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Delhi District Court

Smt. Mahendri vs Smt. Sundri on 18 July, 2014

     IN THE COURT OF SURINDER KUMAR SHARMA
     ADDITIONAL  DISTRICT JUDGE, EAST DISTRICT 
           KARKARDOOMA COURTS, DELHI.


                        CS No. 305/11


Smt. Mahendri
W/o Sh. Ramesh Chand
R/o 24/356, 1st & 2nd Floor
Trilok Puri
Delhi - 91.

                                                     .... Plaintiff

                        Vs.


Smt. Sundri
W/o Late Sh. Raj Kumar
R/o 24/356, Ground Floor
Trilok Puri
Delhi - 91.
                                                  ....Defendant


Date of institution of Suit         : 12.09.2011
Date of Arguments                   : 08.07.2014
Date of Judgment                    : 18.07.2014


JUDGMENT

1. The suit for eviction, possession, permanent injunction and damages has been filed by the plaintiff against the CS No. 305/11 Page 1/14 defendant.

The brief facts of the case of the plaintiff are as under:­

2. Plaintiff and the defendant are real sisters. The Plaintiff is the absolute owner and in possession of property bearing No. 24/356, Trilok Puri, Delhi by virtue of GPA, Will, Agreement to Sell, Affidavit, Receipt etc. dated 08.05.2001, executed by Smt. Santosh Kumari in her favour. The Will and GPA are duly registered. The said property comprises of ground, first and second floor, having two rooms, veranda, kitchen and bathroom on each floor. First and second floors have common stairs.

3. In the month of May 2009, husband of the defendant met with an accident. The defendant at that time used to reside at Ghaziabad along with her husband and minor children. The husband of the plaintiff was being treated in Safderjung Hospital and due to long distance from Ghaziabad to Safderjung Hospital, defendant requested the plaintiff to allow her and her family to reside at the ground floor of the above mentioned property (hereinafter referred to as suit property). The defendant gave an assurance of vacating the same within few months.

4. In September 2009, the plaintiff with the consent of her elder brother Sh. Bijender Singh allowed the CS No. 305/11 Page 2/14 defendant and her family to reside in the suit property as a permissive occupant without any rent, for few days for the purpose of treatment of her husband. The husband of the defendant expired in October 2009 and thereafter, the plaintiff requested the defendant to vacate the suit property and the defendant sought some time to vacate the same. But, even after passing of one and a half year and despite the repeated requests of the plaintiff, defendant did not vacate the suit property as promised by her. Thus, the plaintiff got served the defendant with legal notice dated 19.07.2011, thereby terminating the license of defendant to reside in the suit property and to vacate the same within 15 days from the receipt of said legal notice, but the defendant failed to comply with it.

5. The plaintiff and her brother Sh. Bijender Singh also settled the dispute with the defendant before Delhi Govt. Mediation Center according to which it was agreed between them that the plaintiff and her brother shall contribute an amount of Rs. 2.5 to 3 Lacs for purchasing a plot/house for the defendant, till September 2011 and the defendant shall shift to said plot/house and would handover the vacant peaceful possession of suit property to the plaintiff. The plaintiff and her brother showed many properties to CS No. 305/11 Page 3/14 defendant for her purchase, but the defendant did not purchase any. Thereafter, the plaintiff again served the defendant with legal notice through her counsel, thereby, calling upon the defendant to find out a suitable property for herself of her choice for a sum of Rs. 2.5 to 3 Lacs, but the defendant refused to receive the said notice.

6. As per plaintiff, the defendant is an unauthorized occupant in the suit property and her status is that of a trespasser. Hence, she filed the present suit.

7. The plaintiff has prayed for passing a decree of possession of suit property in favour of plaintiff along with order to pay a sum of Rs. 50000/­ as damages from January 2010 till filing of the suit and also to pay Rs. 10,000/­ per month towards use and occupation charges qua the suit property from the date of withdrawal of the permission of the defendant to reside in the suit property till handing over the possession of the suit property to plaintiff. Plaintiff also prayed for passing the decree of permanent injunction, thereby restraining the defendant, her servants, agents, representatives etc. from transferring the possession of suit property or from making any structural changes, alteration and construction in the suit property.

8. The summons of the suit were served upon the CS No. 305/11 Page 4/14 defendant, who filed the written statement, wherein, she took preliminary objections that the suit of the plaintiff is liable to be dismissed as the plaintiff has suppressed material facts from the Court and the suit property is not valued properly. It is also alleged that the present suit is without any cause of action.

9. The case of the defendant is that at the time of purchase of the property, defendant gave Rs. Two Lacs to the plaintiff for purchasing and constructing the same and the defendant has been residing therein since the date of its purchase. It was also agreed between the parties that when the plaintiff will purchase a plot for the defendant, then defendant would vacate the suit property.

