Delhi District Court
Virender Mohan vs Ravinder Gupta on 22 February, 2025
CS DJ No. 620033/2016
IN THE COURT OF MR. JITEN MEHRA: DISTRICT
JUDGE-10: TIS HAZARI COURTS: DELHI.
CS DJ NO.620033/2016
CNR NO. DLCT01-012789-2016
Sh. Virender Mohan
(since deceased through LRs.)
1. Smt. Rameshwari Devi
W/o Late Sh. Virender Mohan
R/o 2767/22, Beadonpura, Karol Bagh,
New Delhi - 110005
2. Sh. Surinder Mohan
S/o Late Sh. Virender Mohan
R/o 13914, Kingsride Lane,
Houston, Texas 77079, USA
3. Sh. Pradeep Kumar
S/o Late Sh. Virender Mohan
R/o 3582, Breezy Point Drive, Okemos,
Michigan 48864 USA
4. Sh. Rajinder Mohan
S/o Late Sh. Virender Mohan
R/o 4, Partidge Lane,
Mansfield, MA, 02048, USA
5. Sh. Dharminder Mohan
S/o Late Sh. Virender Mohan
R/o 10036, North 7th Place,
Phoenix, AZ 85020, U.S.A.
.....Plaintiffs
Versus
Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 1/102
CS DJ No. 620033/2016
Ravinder Gupta
(since deceased through LRs.)
Sh. Rocky Gupta
S/o Late Sh. Ravinder Gupta
R/o 88-B, Block AD, Shalimar Bagh,
New Delhi-110088
.....Defendant
Date of Institution of the Suit : 05.08.2003
Date on which Judgment was reserved : 19.02.2025
Date of Judgment : 21.02.2025
SUIT FOR POSSESSION, RECOVERY OF DAMAGES
AND MESNE PROFITS
JUDGMENT:
1) The plaintiff had filed this present suit seeking possession, recovery of damages and mesne profits against the defendant, both of whom expired during the pendency of the present suit and are represented by their respective legal representatives (LRs.). The LRs. of the plaintiff and the defendant were brought on record vide orders dated 24.10.2008 and 17.07.2015 respectively.
2) The present suit was initially instituted before the Hon'ble Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 2/102 CS DJ No. 620033/2016 High Court of Delhi and was transferred to the District Court in terms of notification No. 2718/DHC/Orgl. dated 25.11.2015 on account of enhancement of pecuniary jurisdiction of the District Courts of Delhi.
PLAINTIFF'S VERSION:
3) As per the plaint, the plaintiff Late Sh. Virender Mohan was the owner of the property bearing municipal no.4582/52 and 4553, Regharpura, Arya Samaj Road, Karol Bagh, Delhi comprising of ground floor and first floor (hereinafter referred to as the 'suit property'). The entire front half portion of the ground floor of property no. 4553 is stated to be a shop, which had been let out by the plaintiff to one Late Sh. Chandgi Ram. The entire remaining portion of the property bearing 4553, being half portion of the ground floor facing Gali No. 52 and the entire first floor portion of the property bearing no. 4582/52 was in the occupation and possession of the defendant, who was the younger brother of the plaintiff, as a licencee of the plaintiff and now presently occupied by his legal representative.Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 3/102 CS DJ No. 620033/2016
4) The plaintiff's father, Sh. Mahinder Nath Goyal, had three sons, out of which the plaintiff was the eldest and defendant was the younger brother (middle) of the plaintiff and the youngest brother Sh. Satinder Kumar had migrated to USA.
5) It is the case of the plaintiff that the defendant was staying with the father of the parties till 1964 at the residential house at 2767/22, Beadonpura, Karol Bagh, New Delhi. Around the year 1964, the defendant got married, which was an inter-caste marriage, without the knowledge, consent and information of their father and did not even invite their parents or any family member to attend the marriage. The father of the parties was deeply hurt and angry at the same and relations between the defendant and their father became extremely strained. The defendant left his father's house on his own in the year 1964, just prior to his marriage, and started residing in a rented accommodation at Kirti Nagar for about two years. Thereafter the defendant took on rent the entire first floor of property Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 4/102 CS DJ No. 620033/2016 No.4583/52, Regharpura, Karol Bagh, New Delhi which property was adjoining to the property of the plaintiff i.e. 4582/52, Regharpura, Karol Bagh, New Delhi.
6) After a few years, the defendant requested the plaintiff to use the vacant portion of the adjoining property belonging to the plaintiff on the ground that the rented accommodation was insufficient for him and the plaintiff was also not using the same. The defendant also promised that in due course of time, he would acquire his own house and till such time, he be allowed to occupy the said portion of the said property. The defendant also undertook to vacate the same if the premises were ever required by the plaintiff.
7) The plaintiff out of love and affection towards the defendant, being his younger brother, permitted the defendant to occupy the remaining portion of the ground floor and the first floor of the suit property on a licence basis, without any charges, rent of licence fees. The plaintiff however made it clear that the Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 5/102 CS DJ No. 620033/2016 defendant could continue to occupy the said premises till he did not acquire his property or as per the plaintiff's sweet will. The defendants was thus inducted into the suit property on the aforementioned condition and as a licencee being his younger brother.
8) As per the plaintiff, he did not ask the defendant to vacate the same out of natural love and affection for him and further that the parties were enjoying extremely good relations with each other.
9) The father of the parties Late Sh. Mahinder Nath Goyal expired on 01.06.1986 leaving behind a registered will dated 29.06.1982, bequeathing his property at 2767, Gali No.22, Beadonpura, Karol Bagh, New Delhi in favour of his four grandsons (sons of the plaintiff) namely Sh. Surinder Mohan, Sh. Pradeep Kumar, Sh. Rajinder Mohan and Sh. Dharmender Mohan.Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 6/102 CS DJ No. 620033/2016
10) After about 14 years of the death of Late Sh. Mahinder Nath Goyal, the defendant sent a legal notice to the plaintiff and his sons alleging that the property no.2767, Gali No.22, Beadonpura, Karol Bagh, New Delhi was an HUF property (Hindu Undivided Family) and that their late father Sh. Mahender Nath Goyal had wrongly bequeathed the same in favour of the sons of the plaintiff, hence the said will was invalid and the consequent mutation of the aforementioned property in the name of sons of the plaintiff was also liable to be cancelled. The said notice was duly replied by the plaintiff stating that the said property was a self-acquired property of Late Sh. Mahinder Nath Goyal who had bequeathed the said property in favour of his four grandsons who were now the co- owners having equal share therein.
11) The defendant filed a suit against the plaintiff bearing Suit No.344 of 2001 titled as 'Shri Ravinder Gupta Vs. Virender Mohan & Ors.' claiming partition of the above property of 2767, Gali No.22, Beadonpura, Karol Bagh, New Delhi, in Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 7/102 CS DJ No. 620033/2016 which the sons of the plaintiff were subsequently impleaded. The said suit was filed by the defendant with ulterior motives with a view to harass and pressurize the plaintiff and he even approached the plaintiff in the end of April, 2003 to settle the said suit and offered to withdraw the same in exchange of the property occupied by him under license from the plaintiff. The plaintiff thus realized the malafide intentions and ulterior motives of the defendant in filing the suit.
12) Realizing the mala fides of the defendant, the plaintiff consequently terminated the licence of the defendant with respect to the suit property vide notice dated 14.05.2003, with effect from 30.06.2003 and called upon him to hand over the vacant and physical possession of the entire suit premises, failing which he would be liable to pay damages for the use and occupation of the suit property at Rs.10,000/- per month. The said notice was duly served upon the defendant, despite which he did not vacate the suit premises and continues to occupy the same.
Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 8/102 CS DJ No. 620033/2016
13) Since the defendant was occupying the premises as licensee of the plaintiff, he had no right, title or interest in the suit property after the termination of the licence from 1.7.2003 onwards. The plaintiff also learnt that the defendant had made large scale structural changes in the suit property thereby damaging it, without the plaintiff's knowledge or consent. As the possession of the defendant from 1.7.2003 onwards was illegal, he was liable to pay mesne profits and damages, being the market rent of the suit property, which is conservatively assessed by the plaintiff to be Rs.10,000/- per month i.e. Rs.330/-. Hence, the plaintiff claimed a sum of Rs. 9,900/- on account of mesne profits for the month of July, 2003 (suit was filed in August, 2003). The plaintiff also sought leave to file a separate suit for the damages caused by the defendant to the property or amend/add the necessary reliefs in the present suit.
14) Therefore, the plaintiff filed the present suit seeking a decree of possession in respect of the entire property being the Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 9/102 CS DJ No. 620033/2016 rear half portion on the ground floor and the entire first floor of the property bearing municipal no.4582/52, Rehgarpura, Karol Bagh, New Delhi. A decree for recovery of damages to the tune of Rs.9,900/- and a decree for recovery of mesne profits @ Rs.330/- per day in favour of the plaintiff and against the defendant during the pendency of the suit till the possession of the said premises is delivered to the plaintiff, along with costs of the suit.
DEFENDANT'S VERSION AS PER THE WRITTEN STATEMENT:
15) At the outset I must mention that the defendant's written statement contains bare and evasive denials of the averments of the plaint, without stating the version of the defendant clearly.
After the preliminary objections and parawise replies, the defendant has added a section called 'Additional Pleas' wherein he has narrated his version.
16) In his written statement, the defendant took the preliminary objections that the plaintiff had no cause of action against him Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 10/102 CS DJ No. 620033/2016 either on the basis of title or possession and the suit is barred under Article 65 of the Limitation Act as the defendant had claimed title to the suit property by prescription. The suit is also barred under Article 64 of the Limitation Act, as even on the basis of possession, the plaintiff cannot claim that he was not dispossessed as far back as 1972 when the defendant repudiated any rights of possession of plaintiff following complaints of the plaintiff to MCD for unlawful constructions stated to have been taken in hand by the defendant. The suit is bad for non-joinder of parties as Sh. Om Prakash and the legal heirs of Sh. Chandgi who were inducted in possession by the defendant, were not made parties to the suit. It is submitted that since the defendant was never inducted as licensee of the plaintiff, no suit for possession on the basis of termination of license was maintainable.
17) On merits, the defendant had denied each and every allegation made by the plaintiff. It is submitted that the defendant was in occupation of his own property in his own Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 11/102 CS DJ No. 620033/2016 right and not as a guest/ brother/ licensee of the plaintiff. The story of Sh. Mahender Nath Goyal having left a Will dated 29.06.1982 bequeathing his property no. 2667, Gali no.22, Beadonpura, Karol Bagh, New Delhi in favour of his four grandsons, has been introduced to create confusion in respect of the partition of erstwhile HUF of which Late Sh. Mahender Nath Goyal was the karta and is subject matter of a separate suit. It is submitted that the defendant is in occupation of the entire property either himself or through his tenants as owner thereof and the plaintiff has no right to ask the defendant to vacate the suit property. It is further submitted that the plaintiff is not entitled to any decree for possession, damages or mesne profits as claimed by him.
18) In a separate section of the written statement, titled as 'Additional Pleas', in paras no.1 and 2, the defendant stated that The plot on which the suit property stands is located in the resettlement scheme of Basti Reghar or Regharpura, Karol Bagh, and was originally allotted by the Delhi Improvement Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 12/102 CS DJ No. 620033/2016 trust to certain members of the reghar tribe who had relocated from the Sadar Paharganj area in the early part of the century, however it is claimed that " no sale deeds or lease deeds were initially executed in favour of these allottees ". The defendant further stated that "It is stated that the plot on which the suit property stands was originally acquired by one Shri vinodi Lal a relation of Smt. Chawli Devi mother of the parties from the reghar allottee. The mother, who was active in social and reforms programmed in the locality in the area, acquired the said plot could not purchase it in the name of her husband Shru Mahender Nath who was a Government employee. It would seem that sometime in 1944 when the plaintiff himself was a minor mutation was effected in the Delhi Improvement Trust records by Smt. Chawli Devi in his favour. However it was the mother of the parties who was dealing with the property all along and the defendant had nothing to do with it." (emphasis supplied). Hence, the defendant himself admitted that a mutation had been effected in the Delhi Improvement Trust by Smt. Chawli Devi in favour of the plaintiff.
Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 13/102 CS DJ No. 620033/2016
19) In para no.3 of the 'additional pleas', the defendant stated that at that time a tenant Sh. Khoob Ram Jajoria was present in the suit property and his mother Smt. Chawli recovered the possession from him and handed over the possession to the defendant, who established his office there. The relevant portion is also reproduced below:
"At that time a kuccha built property was in the tenancy of Dr. Khoob Ram Jajoria probably @ Rs. 2/- per month. On obtaining possession from the tenant, Smt. Chawli Devi handed over the same to the defendant, who following his mother was actively associated with the Congress Party and Bharat Sewak Samaj and came to establish his office there. The defendant himself was putting up in a portion of property owned by Jamia Milia Islamia and residence of Dr. Zakir Hussain at Ajmal Khan Road at the time." (Emphasis supplied).
20) In para no.4 of the 'additional pleas', the defendant stated that the temporary structures on the property were demolished in 1948 and he raised construction thereon in the form of two shops in the front and a shed in the rear, which was later converted into a pucca room. He stated that in 1952, he let out one of the shops to one Sh.Om Prakash, s/o Chandgi Ramand retained the other shop in which he started a business in the name of Ajanta Radio and Electric Co. in 1950 and used the Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 14/102 CS DJ No. 620033/2016 back portion for carrying out his social work. The said para no.4 is reproduced below:
"4. After demolition of the kachha structure in 1948 it was the defendant who raised the construction of two shops in the front portion fronting Arya Samaj Road and out up a shed and then a pucca toom towards the backside out of his own resources. The defendant let out one shop to Shri om Prakash son of Sh. Chandgi Ram in 1952 at a rental of Rs. 35/- p.m. and retained the other shop for his business which he started in the name of Ajanta Radio and Elctric Co. in 1950. His social work was carried out from the back portion."
21) In para no.5 of the additional pleas, it is stated that the above arrangement continued till 1955 when the parents of the parties required money for marriage of the sister Smt. Shakuntala (since deceased) and the defendant managed to obtain some compensation amount for his Ajmal Khan premises, the possession of which he surrendered and shifted his residence in the back portion of the suit property which he had all along been using as an office.
22) In para no.6 of the 'additional pleas, the defendant stated that in 1965, he joined a law course in the University of Delhi and closed his business in the name of Ajanta Radio and Electric Co., which was being carried out in one of the two Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 15/102 CS DJ No. 620033/2016 shops in the suit property and then let out his second shop to Sh. Chandgi Ram at a rental of Rs.90/- per month.
23) In para no.7 of the 'additional pleas', the defendant stated that he continued to reside in the back portion and it was made pucca in due course of time and a further shed was added on the first floor of the back portion. The record available with the defendant would show his occupation and possession of the suit property from 1948.
24) In para no.8 of the 'additional pleas', the defendant stated that after obtaining the LL.B. degree, the defendant got himself enrolled as an Advocate and started practicing on the income- tax/ sales tax side. He established his office on the ground floor of the back portion and his residence continued on the first floor. He also continued his social activities with the Congress party from the suit property.
25) In para no.9 of the additional pleas, the defendant stated that Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 16/102 CS DJ No. 620033/2016 in the year 1965, he married a Punjabi girl and at her instance and as a temporary measure, he took on rent a premises in Kirti Nagar as the said locality was newly developed and the defendant could afford the rental there. In the meantime, he made further constructions and improvements on the property in question and in or about 1966, he obtained on rent, the adjacent property on the first floor, which was owned by the family of Sh. Chandgi Ram and Sh. Om Prakash. He made one complete flat on the first floor of the suit property and then shifted to the said first floor with his wife and had been living in the said first floor premises ever since and had been running an office in the ground floor portion of the property and realizing rents from Sh. Om Prakash and Sh. Chandgi Ram. The para no.9 is reproduced below:
"9. In 1965 he married a Punjabi girl. At her instance and as a temporary measure he took on rent a premises in Kirti Nagar as the said locality having been newly developed the defendant could afford the rental there. In the meantime he made further constructions and improvements on the property in question and in or about 1966 he obtained on rent the adjacent portion on the first floor owned by the family of Shri Chandgi Ram and Shri Om Prakash and made one complete flat on both the portions, that is including the first floor of Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 17/102 CS DJ No. 620033/2016 the suit property and then shifted to the said first floor flat with him wife. He has been living in the said first floor premises ever since then. As submitted he has his office in the ground floor portion of the property in question. He has also been realizing rent from both Shri Om Prakash and Shri Chandgi Ram."
26) In para no.10 of the 'additional pleas', the defendant stated that he obtained possession of the suit property from his mother in 1948 and after 27 years of his occupation in 1975, the plaintiff lodged a complaint with the Municipal Corporation of Delhi with respect to allegedly illegal construction having been carried out by the defendant, as a result of which notices were sent by the MCD to the defendant who in his reply asserted his 'own rights as absolute owner thereof' and that the plaintiff had himself not taken any steps to recover the possession from the defendant. The said para is reproduced below:
"10. It need be submitted that from 1948 when the defendant obtained possession of the property from his mother Smt. Chawli Devi till 1975, the plaintiff was nowhere in the picture. It was understood that the property belonged to and vested in the defendant who alone was entitled to deal with it in any manner he liked and all along dealt with the property as his own. It was only in 1975 that is more than 27 years of his occupation of the suit property that the plaintiff lodged a complaint with the Municipal Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 18/102 CS DJ No. 620033/2016 Corporation of Delhi against alleged illegal construction in the property in question and occupation by the defendant. Notices of the Municipal Corporation were replied to by the defendant who also sent copy of his reply to the plaintiff refuting his concern or connection with the property and its possession and asserting his own rights therein as absolute owner thereof. The plaintiff did not take any action either in respect of his alleged title or possession of the suit property in his own rights. From 1975 till filing of the present suit nothing was heard from the plaintiff. The present suit has been triggered off by the fact that behind the back of the defendant and other family members the joint family property at Beadonpura was sought to be taken over by the plaintiff in the names of his sons and the defendant resisted any such attempt."
27) In para no.11 of the 'additional pleas', the defendant stated that he had perfected his title to the suit property by way of prescription. The said para is reproduced below:
"11. The defendant submits that his possession of the suit property since 1948 has been perfected by prescription. He is in open, notorious and hostile occupation of the property even according to the admissions made by the plaintiff. As already submitted it was only in 1975 that the plaintiff sought to lay a claim to the suit property and its possession and when the defendant resisted and openly submitted his rights the plaintiff did not take any action either for being dispossessed or on the basis of his alleged tile. The plaintiff is liabel to be non suited on these grounds". (sic.) Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 19/102 CS DJ No. 620033/2016 REPLICATION OF THE PLAINTIFF:
28) The plaintiff filed his replication, in which the contents of the written statement were denied and he affirmed the version as stated in the plaint. It is submitted that since the possession of the defendant was permissive, there was no question of any claim to the property by adverse possession.
ISSUES FRAMED
29) Vide order dated 10.09.2004, the following issues were framed:
1. Whether the plaintiff is owner of property bearing Municipal No. 4582/52 and 4553 Regarpura, Arya Samaj Road, Karol Bagh, New Delhi? OPP
2. Whether the plaintiff had at the request of the defendant gave license of back portion as described above to the defendant? OPP
3. Whether the occupation of the defendant of the back half portion of property no.4582/52 is as guest/brother/licencee of the plaintiff? OPP
4. Whether the plaintiff terminated the license of the defendant vide notice dated 14th May 2003 in respect of the portion in his occupation, if so, to what effect?
OPP
5. Whether the plaintiff is entitled to claim Rs.330/- Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 20/102 CS DJ No. 620033/2016 per day as damages for use and occupation against the defendant? OPP
6. Whether the suit is barred under Article 65 of the Limitation Act as made out in para 1 of the preliminary objections of the written statement? OPD
7. Whether the suit is barred under Article 64 of the Limitation Act as alleged in para 2 of the preliminary objections in the written statement? OPD
8. Whether the suit is bad for non joinder of parties? OPD
9.Whether front half portion of ground floor bearing Municipal No.4553 Regarpura, Arya Samaj Road, Karol Bagh, New Delhi was let out by the plaintiff to Chandgi Ram? OPP 9A. Whether the defendant had let out one shop to Om Prakash son Chandagi Ram in 1952 and the other shop to Chandgi Ram in 1955, if so to what effect? OPD
10. Whether the entire remaining half portion of property bearing No.4582/52 facing Gali No.52 and the entire first floor portion of the said property in occupation and possession of the defendant as alleged in para 1of the plaint? OPP
11. Whether the shop or shops in the front portion were in occupation of the defendants and were let out by the defendant? OPD
12. Whether the property was reconstructed by the defendant?OPD
13. Whether the property in question had fallen to the Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 21/102 CS DJ No. 620033/2016 share of the defendant in family settlement? OPD
14. To what relief the plaintiff is entitled to? OPP
15. Relief
30) It is clarified that initially 15 issues were framed by the Hon'ble High Court of Delhi On 10.9.2004, however, the issues no. 9, 9A, 10, 11, 12 and 13 were deleted vide order dated 15.12.2005 and an additional issue was framed, that is, Whether the defendant has become the owner of the property in suit by prescription? OPD. However, on 02.03.2024, during the course of final arguments, the Ld. Counsel for the Lrs of the defendant recorded his statement before this Court that he did not wish to press the aforementioned additional issue framed vide order dated 15.12.2005.
EVIDENCE LED BY THE PLAINTIFF:
31) The plaintiff Sh. Virender Mohan filed his evidence by way of affidavit on 31.3.2006, however before the plaintiff could tender the same in evidence, he unfortunately expired on 23.6.2008 and vide order dated 24.10.2008, his LRs. were Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 22/102 CS DJ No. 620033/2016 brought on record.
32) The wife of the plaintiff, Smt. Rameshwari Devi, aged 80 years, then stepped into the witness box as PW-1 and filed her evidence by way of affidavit as Ex. PW-1/A, she was examined-in-chief on 20.4.2009, 7.10.2009 and 13.1.2011.
33) PW-1, Smt Rameshwari Devi stated in Ex. PW-1/A that her husband was the owner of property bearing Municipal No. 4582/52 and 4553, Regharpura, Arya Samaj Road, Karol Bagh, New Delhi having purchased the same vide a registered perpetual lease deed executed by the Delhi Improvement Trust dated 26.3.1951. She deposed that her late husband/plaintiff was also known as 'Birender Mohan' and relied upon the original perpetual sub-lease along with the site plan as Ex. PW-1/1.
34) She deposed that her late husband/plaintiff had let out the front half portion of the ground floor of the property bearing no. Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 23/102 CS DJ No. 620033/2016 4553, Regharpura Delhi to one Sh. Chandgi Ram. On the death of Late Sh. Chandgi Ram, his son Sh, Om Prakash became the tenant of the said shop. The plaintiff thereafter filed a suit for eviction against Sh. Om Prakash and the matter was ultimately compromised and the plaintiff sold the said shop to one Smt. Padma Gupta (who was the wife of Om Prakash's son, i.e. Sh. Mukesh Kumar) vide two sale deeds dated 19.2.2008.
35) She deposed that the remaining portion of the suit property was in the possession of the defendant as marked in red in the site plan, which was relied upon as Ex. PW-1/2.
36) She further deposed that the suit property was also mutated in the name of her late husband/plaintiff who paid the property tax as well and relied upon the following documents:
i) Bill no. 2155 dated 1.10.1956 issued by the Municipal Corporation of Delhi (MCD) as Ex. PW-1/3.
ii) Notice of house tax demand dated 9.07.1958 as Ex.
PW-1/4.
Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 24/102 CS DJ No. 620033/2016
iii) Notice of house tax demand dated 23.01.1959 as Ex. PW-1/5.
iv) Notice of house tax demand for the year 1959 as Ex. PW-1/6.
v) Bill of house tax demand dated 03.01.1959 as Ex. PW-1/4.
vi) Report of the MCD regarding revision of rent dated 10.08.1959 as Ex. PW-1/8.
vii) Bill of MCD dated 15.11.1959 as Ex. PW-1/9.
viii) Bill of MCD dated 25.01.1960 as Ex. PW-1/10.
ix) Bill of MCD dated 02.11.1960 as Ex. PW-1/11.
x) Bill of MCD dated 18.12.1961 as Ex. PW-1/12.
xi) Bill of MCD dated 21.11.1962 as Ex. PW-1/13.
xii) Bill of MCD dated 12.03.1963 as Ex. PW-1/14.
xiii) Bill of MCD dated 02.11.1963 as Ex. PW-1/15.
xiv) Plaintiff's letter dated 3.12.1964 to the Assessor and Collector, MCD as Ex. PW-1/16.
xv) The receipt dated 20.1.1965 of payment of Bill of MCD for the year 1964-1965 was relied upon as Ex. PW-1/17. Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 25/102 CS DJ No. 620033/2016 xvi) The receipt of MCD bearing no. 515037 dated 12.05.1966 was relied upon as Ex. PW-1/18.
xvii) The receipt of MCD bearing no. 167003 dated 16.12.1966 was relied upon as Ex. PW-1/19.
xviii) The Bill of MCD dated 12.07.1967 was relied upon as Ex. PW-1/20.
xix) The receipt of MCD bearing no. 791053 dated 30.09.1967 was relied upon as Ex. PW-1/21.
xx) The receipt of MCD bearing no. 688 dated 02.09.1968 was relied upon as Ex. PW-1/22.
xxi) The receipt of MCD bearing no. 209092 dated 19.07.1969 was relied upon as Ex. PW-1/23.
xxii) The receipt of MCD bearing no. 310014 dated 22.07.1970 was relied upon as Ex. PW-1/24.
xxiii) The receipt of MCD bearing no. 344028 dated 04.06.1971 was relied upon as Ex. PW-1/25.
xxiv) The Bill of MCD dated 23.06.1971 was relied upon as Ex. PW-1/26.
xxv) The receipt of MCD bearing no.970074 dated Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 26/102 CS DJ No. 620033/2016 13.07.1972 as Ex.PW1/27.
xxvi) The receipt of MCD bearing no. 673043 dated 22.11.1973 as Ex.PW1/28 (In the affidavit the receipt is wrongly mentioned as No.673034 whereas the actual number is 673043).
xxvii) The receipt of MCD bearing no.190043 dated 01.10.1974 as Ex.PW1/29.
xxviii) The bill of MCD dated 23.12.1974 as Ex.PW1/30. xxix) The receipt of MCD bearing no.953017 dated 28.06.1975 as Ex.PW1/31.
xxx) The receipt of MCD bearing no. 912043 dated 24.07.1975 as Ex.PW1/32.
xxxi) The receipt of MCD bearing no.280066 dated 08.09.1977 as Ex.PW1/33.
xxxii) The certified copy of Jamabandi for the year 1975-76 as Ex. PW-1/34.
xxxiii) The MCD receipt bearing no.610055 dated 03.08.1976 as Ex. PW-1/35.
xxxiv) The bill of MCD dated 17.11.1977 as Ex. PW-1/36. Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 27/102 CS DJ No. 620033/2016 xxxv) Plaintiff's letter to the Zonal Assistant Commissioner, Karol Bagh dated 17.11.1977with respect to adjustment of Rs.184/- over charged as water tax as Ex. PW-1/37.
xxxvi) The bill of MCD dated 1.05.1978 as Ex. PW-1/38. xxxvii) The plaintiff's letter to Zonal Assistant Commissioner, Karol Bagh letter dated 26.08.1978 as Ex. PW-1/39.
xxxviii) The bills, receipts and challan of MCD as Ex. PW-1/40 to Ex. PW-1/72;
xxxix) Plaintiff's letter dated 07.02.2003 to the Deputy Assessor and Collector, Karol Bagh as Ex. PW-1/73; xl) The receipts of payment of ground rent and property tax of the suit property as Ex. PW-1/74 to Ex. PW-1/81. xli) The receipts and challans issued by DDA as Ex. PW-1/82 to Ex. PW-1/110;
xlii) The plaintiff's letter dated 29.11.2002 sent to DDA along-with its postal receipt and AD CARD as Ex. PW-1/111, Ex. PW-1/112 and Ex. PW-1/113.
Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 28/102 CS DJ No. 620033/2016 xliii) The original receipt of MCD of the property tax bill for the year 1999-2000, 2000-2001 and 2002-2003 as receipt of property tax issued by MCD as Ex. PW-1/114 to Ex. PW-1/116.
37) She further reiterated the contents of the plaint with respect to induction of the defendant as a licencee by the plaintiff and termination of the licence vide legal notice dated 14.05.2003, with effect from 30.6.2003. She relied upon the copy of the legal notice dated 14.05.2003 as Ex. P-3 (being admitted by the defendant). The copy of the postal receipt dated 14.05.2003 was relied upon as Ex. P-4 (being admitted by the defendant). The notice dated 17.6.2000 was relied upon as Ex. P-1 and the office copy of reply dated 20.7.2000 was relied upon as Ex. P-2 (being admitted by the defendant).
38) She deposed that the defendant was liable to deliver the peaceful and vacant possession of the suit property and pay mesne profits and damages with effect from 1.07.2003. She Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 29/102 CS DJ No. 620033/2016 deposed that the suit property is located in the main market of Karol Bagh, New Delhi and even by a conservative estimate it would fetch around Rs. 10,000/- per month. The defendant was also liable to pay damages of Rs. 9900/- for having damaged the property by making large scale structural changes.
39) Vide order dated 28.04.2011, evidence in the present matter was ordered to be recorded before a Local Commissioner.
40) It would be an understatement to merely state that the witness PW-1 Smt. Rameshwari Devi, aged 80 years at that time, was extensively cross-examined by the defendant, in fact the witness was cross-examined on as many as ten occasions over a period of three years beginning from 2011 till 2014, with the cross-examination often being repetitive and irrelevant.
41) PW-1 was cross-examined before the Local Commissioner on 22.11.2011 during which she deposed that her husband Late Sh. Virender Mohan was paying the house tax and voluntarily Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 30/102 CS DJ No. 620033/2016 stated that she was paying house tax till that day and for the last ten years, she had been personally making the payment, but, could not specify as to how many payments of the house tax had been paid by her or by her husband out of the 117 bills/receipts placed on record. She denied the suggestion that she had no personal knowledge about the fact of the house tax being paid. She admitted that the plot in dispute was measuring 50 sq. yards and it was a re-settlement colony in Regurpura developed by Delhi Improvement Trust. She stated that she did not know if these plots were originally allotted for the resettlement of Reghar tribes from Sadar Paharganj area and that the sale deed was initially executed by the Delhi Improvement Trust. She deposed that she knew Sh. Vinodi Lal who was related to their family and Smt. Chawri Devi was her mother-in-law. She denied having any knowledge about the fact whether initially the property in dispute was acquired by Vinodi Lal originally from a Reghar allottee. She deposed that her mother in law Smt. Chawri Devi was a social worker in Karol Bagh. She further admitted that her mother Smt. Chawri Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 31/102 CS DJ No. 620033/2016 Devi had purchased the property from Vinodi Lal. She deposed that Sh. Mahender Nath was her father in law and a government employee. She denied the suggestion that Sh. Mahender Nath, being a government employee could not purchase the property in his name. She denied the suggestion that the proceedings to acquire this property were initiated in 1944 and volunteered to state that it was initiated in the year 1947. She further denied the suggestion that her late husband Sh. Virender Mohan was a minor at the time of the deal and deposed that his year of birth was 1926. She denied the suggestion that as Smt. Chawri Devi could not acquire this property in her husband's name, as he was a government employee, and hence it was purchased in the name of her husband/late plaintiff. She admitted that the sale deed of the property was in the name of 'Bir Inder Mohan' and the plaintiff changed his name from 'Bir Inder Mohan' to 'Virender Mohan' as per procedure, but she did not know what procedure was adopted to change the name. She also admitted that the sale deed Ex. PW-1/1 contained both the names of her husband 'Bir Inder Mohan' and 'Virender Mohan' and that Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 32/102 CS DJ No. 620033/2016 both were the same person. She further admitted that since the time of the acquisition of the property, her mother in law Smt. Chawri Devi used to manage the property. She deposed that she did not know whether one Dr. Khoob Chand Jajoria was in occupation as a tenant at the rate of Rs. 2/- per month and Smt. Chawri Devi got the property vacated from him and took its possession. Thereafter the further cross-examination of the witness was deferred.
42) PW-1 was recalled for her further cross-examination on 23.11.2011, during which she deposed that in the previous cross-examination dated 22.11.2011, it had been wrongly recorded that "it is correct that Smt. Chawri Devi purchased this property from Sh. Vinodi Lal" whereas she had stated that "it is incorrect that Smt. Chawri Devi purchased this property from Vinodi Lal", which was refuted by the ld. Counsel for the defendant. She further admitted that Smt. Chawri Devi was a social worker attached with the Congress party. She deposed that she did not know whether her mother in law was attached Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 33/102 CS DJ No. 620033/2016 to the 'Bharat Sewak Samaj' or that the defendant was also working with her and an office was established in the property. She deposed that she did not know whether her mother in law Smt. Chawri Devi had got the property vacated from Sh. Khoob Chand Jajoria and thereafter an office and two shops were constructed facing Arya Samaj Road. However, she admitted that there were two shops on the property facing Arya Samaj Road. She further deposed that she did not know if the defendant Ravinder Gupta was living in a room in Zakir Hussain Hostel, Ajmal Khan Road which was owned by Jamia Milia Islamia and that he had let out one shop to Sh. Om Prakash, s/o Chandgi Ram at a monthly rent of Rs. 35/-, and stated that the defendant was not the owner of the said shop and hence there was no question of him letting out the shop to anyone. She deposed that she did not know whether in the second shop, there was a shop of Ajanta Radio and Electric Co being run by the defendant, who had obtained a licence from the Post and Telegraph Office as well. At this stage, PW-1 was confronted with records from the suit, which were marked as Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 34/102 CS DJ No. 620033/2016 Mark A - E and she stated that she had no knowledge about the licence or its renewal or that her late husband knew these facts. She further deposed that she did not know whether there was a telephone connection bearing no. 51002 in the name of the defendant since 1951. She stated that she did not know if the business of Ajanta Radio was run till 1955-56. She stated that her late husband's sister's name was Shakuntala but stated that she did not get married in 1955-56, but could not herself tell the year of marriage. She deposed that she did not know whether the defendant was residing at Zakir Hussain Marg at the time of the marriage of Shakuntala and had surrendered his hostel room at Zakir Hussain Hostel, for which he got some compensation, which he had contributed towards the marriage expenses of his sister and shifted into the suit property as his residence. She deposed that she did not know that during this period, the defendant constructed one kaccha room. She stated that she also did not know whether the defendant closed his business and let out the shop to Chandgi Ram at a monthly rent of Rs. 90/- per month and stated that the shop in question was owned Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 35/102 CS DJ No. 620033/2016 by her husband. She further deposed that she did not know whether after graduation, the defendant started practicing as an advocate on the sales tax/income tax side. She denied the suggestion that the defendant was residing on the first floor in a kaccha room and stated that she did not know whether he was operating an office in the rear portion as a social worker of the Congress party and the Bharat Sewak Samaj. She stated that she also did not know whether there was an electricity connection in the name of Ravidner Gupta in the suit property in 1958. She deposed that she did not remember whether she had visited the suit property during the lifetime of her husband. The further cross-examination of the witness was deferred.
