Delhi District Court
Sh.Ram Niwas vs Sh. Anil Kumar on 7 January, 2013
IN THE COURT OF SH. REETESH SINGH
ADDITIONAL DISTRICT JUDGE-01 (NORTH-EAST)
KARKARDOOMA COURTS, DELHI
CS No.264/2011
Date of Institution of Suit : 29.05.2009
Date on which Reserved for Judgment : 04.12.2012
Date of Judgment/Order : 07.01.2013
Case I.D. Number : 02402C0163192009
IN THE MATTER OF:-
SH.RAM NIWAS
SON OF SH.RAM CHANDER
RESIDENT OF B-94, GALI No.3, UTTARI CHAJJUPUR
SHAHDARA, DELHI 110 094
.....PLAINTIFF
VERSUS
SH. ANIL KUMAR
SON OF SH.RAM NIWAS
RESIDENT OF B-94, GALI No.3, UTTARI CHAJJUPUR
SHAHDARA, DELHI 110 094
.....DEFENDANT
JUDGMENT
1. Plaintiff, who is father of the defendant, has filed the present suit praying for a decree for recovery of possession of one room on the ground floor and one room (inside kitchen) on the first floor in property bearing No.B-94, Gali No.3, Uttari Chajjupur, Delhi 110 094, shown as red in the site plan (hereinafter referred to as the suit property); decree for recovery of mesne profits/damages at the rate of Rs. 3,000/- per month along with interest at the rate of 15% per annum; decree for mandatory injunction to direct the defendant to hand over possession of machinery i.e. kharad machine, surface grinder, power press and generator to the plaintiff besides costs of the suit.
CS No.264/2011 1/182. In the plaint, the plaintiff has averred that he is sole and absolute owner of property bearing No.B-94, Gali No.3, Uttari Chajjupur, Delhi 110 094 which was purchased from his own funds and income vide registered General Power of Attorney, Agreement to Sell, Payment Receipt and Will all dated 30.11.1998, executed in his favour by its previous owner Sh.Arjun Singh. It is averred that the plaintiff permitted the defendant to reside in one room (with kitchen inside) on the first floor of the said property for residential purposes without charging any money, on license basis.
3. It is averred that the plaintiff had installed kharad machine, surface grinder, power press and generator in one room on the ground floor of the said property. The other room on the ground floor was under the occupation of the plaintiff. It is averred that the second room on the first floor is in occupation of Sh.Sushil Kumar, married son of the plaintiff and the second floor of the said property consists of only one room which is in the occupation of Sh.Sunil Kumar - third son of the plaintiff.
4. It is averred that the defendant and his wife Anita are of quarrelsome nature and used to raise disputes with the plaintiff and other sons of plaintiff and would threaten to implicate them in false cases. It is averred that on 11.12.2007, the defendant and his wife Smt.Anita beat up the plaintiff and forcibly took possession of the machines i.e. kharad machine, surface grinder, power press and generator which were installed on the ground floor. The defendant also forcibly took possession of the room on the ground floor in which these machines were installed. It is averred that the plaintiff suffered injuries due to which his left ankle was fractured causing the plaintiff to get himself admitted in the hospital. However, due to relationship between the parties and to protect his dignity the plaintiff did not lodge any complaint in the police station. It is averred that Smt.Anita wife of the defendant lodged a complaint against the plaintiff, his wife and their other sons before the Crime Against Women Cell and also filed a petition under the provisions of Domestic Violence Act against them. As a result of behaviour of the defendant, the plaintiff debarred the defendant from his estate and issued public notice to this effect on 11.2.2009. The plaintiff also issued a notice terminating the licence of the defendant in respect of the suit property and called upon him to vacate the same and to return the machinery. The plaintiff claimed damages at the rate of Rs.
CS No.264/2011 2/183,000/- per month from the defendant on account of his illegal and unauthorized use and occupation of the suit property with effect from 11.12.2007. It is averred that after receiving the notice, the defendant and his wife tried to kill the plaintiff but the plaintiff escaped as he was saved by his other sons. The defendant also called up the PCR who took the parties to the police station. In these circumstances the plaintiff filed the present suit seeking the above mentioned reliefs.
