Delhi District Court
Hitesh Kakkar vs Sanjay Kumar Kakkar And Ors on 21 November, 2024
IN THE COURT OF SH. DEEPANKER MOHAN: DISTRICT
JUDGE-04, SHAHDARA DISTRICT: KARKARDOOMA COURTS,
DELHI
CS No. 2326/2016
In The Matter Of:-
Sh. Hitesh Kakkar
S/o Late Sh. Tilak Raj Kakkar
R/o B-109, Jangpura-B,
New Delhi- 110014 ... PLAINTIFF
VERSUS
1. Sh. Sanjay Kumar Kakkar
W/o Late Sushil Kumar Kakkar
R/o A-49, Radhey Shyam Park Extn.,
Delhi-1110051 ... DEFENDANT NO.1
2. Sh. Sushil Kumar Kakkar (Now deceased)
R/o G-94, Gali no.16, Gurdwara Wali gali,
Parwana Road, Jagat Puri, Delhi
Proceedings against defendant no.2 stands abated vide order dated
02.05.2022.
... DEFENDANT NO.2
JUDGMENT
1. CS No. : 2326/2016
2. Under Section : Suit for partition, possession,
Rendition of accounts,
Declaration and permanent
Injunction
3. Date of Institution : 01.09.2008
4. Reserved for Judgment : 19.10.2024
5. Judgment : 21.11.2024
1. Vide this Judgment, this Court shall dispose of the present suit as well as application under Order XX Rule 18 (2) read with Section 151 of CPC filed by the plaintiff on 01.09.2008 and on 08/05/2024 respectively.
CS No. 2326/16 Page 1 of 13
Digitally
signed by
DEEPANKER
DEEPANKER MOHAN
MOHAN Date:
2024.11.21
15:28:17
+0530
2. The plaintiff had filed the present suit for Partition, Possession, Rendition of accounts, Declaration and Permanent Injunctions against the defendant. The Hon'ble High Court vide its judgment dated 21.08.2018 in RFA No.362/2018 title as "Hitesh Kakkar Vs. Sanjay Kakkar & Anr." was pleased to set-aside the Judgement and decree dated 07.12.2017 passed by the Ld. Predecessor of this court and further was pleased to pass a preliminary decree of partition wherein the plaintiff was declared to be entitled for 1/3rd share in the suit property bearing no. Plot no.49, Block-A, Part of Killa no.10, Rect. No. 35, situated in the abadi known as Radhey Shyam Park Extension, of village Khajuri Khas, Shahdara, Delhi-110051 (ad-measuring 100 sq. Yards). The Hon'ble High Court remanded back the matter to this court for passing final decree in accordance with law.
3. Vide Judgment dated 20.02.2024, this Court has already passed a final decree wherein plaintiff was held entitled for the portion of 34 sq. yards of the suit property bearing no. Plot no.49, Block-A, Part of Killa no.10, Rect. No.35, situated in the abadi known as Radhey Shyam Park Extension, of Village Khajuri Khas, Shahdara, Delhi-110051, as per site plan filed by the Ld. Local Commissioner in which the defendant no.1 is in possession. This court further also held that the plaintiff is entitled for the possession of the portion of 34 sq. yards of the suit property, in which the defendant no.1 is in possession, as per the site plan filed by the Ld. Local Commissioner.
4. This Court, on the application of the plaintiff, vide its Order dated 26.03.2024 also rectified the names of the father of plaintiff and defendant No.1 and their addresses in the Judgment dated 20.02.2024.
5. The matter is now pending for enquiry under Order XX Rule 18 CS No. 2326/16 Page 2 of 13 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.21 15:28:24 +0530 CPC for ascertainment of accounts to be rendered by the defendants with respect to any income which they might have earned from the suit property from the period of three years prior to filing the subject suit and ascertainment of the usage charges. Subsequently, an application under Order XX Rule 18 (2) read with Section 151 of CPC was filed by the plaintiff on 08/05/2024 respectively. The reply to the said application was filed by the defendant no.1 on 21/05/2024.
6. During the course of enquiry, on 07/09/2024 Plaintiff filed the certified copy of registered Lease deed dated 20/09/2023 pertaining to the property bearing no.56-A, Ground Floor, First Floor, Second Floor and Third Floor, out of Khasra No.28/21, situated at abadi of Radhey Shyam Park, Village Khureji Khas, Illaqa Shahdara, Delhi-110051, which is situated in the same locality where the suit property is situated. The Plaintiff to prove the said Lease Deed, also examined Sh. Parvesh Khatri, Junior Assistant from Sub-Registrar Office-VIII as PW-2. PW-2 was cross-examined by the Ld. Counsel for defendant No.1 on 09/10/2024. On the same day, the Ld. Counsel for plaintiff submitted that plaintiff do not want to examine any other witness for the purpose of enquiry qua determination of mesne profits.
