Delhi District Court
Smt. Asha Seth vs Sh. Kanishk Seth on 28 January, 2023
IN THE COURT OF SENIOR CIVIL JUDGE CUM RENT
CONTROLLER (WEST), TIS HAZARI COURTS, DELHI
Presided by: Ms. Mahima Rai Singh
CS SCJ No. 1365/19
CNR Number: DLWT-03-002487-2019
1. Smt. Asha Seth,
W/o Sh. Davinder Seth
R/o WZ-45C Rattan Park,
New Delhi-110 015.
2. Sh. Davinder Seth (since expired on 01.05.2021)
S/o Late Sh. Dwarka Dass,
R/o WZ-45C Rattan Park,
New Delhi-110 015.
.......Plaintiffs
Versus
1. Sh. Kanishk Seth
S/o Sh. Davinder Seth
R/o WZ-45C Rattan Park,
Mandir Wali Gali, New Delhi-110 015.
2. Ms. Shikha Seth
W/o Sh. Kanishk Seth
R/o WZ-45C Rattan Park,
Mandir Wali Gali, New Delhi-110 015.
......Defendants
Date of Institution : 04.09.2019
Date on which judgment was reserved : : 18.01.2023
Date of pronouncing judgment : 28.01.2023
CS SCJ No. 1365/2019 Asha seth vs. kanishk seth Page No. 1 of 15
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
AND MESNE PROFIT
JUDGMENT
1. The present suit has been filed by the plaintiff for a decree of permanent and mandatory injunction against the defendants by directing them to peacefully vacate the suit property bearing no. WZ-45C Rattan Park, New Delhi-110015 measuring 50 Sq. yards , includes Ground, First & Second Floor and also restrain them to interfere or intervene in the personal life of plaintiff and also restraining the defendants, their agents, friends, servants, relatives, associates etc. to encroach, raising illegal construction, create any third party interest in any manner at the suit property bearing no. WZ-45C, Rattan Park, New Delhi-11015, measuring 50 Sq. yards constructed up to three floors (ground, first and second) and also restrain them to interfere or intervene in the personal life of plaintiffs. It is also prayed that future damages @ Rs. 10,000/- per month till the possession of the suit property is handed over to the plaintiffs. Brief facts of the case as per the plaintiff are as under:-
2. Plaintiff no. 1 is an absolute and legal owner of premises bearing no. WZ-45C Rattan Park, New Delhi-110015 measuring 50 Sq.
yards, constructed up to 3 floors and the same hereinafter has been referred to as the suit property. It is further stated that defendant no. 1 is the son of plaintiff while defendant no. 2 is the daughter in law of the plaintiffs and wife of defendant no. 1. The defendant no. 1 & 2 got married according to Hindu rites and ceremonies on 15.02.2014. After their marriage initially the things were smooth but gradually, it becomes CS SCJ No. 1365/2019 Asha seth vs. kanishk seth Page No. 2 of 15 worst and still going on.
3. It is further stated that the plaintiffs purchased the suit property and later on constructed the same from their own funds and did not take any kind of help from their son. It is pertinent to mention here that plaintiffs are residing on the upper ground floor of the suit property and the defendants have been living on the second floor of the suit property. It is further submitted that after a gap of small period from the marriage, defendant no. 2 stated harassment towards the plaintiffs and wanted to grab the suit property. Plaintiff no. 1 already told the defendant no. 1 & 2 on various occasions that they were allowed by the plaintiffs to stay in the suit premises as a licensee only and anytime plaintiffs can ask the defendants to vacant the premise as per their wish. It is further submitted that initially, plaintiff too much patience and adjusted with the defendant no. 2 as defendant no. 1 is their only son. But they took the advantages of their innocence, love affection and harmony and tried to force them to vacant the suit premises forcefully and illegally. Being aware from the above said fact also, defendants especially defendant no. 2 never stopped her cruel behaviour towards plaintiffs and always insulted and abused them.
4. It is further submitted that during discussions to amicably resolve the issues, when plaintiff no. 1 and her husband had tried to request defendant no. 2 to act in a reasonable and dignified manner and to consider plaintiffs' age and relation before ill-treating them, defendant no. 2 threatened plaintiff no. 1 and her husband i.e. plaintiff no. 2 that she will implicate plaintiffs in a false case that will cause loss of face for them in society.