5. Upon summons of the suit being issued, defendant filed written statement raising several preliminary objections to the effect that the suit was not maintainable; the plaintiff had no locus to file the present suit; the plaintiff had concealed material facts of the case, no cause of action had accrued in favour of the plaintiff; no relief can be granted to the plaintiff under the provisions of section 41(h) of the Specific Relief Act; the plaintiff do not have any personal interest in the suit property and cannot maintain the suit and the suit was under valued for the purposes of court fee and jurisdiction.
6. On merits, the defendant admitted that the property bearing No.B-94, Gali No.3, Uttari Chajjupur, Delhi 110 094 had been purchased by the plaintiff but claimed that the same was purchased from the funds of grandfather of the defendant and thus he had every right in the suit property. The defendant has also claimed that he has contributed his money towards cost of construction of the suit property and therefore was co-owner of the same. The defendant has denied that he was permitted to reside in the suit property on licence basis by the plaintiff. The defendant has claimed that there was an agreement arrived at with the plaintiff in the presence of members of the society that the defendant will construct a room on the first floor of the said property from his own funds and one room on the ground floor of the same will be used jointly for business purposes. The defendant has averred that he thereafter constructed the room on the first floor in his occupation with the help and contribution of his in-laws. The defendant has denied mistreating the plaintiff.
7. The plaintiff filed replication to the written statement of the defendant wherein he denied the averments made in the written statement and re-iterated the contents of the plaint. On the basis of the pleadings of the parties, the following issues were framed by order dated 6.10.2009:-
CS No.264/2011 3/181.Whether the plaintiff is entitled to a decree of possession?OPP
2.Whether the plaintiff is entitled to recovery mesne profit?OPP
3.Whether the plaintiff is entitled to a decree of mandatory injunction with consequential relief of decree for permanent injunction?OPP
4.Whether the suit of the plaintiff is not maintainable?OPD
5.Whether the plaintiff has no locus standi to file the present suit?OPD
6.Whether the suit of the plaintiff is liable to be rejected under Order VII Rule 11 CPC?OPD
8. The plaintiff in support of his case examined himself as PW-1 and deposed by way of affidavit and closed his evidence on 8.3.2010. The defendant has examined Sh.Vikas Kumar Assistant Ahlmad of the Court of Ms.Shuchi Shahmiri, MM,Kkd Court, Delhi as DW-1; Sh.Satish Kumar as DW-2, Sh.Varun Aggarwal, Assistant Ahlmad of the Court of Sh.Lokesh Sharma ACMM Kkd Courts, Delhi as DW-3; Sh.Prempal Constable from PS Harsh Vihar as DW-3, defendant Anil Kumar himself as DW-3, Sh.Chander Prakash from Record Section BSES YPL Nand Nagri as DW-4, Sh.Rameshwar Panchal as DW-5; Sh.IIam Chand as DW-6 and thereafter closed defendant's evidence on 15.5.2012. It may be noted that three witnesses of the defendant have been examined as DW-3 and to obviate any confusion they will be referred by their names in the judgment.
9. I have heard learned counsel for the parties and have gone through the record. My findings issue-wise are as under:-
ISSUES No.1 AND 310. Issue No.1 was regarding entitlement of the plaintiff to the decree for possession of the suit premises and issue No.3 was regarding entitlement of the plaintiff for a decree of mandatory injunction as well as permanent injunction as prayed for. Since the issues are inter-connected, they have been taken up together for adjudication. The plaintiff has examined only himself and deposed by way of affidavit Ex.PW-1/A. He has deposed on the lines of his plaint. He has exhibited and marked the following documents:-
(i) Original registered General Power of Attorney dated 30.11.1998 CS No.264/2011 4/18 executed by Sh.Arjun Singh in favour of the plaintiff as Ex.PW-1/1
(ii) Original Agreement to sell dated 30.11.1998 executed by Sh.Arjun Singh in favour of the plaintiff as Ex.PW-1/2
(iii) Original affidavit dated 30.11.1998 executed by Sh.Arjun Singh in favour of the plaintiff in respect of the suit property as mark A
(iv) Original will dated 30.11.1998 executed by Sh.Arjun Singh in favour of the plaintiff in respect of the suit property as mark B
(v) Original receipt dated 30.11.1998 executed by Sh.Arjun Singh in favour of the plaintiff as mark A
(vi) Original site plan of the suit property as mark D
(vii) Original receipt of purchase of machinery as mark E