10.The defendant has also admitted the settlement arrived at between the parties before the Delhi Govt. Mediation Center and it is also stated that as per the said settlement the plaintiff was to give plot to defendant valuing Rs. 2.5 to 3 Lacs, but the plaintiff did not give any plot to the defendant till date and as such failed to comply with the terms and conditions of the said settlement.

11.The other averments of the plaint are denied and the defendant has prayed for dismissal of the suit.

12.The plaintiff filed replication to the written statement CS No. 305/11 Page 5/14 of defendant, wherein she has denied the averments of the written statement and has reiterated the averments made in the plaint.

13.My Ld. Predecessor vide his order dated 22.11.2011 framed the following issues:­

1. Whether defendant has contributed any amount while purchasing the property by the plaintiff? OPD

2. Whether plaintiff is entitled to relief of eviction?

OPP

3. Whether plaintiff is entitled to relief of possession? OPP

4. Whether plaintiff is entitled to relief of permanent injunction? OPD

5. Whether plaintiff is entitled to damages. If so, at what rate and for what period? OPP

6. Relief.

14.In support of her case plaintiff examined three witnesses.

15.Plaintiff examined herself as PW­1 and filed her affidavit Ex. PW1/A in evidence in support of her case. She also relied upon documents Ex. PW1/1 to Ex. PW1/16.

16.Sh. Bijender Singh was examined as PW­2. He filed his CS No. 305/11 Page 6/14 affidavit Ex. PW2/A in support of the case of the plaintiff and also relied upon documents Ex. PW1/1 to PW1/4.

17.Sh. Sunil was examined as PW­3. He also filed his affidavit Ex. PW3/A in support of the case of the plaintiff.

18.On behalf of the defendant, she examined herself as DW­1 and filed her affidavit Ex. DW1/A in evidence in support of her case.

19.I have heard the Ld. Counsels for the parties and have perused the file. I have also gone through the written arguments filed on behalf of the plaintiff.

20.It was submitted by the Ld. Counsel for the plaintiff that the plaintiff is admittedly the owner of the suit property. It was contended that the defendant was a permissive user of the suit property and her permission to reside in the suit property has been withdrawn and thus, the defendant is liable to pay damages to the plaintiff for use and occupation of the suit property. It was contended that the plaintiff has led evidence that she is entitled to the damages @ Rs. 5000/­ per month. It was submitted that the defendant has failed to prove that she had contributed any amount for purchasing the suit property. It was contended that the plaintiff being owner of the suit property, is entitled to the CS No. 305/11 Page 7/14 possession of the same and the defendant has no right to create any third party interest in the suit property nor does has any right to make any structural changes in the suit property.

21.On the other hand, it was contended by the Ld. Counsel for the defendant that the defendant had contributed Rs. Two Lacs for purchasing the property. It was contended that as per the settlement arrived at between the parties, the plaintiff was required to purchase a plot/house for the defendant. As the plaintiff has failed to purchase or arrange any plot/accommodation for the defendant, therefore, the defendant cannot be ousted from the suit property. It was contended that the defendant is residing in the suit property as she has a right to reside therein for the reason that she had contributed funds in purchasing the suit property. It was urged that the plaintiff has no right to withdraw the permission given to the defendant for residing therein as the defendant was never a permissive user of the suit property and even otherwise the plaintiff has failed to keep her words by not arranging or purchasing a plot/accommodation for the defendant. It was contended that the suit of the plaintiff is without any merit and the same deserves dismissal.

CS No. 305/11 Page 8/14

My findings on the issues are as under:

ISSUE NO. 1

22.The onus to prove this issue is upon the defendant.

23.The defendant in her written statement has taken the plea that she has contributed Rs. Two Lacs at the time of purchase of said property and in construction over the same. But, in her affidavit she did not mention even a single word that she had contributed any amount in purchasing the said property and no evidence has been led by the defendant in this respect. Nor she has filed any document in this regard. As the defendant has not led any evidence in order to prove that she has contributed any amount while purchasing the property by plaintiff, thus, this issue is decided against the defendant and in favour of the plaintiff. ISSUE NOs. 2 & 3

24.Both these issues have been taken together as both the issues are inter­related and can be decided by same reasoning.

25.The onus to prove both these issues is upon the plaintiff.

26.Admittedly, the plaintiff is the owner of the property and it is also admitted that the defendant is in possession of the suit property. It has been held in Issue no. 1 that the defendant has failed to prove that CS No. 305/11 Page 9/14 she had contributed Rs. Two Lacs in purchasing the property. The defendant has not led any evidence as to in which capacity or under which right she is in possession of the suit property.