43) PW-1 was recalled for her further cross-examination on 9.1.2012 before the Local Commissioner, during which she deposed that her husband/plaintiff was a textile engineer and was employed in Swatantra Bharat Mill, however she did not have his degrees of 10th, 12th or his qualification as a textile engineer. She deposed that there was no bank account in the Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 36/102 CS DJ No. 620033/2016 name of 'Virender Mohan - Bir Inder Mohan' or as alias. She was the questioned as to whether she had any documentary or other proof to show that her husband was known by two names, i.e. 'Virender Mohan' and 'Bir Inder Mohan', to which she stated that she knew that the shop was purchased in the name of 'Bir Inder Mohan' and later on the registry was executed in the name of 'Virender Mohan' and again stated that she did not know in which of the two names, the registry was executed. She further deposed that only one shop was purchased, but she did not know its number and location. She admitted that Ex. PW-1/1 was executed in the name of 'Bir Inder Mohan son of Mohinder Nath'. She deposed that she had no knowledge whether there were any initials of any employee of DDA or Delhi Improvement Trust and in whose handwriting the word 'Mohinder' was added. She denied the suggestion that the name 'Mohinder' had been added by her at point 'A' on Ex. PW-1/1. She also denied the suggestion that the addition at point 'B' on Ex. PW-1/1 was also added by her later on. She denied that she had interpolated or tampered with the document Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 37/102 CS DJ No. 620033/2016 Ex. PW-1/1 at points 'A', 'B' and 'C'. She further deposed that she did not know whether the attesting witnesses of Ex. PW-1/1, namely Puran Chand and Raghubar Numberdar were alive or dead. She also denied the suggestion that the entire document Ex. PW-1/1 was a forged and fabricated document. She denied the suggestion that the Delhi Improvement trust never conveyed the suit property to her husband/plaintiff and Ex. PW-1/1 had been fabricated by both of them. She also denied the suggestion that her husband/plaintiff was never the owner of the property. She further deposed that she did not know whether her husband/plaintiff had signed on the site plan Ex PW-1/1 at point 'D' or whether they were his signatures or his name had been mentioned. She denied the suggestion that point 'D' had been interpolated by her and the plaintiff. She also denied the suggestion that 'Bir Inder Mohan son of Bindra Nath Vaish Aggarwal' and 'Virendra Mohan son of Mohinder Nath Aggarwal' were two different persons and again stated that she did not know, and again stated 'no'. Thereafter the further cross-examination of PW-1 was deferred. Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 38/102 CS DJ No. 620033/2016
44) PW-1 was recalled for her further cross-examination on 4.2.2012 during which she again denied the suggestion that Ex. PW-1/1 was not executed by the Delhi Improvement Trust in favour of her husband Virender Mohan. She also denied the suggestion that Ex. PW-1/1 had been manufactured and fabricated by her or her husband. She produced the death certificate of her husband as Ex. PW-1/D1 and stated that the plaintiffs name on the same was written as 'Virendra Mohan son of Mohinder Nath'. She deposed that her husband/plaintiff was known by two names i.e. 'Birender Mohan' and 'Virender Mohan' and denied the suggestion against it. She also denied the suggestion that in order to misappropriate the suit property, her husband had assumed himself to be 'Bir Inder Mohan'. She denied the suggestion that her husband/plaintiff was not the owner of the suit property and they had made false averments with respect to Ex. PW-1/1. She deposed that she had no knowledge whether any proof had been placed on record to show that Chandgi Ram was their tenant or that her husband Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 39/102 CS DJ No. 620033/2016 had filed eviction suit against him. She stated that she also did not remember whether copy of sale deed dated 19.2.2008 had executed by her husband in favour of Smt. Padma Gupta had been placed on record or not. She denied the suggestion that Chandgi Ram was not the tenant of her husband/plaintiff. Thereafter, the further cross-examination of the witness was deferred on the ground that she was not feeling well.
45) PW-1 was recalled for her cross-examination on 17.3.2012 during which she again reiterated and denied the suggesiton that the plaintiff Virender Mohan had no right, title or interest in the suit property or that the plaintiff had no legal right to execute two sale deeds dated 19.02.2008. She deposed that her mother in law Smt. Chawri Devi expired in 1962. She deposed that she did not remember if the suit property was a kaccha construction. She stated that she got married in 1948 and that she and her husband never lived in the suit property and they resided at 22, Bedan Pura, Karol Bagh, New Delhi along with her mother in law. She deposed that she did not know about the Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 40/102 CS DJ No. 620033/2016 age of the plaintiff or the husband in 1948 and at that time the defendant used to reside at 22, Bedan Pura, Karol bagh, New Delhi, but she did not remember till what time the defendant resided there. She deposed that she did not know who raised the pucca construction on the suit property and in which class the defendant was studying in 1948-1949. She admitted that in the first instance, two shops and back portion was constructed, but could not remember whether the construction was raised in 1950-1951. She deposed that she had no knowledge whether the defendant had started business of a radio shop in one o the shops on the ground floor. She deposed that she had never been to the suit property after her marriage in 1948. She deposed that as per her knowledge, the defendant used to study and work for the Congress party. On being asked whether the construction on the ground floor was done by the defendant, she deposed that she did not remember and volunteered to state that the entire family was living together and she did not know who raised the construction and again stated that it was not a joint family, but they were living together. She deposed that her Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 41/102 CS DJ No. 620033/2016 father in law used to provide the funds for the food and other provisions and he was the head of the family. She stated that she did not know whether her father in law was the head of the head of the family and its Karta-Dharta. She deposed that after the defendant contracted an inter-caste marriage, he left the house. She deposed that she did not have any knowledge whether the defendant was working in Jamia Milia or that he had started his independent business in the name of Ajanta Radio in one of the shops on the ground floor and was residing in the back portion. She denied the suggestion that the defendant separated immediately after her marriage. She deposed that her four sons were residing in USA and the marriage of her first son was an intercaste marriage. She deposed that she did not remember if the defendant had been in occupation of the entire ground floor since its construction in 1950-1951 and had no knowledge when the first floor of the suit property was constructed. She deposed that she had no knowledge whether the defendant had constructed the first floor of the suit property. She deposed that the defendant was Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 42/102 CS DJ No. 620033/2016 an advocated practicing income tax and sale tax laws. She admitted that the defendant was maintaining his office of an advocate on the back portion of the suit property, but did not know whether he was maintaining his residence on the first floor and at present, the defendant's son Rocky Gupta was maintaining his office. She further deposed that Sh. P. P. Verma was an architect and only her husband knew where his office was and that she had never seen P. P. Verma reading or writing. She volunteered to state that P. P. Verma had come to their house to hand over the site plan. She stated she could neither admit nor deny the signatures of P.P. Verma on Ex. PW-1/2. She stated that she could not remember whether the site plan Ex. PW-1/2 was prepared in her presence and denied the suggestion that the site plan Ex. PW-1/2 was not correct. Thereafter the further cross-examination of PW-1 was deferred.
46) PW-1 was recalled for her further cross-examination on 21.04.2012, during which she deposed that Om Parkash was Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 43/102 CS DJ No. 620033/2016 the son of Chandgi Ram, but could not say when Chandgi Ram expired or in whose Court the eviction petition was filed. She deposed that it had been filed by her husband and a compromise was reached between Om Parkash and her husband. She deposed that she did not know whether the compromise documents were with her or not. She further deposed that she could not say whether the property was purchased by Manju Gupta or her husband. She stated that Smt. Padma Gupta was the daughter in law of Om Parkash and Padma Gupta and Manju Gupta were sisters-in-law and they both had purchased the property in March or April, 1983. She deposed that she did not know where Padma Gupta and Manju Gupta resided earlier or at present and that she could not verify or search for the sale deed as stated in para no.2 of her affidavit. She denied the suggestion that he husband/plaintiff did not sell the property to Manju Gupta and Padma Gupta and for this reason, no sale deed had been placed on record. She further deposed that she did not know Mt. Puran Chand Sarbara and perhaps he was a 'numberdar'. She stated that she did not know whether he was Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 44/102 CS DJ No. 620033/2016 dead or alive. She volunteered to state that she had seen their names in the house tax receipts and lease papers, but had not seen any document/paper written by Sh. Puran Chand Sarbara or Naval Kishore and again stated that she did not remember. She denied the suggestion that documents Ex. PW-1/74 to Ex. PW-1/80 were false and fabricated documents. She also denied the suggestion that mark 'A to A1' on pages 10 and 11 of the evidence by way of affidavit Ex. PW-1/A was not correct. At this stage, the ld. counsel for the defendant raised objection to the documents, Ex. PW-1/74 and Ex. PW-1/80 on the ground of mode of proof and authenticity of the documents, to which the ld. counsel for the plaintiff asserted that objection ought to have been raised at the time of tendering and exhibition of the documents in question. She deposed further that she ha not gone to the DDA office as her husband was the owner and the property was never mutated in the name of the plaintiff after the death of Vinodi Lal and further volunteered to state that the property had been bought by her husband before her marriage and she did not know who was the previous owner. The further Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 45/102 CS DJ No. 620033/2016 cross-examination of the witness was deferred.
47) On 26.05.2012, the witness PW-1 Rameshwari Devi was recalled for her further cross-examination during which she stated that she had not stated during her previous cross- examination that the property was mutated in her name after the death of her husband/plaintiff. She further deposed that she did not under stand what 'mutation' was. She further deposed that she had no knowledge whether the suit property was mutated in the name of her late husband and again stated that she was not sure. The further cross-examination of the witness was deferred.
48) On 06.10.2012, the witness PW-1 Rameshwari Devi was recalled for her further cross-examination during which she stated that she did not know the number of paragraphs in her evidence by way of affidavit Ex. PW-1/A or when it was prepared, however she had signed read the same but did not remember what was written in it. She deposed that she did not Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 46/102 CS DJ No. 620033/2016 remember if the affidavit was attested or not and that on account of passage of time she could not remember the contents of the affidavit. She deposed that Mahender Nath expired on 01.06.1986 and at that time he was the owner of House No. 2762/22, Beadonpura, Karol Bagh, New Delhi and did not remember his father's name. She deposed that Mahender Nath had not inherited any property from his father; he himself had purchased the land and thereafter constructed house by arranging the loan against the mortgage of the house. The witness was asked other details about the Beadonpura property, which I find is irrelevant to the present case and hence need not be considered. The further cross-examination of the witness was deferred.
49) On 15.12.2012, the witness PW-1 Rameshwari Devi was recalled for her further cross-examination during which she stated that she did know if the mutation order in favour of the plaintiff with respect to the suit property had been placed on record and denied the suggestion that the suit property was Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 47/102 CS DJ No. 620033/2016 never mutated in his favour. She denied the suggestion that the defendant was in occupation of the suit property since 1948, but could not state since when he was in possession. She stated that she did not know if any document had been filed proving that defendant had stayed at the house in Beadonpura. She deposed that although there was no litigation between her father in law and the defendant, the relations between them were strained. She deposed that she did not know whether the defendant had been disowned by her father in law by way of a public notice. She also denied the suggestion that the defendant had taken the property No. 4583, Raigerpura, Karol Bagh, New Delhi on rent to raise pucca construction on the suit property and volunteered to state that the property did not belong to him and the question of him raising any construction did not arise. She deposed that she could not tell when the defendant requested her husband to occupy the suit property and denied the suggestion that no such request was ever made. She denied the suggestions with respect to the defendant never having promised to vacated the suit property on the demand of the plaintiff. She deposed that she Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 48/102 CS DJ No. 620033/2016 had no proof that the property was given on licence by her husband/plaintiff and that it was given out of love. She denied the suggestions that there was no such relationship of licensor and licencee between the plaintiff and the defendant. She deposed that the relations between the plaintiff and the defendant got strained when he filed a suit against him. The further cross-examination of the witness was deferred.
50) On 06.04.2013, the witness PW-1 Rameshwari Devi was recalled for her further cross-examination during which she stated that she did not know whether any document had been placed on record to show that the defendant was inducted in the suit property as a licencee and that no licencee fee used to be paid by him. She deposed that the electricity and water connections in the suit property were in the name of the plaintiff and denied the suggestion otherwise. The witness was then cross-examined with respect to the will dated 29.06.1982 of Late Sh. Mahinder Nath Goyal, which I do not find relevant to the present case and hence I am not considering the same. Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 49/102 CS DJ No. 620033/2016 The further cross-examination of the witness was deferred.
51) On 15.05.2013, the witness PW-1 Rameshwari Devi was recalled for her further cross-examination during which she was again cross-examined with respect to the aforementioned will, existence of an alleged HUF with Sh. Mahender Nath Goyal as Karta, which again I find to be irrelevant and hence I am constrained to discard the same. She denied the suggestion that Sh. Vinodi Lal had sold the property to Smt. Chawli Devi or that the defendant was not the licencee of the plaintiff. Thereafter, the further cross-examination of the witness was deferred.
52) PW-1 was again recalled for her cross-examination on 03.03.2014, during which she stated that she had no document whereby the defendant had undertaken to vacate the suit property on demand of the plaintiff. She also deposed that she had no document to show that the rent of the suit property was Rs. 10,000/- per month and denied the suggestion that the rent Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 50/102 CS DJ No. 620033/2016 was not more than 1000/- or 1500/- per month. She deposed that she could not remember as to when she had last visited the suit property and could not tell about the structural changes made by the defendants. She further deposed that she had no knowledge whether the earlier there was only temporary structure and the defendant in 1975 built one room, toilet cum bathroom on the ground floor and two rooms on the first floor. She deposed that she did not remember whether the plaintiff had also filed a complaint with the MCD. She deposed that she did not know whether the defendant had been in continuous possession of the suit property from 1948 but denied the suggestion that the defendant was the owner of the suit property. She denied the suggestion that Ex. PW-1/3 till Ex. PW-1/116 were manipulated and manufactured documents. Thereafter the witness was discharged and the plaintiff's evidence was closed in affirmative.