(viii)Original prescription of the plaintiff from GTB Hospital and Sona Hospital as mark F (collectively A to H)
(ix) Legal notice as mark G
(x)Postal receipt as mark H
(xi)Original newspaper Amar Ujala dated 4.5.2009 as Ex.PW-1/3
(xii)Original receipt by which newspaper was sent to the defendant as Ex.PW-1/4 and Ex.PW-1/5
(xiii) Electricity bill in the name of the defendant as mark I
(xiv) Photocopy of the electricity bill in the name of the wife of the plaintiffs as mark J
(xv)Photocopy of the electricity bill in the name of Sunil Kumar as mark K (xvi) Photocopy of the ration card as mark L (xvii) Photocopy of the election identity card as mark M (xviii) Photocopy of the election identity card of wife of the plaintiff as mark N (xix) Photocopy of the driving licence of Sunil Kumar as Ex.PW-1/6(OSR) (xx) Photocopy of the election identity card of Smt.Geeta Panchal wife of Sh.Sunil Kumar as mark O (xxi) Photocopy of the election identity card of Sh.Sunil Kumar as mark P (xxii) Photocopy of the election identity card of Smt.Sushma as mark Q CS No.264/2011 5/18 (xxiii) Photocopy of the driving licence Sh.Praveen Kumar as mark R (xxiv) Telephone bills in original in the name of the plaintiff as Ex.PW-1/7, Ex.PW-1/8 and Ex.PW-1/9 (xxv) Photocopy of the insurance policy of Sh.Sunil Kumar as mark S (xxvi) Original allotment leer of gas connection dated 6.11.1998 as Ex.PW-1/10 (xxvii) Original electricity bill of the property at Kabir Nagar Ex.PW-1/11 (xxviii) Photocopy of the bank pass shown showing address of Kabir Nagar is mark T (xxix) Photocopy of the agreement to sell of property at Kabir Nagar as mark U (xxx) Photocopy of the payment receipt of property at Kabir Nagar as mark V (xxxi) Photocopy of the General Power of Attorney of property at Kabir Nagar is mark W
11. The plaintiff was cross examined by the learned counsel for the defendant. In the cross examination the plaintiff has deposed that he was the only son of his parents and had handed property in his village comprising of a house and land measuring 4 bigha. He stated that both his parents died at Delhi. He admitted that when his parents had come to Delhi, they had sold portion of the land in the village. He however stated that he was not paid any money out of the same which was spent by his parents on their personal expenses. He deposed that he purchased his first property at Kabir Nagar in the year 1984 after shifting to Delhi in the year 1980. He deposed that was receiving agricultural income from the property in the village. He deposed that he was not aware about the jewelry of his mother. He however denied the suggestion that he received jewelry and other household articles of his mother. He denied the suggestion that the property at Kabir Nagar was purchased from the money received from his parents who sold land in the village. He deposed that the defendant was married in the year 1994 and at that time he was 20 years old and was VIIIth class pass. He deposed that the defendant worked with him as an apprentice. He denied the suggestion that he CS No.264/2011 6/18 forced the defendant to leave his job. He deposed that after his marriage the defendant resided with him for one year. He admitted that during the period the defendant was working with him, all the earnings of the defendant were lying with him.
12. The plaintiff in his cross examination further deposed that the defendant was still working on his machines and was earning money from the same. He deposed that the defendant stopped giving money to the plaintiff after one year of the marriage. He denied the suggestion that he purchased the first property at Kabir Nagar in the name of his parents. He has deposed that at the time of purchasing the suit property the same consisted only of one floor. He denied the suggestion that he suffered injury on his foot as he slipped at the time of attending some marriage. He further deposed that he purchased lathe machines in the year 1995-96 that were second hand. He denied the suggestion that receipt of purchase of the machine was forged or fabricated. He admitted as correct that he has debarred the defendant from his property after receipt of notice of the case under Domestic Violence Act. He has admitted that he has got electricity meter installed in the name of the defendant. He denied the suggestion that he had given any share to the defendant in partition. He deposed that all his other sons were better qualified than the defendant and denied that he forced the defendant to work with him or that other children were educated with the money earned by the defendant. He deposed that the defendant was only working as apprentice and there were four other persons also working with the plaintiff as apprentice.
