Delhi District Court
Sant Ram vs Col. Rama Krishna Sareen on 18 September, 2019
In The Court of Charu Aggarwal
Additional District Judge03 (West)
Tis Hazari Courts, Delhi
In the matter of :
RCA no:27/2018
Sant Ram
s/o late Shri Shiv Saran Dass
r/o 461/3 MAP, OMQ Air Force Station,
Kheria,Agra
Uttar Pradesh. ......... Appellant.
Versus
1. Col. Rama Krishna Sareen
s/o Shri Sant Ram
r/o 12/2, Subhash Nagar,
New Delhi.
2. Union of India
Ministry of Defence
Through Secretary
Integrated Head Quarter(Army)
New Delhi. ......... Respondents
Date of institution : 09.03.2018
Judgment announced on : 18.09.2019
Judgment
1. The present appeal alongwith an application u/s 5 of Limitation Act, has been filed by the appellant/plaintiff, challenging the judgment/decree dated 15.12.2017, passed by the Ld. Sr.Civil Judge/Rent Controller, thereby, dismissing the civil suit bearing no. 548292/14 of the appellant/plaintiff.
2. In the application u/s 5 of Limitation Act, the appellant/plaintiff has stated that he is 94 years old and is residing at Agra. He received the Sant Ram vs Rama Krishna Sareen and another RCA no:27/2018 1 Of 12 certified copy of the impugned judgment/decree on 03.01.2018, thereafter, he instructed his counsel to file the appeal. However, after almost 20 days, the counsel of the appellant expressed his reluctance to file the appeal. Therefore, the appellant had to wait for his younger son, who is in army to go to Delhi and collect the file of the case from the earlier counsel. It is stated that the appellant's younger son visited Delhi on 25.01.2018 and after receiving the file from the earlier counsel immediately engaged the new counsel and filed the present appeal on 08.03.2018.
3. There is delay of 35 days in filing the appeal. In the judgment Collector Land Acquisition vs Mst. Katigi and ors. 1987 AIR 1353 it is held that "liberal approach should be adopted by the Courts,while deciding the application u/s 5 of Limitation Act,as a litigant does not take any benefit by resorting to delay,rather he runs a risk for himself''. Hence, in view of the reasons mentioned in the application u/s 5 of the Limitation Act, the same is hereby allowed. The delay in filing the appeal is accordingly condoned.
4. Now, let us come on the merits of the case/appeal. The plaintiff/appellant had filed the suit for mandatory injunction and recovery of damages against his own son (defendant no.1) before the Ld. Trial court. Defendant no.2 is the employer of the defendant no.1.
5. The case of the plaintiff is that originally his wife late Smt Satyawati, was the absolute owner of the property bearing H.no. 12/12, Subhash Nagar, New Delhi (herein referred to as the suit property). Smt Satyawati had expired on 21.09.1995. During her life time, she executed a WILL dated 06.06.1995, thereby bequeathing the suit property in favour of plaintiff. Thus, by virtue of the said WILL of late Smt Satyawati, the plaintiff has become the absolute owner of the suit property after her death. The plaintiff had stated that all the legal heirs including the defendant no.1 of late Smt Satyawati have admitted her WILL dated 06.06.1995 in the earlier suit filed by Sant Ram vs Rama Krishna Sareen and another RCA no:27/2018 2 Of 12 her against some third person Shri Nand Lal .
6. It is stated that defendant no.1, son of the plaintiff, is residing in the suit property since the year 2000 as a licencee with the permission of the plaintiff. The defendant no.1 even during the lifetime of his mother also used to reside in the suit property with her permission whenever he was posted in Delhi. Plaintiff has stated that during the life time of his wife, the defendant no.1 used to take the signatures of plaintiff's wife on blank rent receipts and on the basis of those blank receipts he used to claim HRA from his office i.e. defendant no.2. After the death of plaintiff's wife, the defendant no.1 continued the same practice of getting signed the blank rent receipt from the plaintiff and claiming HRA from defendant no.2, thereby admitting the plaintiff to be the owner of the suit property by virtue of WILL dated 06.06.1995. However, with the passage of time, the defendant no.1 started misbehaving, harassing and ill treating the plaintiff. Considering the atrocities of defendant no.1, the plaintiff terminated his licence vide legal notice dated 20.05.2008, duly served upon him, calling upon him to vacate the suit premises within 15 days from receipt of the legal notice. Despite service of legal notice, the suit property was not vacated by defendant no.1, hence, the present suit.