7. The Ld. Counsel for defendant no.1 submitted that the ground floor of the property in question (i.e. 34 sq. yards portion of the suit property, which is in possession of the defendant No.1) is on rent for a monthly rent of Rs.5,000/- and the same was let out by defendant No.1 to Leela, about two years back. It is further submitted that defendant No. 1 along-with his family members is occupying and residing at the first floor and Second floor of the portion of the property in question (i.e. 34 sq. yards portion of the suit property). On the request of Ld. Counsel for defendant No.1 and no objection given by the Ld. Counsel for plaintiff, CS No. 2326/16 Page 3 of 13 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.21 15:28:31 +0530 the fact that "the ground floor of the part portion of the property in question (34 sq. yards) is fetching a monthly rent of Rs. 5,000/- from the last two years", was taken on record on 09/10/2024.
8. The Ld. Counsel for the plaintiff argued that the plaintiff is entitled for the mesne profit against defendant No.1 because he is the owner of the 1/3rd portion of the suit property as per the preliminary decree dated 21/08/2018 passed by the Hon'ble High Court of Delhi in RFA No.362/2018 and the defendants have deprived the plaintiff from using and enjoying the suit property which he was entitled to possess and use, being the co-owner. He further argued that in Para No.10 of the plaint, it has been specifically pleaded that "10. That the plaintiff has also come to know that the space meant for office in the property as purchased by the father of the plaintiff and his brother defendants, has been converted/ changed into three shops illegally & unauthorizedly by the defendants. The defendants after constructing three shops at the ground floor of the property let out two shops and have been misappropriate the plaintiff's 1/3rd share of income being realized from the shops and also from other let out portion of the suit property." It is further argued that defendants have realize rental income from the suit property and have not shared the same with the plaintiff. It is further argued that defendant No.1 also admit that one shop at ground floor (in the portion of 34 sq. yards of the suit property) is fetching rent of Rs.5,000/- per month. It is further argued that the plaintiff is also entitled for mesne profits against defendant no.1. The Plaintiff relied upon the Judgment of the Hon'ble High Court of Delhi passed in " Rajender Singh Sisodia versus Shafeena Begum & Ors.", C.M. (M) No. 176/2015, Date of Decision: 24/04/2024.
9. The Ld. Counsel for the defendant No.1 argued that plaintiff CS No. 2326/16 Page 4 of 13 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.21 15:28:38 +0530 cannot claim mesne profits against defendant no.1 because defendant no. 1 had constructed and made improvements in the suit property prior filing of the present suit. He further argued that as per Section 2 Clause 12, mesne profit shall not include profits due to improvement made by the person in a wrongful possession. He further relied upon the judgment of the Hon'ble High Court of Madras passed in "D. Nataraja Achari versus Balambal Ammal", AIR 1980 Madras 222. It is also argued that one co-owner cannot claim mesne profit against the other co-owner, if the same is being used by the co-owner for his own personal use.
10. The Hon'ble High Court of Delhi in Sita Kashyap and Anr. v. Harbans Kashyap and Ors.- 2011 (123) DRJ 52 in a suit for partition amongst co-owners held that "In my view, since it is the bounden duty of the Court to direct appropriate division/ apportionment not only of the common immovable property but also of the profits earned/ mesne profits which accrues from that immovable property, even if no application for grant of profits is pending at the time when the final decree is passed, would not be material when suit continues to be pending before Court for one reason or the other." The Hon'ble High Court also held in Para No. 21 of its judgment which is mentioned as under:-
"In a suit for partition though there is no specific prayer for awarding profits, the Court has power to direct an enquiry into profits and grant a decree for Plaintiff's share therein. This proposition was expressly approved by the Madras High Court in the case of Basavayya (supra). In fact, it becomes the duty of the Court in a suit for partition to make an enquiry into profits even if there is no claim for profits, so as to balance the equities between the parties. If one of the co-owners has been deriving some profit by way of rent etc. or is in possession of a portion CS No. 2326/16 Page 5 of 13 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.21 15:28:45 +0530 disproportionate to his share in the property subject matter of the partition, it becomes the duty of the Court to adjust the equities by directing appropriate division of profits, if any, earned from the property, which is subject matter of the partition or by directing appropriate payment by a person, who has been occupying a portion larger than he ought to be occupying considering his share in the property, to the sharer(s), who is either totally divested of possession or has been in possession of lesser portion as compared to his share in the property. Of course, such payment/adjustment can be directed by the Court only with respect to the mesne profits subsequent to the filing of the suit. Any claim for mesne profits which were earned or could on exercise of due diligence have been earned, before filing of the suit, needs necessarily to be specifically claimed and appropriate court fee needs to be paid on the amount claimed towards share in the mesne profits. But, it would be hyper technical to take a view that merely because the Court did not direct payment of mesne profits either in the preliminary decree or in the final decree, the Plaintiff should be deprived of his share in the mesne profits. Of course, no order for such payment/adjustment/apportionment can be passed by the Court once it has become functus officio, in the sense that no proceedings in the main suit are pending before it, but, when the suit proceedings continue to be pending before the Court for one reason or the other, there is no legal impediment in passing such an order even after passing of the final decree. In such cases, the Court is competent to pass a supplementary/additional decree limited to the grant of mesne profits."