13. He deposed that the receipt mark E was in his handwriting. He denied the suggestion that he never purchased any machine. He denied the suggestion that the room and latrine / bathroom on the first floor under the occupation of the defendant were constructed by the defendant from his own funds. He denied the suggestion that the entire dowry articles received by the defendant in his marriage were with the plaintiff. He denied the suggestion that he never earned any money or purchased any property and stated that the entire suit property was belonging to him.
14. DW-1 is the official from the Court of Ms.Shuchi Shahmiri, MM, Kkd Courts Delhi who brought the record relating to the complaint case titled Anita versus Ram CS No.264/2011 7/18 Niwas under section 12 of the Domestic Violence Act. DW-1/1 is the copy of the order dated 4.5.2010 by which the said petition was decided. Ex.DW-1/2 is the copy of the petition which was registered as DV case No.29/2009. A perusal of the order dated 4.5.2010 shows that the said petition was disposed of as settled on the basis of statement of the respondent Ram Niwas (plaintiff herein) that he will not dispossess the complainant Anita (wife of defendant) without following due process of law and would give No Objection for installation of separate electricity and water connections to her or her husband (defendant herein) without prejudice to his rights.
15. DW-2 is Satish Kumar who has deposed by way of affidavit Ex.DW-2/A. He deposed that he was well acquainted with the facts and circumstances of the case. He deposed that he is the maternal uncle (Mausa) of the plaintiff and that he was having knowledge about the manner in which the plaintiff suffered injuries and other incidents and compromise between the parties. DW-2 in the cross examination has admitted that he was not uncle of the plaintiff but rather the plaintiff was his uncle. He stated that it was correct that he did not place on record any compromise deed in writing arrived at between the parties. He has deposed that he tried to get the matter settled between the parties but could not succeed.
16. DW-3 Varun Aggarwal, Assistant Ahlmad from the court of Sh.Lokesh Sharma, ACMM, Kkd.Courts who brought the record relating to the Complaint Case No.87/2009 titled Anita versus Ram Niwas & Others and the same was exhibited as Ex.DW-3/A. Perusal of the complaint reveals that the same was filed by Smt. Anita wife of the defendant against the present plaintiff and his sons Sunil and Sushil under sections 452, 323, 506, 354, 509, 392, 427, 308 and 34 IPC wherein complainant Smt.Anita has alleged harassment at the hands of the accused persons for dowry. The said complaint is stated to be pending.
17. DW-3 Prempal Constable from PS Harsh Vihar brought the summoned record relating to the complaint dated 4.3.2009 filed by Smt.Anita against Sh.Ram Niwas and his sons - Sunil, Sushil and Praveen which was exhibited as Ex.DW-3/A (OSR). He deposed that he had brought photocopy of the complaint dated 11.12.2008 of Smt.Anita against the same persons as well as Smt.Geeta and Sushma original of which had been misplaced. In his cross examination he has CS No.264/2011 8/18 stated that compromise was effected between the parties and therefore no action was taken by the police on the said complaint.
18. DW-4 is Chandra Prakash official from BSES. He produced the summoned record relating to electricity connection in the name of Smt.Bala wife of Sh.Ram Niwas at house No.B-93/A, North Chhajjpur, Delhi. He also brought the original record relating to connection No.1260058699 in the name of the defendant at the said property. There was also a No objection certificate of Smt.Bala for giving electricity connection in favour of Sh.Anil.
19. Sh.Anil Kumar defendant was also examined as DW-3 who tendered his evidence byway of affidavit Ex.W-3/A. He marked the following documents:-
(i) Copy of the MLC dated 10.6.2009 as mark A
(ii) Copy of the MLC dated 25.10.2008 as mark B
(iii) Copy of the MLC No.C-4638 as mark C
(iv) Copy of the MLC No.A-2551/2009 as mark D
(v) Copy of the MLC No.3325 as mark E
(vi) copy of the complaint under section 12 of the Domestic Violence Act as mark F
(vii) Copy of the complaint under section 200 Cr.PC as mark G
(viii) Copy of the electricity bill as mark H
20. Sh. Anil Kumar DW-3 was cross examined by the learned counsel for the plaintiff. In his cross examination, the defendant DW-3 admitted that the suit property was in the name of the plaintiff but he denied the suggestion that the plaintiff was owner of the same or that the suit property was purchased and constructed upon from his own resources. He denied the suggestion that he was provided one room by his father for residential purposes. He stated that he had constructed one room from his own funds and from financial help from his in-laws. He denied the suggestion that the kharad machine was owned by the plaintiff. He admitted that his wife had filed a criminal case against the plaintiff which was pending in the concerned Court. He denied the suggestion that he along with his wife had beaten up the plaintiff. He voluntarily stated that the leg of the plaintiff was fractured at the house of his maternal aunt. He stated that along with his cousin CS No.264/2011 9/18 took the plaintiff to the hospital. He admitted that the proceedings were instituted against him under section 107/151 Cr.PC in which he was arrested. He stated that he could not remember whether the plaintiff had sent any legal notice for vacation of the suit premises. He denied the suggestion that the suit property could fetch a rent of Rs.5,000/- per month.