7. The plaintiff has also claimed damages to the tune of Rs.9000/ per month from the defendant no.1.
8. The defendant no.1 filed his written statement before the Ld. Trial court interalia admitting the relationship of son and father between the parties. He has taken certain preliminary objections like the maintainability of the suit in the present form on the ground that the plaintiff in the garb of suit for mandatory injunction is seeking relief of possession. He has also stated that the suit is also barred by law of limitation. It is also stated that the suit has not been properly valued for the purpose of court fees and jurisdiction.
9. On merits, the defendant no.1 has challenged the WILL dated Sant Ram vs Rama Krishna Sareen and another RCA no:27/2018 3 Of 12 06.06.1995, relied upon by the plaintiff by alleging it to be forged and fabricated WILL. He has stated that his mother has not executed any WILL during her lifetime and the signatures on the alleged WILL are not the signatures of his mother. He has stated that his parents did not have cordial relations with each other, due to which, his mother was residing with her daughter in Chandigarh. He has also alleged that his mother was not in sound disposing mind to execute any WILL. He has stated that the WILL of his mother was admitted by him in the earlier civil suit since the plaintiff herein gave the impression that if the WILL is not admitted by the Lrs of late Smt Satyawati in the said civil proceedings, then, the plaintiff would have been sent to jail by the concerned court where the said matter was pending and in order to save the plaintiff from the jail, the defendant no.1 alongwith his other siblings admitted the WILL dated 06.06.1995. It is alleged that the plaintiff is a chronic litigant and is in the habit of filing false and frivolous complaints against everyone.
10. Replication was filed by the plaintiff before the Ld. Trial court, reiterating and reaffirming the same facts as stated in the plaint. He has denied the allegations made by the defendant no.1 regarding forgery and fabrication of WILL dated 06.06.1995. He has also denied exercising of any undue influence or coercion upon the defendant no.1 or other legal heirs of late Smt Satyawati for giving any NOC in any civil proceedings.
11. Vide order dated 16.07.2011, following issues were framed by the Ld. Trial court.
(i) Whether the plaintiff is entitled to the decree of mandatory injunction,as prayed for?OPP.
(ii) Whether the plaintiff is entitled to the relief of damages, as prayed for?OPP.
(iii) Whether the plaintiff is the owner of the suit Sant Ram vs Rama Krishna Sareen and another RCA no:27/2018 4 Of 12 property bearing no. 12/2, Subhash Nagar, Delhi, by virtue of alleged WILL dated 06.06.1995?OPP.
(iv) Whether the suit is not properly valued for the of court fees and jurisdiction?OPD1.
(v) Whether the alleged WILL dated 06.06.1995, is
forged and fabricated document?OPD1.
(vi) Relief.
12. The plaintiff has examined only himself in his evidence as PW1. He has filed his affidavit in evidence, whereby, he reiterated and reaffirmed the same facts as stated by him in the plaint. He has relied upon the following documents:
(i) Ex.PW1/1: Site plan.
(ii) Ex.PW1/2: Certified copy of WILL dated 06.06.1995.
(iii) Ex.PW1/3: Certified copy of NOC.
(iv) Ex.PW1/4 and Ex.PW1/5: letter regarding information of HRA in respect of the sit property and Certificate with ` regard to reimbursement of HRA.
(v) Ex.PW1/6: Copy of letter dated 19.02.2008.
(vi) Ex.PW1/7: Copy of notice dated 20.05.2008.
(vii) Ex.PW1/7A: Postal receipt of notice.
(viii) Ex.PW1/8A: UPC.
(ix) MarkA: Photocopy of notice u/s 80 CPC.
(x) MarkB: photocopy of registration certificate.
(xi) MarkC: Money lender license.