Evidence adduced by the defendant
53) The defendant Sh. Ravinder Gupta, aged 84 years at the Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 51/102 CS DJ No. 620033/2016 time, stepped into the witness box as DW-1 and tendered his evidence by way of affidavit as Ex. DA before the Local Commissioner. He deposed that the plaintiff was his brother and was always known with the name of 'Virender Mohan' amongst friends, relatives and in society and also in all official records and never used the name 'Bir Inder Mohan' or 'Birender Mohan', despite not having taken this specific plea in the written statement filed by him. He deposed that the deceased plaintiff was not the owner of the suit property and Ex. PW-1/1 was a forged, fabricated and manufactured document containing interpolations in the name carried out by the plaintiff and/or his wife. He further deposed that all the receipts and challans placed on record by the plaintiff were illegal and manipulated documents in collusion with MCD officials. He deposed that the jamabandi, Ex. PW-1/34 was also a forged and manipulated document. The defendant deposed that property no. 2767, Gali No. 22, Beadonpura, Karol Bagh, New Delhi was a joint family property (HUF), however since the same is not relevant to the present case, I am not discussing Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 52/102 CS DJ No. 620033/2016 it further. He deposed that the suit property no. 4582/52, Regharpura, Delhi was originally allotted by the Delhi Improvement Trust to the Reghar tribe, however no sale deed or lease deed was executed. He deposed that one Late Sh. Vinodi Lal, who was a relative of his mother Smt. Chawli Devi, 'acquired' the said suit property in the year 1944. At that time, the suit property was a kacchha property and under the tenancy of one Dr. Khoob Ram Jajoria. Smt. Chawli Devi got the same vacated and put the defendant in possession in the year 1948. The defendant raised the construction on the ground floor of the property and remained in exclusive possession of the same. In the year 1950 he started the business of running a radio shop under the name and style of 'Ajanta Radio and Electric Company' in the back portion of the ground floor.
54) The defendant/DW-1 relied upon the following documents in support of his case:
a) Copy of application for grant of telephone connection as Ex.Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 53/102 CS DJ No. 620033/2016
DW-1/1.
b) Bill No. 363 for purchase of radio parts radio part as Ex.
DW-1/2.
c) Copy of five licenses issued under Indian Wireless and Telegraphy Act dated 11.4.1951, 15.07.1952, 09.07.1953, 22.07.1953, and 03.08.1953 as Ex.DW-1/3 (colly).
d) Copy of telephone installation document dated 22.10.1954 as Ex. DW-1/4.
e) Copy of two telephone bills dated 21.03.1958 and 01.04.1960 as Ex. DW-1/5 (Colly).
f) Letter dated 30.09.1958 issued by electricity department as Ex. DW-1/6.
g) Letter dated 13.05.1960 received from Prem Nath Motors as Ex. DW 1/7.
h) The challan dated 22.09.1952 issued to the defendant for running the radio shop as Ex DW 1/8.
i) The letters and correspondence from Old Boys Association of Khalsa High Secondary School, New Delhi and letter dated 15.09.1956 from Sh. Om Prakash Sharma as Ex. DW Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 54/102 CS DJ No. 620033/2016 1/9 (colly).
j) Cash Memo dated 21.10.1958 for purchase of cycle by the defendant as Ex DW 1/10.
k) The cash memo dated 25.03.1960 for subscription of 'Taxation General' as Ex DW 1/11.
l) The cash memo receipt dated 26.03.1960 and 13.05.1960 of the subscription of ITR and AIR as Ex DW 1/12 (colly).
m) Letter dated 12.09.1962 from Bharat Sewak Samaj and letter dated 25.1.1962 from Ms. Sulochana and letter dated 12.6.1964 from Sh. Ravinder Verma as Ex DW 1/13 (Colly).
55) The witness further deposed that in 1956, he joined a law course at Delhi University and closed down his business of radio shop and started residing at the suit property. He also deposed that he vacated the premises at Ajmal Khan Road to arrange for meeting the expenses of his sister Shakuntala's wedding.
Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 55/102 CS DJ No. 620033/2016
56) He further deposed that he got married in the year 1965 and at his wife's request took a rented accommodation at Kirti Nagar, Delhi and while staying there undertook further construction and improvement of the suit property and shifted into the same in the year 1966.
57) In para no.8 of the evidence by way of affidavit, Ex. DA, he deposed that "my mother Late Chawli Devi in the year 1948 had put myself into exclusive possession of the aforesaid suit property as owner with clear understanding with all the family members including the deceased plaintiff that I shall be the absolute owner of the aforesaid property." He further deposed that he had also raised the constructions thereon with his own funds and resources. He stated that he was in continuous, uninterrupted possession of the suit property since 1948, with the knowledge of all the family members, including the plaintiff. He deposed that the plaintiff had made a complaint against him for unauthorized construction and he received a notice dated 24.05.1975 from MCD as Ex DW 1/14, to which Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 56/102 CS DJ No. 620033/2016 he submitted his reply dated 02.06.1975 as Ex DW 1/15 and as the complaint was baseless, no action was taken on the same.
58) The defendant further deposed that apart from the aforementioned complaint to the MCD, the plaintiff never objected to the possession of the defendant over the suit property till such time he claimed his share in the property at 2767/22, Beadonpura, Karol Bagh, Delhi. The defendant admitted receiving notice dated 14.05.2003 and sending of a reply dated 30.6.2003 to it. He disputed the relationship of licensor and licencee as with the deceased plaintiff and stated that the rate of similar properties in the area was around Rs.200
- 300/- per month. Although not mentioned in the evidence by way of affidavit Ex. DA, the defendant/DW-1 also relied upon his original passbook of his savings account with Bharat Bank Ltd. (merged into Punjab National Bank) as Ex. DW-1/16.
59) It is pertinent to mention that in para no.8 of the evidence by way of affidavit Ex. DA, the defendant set up a new case Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 57/102 CS DJ No. 620033/2016 entirely that he had been put in possession of the suit property by the mother Law Smt. Chawli Devi in 1948 as owner thereof, despite there not being any such pleading the written statement filed by him, in which the plea set up was that he had become owner by way of prescription. The said para no.8 of Ex. DA is reproduced below:
"8. That I say that my mother Late Chawli Devi in the year 1948 had put myself into exclusive possession of the aforesaid suit property as owner with clear understanding with all the family members including the deceased plaintiff that I shall be the absolute owner of the aforesaid suit property. I have been in possession of the suit property since 1948 within the knowledge of the deceased plaintiff and other family members and I have raised construction thereon from time to time with my funds and resources." (Emphasis supplied)
60) DW-1 was cross-examined on 27.8.2014 during which he deposed that he set up another new case that he was " the registered owner of the property bearing No.4582/52 Ragerpura, Karol Bagh, New Delhi. Vinodi Lal was the earlier owner of the property. At the time of taking of the property Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 58/102 CS DJ No. 620033/2016 from Vinodi Lal there was no document were used to be written and it was an oral sale. I did not purchase the property.
My mother had given this property to me. My mother purchased this property from Vinodi Lal. No writing was executed when my mother gave this property to me. I do not know, if any document was written between Sh. Vinodi Lal and my mother when this property was purchased by her. Again said my mother did not purchase this property. This property was donated to my mother. I do not remember at this point of time as to who donated this property to my mother. I do not know if the donation was oral or in writing as I was only 3 years old. Again said I do not know if my mother got this property in donation" (sic.). Thereafter the further cross-examination of the witness was deferred.
61) I must mention that at this stage, an application bearing I.A. no. 25439/2014 was filed by the defendant stating that the defendant had been partly cross-examined on 27.8.2014 and on account of old age and health related reasons, the defendant Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 59/102 CS DJ No. 620033/2016 was not able to get himself further cross-examined and had appointed his son, Sh. Rocky Gupta, who was also an advocate, as his attorney to lead evidence and appear as a witness. However, vide order dated 16.12.2014, the said application was rejected by the Ld. Joint Registrar, High Court of Delhi on the ground that a witness could not be substituted by way of attorney, and if needed, Sh. Rocky Gupta could appear as a witness himself and depose. The defendant/DW-1 was directed to appear before the local commissioner on 18.12.2014 for his further cross-examination.
62) The witness DW-1/defendant was recalled for his further cross-examination before the local commissioner on 07.04.2015 during which he deposed that he could not remember the date on which his mother had given the suit property to him, but it was very long ago around 25-30 years ago. He deposed that his mother had "ownership rights in respect of the property in suit", however admitted that "there was nothing in writing, it was all oral". He deposed that there Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 60/102 CS DJ No. 620033/2016 was no other person present when the property was given to him. He stated that he did not have any writing evidencing any oral transfer of the property to him by his mother and did not even ask for the same as he had been living in the property for number of years and his ownership was never disputed. He stated that his mother had simultaneously transferred the ownership and possession of the suit property to him and he did not ask his mother as to what was her right in the suit property. He deposed that the property had been registered in the name of Smt. Chawli Devi, but he had never seen the registration and that he could not produce the same as well. The witness gave the reason that since the transferor (Vinodi Lal) and transferee (Smt. Chawli Devi) had both expired, he could not produce the same. He denied the suggestion that the property was registered in the name of the plaintiff Virender Mohan. He further admitted that he had wrongly stated in para no.2 of his additional pleas of the written statement that "it would be seen that sometime in 1944 when the plaintiff himself was a minor, mutation was effected in the Delhi Improvement Trust records Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 61/102 CS DJ No. 620033/2016 by Smt. Chawli Devi in his favour". The witness also stated that he could not recognize the signatures of his brother/plaintiff as he had never seen him writing or putting his signatures. The defendant was then specifically questioned " Q. I put it to you that there is no other document of title for the suit property except Ex. PW-1/1" to which he answered "I cannot say anything". He further deposed that he was paying the house tax for the suit property, however he did not have the receipts for the same and stated that it was not necessary for him to have the receipts for the house tax and deposed that he did not know in whose possession the house tax receipts were. He also denied the suggestion that the suit property was owned by the Delhi Improvement Trust and later vested with the Delhi Development Authority (DDA) after the coming into force of the Delhi Development Authority Act. He stated that he had never received any notice for payment of the ground rent and hence had not paid the same. He denied the suggestion that Chandgi Ram was the tenant in the front portion on the ground floor and on his death it was occupied by Sh. Om Prakash. He Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 62/102 CS DJ No. 620033/2016 volunteered to state that Dr. Khoob Ram Jajoria was the owner of the property, who vacated it, and thereafter the property was demolished. He further deposed that Om Prakash was his tenant in the suit property as well as his father Sh. Chandgi Ram for a very short period. He then again contradicted himself and stated that Om Prakash was never in possession as a tenant. The witness was then confronted with para no.3 of his preliminary objections of the written statement in which he had raised the objection with respect to non-impleadment of the legal heirs of Chandgi Ram in light of statement made presently that no other person was in possession of the suit property except him, to which no clear answer was given and he only stated " I had brought the labour and some influential people in 1948 and got it demolished. The documents were manipulated by the people.". He then further contradicted himself and deposed "I do not remember Sh. Chandgiram I was a small child but I remember that the property wad got demolished by my mother. I had let out a portion of the property in suit to Chandgiram. I do not remember the date. I do not remember anything because Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 63/102 CS DJ No. 620033/2016 of age effect but I remember only that I was carrying on the business of electrical shop thereafter I studied and become an advocate. Vol it is possible that my brother may be involved in the fraud. Vol. Even today Om Prakash is in possession as a tenant. Now Om Prakash has also died and his son i.e. the grand son of Chandgiram is in possession of the shop. I might have let out the shop in 1952 to Om Prakash as mentioned in para 4 of additional pleas in my written statement. I have not let out any shop in the year 1955 to Chandgiram as mentioned by me in para no.6 of additional pleas of the written statement. In fact there is a difference between Chandgiram and Chandiram. Chandgiam is Baniya and Chandgiram is Reghar tribe. I am in possession of entire property." Thereafter the further cross- examination of DW-1 was deferred.