21. Sh. Rameshwar Panchal-nephew of the plaintiff was examined as DW-5. He deposed by way of affidavit Ex.DW-5/A. He deposed that prior to the year 1984, parents of the plaintiff were residing in the village and that the plaintiff had come to Delhi seeking employment. He deposed that after his marriage, the plaintiff asked for his share of the property from his father and sold the same to one Muslim family. He deposed that father of the plaintiff sold the property in the village and arranged a house for the plaintiff at Kabir Nagar Delhi and started residing with the plaintiff in the same. He deposed bricks, doors, door frames, wooden beams, and stones of the structure in the village were loaded in a truck and brought to Delhi at the plot and were used in construction of the said house. He deposed that the parents of the plaintiff sometimes used to reside with him in the village as they had to look after their agricultural land. He deposed that when the property was purchased the defendant was a small child and used to go for studies but the plaintiff could not bear household expenses and therefore the defendant stopped studying since class VIII and started supporting the plaintiff in the work of Kharad. He deposed that thereafter finances of the plaintiff were met and other children of the plaintiff could be educated.
22. DW-5 further deposed in his affidavit that the plaintiff was not happy with the marriage of the defendant as he did not receive sufficient dowry as per his wishes and used to trouble wife of the defendant for small things on this account. He deposed that the plaintiff used to beat the defendant for taking side of his wife. He deposed that he had to intervene several times to get the disputes settled. DW-5 further deposed that the plaintiff has sold his first house in the year 1988 and purchased the other house at North Chhajjupur. He deposed that since the plaintiff required more money for purchasing this house, he took money from the deponent (DW-5) who took back the loan by tilling the land of the plaintiff. DW-5 deposed that family of the plaintiff was residing in the property. In the year 2004 father of the CS No.264/2011 10/18 plaintiff died and thereafter disputes took place in the family of the plaintiff. He deposed that a family settlement took place in which the deponent and Sh. Ilam Chand father in law of the defendant were involved and decision was taken that the defendant would reside in the first floor of this property after constructing one room and that the plaintiff would not make any contribution for the said construction. He deposed that father-in-law of the defendant Sh.Ilam Chand arranged for the money and got constructed one room along with latrine-bathroom on the first floor in which the defendant started residing with his family. He deposed that even thereafter disputes continued between the plaintiff and the defendant and whenever deponent tried to intervene he was sent away from the house. He deposed that the defendant does not have any other room to reside other than the suit property and that the defendant has invested all his earnings in the same.
23. DW-5 was cross examined by the learned counsel for the plaintiff. In his cross examination, he denied the suggestion that he was not related to the plaintiff. He denied the suggestion that father of the plaintiff did not sell any property in the village to any Muslim family. He stated that he did not know the date or year when the plaintiff purchased the property at Kabir Nagar. He stated that he was not aware the number of the house / property at Kabir Nagar. He deposed that he could not say whether the plaintiff purchased the property at Kabir Nagar from his own income or from the sale proceeds of the property sold in the village. He voluntarily stated that the plaintiff sold his property in the village and came to Delhi and bought the property at Delhi and returned to the village and brought old door frames etc. from the village and used the same in construction of the property at Delhi. He denied the suggestion that the plaintiff did not sell any property at the village. He further stated that he was not aware as to who brought the raw material from the old house in the village. He denied the suggestion that no raw material was brought from the village to Delhi. He admitted that he had no concern with the plaintiff. He denied the suggestion that the house at North Chhajjupur (suit property) was purchased by the plaintiff. He stated that the same was purchased by Sh.Ram Chand (father of the plaintiff).