27.The plaintiff in her affidavit has stated that the defendant was the permissive occupant of the suit property which was terminated by service of legal notice dated 19.07.2011 Ex. PW1/9 upon the defendant and its postal receipt is Ex. PW1/10. The testimony of PW­1 remained unchallenged and therefore, the same has to be believed. In view of the law laid down in a judgment of Hon'ble Delhi High Court reported as State Vs. Mohd. Afzal & Ors. 2003­ VII AD(Delhi)­1, wherein, it was held that when a witness is not cross examined on any relevant aspect, the correctness of the statement made by the witness cannot be disputed.

28.Thus, the defendant is an unauthorized occupant with respect to suit property. Therefore, the plaintiff is entitled to the possession of the suit property by evicting the defendant therefrom.

29.Hence, both the Issues are decided in favour of the plaintiff and against the defendant.

ISSUE NO. 4

30.The onus to prove this issue is upon the plaintiff.

CS No. 305/11 Page 10/14

31.In Issue nos. 2 and 3, it has been held that the plaintiff is owner of the suit property and the defendant is unauthorized occupant of the suit property. Therefore, the plaintiff is entitled to the decree of permanent injunction as prayed for. Hence, the defendant, her successors, servants, agents, representatives etc. are restrained from transferring the possession of suit property or making any structural changes, alteration and construction in the suit property, in any manner. The issue is decided accordingly in favour of plaintiff and against the defendant.

ISSUE NO. 5

32.The onus to prove this issue is on the plaintiff.

33.The case of the plaintiff is that she is entitled to the damages as the defendant is an unauthorized occupant in the suit property. In her plaint the plaintiff has claimed damages @ Rs. 10,000/­ per month from the date of withdrawal of the permission given to the defendant for residing in the suit property. In her affidavit filed in evidence, she has claimed damages @ Rs. 5000/­ per month. However, she has not led any cogent evidence as to how she is entitled for damages @ Rs. 5000/­ per month. The plaintiff has filed copy of rent agreement Ex. PW1/15. This rent agreement was executed between the plaintiff and one Sh. Sri CS No. 305/11 Page 11/14 Chand. This agreement pertains to the suit property which was rented out by the plaintiff on 20.11.2008 to Sh. Sri Chand for a period of eleven months. The perusal of this rent agreement shows that the rate of rent was Rs. 1750/­ p.m. Thus, as per the case of plaintiff rate of rent of the suit property in the year 2000 was Rs. 1750/­ per month. Keeping in view that the rent is enhanced every year, the rate of rent of the suit property can be taken as Rs. 2000/­ per month, keeping in view the present economic scenario. Therefore, in my view, the plaintiff is entitled to the damages @ Rs. 2000/­ per month.

34.The case of the plaintiff is that the defendant was a permissive user of the suit property and the permission to reside in the suit property was withdrawn vide legal notice Ex. PW1/9 which was sent vide postal receipt Ex. PW1/10. The plaintiff was not cross­examined by the defendant. Therefore, uncontroverted testimony of the plaintiff has to be believed that legal notice was sent to the defendant, whereby, the permission granted to the defendant to reside in the suit property was withdrawn. Vide the said legal notice dated 19.07.2011, the plaintiff has called upon the defendant to vacate the suit property within 15 days from the receipt of the legal notice. The perusal of the postal CS No. 305/11 Page 12/14 receipt Ex. PW1/10 shows that the legal notice was sent on the same date i.e. 19.07.2011. The said legal notice must have been received by the defendant by 22.07.2011. Thus, the defendant was required to vacate the suit property by 06.08.2011. But, in the present case, the defendant has not vacated the suit property by 06.08.2011 and therefore, she is an unauthorized occupant of the suit property from 06.08.2011.

35.As the defendant is an unauthorized occupant of the suit property from 06.08.2011, therefore, the plaintiff is entitled to the damages for unauthorized use and occupation of the suit property by the defendant. It has been held above that the rate of rent of the suit property can be taken as Rs. 2000/­ per month. Therefore, the plaintiff is entitled to the damages @ Rs. 2000/­ per month from 06.08.2011 till the possession of the suit property is handed over to the plaintiff. The issue is decided accordingly.

ISSUE NO. 6 (Relief)

36.In view of the findings on the issues above, the suit of the plaintiff is decreed with cost for possession of the suit property. The plaintiff is also entitled to recovery of damages @ Rs. 2000/­ per month from 06.08.2011 till the possession of the suit property is handed over to CS No. 305/11 Page 13/14 the plaintiff. The decree of permanent injunction is also passed in favour of plaintiff and the defendant is restrained from transferring the possession of suit property or making any structural changes, alteration and construction in the suit property, in any manner.

37.Decree sheet be prepared accordingly. The decree shall not be executed till the plaintiff pays the requisite court fee.

38.The file be consigned to Record Room.

Announced in Open Court on 18.07.2014 (Surinder Kumar Sharma) Addl. District Judge, East Karkardooma Courts, Delhi CS No. 305/11 Page 14/14