63) The defendant/DW-1 was recalled for his further cross- examination on 15.4.2015, during which he deposed that he had never let out any portion of the suit property to Sh. Om Prakash and denied the suggestion that the portion under Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 64/102 CS DJ No. 620033/2016 possession of Sh. Om Prakash was sold by the plaintiff. The witness was also confronted with the registered sale deed no. 1234 and 1235 dated 19.2.2008 (Mark A and Mark B), whereby the plaintiff sold the property bearing no. 4553 to Smt. Padma Gupta and Smt. Manju Gupta, which he denied. Thereafter, the defendant was confronted with para no.4 and 6 of the 'additional pleas' in the 'written statement' in which he had stated that he had let out one shop to Sh. Om Prakash, s/o Sh. Chandgiram at a rent of Rs.35/- per month and in 1955 he let out a second shop to Sh. Chandgiram at a monthly rental of Rs.90/- per month and questioned as to when he got the said shops vacated from Om Prakash and Chandgiram?, to which he disowned the said pleading entirely and stated that " I have never let out any of those shops on rent to Om Prakash or Chandgiram and hence there was no question of getting these vacated from them." Thereafter, the witness again disowned another assertion made by him in his evidence by way of affidavit Ex. DA with respect to property bearing municipal no. 2767, Beodanpura, Karol Bagh being a joint hindu family Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 65/102 CS DJ No. 620033/2016 property and stated "The property no.2767 Gali no.22, Beedanpura, Karol Bagh was not a joint hindu family property. My statement in the affidavit that the property no. 2767, Gali no.22, Beedanpura, Karol Bagh is a joint family property was not correct. Q. Which of your above statement is correct? A. The Beedanpura property was not a joint family property and that is the correct statement."
64) The defendant then deposed that he had appeared as witness PW-1 in CS no. 343/2009 (originally filed as Suit no. 344/2001) in the Hon'ble High Court of Delhi titled Sh. Ravinder Gupta vs. Sh. Virender Mohan and Ors and was cross-examined by LRs. of the plaintiff in the present suit (as defendants no. 17 - 21 in the said suit no. 344/2001) and was confronted with his cross-examination in the said suit as Ex. DW1/PA. The witness was asked as to why in para no.5 of the evidence by way of affidavit Ex. DA he had mentioned that the suit property originally belonged to Delhi Improvement Trust, whereas in the cross-examination Ex. DW-1/PA, he had Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 66/102 CS DJ No. 620033/2016 mentioned that the suit property never belonged to the Delhi Improvement Trust, and which of the statements was correct, to which he stated that at that time the Delhi Improvement Trust was not in existence. He then stated that there was no original allottee of the said property and again stated that it was allotted to Khoob Ram. The defendant then surprisingly stated that he had purchased the property from Khoob Chand and that there was no documentation with respect to the sale and purchase of the property. The witness also disowned his own documents being Ex. DW-1/4 to Ex. DW-1/16. He was then again asked "Q. Is it correct that in the property in suit, you are staying as younger brother and as licensee?" to which he evasively replied "it is if no concern as to how I am living. Again said, my elder is in the heaven and there is no question of his permission". The further cross-examination of the defendant/DW-1 was deferred.
65) However, the defendant expired on 20.6.2016 and his LRs. were impleaded vide order dated 17.7.2015.
Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 67/102 CS DJ No. 620033/2016
66) Thereafter, the right of the defendant to lead evidence was closed vide order dated 20.9.2016 as no other witnesses were presented on behalf of the defendant. Subsequently, vide order dated 24.10.2016, another opportunity was granted to the LRs. of the defendant to lead evidence subject to cost of Rs. 5,000/-. The remaining evidence of the LRs. of the defendant was also ordered to be recorded before a local commissioner.
67) The son of the defendant namely Rocky Gupta, who is also a practising advocate, then examined himself as DW-2 and tendered his evidence by way of affidavit as Ex. DW-2/A, which was on the same lines as the affidavit of the deceased defendant, and relied upon the documents Ex. DW-1/1 to Ex. DW-1/15.
68) DW-2 was cross-examined on 8.12.2016, during which he deposed that his date of birth was 27.01.1967 and that he did not remember who was the owner of the suit property. He Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 68/102 CS DJ No. 620033/2016 further deposed that his father had told him that Smt. Chawli Devi was the owner of the suit property, having purchased the same from one Vinodi Lal and she had given the property to the his father in 1944-48. He deposed that he had not seen any document in this regard or shown any by his father. He stated that he did not know if Ex. PW-1/1 mentioned 'Bir Inder Mohan son of Mohinder Nath Vaish, Aggarwal' or that they belonged to 'Vaish' but admitted that they were baniyas. He deposed that he did not know if Ex. PW-1/1 had been signed by the plaintiff as Virender Mohan. He further deposed that the property tax of the property had been paid by him only after the filing of the suit and not prior to that. He further deposed that he did not know whether any ground rent had been paid with respect to the suit property. He was then asked whether he was aware that his father/defendant had stated in his written statement that Smt. Chawli Devi had got the property mutated in favour of the plaintiff, to which he stated that he was not aware. I must mention that to almost every question, the answer of the witness was either based on hearsay or that he was not Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 69/102 CS DJ No. 620033/2016 aware of the same. Thereafter the further cross-examination of the witness was deferred.
69) DW-2 was recalled for his cross-examination on 7.4.2017, during which he deposed that Smt. Chawli Devi had dgiven both ownership and the possessory rights to his father and he had heard his grandfather telling his father that Smt. Chawli Devi had given ownership rights with possession to the defendant. He admitted that there was no documentation to his effect. He further stated that his father had written a letter Ex. DW-1/15 in which he had asserted himself to be the owner of the property. He further deposed that he had never searched the records of the property with the Sub-Registrar and stated that he was not aware of any other title document with respect to the suit property, other than Ex. PW-1/1/. He also denied that the signatures of Ex. PW-1/1 were that of the plaintiff. The witness was thereafter discharged.
70) The LRs. of the defendant then summoned Smt. Raj Kumari Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 70/102 CS DJ No. 620033/2016 Rana, manager of Prem Nath Motors as DW-3, who was examined in chief on 05.05.2017, during which she deposed that the summoned record was not available.
71) Sh. Anup Kumar, Telephone Exchange, was summoned as DW-4 on 05.05.2017, who produced the summoned records the complete record of the MTNL with respect to telephone no.25721002 as Ex. DW-4/A (Colly).
72) Sh. Dharamvir Singh, Post Office, Karol Bagh was summoned as DW-5 who deposed that since he had not been communicated as to what record was to be brought, he had come without any records.
73) It is pertinent to mention that the right of the LRs. of the defendant to lead evidence was again closed vide order dated 21.11.2017 on the ground that the defendant had failed to take any steps to summon witnesses. Subsequently, vide order dated 21.12.2017, another opportunity was granted to the LRs. of the Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 71/102 CS DJ No. 620033/2016 defendant to lead evidence.
74) Sh. M. P. Paliwal, Post Master, Karol Bagh, New Delhi was summoned as DW-6 who identified the seal of the post office on the letters addressed to the defendant as Ex. DW-6/1, Ex. DW-6/2 and Ex. DW-6/3. He also identified the seal of the post office on the raddio licences of the defendant as Ex. DW-6/4 and Ex. DW-6/5. During his cross-examination he deposed that he had not brought any document with him from the post office to verify the correctness of the seal of the post office . He stated that Ex. DW-6/2 did not bear the seal of the karol bagh post office and simply stated New Delhi-5. He further deposed that he could not identify the signatures of the Director General, Post and Telegraph on Ex. DW-6/4 and Ex. DW-6/5.
75) Sh. Gopal Prasad Sharma, Assistant Engineer, North DMC was summoned as DW-7 (wrongly mentioned as DW-6 in the court file) on 5.4.2018, who deposed that the summoned records, i.e. record regarding the unauthorized construction at Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 72/102 CS DJ No. 620033/2016 the suit property were not available.
76) Finally the right of the LRs. of the defendant to lead evidence was closed vide order dated 05.04.2018 and the recording of evidence stood completed after almost 14 years since the framing of issues.
ARGUMENTS OF THE PARTIES
77) The ld. counsel for the plaintiff Sh. P.K. Agarwal has argued that the plaintiff has duly proved his case against the defendant. The plaintiff has proved his ownership over the suit property by way of the lease deed Ex. PW-1/1 and has further proved that the defendant was inducted in the suit property as a licencee being his younger brother. On account of souring of the relations, as the defendant filed a false suit for partition, the plaintiff terminated his licence vide legal notice dated 14.5.2003, with effect from 01.07.2003, which fact is admitted by the defendant. Further, the defendant has filed intentionally vague written statement only to obfuscate the dispute between Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 73/102 CS DJ No. 620033/2016 the parties and shroud his defence in mystery, so that he can keep changing the same as per his convenience. He has argued that the issue with respect to the name of the plaintiff 'Virender Mohan' being misspelt in Ex. PW-1/1 as 'Bir Inder Mohan' was only a case of a small error in the spelling of his name and even otherwise, the ownership of the plaintiff was duly corroborated by the other documents. He thus prayed that the suit be decreed in favour of the plaintiff.
78) The ld. Counsel for the plaintiff relied upon the following judgments in support of his case:
a) Dagadabai (dead) by Lrs vs Abbas, (2017) 13 SCC 705.
b) T. Anjannapa and Ors vs Somalingappa & Anr, (2006) 7 SCC 570.
c) Annsaheb Patil vs Balwant, (1995) 2 SCC 543.
d) M/s M.C. Agrawal HUF vs M/s Sahara India & Ors, 183 (2011) DLT 105.
79) On the other hand Sh. Madan Lal Sharma, ld. counsel for the Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 74/102 CS DJ No. 620033/2016 defendant has argued that in a title suit for possession, the plaintiff must prove his title on his own strength and any weakness in the defence of the defendant will not entitled plaintiff to claim relief of ownership and further possession is a good title against the whole world except the actual owner. He further contended that it was incumbent upon the plaintiff to prove his ownership and prevailing market rent. No averment has been made in the plaint as to how the plaintiff became the owner. He pointed out that the paragraph no.3 of the plaint contained contradictory pleadings and the averments as contained in paragraph no.4 are vague and silent as to when was licence created. Whereas, paragraph no.6 of the reply on merits of the written statement, it has been stated by the defendant stated that he was in possession since 1948. The ld. Counsel vehemently argued that the lease deed dated 26.3.1951 Ex.
PW-1/1 contained interpolations and changes which were in the name of some other person, whereas the name of the plaintiff was Virender Mohan and such changes were in the name of one Bir Inder Mohan. He further contended that PW-1 Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 75/102 CS DJ No. 620033/2016 Virender Mohan's affidavit does not explain the two names and the cuttings. The ld. Counsel for the defendant also recorded his statement on 2.03.2024, whereby he stated that he did not wish to press the additional issue framed vide order dated 15.12.2005, i.e. "Whether the defendant has become the owner of the property in suit by prescription? OPD".
80) It was further argued by the ld. Counsel for the defendant that the deceased plaintiff Sh. Virender Mohan had filed his evidence by way of affidavit and that although the affidavit was not tendered in evidence or the witness was cross-examined, the same could be relied upon for an admission against the deponent. He argued that the plaintiff did not make any averment that he was known by two names i.e. 'Virender Mohan' and 'Bir Inder Mohan' or that interpolations had been carried out on Ex. PW-1/1. It was finally submitted that the plaintiff had failed to prove his title to the suit property and the title document was forged and fabricated.
Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 76/102 CS DJ No. 620033/2016
81) The ld. Counsel for the defendant relied upon the following judgments in support of his case:
a) RVE Venkatachala Gounder vs Arulmigu Vishvesaraswami, 2004 (6) JT (SC) 442.
b) Anil Rishi vs Gurbaksh Singh, AIR 2006 SC 1971.
c) Smriti Debbarma (Dead) through Lrs vs Prabha Ranjan Debbarma and Ors, AIR 2023 SC 379.
d) Subhra Mukherjee vs Bharat Cooking Coal Limited, AIR 2000 SC 1203.
e) Rangammal vs Kuppuswami and Anr, AIR 2011 SC 2344.
f) Nathu Lal and Ors vs Mt. Gomti Kaur and Ors, AIR 1940 PC 160.
g) Valiammal Rangarao Ramachar vs Muthukumaraswamy Gounder and Anr, 1982 3 SCC 508.
h) Padmini Raghavan vs H.A. Sonnappa and Ors, MANU/KA/2953/2013.
i) Suresh Malani vs K. B. Munivenkata Reddy,
MANU/KA/2476/2021.
j) D. R. Rathna Murthy vs Ramappa, 2011 (1) SCC 158.
k) Bacchaj Nahar vs Nilima Mandal and Anr, (2008) 17 SCC 491.
l) H. Lakshmaiah Reddy and Ors vs L. Venkatesh Reddy, AIR 20015 SC 2499.
m) Gauhar vs Municipal Corporation and Ors, 2016 SCCOnline CHH Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 77/102 CS DJ No. 620033/2016 1092.
n) Rajinder Prasad (dead) by Lrs vs Darshna Devi, (2001) 7 SCC 69.
