No. 55/10 page no.8/7 RCA No.55/10 29.07.2011 Present: Parties in person Vide my separate Judgment/Order announced in open Court, the appeal filed by the appellant/defendant against the impugned judgment dated 07.07.2010, passed by the Ld. Trial Court in civil suit no. 1608/08, is dismissed. Both the parties are left to bear their own costs. Copy of the order be placed in the trial court record while another copy be placed in the appeal file and both the files be consigned to record room.
(SEEMA MAINI) ADJ-03 (North)Delhi RCA No. 55/10 page no.9/7