11. In B. Basavayya V.B. Guravayya v. B. Guravayya, (C.R.P. No. 1695/1948) AIR 1951 Madras 938: (24) SCC 669 the Full Bench of CS No. 2326/16 Page 6 of 13 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.21 15:28:53 +0530 Hon'ble High Court of Madras held that "A tenant-in-common who files a suit for partition seeks a partition not only of his share of the properties forming the subject matter of the suit, but also of his share of the profits accruing from these properties during the pendency of the suit or till he is put in possession of his share. " It is also held by the Full Bench that "The profits accruing from the common properties pending a suit for partition, like the properties themselves, are liable to be partitioned under the final decree even without a specific prayer in the plaint for account of such profits and a division thereof. The right to an account of such profits is implicit in the right to a share in the common properties and both rights have to be worked out and provided for in the final decree for partition."
12. In Ramaswami Iyer v. Subramania Iyer, 43 M.L.J 408, Sadasiva Aiyar J., (with whom Napier, J., agreed) referred to the decision of Judicial Committee in Pirthipal and Uman Parchad v. Javahersingh, 14 Cal 493 (Privy Council) and observed as follow: "As stated by their Lordships a sharer has a 'clear right' to an account of the profits received by the person in possession of the whole and to be awarded his share thereof, not as profits received by a person in wrongful possession but as appurtenant to the plaintiff's right in his share of the lands."
13. The similar view was taken by the Hon'ble High Court of Delhi in "Dr. Pradnya Nagar & Anr. versus Sh. Rohit Nagar & Ors.", 2015 SCC Online Del 12340.
14. The Hon'ble High Court has already passed a preliminary decree dated 21/08/2018 wherein plaintiff has been held entitled to 1/3 rd share in the suit property bearing no. Plot no.49, Block-A, Part of Killa no.10, Rect. No.35, situated in the abadi known as Radhey Shyam Park Extension, of village Khajuri Khas, Shahdara, Delhi-110051 (ad-
CS No. 2326/16 Page 7 of 13
Digitally
signed by
DEEPANKER
DEEPANKER MOHAN
MOHAN Date:
2024.11.21
15:28:59
+0530
measuring 100 sq. Yards). The Plaintiff also pleaded in the plaint and deposed as PW-1 that the space meant for office in the suit property has been converted/ changed into three shops illegally and unauthorizedly by the defendants and after constructing three shops at ground floor, they have let out two shops and have been misappropriating the plaintiff's 1/3rd share income being realized from the shops and also from other let out portion of the suit property. The said fact has not been refuted by defendant no.1 by filing written statement or by cross-examining PW-1 and the same went unrebutted and undisputed.
15. The Plaintiff also pleaded and deposed that the defendants had started some construction work in the suit property either through the contractor or otherwise and without obtaining any requisite sanction of building plan from MCD. It is also deposed by the Plaintiff in his evidence affidavit Ex.PW-1/A on 28/02/2014 that Defendants have sold their 2/3rd portion to third parties for consideration and 1/3 rd share of the plaintiff is still unsold and is in possession of defendant No.1. It is further deposed by PW-1 that since the defendants have already unilaterally partitioned the suit property and sold their respective share in the said property, therefore, plaintiff is claiming possession of his share of 1/3rd share which is still unsold and is in the illegal possession of defendant no.1.