ISSUE-WISE FINDINGS AND REASONS Issue no.8
82) I shall first decide issues no. 8, which is reproduced below for the sake of convenience:
8. Whether the suit is bad for non joinder of parties?
OPD
83) The defendant has taken the objection in para no.3 of the written statement that the suit is bad for non joinder for Sh. Om Prakash and the legal heirs of Sh. Chandgi Ram.
84) As per the proviso to Order 1 rule of CPC, the non-joinder of a necessary party can defeat a suit, even if otherwise properly instituted. The Hon'ble Apex Court has held in the decision of Mumbai International Airport Private Limited vs. Regency Convention Centre and Hotels Private Limited and Ors. , AIR 2010 SC 3109, that:
"15. A "necessary party" is a person who ought to have been joined Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 78/102 CS DJ No. 620033/2016 as a party and in whose absence no effective decree could be passed at all by the court. If a "necessary party" is not impleaded, the suit itself is liable to be dismissed. A "proper party" is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the Plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the Plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance."
85) The twin test to determine whether a party is a necessary party or not is that (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; and (2) no effective decree can be passed in the absence of such party. (Moreshar Yadaorao Mahajan vs. Vyankatesh Sitaram Bhedi (D) thr. L.Rs. and Ors.: 2022 INSC 1027).
86) In the present case, the plaintiff has instituted the present suit against the defendant for recovery of possession on account Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 79/102 CS DJ No. 620033/2016 of cancellation of licence given earlier out of natural love and affection. It is the plaintiff's case that he is the owner of the suit property bearing Municipal no. 4582/52 and 4553, Regharpura, Arya Samaj Road, Karol Bagh, New Delhi and portion of the same, i.e. front half portion of the ground floor of property bearing no. 4553, which is a shop, had been let out by him to on Late Sh. Chandgi Ram. PW-1 has further deposed in her evidence by way of affidavit that on the death of Sh. Chandgi Ram, his son Om Prakash became the tenant against whom a suit for eviction was also filed, which was later compromised and he sold the shop/portion to Smt. Padma Gupta and Smt. Manju Gupta, who were the daughters-in-law of Sh. Om Prakash vide sale deeds dated 19.2.2008 ( Mark A and B). The plaintiff is not seeking to recover the possession of that part of the property, which, as per him, has been sold out . Hence, there is no right to any relief against either Om Prakash or Chandgi Ram or resultantly their legal heirs. Further, it also cannot be said that in their absence, no effective decree could be passed. Hence, I find that the suit is not bad for non-joinder of the legal Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 80/102 CS DJ No. 620033/2016 heirs of Om Prakash or Chandgi Ram, who are not necessary or even proper parties. Hence, the issue no. 8 is decided against the defendant.
Issues no. 6 and 7.
87) I shall next decide issues no. 6 and 7, which are reproduced below for the sake of convenience:
6. Whether the suit is barred under Article 65 of the Limitation Act as made out in para 1 of the preliminary objections of the written statement? OPD
7. Whether the suit is barred under Article 64 of the Limitation Act as alleged in para 2 of the preliminary objections in the written statement? OPD
88) The deceased plaintiff Sh. Virendedr Mohan has instituted the present suit on the basis of his title as owner over the suit property on the basis of Ex. PW-1/1, which is a lease deed dated 26.03.1951 executed by the Delhi Improvement Trust in his favour. It is the plaintiff's case that he inducted the defendant as a licencee in the suit property around the year 1966 and terminated the same vide notice dated 14.05.2003, with effect from 30.6.2003. The present suit was instituted in 2003 itself.Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 81/102 CS DJ No. 620033/2016
89) At this stage, it would be used to refer to the provisions of Articles 64, 65 and 67 of the Limitation Act, 1963 which are provided below:
Description of suit Period of Time from which limitation period begins to run
64. For possession Twelve Years The date of of immovable dispossession.
property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed.
65. For possession Twelve years When the possession of immovable of the defendant property or any becomes adverse to interest therein the plaintiff.
based on title.
Explanation. For the purposes of this article-
(a) where the suit is
Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 82/102
CS DJ No. 620033/2016
by a remainderman,
a re-versioner (other
than a landlord) or a
devi-see, the
possession of the
defendant shall be
deemed to become
adverse only when
the estate of the
remainderman,
reversioner or
devisee, as the case
may be, falls into
possession;
(b) where the suit is
by a Hindu or
Muslim entitled to
the possession of
immovable property
CO the death of a
Hindu or Muslim
female, the
possession of the
defendant shall be
deemed to become
adverse only when
the female dies;
(c) where the suit is
by a purchaser at a
sale in execution of a
decree when the
judgment-debtor
was out of pos-
session at the date of
the sale, the
purchaser shall be
deemed to be a
representative of the
judgment-debtor
who was out of
possession.
Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 83/102
CS DJ No. 620033/2016
67 By a landlord to Twelve years When the tenancy is
recover possession determined
from a tenant
90) The Hon'ble Apex Court in the decision of Ramiah vs. N.
Narayana Reddy (Dead) by LRs. : 2004 INSC 433 explained the difference between Article 64 and Article 65 of the Limitation Act, 1908 in the following words:
"9. We do not find any merit in the aforestated arguments. Article64 of the Limitation Act, 1963 (Article 142 of the Limitation Act, 1908) is restricted to suits for possession on dispossession or discontinuance of possession. In order to bring a suit within the purview of that article, it must be shown that the suit is in terms as well as in substance based on the allegation of the plaintiff having been in possession and having subsequently lost the possession either by dispossession or by discontinuance. Article 65 of the Limitation Act, 1963 (Article 144 of the Limitation Act, 1908) on the other hand is a residuary article applying to suits for possession not otherwise provided for. Suits based on plaintiffs' title in which there is no allegation of prior possession and subsequent dispossession alone can fall within article 65. The question whether the article of limitation applicable to a particular suit is article 64 or article 65 has to be decided by reference to pleadings. The plaintiff cannot invoke article 65 by suppressing material facts...
10. In the case of Ram Surat Singh and Ors. v. Badri Narain Singh MANU/ UP/ 0279/ 1927 MANU/ UP/ 0279/ 1927 : reported in Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 84/102 CS DJ No. 620033/2016 AIR1927All799a , it has been held that if the suit is for possession by a plaintiff who says that while he was in possession of the property he was dispossessed, then he must show possession within 12- years under article 142 (now article 64) of the Limitation Act. To the same effect is the ratio of the judgment in the case of Mohammad Mahmud v. Muhammad Afaq and Ors. reported in MANU/ OU/0159 /1933 MANU/ OU/ 0159/ 1933 . In the commentary on the Limitation Act by Sanjiva Row [Ninth Edition -- IInd Volume page 549] it has been stated that the question as to which of the two articles would apply to a particular case should be decided by reference to pleadings, though the plaintiff cannotbe allowed by skilful pleading to avoid the inconvenient article..."
91) It is not the plaintiff's case that he was in possession of the property and subsequently was dispossessed by the defendant, so as to attract article 64 of the Limitation Act or that the defendant denied his title to the suit property to fall under article 65 of the Limitation Act. Rather, the plaintiff is seeking to recover possession from the defendant on account of cancellation of his licence and the applicable provision of the law of limitation would be Article 67.
92) It is settled law that on the cancellation of the licence, the status of a licencee is that of a tenant at sufferance on the basis Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 85/102 CS DJ No. 620033/2016 of a month to month tenancy. The Hon'ble Apex Court has held in the decision of Nand Ram (D) through L.Rs. and Ors. Vs. Jagdish Prasad (D) through L.Rs., 2020 INSC 315, that a suit to recover possession from a licencee would fall under Article 67 of the Limitation Act. It has been held as follows:
"39. In view of the above, the suit for possession would not be covered by Article 65 since there is a specific article i.e. Article 67 dealing with right of the lessor to claim possession after determination of tenancy. The appellants-plaintiffs have claimed possession from the defendant alleging him to be the tenant and that he had not handed over the leased property after determination of the lease. Therefore, such suit would fall within Article 67 of the Limitation Act."
93) In the present case, the licence of the defendant was canceled vide notice dated 14.05.2003, with effect from 01.7.2003, and the suit has been instituted in the year 2003 itself, at which time the period of limitation of 12 years had barely begin to run. Hence, the issues no 7 and 8 are decided against the defendant.
Issues no. 1-5 & 14
94) I shall next decide issues no.1-5 and 14 together, being Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 86/102 CS DJ No. 620033/2016 connected issues, which are being reproduced below for the sake of convenience:
1. Whether the plaintiff is owner of property bearing Municipal No. 4582/52 and 4553 Regarpura, Arya Samaj Road, Karol Bagh, New Delhi? OPP
2. Whether the plaintiff had at the request of the defendant gave license of back portion as described above to the defendant? OPP
3. Whether the occupation of the defendant of the back half portion of property no.4582/52 is as guest/brother/licencee of the plaintiff? OPP
4. Whether the plaintiff terminated the license of the defendant vide notice dated 14th May 2003 in respect of the portion in his occupation, if so, to what effect?
OPP
5. Whether the plaintiff is entitled to claim Rs.330/- per day as damages for use and occupation against the defendant? OPP
14. To what relief the plaintiff is entitled to? OPP
95) It is the plaintiff's case that he is the owner of the suit property bearing municipal no. 4582/52 and 4553, Regharpura, Arya Samaj Road, Karol Bagh, New Delhi. In order to prove his ownership, the deceased plaintiff's wife Smt. Rameshwari Devi/PW-1 has led in evidence the original perpetual lease Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 87/102 CS DJ No. 620033/2016 deed dated 26.3.1951 executed between the Delhi Improvement Trust and the plaintiff as Ex. PW-1/1. The defendant has vehemently argued that the said document is a forged and fabricated one as it is executed in the name of one 'Bir Inder Mohan' who is stated to be son of 'Mahender Nath, Vaish Aggarwala' in which name the word 'Bindra' had been cut out. There were also no signatures of any official from the sub-registrar's office affirming the correction as genuinely made by the parties. It is pertinent to mention at this stage that the said objection was not raised by the defendant in his written statement, in which the defendant simply denied that the plaintiff was the owner of the suit property, with the further assertion in paras no.1-2 of the 'additional pleas' in the written statement that the property was originally allotted to a reghar allottee by the Delhi Improvement Trust, however there was no written documentation in this regards, thereafter one Sh. Vinodi Lal, who was a relative of Smt. Chawli Devi (mother of the parties) 'acquired' the suit property from the reghar allottee and again there was no sale deed executed. As Smt. Chawli Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 88/102 CS DJ No. 620033/2016 could not purchase the suit property in the name of her husband, she effected the mutation in favour of the plaintiff, who a minor at that time. He further stated that he had been put in possession of the suit property by Smt. Chawli Devi.
96) The plaintiff's wife PW-1 specifically deposed in her evidence by way of affidavit Ex. PW-1/A that the plaintiff was the owner of the suit property and the lease deed dated 26.3.1951 had been executed by the Delhi Improvement Trust in his favour. She further deposed that the plaintiff was also known as 'Birender Mohan'. During her entire exhaustive cross-examination spanning ten occasions, she maintained her stance that 'Bir Inder Mohan' was none other than the plaintiff Virender Mohan.