24. DW-6 is Sh.Ilam Chand father-in-law of the defendant. He deposed by way of affidavit Ex.DW-6/A. DW-6 deposed that the defendant was married to his CS No.264/2011 11/18 daughter on 16.7.1994. He deposed that the defendant was residing with is parents at B-93, Kabir Nagar, Delhi and was working with his father on kharad machine. He deposed that after seeing the work of the defendant and his experience, he got his daughter married to the defendant with the consent of the plaintiff and spent money beyond his means in the marriage. He deposed that the defendant and daughter of the deponent were leading happy married life but the plaintiff was not happy with the marriage and used to abuse his daughter. He deposed that grandfather of the defendant used to be disturbed due to this reason and would placate the plaintiff and settle the matter. He deposed that the plaintiff kept all the money earned by the defendant with him and used to trouble his daughter also. He deposed that after the marriage of the defendant, there was insufficient living space in the property at Kabir Nagar and the plaintiff sold the said property and purchased the present property in the year 1998 but disputes between the plaintiff and the defendant continued.
25. PW 6 deposed that the defendant somehow managed and worked along with the plaintiff while other children of the plaintiff were receiving education. He deposed that in the year 2004, father of the plaintiff and grandfather of the defendant died and there was lot of dispute in the family of the plaintiff. DW-6 further deposed that relatives and members of the society intervened and settlement was arrived at between the parties as per which the defendant was permitted to take help from his in-laws and to construct one room along with latrine- bathroom on the first floor of the said property. He deposed that the deponent accepted the same and got constructed one room along with latrine-bathroom on the first floor with a cost of Rs.20,000/- and the deponent himself did the masonary work. He deposed that even thereafter the plaintiff was not happy and was trying to throw out the defendant and his wife from the suit property. He deposed that the defendant and his wife did not have any other property to reside and were able to manage only in the suit property. He deposed that the defendant had put his entire earnings in the suit property.
26. DW-6 Ilam Singh was cross examined. In his cross examination he denied the suggestion that the defendant and his wife Anita started living in the tenanted premises after one month of the marriage. He denied the suggestion that the CS No.264/2011 12/18 defendant was not employed at the time of his marriage. He admitted that the defendant and his wife were residing separately in the suit property. He denied the suggestion that the defendant was residing separately due to the frequent fights with the plaintiff. He admitted that the plaintiff was admitted to GTB Hospital due to head injury but denied that the same was sustained in the fight with the defendant and his wife. He voluntarily stated that when the plaintiff found that his daughter-in- law was unconscious, he himself inflicted injury on his head to save himself from the police. He denied the suggestion that the plaintiff got constructed first floor himself to provide separate establishment to the defendant and his wife. DW-6 denied the suggestion that he did not pay any money or that he did not construct the first floor of his own.
27. Consideration of the pleadings and evidence on record led by the parties reveals that the defendant has not disputed that the property bearing No.B-94, Gali No.3, Uttari Chajjupur, Delhi 110 094 in which the suit property is located is in the name of the plaintiff. The case of the defendant is two fold - firstly that the said property was purchased from the funds generated from the sale of ancestral property in the village and as such the defendant had a right in the same and secondly that the defendant had constructed a room on the first floor of this property after settlement was arrived at with the intervention of family members and persons of the society from the funds contributed by Sh.Ilam Chand father in law of the defendant. As regards the room on the ground floor with machinery, the defendant has claimed that the room was to be used jointly and denied that the machinery belonged to the plaintiff. The onus was therefore on the defendant to prove firstly that the property bearing No.B-94, Gali No.3, Uttari Chajjupur, Delhi 110 094 was purchased from the funds generated from the sale of ancestral property and that he constructed the room on the first floor in this property of his own with the funds of his father-in-law Sh.Ilam Chand DW-6.