16. The defendant No.1 despite service of summons of the suit as well Appeal (R.F.A. No.362/2018) did not file the written statement in the suit nor did he choose to appear before the Hon'ble High Court to refute the claim of the plaintiff. As per the case of the defendant no.1, he has constructed and made improvements in the portion of 34 sq. yards of the suit property and therefore, plaintiff is not entitled for mesne profits due to the said improvements. The defendant No.1 has not produced any CS No. 2326/16 Page 8 of 13 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.21 15:29:05 +0530 documentary evidence or material on record to show that the construction/ improvement in the suit property was made/ took place prior to filing of the present suit. Moreover, perusal of the registered Irrevocable General Power of Attorney dated 23 rd July, 2008 (filed on 09/10/2023) vide which defendants have sold 2/3rd portion (i.e. 66 sq. yards out of 100 sq. yards) of the suit property to Smt. Sudershan Jain, does not mention about any construction or improvements in the suit property which also clearly proves that defendant no. 1 has not made any construction or improvements in the suit property prior to filing of the suit. The plaintiff pleads that the defendants have started construction work over the suit property but despite service of summons, defendant No.1 did not stopped the construction work and the defendant No.1 along-with defendant no.2 further continued with the construction work in the portion of 34 sq. yards of the suit property deliberately despite having the knowledge that the legal heirs of his brother (Late Sh. Tial Raj Kakkar) are having the right over the said portion particularly when defendants have sold their 2/3rd share in the suit property. The defendant No.1 cannot be allowed to take benefit for his own wrong or default or negligence which he deliberately continued even after service of summons of the present suit. The defendant no.1 cannot be allowed to claim any special equities for the wrong or default committed by him intentionally and deliberately.
17. The improvements or construction, if any, on the portion of 34 sq. yards of the suit property does not mean that the defendant no. 1 is immune from rendering the accounts of the profits earned by him from it and to pay usage charges to plaintiff for occupying plaintiff's portion of the suit property without his consent. The remedy available with the defendant no.1 is to claim the recovery or adjustment of such amount spent by him bonafidely on the construction or improvement of the suit CS No. 2326/16 Page 9 of 13 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.21 15:29:12 +0530 property. However, the defendant No.1 has not pleaded any estimated amount which he spend on improvements of the suit property and to which he is entitled for the recovery or adjustment. The defendant no.1 has also not produced any documentary proof or material on record during enquiry which reflect that defendant no.1 has incurred such amount on the improvement and construction and he is entitled to adjustment of such amount while passing final decree. It was the bounded duty of the defendant no.1 to produce the material which reflect such amount incurred by him in construction or improvements of the suit property.
18. The Plaintiff has also pleaded that the entire suit property was purchased by his father and brothers of his father i.e. defendants no.1 and 2 and after its purchase, they started residing in the said property. It is also the stand of plaintiff that his father had expired 21/04/1990 when plaintiff was aged about 3 years and after the death of his father, defendants had thrown out the plaintiff and his mother from the suit property and since then they are enjoying the suit property. The defendants had enjoyed the portion disproportionate to their share in the subject/ suit property and were occupying the portion of the suit property larger than they ought to be occupying considering their share in the property. The Defendant No.1, even after selling his portion of the subject property, occupied the portion of the subject property to which he was not entitled to occupy and enjoy. The Defendants have deprived the plaintiff and his mother from enjoying the suit property or the portion of 34 sq. yards of the suit property to which they were entitled to, after selling 2/3rd portion and also as per the preliminary decree.
19. The Authority relied upon by the Defendant No.1 i.e. "D. Nataraja Achari versus Balambal Ammal", AIR 1980 Madras 222, cannot be CS No. 2326/16 Page 10 of 13 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.21 15:29:18 +0530 considered because the fact and circumstance of that case is different from the facts and circumstances of the present case. The arguments raised by the defendant no.1 are also not sustainable and meritless.
20. The present suit was filed on 01/09/2008 and therefore, in view of the facts and circumstances of case and above discussion, plaintiff is also entitled for mesne profits against defendant No.1 for the period 3 years prior to the filing of the present suit till the date of handing over the possession of the portion of the suit property.