97) I have carefully perused the document Ex. PW-1/1, which is the original lease deed dated 26.3.1951. Like most documents which are of a standard format, the particulars with respect to names, dates etc. have been handwritten. While it is correct that Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 89/102 CS DJ No. 620033/2016 on the first page of the document in the recitals, the lessee has been mentioned as 'Shri Bir Inder Mohan s/o Mahinder Nath, Vaish Aggarwala', while the plaintiff has referred to himself in the suit as 'Virender Mohan s/o Late Sh. Mahinder Nath Goyal', the plaintiff's widow, i.e. PW-1 has clearly deposed in her evidence by way of affidavit and cross-examination that both were the same person. The difference in the name can also be explained as the result of errors and discrepancies associated with transliteration, i.e. writing a word, especially a proper noun, belonging to one language into another one. While trying to transliterate a non-English word into the English language, only a close approximation can be achieved and it is not an exact science. Moreover, the plaintiff has signed next to the said name as 'Virender Mohan'. Even at the end of the document, the plaintiff's signatures appear as 'Virender Mohan' which lends strength to the fact that perhaps at that time the plaintiff was also known as 'Bir Inder Mohan', which is but a minor change in the spelling of his name. Further, the document Ex. PW-1/1 is of the year 1951, and is well beyond a Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 90/102 CS DJ No. 620033/2016 thirty year old document, the same has also been produced from proper custody and as per section 92 of the Bhartiya Sakshya Adhiniyam, 2023 (erstwhile section 90 of the Indian Evidence Act, 1872) the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Further, PW-1 has also placed on record and proved various house tax receipts, bills etc. with respect to the suit property all in the name of the plaintiff as 'Virender Mohan', which adds further credence to the fact that the person mentioned in Ex. PW-1/1 i.e. 'Bir Inder Mohan' and 'Virender Mohan' are none but the same person.
98) Further, the defendant on its part has miserably failed to prove its assertion in the written statement that the suit property was initially allotted to a reghar allottee by the Delhi Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 91/102 CS DJ No. 620033/2016 Improvement Trust and thereafter acquired by one Sh. Vinodi Lal, relative of his mother Chawri Devi, who then mutated the suit property in favour of the plaintiff, but inducted the defendant as a licencee. In fact, the defendant has not only changed his entire defence as per his whims and fancies, but also contradicted himself multiple times.
99) Although the defendant expired on 20.6.2016, while his cross-examination was underway, he had been substantially cross-examined by the ld. counsel for the plaintiff on 27.8.2014, 7.4.2015 and 15.4.2015 during which he completely changed his defence and stated that he was the registered owner of the suit property, which had been purchased by his mother from Vinodi Lal. He further admitted that there were no documents executed with respect to any of these transactions. During his cross-examination dated 27.8.2014, he deposed that "My mother purchased this property from Vinodi Lal." and thereafter stated that "This property was donated to my mother. I do not remember at this point of time as to who donated this Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 92/102 CS DJ No. 620033/2016 property to my mother. I do not know if the donation was oral or in writing as I was only 3 years old. Again said I do not know if my mother got this property in donation".
100) During his cross-examination dated 7.4.2015, the defendant stated that his mother had "ownership rights in respect of the property in suit", however admitted that "there was nothing in writing, it was all oral". He stated that his mother had simultaneously transferred the ownership and possession of the suit property to him and he did not ask his mother as to what was her right in the suit property. He deposed that the property had been registered in the name of Smt. Chawli Devi, which fact had never been stated in the written statement, but he had never seen the registration and that he could not produce the same as well. The witness gave the reason that since the transferor (Vinodi Lal) and transferee (Smt. Chawli Devi) had both expired, he could not produce the same. During his cross- examination dated 15.4.2015, defendant deposed that he had appeared as witness PW-1 in CS no. 343/2009 (originally filed Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 93/102 CS DJ No. 620033/2016 as Suit no. 344/2001) in the Hon'ble High Court of Delhi titled Sh. Ravinder Gupta vs. Sh. Virender Mohan and Ors and was cross-examined by LRs. of the plaintiff in the present suit (as defendants no. 17 - 21 in the said suit no. 344/2001) and was confronted with his cross-examination in the said suit as Ex. DW1/PA. The witness was asked as to why in para no.5 of the evidence by way of affidavit Ex. DA he had mentioned that the suit property originally belonged to Delhi Improvement Trust, whereas in the cross-examination Ex. DW-1/PA, he had mentioned that the suit property never belonged to the Delhi Improvement Trust, and which of the statements was correct, to which he stated that at that time the Delhi Improvement Trust was not in existence. He then stated that there was no original allottee of the said property and again stated that it was allotted to Dr. Khoob Ram Jajoria. The defendant then surprisingly stated that he had purchased the property from Dr. Khoob Ram Jajoria and that there was no documentation with respect to the sale and purchase of the property.
Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 94/102 CS DJ No. 620033/2016
101) The evidence of the defendant's son DW-2 with respected to the assertions as to the title to the suit property, being based on hearsay, is also inadmissible.
102) It would be suffice to say that the defendant on his part has miserably failed to prove his title to the suit property and has changed his defence in the suit as per his own whims and fancies. It is pertinent to mention that the defendant as well his son DW-2 Rocky Gupta are not lay persons and are qualified advocates and despite the same have made assertions that the suit property was orally transferred, which are not maintainable as per section 17 of the Registration Act, 1908.
103) In view of the aforementioned facts, I find that the plaintiff has proved his title to the suit property and hence the issue no.1 is decided in favour of the plaintiff.
104) With respect to issues no.2 and 3, the plaintiff Sh. Virender Mohan filed his evidence by way of affidavit on 31.3.2006, Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 95/102 CS DJ No. 620033/2016 however before the plaintiff could tender the same in evidence, he unfortunately expired on 23.6.2008. His wife Smt. Rameshwari Devi, PW-2 had deposed in her evidence by way of affidavit Ex. PW-1/A that the defendant lived with the father Late Sh. Virender Mohan till the year 1964 at 22, Beadonpura, Karol Bagh, New Delhi and moved out just prior to his marriage in 1964 itself. Thereafter, the defendant stayed in a rented accommodation in Kirti Nagar for about two years in a rented accommodation and was inducted into the suit property after a few years, which makes the probable year of his induction in the suit property around the year1970. The version of the defendant on the other hand is that he was inducted into the property by his mother Smt. Chawli Devi around 1948 and he has been in exclusive possession since then. Neither party has placed on record any documentary proof with respect to the induction of the defendant into the suit property. The plaintiff has not placed on record any documentary proof to show that the defendant was inducted as a tenant, similarly the defendant has also not placed on record Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 96/102 CS DJ No. 620033/2016 on documentary proof that he was inducted into the suit property by his mother, which defence has been further modified by him as the trial has progressed. However, in light of the fact that the parties are closely related being real brothers, the lack of any formal documentation with respect to handover of possession is the normal course of events as most persons would not insist on formal documentation where parties were so closely related. Therefore, as it already stands proved that the plaintiff was the owner of the suit property, it is the most probable version that the defendant, who has failed to prove his title to the suit property, was inducted into the same as a licensee. With respect to the date from which the defendant is in possession of the suit property, the defendant has relied on the documents Ex. DW-1/1 to Ex. DW-1/13, which are various documents of assorted sorts in the form of challans, bills, letters etc to prove that he had been inducted into the suit property in 1948 by his mother Smt. Chawli Devi. Ex. DW-1/1 is a letter issued by the Indian Posts and Telegraphs Department to 'M/s Ajanta' at the address Jamia Building, Ajmal Khan Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 97/102 CS DJ No. 620033/2016 Road informing him that his request for a telehone connection was on the waiting list and would be provided soon. The said document does not mention the suit property anywhere and is also issued at the address of Jamia Building, Ajmal Khan Road, hence is of no help to the defendant. The document Ex. DW-1/2 is a bill dated 12.12.1951 issued to M/s Ajanta Radio at 'Regarpura, Karol Bagh' and does not specifically mention the address of the suit property. The document Ex. DW-1/3 (Colly) is a licence to dealer to possess wireless telegraphy apparatus in India issued under the Indian Wireless Telegraphy Act,1933 dated 1.2.1951 which has been issued to M/s Ajanta Radio Electric Co. at 'Regarpura, Karol Bagh, Delhi' and does not specifically mention the address of the suit property. However, I do find that one of the documents in Ex. DW-1/3 (Colly) is a licence to establish a wireless receiving station issued under the Indian Telegraph Act, 1855 to M/s Ajanta Radio and Electric Co, at '4553, Arya Samaj Road, New Delhi', which is the address of the suit property. The said licence is dated 3.08.1953. Further, Ex. DW-6/5 is a receipt for payment of Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 98/102 CS DJ No. 620033/2016 licence fees, issued by the Indian Posts and Telegraphs Department to M/s Ajanta Radio and Electrical Co. at 4553, Arya Samaj Road, New Delhi which is dated 17.7.1953. Hence, the defendant has been able to prove that he has been in possession of the suit property atleast since 1953, however has failed to prove that he was living in the suit property as a licencee of his mother or as an owner. Further, in para no. 2 of the 'additional pleas' of the written statement, the defendant himself admitted that the suit property had been mutated in favour of the plaintiff in 1944 and he had been inducted into the suit property by Smt. Chawli Devi as her licencee. The original defence raised by the defendant was one of ownership by way of prescription, which has been given up by the defendant vide statement of the ld. Counsel for the defendant recorded on 02.03.2024.
105) In light of the aforementioned reasons, I find that the plaintiff had inducted the defendant as a licencee in the suit property and hence issues no.2 and 3 are decided in favour of Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 99/102 CS DJ No. 620033/2016 the plaintiff.
106) With respect to issue no.4, the plaintiff has relied upon notice dated 14.05.2003, Ex. PW-1/118, whereby he terminated the licence of the defendant with effect from 30.6.2003. The defendant has not denied the said fact in his written statement and further the said document was also admitted as Ex. P-3. Hence, the plaintiff has duly proved that he terminated the licence of the defendant vide notice dated 14.05.2003, with the effect that the defendant became a tenant at sufferance from such date. The issue no.4 is answered accordingly in favour of the plaintiff.
107) With respect to issue no.5, apart from the oral testimony of the plaintiff's wife that the suit property would fetch atleast Rs.330/- per day, i.e. Rs.10,000/- per month. However no documentary proof in the form of any rental agreement of the neighboring properties has been placed on record. In Chander Kirti Rani Tamdon v. VXL Lodging N. Boarding Services Pvt. Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 100/102 CS DJ No. 620033/2016 Ltd., 197 (2013) DLT 266, The Hon'ble High Court of Delhi has observed that while calculating mesne profits, certain amount of guess work by the Court is inevitable and acceptable. Further, the judicial notice of increase of rents in urban areas can be taken note of by the Courts by applying provisions of Section 57 and 114 of the Indian Evidence Act, 1872.
108) Hence, given the fact that the suit property is located in Karol Bagh area, which is one of the centrally located areas of Delhi and also contains two shops, a property of similar size and location would easily command a rent of atleast around Rs. 5,000/- per month in the year 2003. It would also be appropriate to allow a rental increase of atleast 15% p.a. on the said rent of Rs. 5,000/-. Therefore, the LRs of the plaintiff are held entitled to receive mesne profits/damages @ Rs.5,000/- per month from the LRs of the defendant from 01.7.2003 onwards, subject to a yearly increase by 15% p.a. on the mesne profits, till the handover of the suit property by the LRs of the defendant. The issue no.5 is accordingly decided in favour of the plaintiff. Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 101/102 CS DJ No. 620033/2016 RELIEF
109) That in view of the aforementioned reasons, the suit of the plaintiff is decreed in his favour. The LRs of the plaintiff are held entitled to recover the possession of the suit property, i.e. rear half portion of property bearing municipal no. 4582/52, Regharpura, Karol Bagh, New Delhi as depicted in red colour in the site plan annexed with the plaint from the Lr of the deceased defendant Sh. Rocky Gupta. The LRs of the plaintiff are also held entitled to receive mesne profits/damages @ Rs.5,000/- per month as mesne profits from 1.7.2003 onwards, subject to a yearly increase by 15% p.a., till the handover of the property by the Lr of the defendant. The costs of the suit are also awarded in favour of the LRs of the plaintiff. The plaintiff is directed to file additional court fees, if any, prior to the drawing up of the decree. Decree sheet be drawn up after supply of additional court fees as per rules. File be consigned to record after due compliance.
JITEN Digitally signed
by JITEN MEHRA
MEHRA 17:48:15 +0530
Date: 2025.02.22
Announced in the open court (JITEN MEHRA)
on 22.02.2025 DJ-10/Central/THC/Delhi.
Virender Mohan (deceased through LRs.) Vs. Ravinder Gupta (through LR) Page No. 102/102