13. PW1 was cross examined by the counsel for defendant no.1.
Despite regularly appearing before the Ld. Trial court, the defendant no.1 did Sant Ram vs Rama Krishna Sareen and another RCA no:27/2018 5 Of 12 not lead any evidence. Rather, he gave his statement on 02.09.2015, that he does not want to lead any evidence, therefore, vide said order dated 02.09.2015, his defence evidence was closed.
14. I have heard the ld. Counsel for the appellant and respondent no.1 and have perused the written arguments filed by both the parties.
15. Ld. Trial court dismissed the suit of the plaintiff primarily on the ground that plaintiff has not proved the WILL dated 06.06.1995, of his deceased wife, as per the mandate of Section 68 of Indian Evidence Act, as the plaintiff has not examined even a single attesting witness of the said WILL.
16. Before coming to the merits of the case, I would first like to deal with the preliminary objections taken by the defendant no.1 in his written statement. The first objection taken by him is that in the garb of suit for mandatory injunction, the plaintiff is seeking possession of the property, therefore, the suit is not maintainable in its present form. This objection of the defendant no.1 has no merit, since it is settled law that the suit for mandatory injunction based on the relationship of licensor and licensee is maintainable and undisputedly the plaintiff has based his suit on the premise of relationship of licensor and licensee. For this, reliance can be placed Sant Lal Jain vs Avtar Singh AIR 1985 Supreme Court 857 and Hassan Ali vs Akbari Begum 133(2006) DLT 26. In both these matters it was held that ''suit for mandatory injunction is maintainable against the licensee''. Hence, this objection of defendant no.1 is hereby rejected.
17. The defendant no.1 has also raised an objection that the suit of the plaintiff is barred by law of limitation. The defendant no.1 has not addressed arguments on his this objection that how the suit is barred by law of limitation. The Limitation Act does not provide any time period to file a suit against a licensee. However, as per Article 67 of the Limitation Act, the suit against a tenant can be filed within 12 years from the date of terminating the Sant Ram vs Rama Krishna Sareen and another RCA no:27/2018 6 Of 12 tenancy. Taking the ancillary from the Article 67 of the Limitation Act, here, the licence of the defendant no.1 was terminated by the plaintiff by serving the legal notice dated 20.05.2008 and the suit has been filed 21.07.2008 which is well within the period of limitation. In view of this, the objection of defendant no.1 regarding limitation also has no merit.
18. The next objection of the defendant no.1 is that the plaintiff has not valued the suit properly for the purpose of court fees and jurisdiction. On this objection of the defendant no.1, the specific issue no.4 was framed by the Ld. Trial court, which in the impugned judgment has been decided in favour of plaintiff and against the defendants. There is no challenge on this issue decided by the Ld. Trial court. Otherwise also, the Ld. Trial court has rightly observed while deciding this issue that defendant no.1 has not lead any evidence to prove this issue and considering the relief sought in the plaint, the plaintiff has correctly valued the suit for the purpose of court fees and jurisdiction. So far as, the relief of damages sought by the plaintiff is concerned, he has undertaken that same would be paid, if such relief is granted in his favour.
19. The plaintiff has primarily challenged the findings of the Ld. Trial Court given on issues no.1 & 3, as both these issues have been decided by the Ld. Trial court against him and in favour of defendant no.1.