28. The defendant examined Sh.Satish Kumar as DW-2 who is nephew of the plaintiff. He has deposed that he was having knowledge about the dispute between the parties and of the settlement arrived at between them. In his cross examination, he stated that there was no compromise deed in writing and that he had tried to get the dispute settled but failed. The defendant examined himself as DW-3. In his CS No.264/2011 13/18 cross examination he admitted that the property bearing No.B-94, Gali No.3, Uttari Chajjupur, Delhi 110 094 was in the name of the plaintiff but he stated that the same was purchased from the funds generated from the sale of the property in the village. Sh.Rameshwar Panchal nephew of the plaintiff was examined as DW-5. He deposed that father of the plaintiff had sold the property in the village and arranged for the house for the plaintiff at Kabir Nagar. He also stated that the property at Kabir Nagar was sold and thereafter the present property was purchased. He has deposed that the property in Delhi was constructed from the building material of the house in the village. None of these witness has given any material particulars about sale of the property in the village, i.e. the person to whom it was sold and the document of sale or consideration amount. They have not given any particulars about the consideration paid for the property at Kabir Nagar or for the property bearing No.B-94, Gali No.3, Uttari Chajjupur, Delhi 110 094. Therefore, there is no evidence on record to prove that the present property was purchased from the funds generated from the sale of the property in the village. Even otherwise, one fails to understand as to how the defendant can claim any right in the present property on the basis that the same was purchased from the funds generated from sale of the ancestral property in the village. Under Section 8 of the Hindu Succession Act 1956 read with Class I of the Schedule, a grandson can not claim any interest in the property of his grandfather during life time of his own father.
29. Next comes the question regarding construction of the room on the first floor of the property bearing No.B-94, Gali No.3, Uttari Chajjupur, Delhi 110 094 by the defendant from the funds and assistance of his father in law Sh.Ilam Chand. The plaintiff has claimed that in order to prevent any future disputes between the parties, the plaintiff had constructed one room on the first floor from his own funds for residential purposes of the defendant and his wife. The defendant admits that this property is in the name of the plaintiff but has claimed that the room was constructed from the funds contributed by his father in law Sh.Ilam Chand (DW-6).
30. Defendant examined himself as DW-3 and his father in law Sh. Ilam Chand as DW-6. Both have deposed positively in this regard. However, they have not placed on record any documentary evidence to show contribution of any amount CS No.264/2011 14/18 for this purpose. DW-6 has deposed that he spent Rs.20,000/- for construction on the room on the first floor and that he himself worked as a mason during the course of construction. There is no documentary evidence on record proved by the defendant in this regard. It is also to be noticed that Smt. Anita wife of the defendant has instituted several complaints and litigation against the plaintiff and his wife. Smt. Anita has filed a complaint under the provisions of Section 12 of the Domestic Violence Act against the plaintiff in which settlement was arrived at that the plaintiff would not dispossess the defendant and Smt.Anita without adopting due process of law. She also filed another complaint case bearing No.87/2009 against the plaintiff Ram Niwas and other members of the family which was pending in the Court of concerned Metropolitan Magistrate, Kkd. Courts, Delhi. She has also filed a complaint in PS Harsh Vihar dated 4.3.2009 against the plaintiff and his other sons - Sunil, Sushil and Praveen. It is therefore clear that there is hostility between the plaintiff and the defendant and his wife to the extent that they are prosecuting each other in various fora. It therefore does not seem probable that the plaintiff would allow the defendant to raise construction in his property from the funds of the defendant and his father in law to permit the defendant to lay claim to any portion of his property. In the absence of any documentary evidence on record being proved by the defendant in this regard and considering this aspect on the principle of preponderance of probabilities, the only inference this Court can draw is that the plaintiff constructed the room on the first floor of this property without any contribution from the defendant or his father in law.
31. Next comes the question regarding machinery in the room on the ground floor and possession of the said property. The defendant has not claimed any title to the room on the ground floor in which machinery is installed. The defendant has not claimed any title to the machinery installed in the said room. The plaintiff has claimed that the defendant has illegally dispossessed him from the said room and has taken possession of the machinery. In order to prove his title to the machinery, the plaintiff has placed on record original receipt for purchase of the machinery which is mark E. During his cross examination, the plaintiff admitted that this document was in his own handwriting. The plaintiff has not examined the vendor from whom he purchased the machinery. However, the defendant has himself not CS No.264/2011 15/18 claimed any title to the same.