21. The Plaintiff has also produced the independent evidence i.e. registered Lease Deed dated 20/09/2023 Ex. X1 (OSR) pertaining to the property bearing no.56-A, out of khasra no.28/21, situated at abadi of Radhey Shyam Park, in the area of Village Khureji Khas, Illaqa Shahdara, Delhi-110051 ad-measuring 39.1/4 sq. yards, which is situated in the same vicinity or locality where the suit property is situated. As per the said lease deed, the said property is consisting of Ground Floor, First Floor, Second Floor and Third Floor and is fetching monthly rent of Rs.15,000/- which has been let out for residential purpose. As per the Local commissioner report, portion of 34 sq. yards of the suit property is consisting of Ground Floor, First Floor and Second Floor. It is admitted fact that Defendant No.1 has let out the shop at the ground floor for commercial purpose and he is receiving a monthly rent of Rs.5,000/- from it. However, the plaintiff has not produced any material on record which would assist this Court to determine market rate of rent of the portion of 34 sq. yards of the suit property prior to September, 2023.
22. Regarding the amount of pendent-a-lite and future damages, a judicial notice can be taken of the fact that the amount of rent for various properties in and around Delhi have been rising staggeringly. The Hon'ble High Court of Delhi in "Vinod Khanna & Ors. versus Bakshi CS No. 2326/16 Page 11 of 13 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.21 15:29:24 +0530 Sachdev (deceased) through LRs & Ors."- AIR 1996 (Delhi) 32" has observed that the judicial notice can be taken of the fact about increase of rents in the premises in and around, Delhi, which is a city of growing importance being the Capital of the Country, which is a matter of public history. In another case- "Sh. M.R. Sahni v. Mrs. Soris Randhawa"- 2008 (104) DRJ 246, the Hon'ble High Court of Delhi while reiterating the steep increase in the rentals in Delhi, again emphasized that in relation to determination of mesne profits, there is ' always some element of guess work.'
23. The suit property is a constructed property of 100 sq. yards situated in Radhey Shyam Park Extension, Delhi and the rate of rent of the entire property shall not be less than 15,000/- per month between the period 01/09/2005 to 31/08/2008 which would have increased year by year. The defendants have already sold their 2/3 rd share in the suit property and 1/3rd share of the plaintiff i.e. 34 sq. yards, has been occupied by the defendant no. 1 since 2008 and he along-with his family members is enjoying the same without making any payment to the plaintiff towards usage charges and moreover, he is also earning rental income therefrom. This Court is of the considered opinion that the rate of rent or usage charges of a property ad-measuring 34 sq. yards in a developed area of Radhey Shyam Park Extension, Delhi should not be less than Rs.5,500/- per month between the period from September, 2008 to August, 2011, Rs.6,000/- per month between the period from September, 2011 to August, 2014, Rs.6,500/- per month between the period from September, 2014 to August, 2017, Rs.7,000/- per month between the period from September, 2017 to August, 2020, Rs.7,500/- per month between the period from September, 2020 to August, 2023 and Rs.8,000/- per month from September, 2023.
24. In view of the facts and circumstances of the case, material on CS No. 2326/16 Page 12 of 13 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date:
2024.11.21 15:29:31 +0530 record and considering the above discussion, this Court concludes that plaintiff is entitled for the mesne profit/usage charges/damages against defendant no.1 and therefore, mesne profit/usage charges/damages are awarded in favour of plaintiff and against defendant no.1 which is mentioned as under:-
i. Rs. 5,000/- per month for the period from 01/09/2005 to 31/08/2008.
ii. Rs. 5,500/- per month for the period from 01/09/2008 to 31/08/2011.
iii. Rs. 6,000/- per month for the period from 01/09/2011 to 31/08/2014.
iv. Rs. 6,500/- per month for the period from 01/09/2014 to 31/08/2017.
v. Rs. 7,000/- per month for the period from 01/09/2017 to 31/08/2020.
vi. Rs. 7,500/- per month for the period from 01/09/2020 to 31/08/2023.
vii. Rs. 8,000/- per month from 01/09/2023 till the date of delivering of possession of the portion of 34 sq. yards of the suit property to plaintiff.
25. Final decree is accordingly passed in favour of the plaintiff and against defendant No.1. Plaintiff is directed to deposit requisite court fees on the decreetal amount within 30 days from today.
26. Suit and application under Order XX Rule 18(2) r/w Section 151 CPC are accordingly disposed of.
27. Upon deposition of requisite court fees on the decreetal amount, decree sheet be prepared accordingly.
28. File be consigned to record room after due compliance.
Digitally
signed by
DEEPANKER
DEEPANKER MOHAN
MOHAN Date:
Announced in the open Court 2024.11.21
15:29:39
on 21st day of November, 2024 +0530
(Deepanker Mohan)
District Judge-04
Shahdara District/KKD Courts/Delhi
21.11.2024
CS No. 2326/16 Page 13 of 13