20. The entire case of the plaintiff is revolving around the WILL dated 06.06.1995, of his deceased wife late Smt Satyawati. The said WILL is unregistered and attested by two witnesses. It is settled law that registration of WILL is not mandatory. The case of the plaintiff is that by way of WILL dated 06.06.1995, his wife has bequeathed the suit property in his favour and the said WILL was admitted by all the Lrs of late Smt Satyawati by giving their NOC in the earlier suit bearing no. 278/1966. The defendant no.1 has alleged the WILL of his deceased mother to be forged and fabricated on number of grounds. Firstly, he has challenged the WILL of his mother on the ground that it does Sant Ram vs Rama Krishna Sareen and another RCA no:27/2018 7 Of 12 not bear her signatures. Secondly, he has stated that she was not in sound disposing mind at the time of execution of WILL and Thirdly, he has stated that relationship between the plaintiff and his wife were strained, as plaintiff never took care of his wife, therefore, defendant's mother had no reason to execute the WILL in favour of plaintiff. Fourthly and most importantly, he has stated that the NOC given by him and his siblings in the suit no. 278/1966 was obtained by the plaintiff by playing fraud, exercising undue influence and coersion upon his children on the pretext that if the said NOC is not given, the plaintiff might have been sent to jail by the concerned court dealing with the suit no. 278/1966. He has stated that otherwise also, admission, if any, regarding the execution of the WILL does not ipsofacto prove the WILL as in order to prove a WILL the propounder of the said WILL has to comply the statutory requirements contained in Section 68 of Indian Evidence Act by examining atleast one attesting witness of the WILL.
21. Admittedly, the suit property was originally owned by Smt Satyawati. Undisputedly, during her life time, she filed a civil suit bearing no.278/1966 against some third person namely Nand lal. The plaintiff before the Ld. Trial court placed on record memo of parties (Ex.PW1/2) of C.M.(M) filed by Smt Satyawati before Hon'ble High Court in the year 1994. The memo of parties (Ex.PW1/2) clearly shows that the said C.M.(M) was filed by her through her attorney and the said attorney was none other than the plaintiff, husband of Smt Satyawati. The plea of the defendant no.1 that his parents had strained relationship belies from this fact itself that plaintiff being attorney and husband of Smt Satyawati was contesting the litigation on behalf of his wife in the court. Had, the parents of the defendant no.1 would have strained relationship then there are remote possibilities that Smt Satyawati would have appointed her husband as attorney to contest any litigation on her behalf in the court.
Sant Ram vs Rama Krishna Sareen and another RCA no:27/2018 8 Of 12
22. Admittedly, during the pendency of the civil suit no. 278/1966, Smt Satyawati got expired. Thereafter, the plaintiff herein filed an application u/o 22 rule 3 CPC for his impleadment in the said suit on the basis of WILL dated 06.06.1995. The defendant no.1 alongwith his other siblings filed their common ''No Objection Certificate'', categorically admitting therein the execution and genuineness of the Will dated 06.06.1995 of their mother. The relevant portion of the said NOC is extracted as under: "that the deceased plaintiff had executed a WILL dated 06.06.1995,wherein she has bequeathed her estate to her husband Shri Sant Ram which is legal and operative.''
23. The perusal of the aforesaid extraction of the NOC clearly shows that in the above NOC the defendant no.1 has admitted not only the execution of the WILL of his mother but also its genuineness. The record also shows that the concerned court dealing with the civil suit no.278/1966 also summoned all the LRs of Smt Satyawati in the court. In persuance of the directions passed by the said court, the defendant no.1 alongwith his sister Dr Vijay Laxmi Chopra appeared before the concerned court on 29.01.1997 and raised no objection on the impleadment of the plaintiff herein in the said suit(278/1966) on the basis of the Will dated 06.06.1995 of Smt Satyawati. Here, the defendant no.1 has contended in the written statement that the said NOC was given by him under threat and undue influence exercised upon him by his father since his father i.e. plaintiff herein told him that if NOC in regard to the WILL is not given, the court might send him in jail. On this, the Ld trial court has rightly observed in the impugned judgment that defendant No.1 has not lead any evidence, whatsoever, to prove the alleged threat or undue influence exercised upon him by the plaintiff or anyone else. The defendant no.1 has admitted the execution Sant Ram vs Rama Krishna Sareen and another RCA no:27/2018 9 Of 12 and genuineness of the WILL of his mother in some other judicial proceedings (suit no.278/1966) by way of executing his NOC as well as by appearing in person in the court and now, in the subsequent judicial proceedings, when on the basis of same WILL the relief is sought against him, he cannot be allowed to resile from his such admission on any frivolous ground taken by him as per his whims and wishes. The defendant No.1 being a army man is expected to be more consistent on his stand instead of changing it one after the other depending upon the circumstances. While deciding issue no. 5, the Ld. Trial court has rightly observed that defendant no.1 has failed to prove that the WILL of his mother is forged and fabricated, therefore the only inescapable conclusion can be that the WILL of late Smt Satyawati is genuine WILL in favour of plaintiff, thereby bequeathing the suit property in his favour.