32. DW-5 Sh. Rameshwar Panchal has deposed in his affidavit that the defendant stopped studying since class VIII and started working with the plaintiff in the work of Kharad. PW-6 Ilam Chand father in-law of the defendant has deposed that he saw the defendant working with his father on the kharad machine and in view of his experience in the said business he got his daughter married with the defendant. Hence from a consideration of this evidence, it appears that the kharad machine installed in the room on the ground floor of the property was already in existence and the plaintiff was earning his livelihood from the same. The defendant after discontinuing his studies after class VIII started working with his father. Thus the machinery were already in existence in the premises prior to the defendant having started his work on the same with the plaintiff. Therefore from the principle of preponderance of probabilities the only finding which can be rendered is that qua the defendant, the plaintiff is the owner of the kharad machine in the room on the ground floor of the property. Since the plaintiff has proved his title to the room on the first floor and room on the ground floor as well as machinery in the room on the ground floor of property bearing No.B-94, Gali No.3, Uttari Chajjupur, Delhi 110 094, the plaintiff will be entitled to the relief claimed in regard to the same. Issues No.1 and 3 are therefore decided in favour of the plaintiff and against the defendant I S S U E No.2
33. This issue is regarding entitlement of the plaintiff for recovery of mesne profits. The plaintiff has claimed recovery of mesne profits at the rate of Rs.3,000/- per month on account of illegal occupation of the suit property by the defendant. The plaintiff has examined only himself as a witness. He has not examined any other witness or produced any other evidence on record to prove that the market rate of rent of the similar premises in the locality. The defendant has denied the claim of the plaintiff but has himself not proved on record by way of evidence the rate of rent of similar premises in the locality. In his evidence by way of affidavit in para 11, the plaintiff has deposed that the suit property can fetch rent of Rs.5,000/- per moth but has claimed only Rs.3,000/- per month.
34. As per site plan, suit property on the ground floor is measuring 12 x 10 ft and CS No.264/2011 16/18 the suit property on the first floor is also measuring 12 x 10 ft both of which are in occupation of the defendant. The plaintiff has sought a consolidated amount of Rs. 3,000/- per month as mesne profits/damages in respect of both these rooms i.e. at the rate of Rs.1,500/- per month each room. It does not appear to this court that the amount claimed is excessive in any manner even though the plaintiff may not have proved the rate of rent of the similar premises in the locality. Accordingly issue No. 2 is decided in favour of the plaintiff holding that the plaintiff is entitled to recovery of mesne profits/damages at the rate of Rs.3,000/- per month from the defendant from the date of filing of the suit till gaining possession of the suit property.
ISSUES No.4, 5 AND 635. Issue No.4 was whether the suit of the plaintiff was not maintainable, issue No. 5 was whether the plaintiff did not have locus standi to file the suit and issue No.6 was whether the suit of the plaintiff was liable to be rejected under Order VII Rule 11 CPC. No submissions have been made by the learned counsel for the defendant on these issues. It is not even explained as to how the suit is not maintainable or is liable to be rejected under Order VII Rule 11 CPC. The defendant has claimed that the plaintiff did not have any locus standi to file the suit. I have already held while deciding issues No.1 and 3, the plaintiff is the owner of the suit property and of the machinery lying in the room on the ground floor of the property. The plaintiff therefore has locus standi to file the present suit. Accordingly, all these issues are decided against the defendant and in favour of the plaintiff.
RELIEF
36. In view of the reasons recorded above, suit of the plaintiff is decreed in the following manner :
(i) the plaintiff is granted decree for possession of the suit property i.e.one room on the ground floor and one room (inside kitchen) on the first floor in property bearing No.B-94, Gali No.3, Uttari Chajjupur, Delhi 110 094, shown in red in the site plan;
(ii) the plaintiff is granted decree for mandatory injunction directing the defendant to hand over possession of machinery i.e. kharad machine, surface CS No.264/2011 17/18 grinder, power press and generators to the plaintiff ;
(iii) the plaintiff is granted decree for mesne profits/damages at the rate of Rs.3,000/- per month with effect from the date of filing of the suit till the date of receiving the possession of the suit property (decree sheet in respect of this relief be prepared after deposit of deficient court fee by the plaintiff);
(iv) Costs of the suit are also awarded in favour of the plaintiff.
(v) plaintiff shall also be entitled to the costs of the suit.
Decree sheet be drawn up accordingly.
File be consigned to the record room.
Announced and dictated to the steno in Open Court today i.e. 7.1.2013 (REETESH SINGH) Addl. Distt. Judge-01 (NE) Karkardooma Courts, Delhi CS No.264/2011 18/18