24. The contention of the defendant no.1 that the plaintiff was required to prove the WILL dated 06.06.1995 as per the mandate of 68 of Indian Evidence Act has no merit since as per Section 58 of the same Act, the facts admitted by the opponent party are not required to be proved by the party relying upon those facts by leading mathematical evidence. The plaintiff was required to strictly follow Section 68 of the Indian Evidence Act, only if, the defendant would have not categorically and unambiguously admitted the execution as well genuineness of the WILL dated 06.06.1995 of his mother in the earlier judicial proceedings. As already observed hereinabove that the defendant no.1 has categorically, clearly and unambiguously admitted the execution as well as the genuineness of the WILL dated 06.06.1995 of his mother, therefore, the plaintiff was not required to comply Section 68 of Indian Evidence Act in strict sense.
25. The plaintiff has stated in the plaint as well as his affidavit in evidence that defendant no.1 is residing in the suit property as a licensee of the plaintiff. There is no cross examination of plaintiff/PW1 on this fact. Otherwise Sant Ram vs Rama Krishna Sareen and another RCA no:27/2018 10 Of 12 also, defendant no.1 has not pleaded his any independent right in the suit property. Accordingly, the relationship of licensor and licensee between the parties stands proved on record.
26. The plaintiff has stated that vide legal notice dated 20.05.2008, he terminated the license of defendant No.1, calling upon him to vacate the suit premises. But despite service of legal notice, defendant no.1 did not vacate the suit premises. Hence, the plaintiff has claimed damages to the tune of Rs.9,000/ per month. There is no crossexamination of plaintiff on the fact that legal notice dated 20.05.2008, was not served upon defendant No.1. Otherwise also, as per General Clauses Act, ''if the correspondence is addressed on the correct address of the addressee, then, it is presumed that it is duly served upon the addressee''. Relying upon Section 27 of the General Clauses Act and also in view of the no cross examination of Pw1 on the factum of service of legal notice, the defendant No.1 is deemed to served on 22.05.2008, giving him two days benefit for the time taken in the service of legal notice. Hence, the plaintiff is held entitled for the mesne profit with effect from 07.06.2008. However, he has claimed the mesne profit in the suit from the date of institution of the suit i.e. 21.07.2008.
26. Regarding the quantum of mesne profit, the PW1 has stated in his affidavit that the suit property may fetch the rent @ 9000/ per month. The suit property is in West Delhi consisting of ground and first floor as per the site plan. Therefore, the mesne profit @ Rs.9000/ per month as claimed by plaintiff seems to be reasonable. Accordingly, the plaintiff is entitled for the mesne profit with effect from August2008 till actual vacated possession of the suit property. Defendant No.1 is directed to clear the arrears within 45 days from today, failing which, arrear will carry the interest at the rate of 6 per cent per month.
27. In view of aforesaid discussion, the impugned judgment/decree dated 15.12.2017, is hereby set aside, consequently, the suit of the plaintiff is Sant Ram vs Rama Krishna Sareen and another RCA no:27/2018 11 Of 12 decreed for mandatory injunction with directions to defendant no.1 to vacate the suit premises bearing no. H.no.12/12, Subhash Nagar, New Delhi. The suit of the plaintiff is also decreed for mesne profit in terms of preceding para. The appeal is accordingly allowed.
Decree sheet be prepared subject to deposit of court fees on the amount of mesne profit awarded by way of this order.
Appeal file be consigned to the record room.
TCR be returned alongwith copy of this judgment.
Digitally signed by CHARU CHARU AGGARWAL
AGGARWAL Date: 2019.09.21
16:43:12 +0530
Announced in the open Court (Charu Aggarwal)
On: 18.09.2019 ADJ03/West Distt./THC/Delhi
Sant Ram vs Rama Krishna Sareen and another
RCA no:27/2018
12 Of 12