CS SCJ No. 1365/2019 Asha seth vs. kanishk seth Page No. 3 of 15
5. It is further submitted that defendant no. 2 always tried to force plaintiff no. 1 to vacate the suit premises in the absence of plaintiff no. 2 and has beaten her many times. Now plaintiffs are in trauma and fear of threat to their life in their old age due to the above mentioned cruel conduct of defendants. It is further submitted that defendant no. 2 had filed a complaint with CAW Cell, Kirti Nagar in January 2019. Notice of this complaint was received by defendant no. 1, who went to CAW Cell and told the concerned officer that he is ready to live with the defendant no. 2 and now defendants are living on the second floor of the house. It is further submitted that being aggrieved by the disrespectful and unjustified actions of the defendant no. 2, plaintiffs have also filed complaints with the concerned police station. The plaintiffs had tried their level best to settle the present issue amicably, but unfortunately all the efforts went in vain and the defendants never understood the same and they have been adamant and cruel.
6. It is further submitted that in continuation of defendant no. 2's nefarious designs and to cover up their own wrongs, they started to give unreasonable and unlawful reasons and give threats to the plaintiffs to implicate them into false and frivolous litigation. However, the plaintiffs submitted lots of complaints against defendants on different dates and time. It is further submitted that while taking the advantage of plaintiff's age, innocence, vulnerability and defendants evolved a new device to harass them and stated to give threats. The said unwarranted acts and misconduct of defendant no. 2 have put the plaintiffs to extreme mental pain and agony and lowered their esteem in the society. It is further submitted that the constant illegal acts and offences committed by CS SCJ No. 1365/2019 Asha seth vs. kanishk seth Page No. 4 of 15 defendant no. 2. it is made clear that the defendant no. 2 had wrong intentions from the day one and she has been dishonest. It is further submitted that plaintiff through her counsel had sent a legal notice to the defendants for vacating the suit premises which was duly received by the defendants but they failed to do so. It is further submitted that the use and occupation of the defendants at Second floor of the suit property from the date of filing of the present case is totally illegal and unauthorized and subsequent to the termination of the license and its non-compliance, their status in the suit property is that of a trespasser/unauthorized occupant.
7. It is further submitted that the plaintiff is entitled to file the present suit and claim possession of the suit property by mandatory injunction, relief of permanent and temporary injunctions. On account of failure on the part of the defendants to vacate the suit property, they have become further liable to pay a consolidated amount of Rs. 10,000/- per month, as future rent/damages, from the date of filing of the present suit till the date of handing over of the peaceful and vacant possession of the suit property alongwith interest @ 18% per annum, future damages upto the date of recovery of possession of the suit premises from defendants alongwith the cost of the present suit.
8. It is further submitted that the cause of action for filing of the present suit in favour of the plaintiffs and against the defendant arose firstly when defendants started to harass plaintiffs. It further arose on 26.02.2019 when plaintiffs filed police complaint vide diary no. 27 A against the defendants. It is further arose on 07.04.2019 when plaintiffs sent a legal notice to the defendants for vacating the suit premises and since then, it is recurring and continuous, as the occupation of the CS SCJ No. 1365/2019 Asha seth vs. kanishk seth Page No. 5 of 15 defendants is illegal in the suit property at second floor. Written statement by defendant no. 1
9. In the written statement, the defendant no. 1 has denied all the contentions of the plaintiff on merits and submitted that the plaintiff no. 2 has no concern with the present suit as he is not the legal party to the suit for determination of any relief. It is further submitted that defendant no. 1 is the son of the plaintiff and they never given anything in writing to stay in the suit property as a licensee. It is further submitted that plaintiffs never interfere in the relation of the defendants and they never tried to settle any issue arose between the defendants. It is further submitted that the defendants never tried to grab the suit property from the plaintiffs and they never tried to intervene between the defendants and tried to resolve any issue ever occurred between the defendants. It is prayed that the present suit of the plaintiff is dismissed . Written statement by defendant no. 2
10. In the written statement, the defendant no. 2 has denied all the contentions of the plaintiff on merits and submitted that plaintiffs have not filed any site plan with the plaint and plaintiff no. 2 has not any concern with the present suit as he is not the legal party to the suit. It is further submitted that the property in question was purchased by the plaintiff no. 1 was in the shape of ground floor and first floor only in the year 2006. It is further submitted that from the earning of defendant no. 1 the property in question was started to re-construct in January 2018 and it was constructed ground floor, upper ground floor, first floor, second floor and third floor after demolition of old construction shape and after completion of construction in September 2018 the defendant no. 2 started CS SCJ No. 1365/2019 Asha seth vs. kanishk seth Page No. 6 of 15 to live on 2nd floor alongwith her husband. It is further submitted that after sometime defendant no. 1 is not living with her as he and plaintiffs are harassing her and defendant no. 1 living with his parents i.e. plaintiffs on ground floor as he is not interested to live with defendant no.
2. It is further submitted that defendant no. 2 had never behave cruel towards plaintiffs and never insulted and abused them. It is further submitted that the plaintiff create nuisance in the matrimonial life and regular harassing to the defendant no. 2. It is further submitted that plaintiffs and defendant no. 1 have filed the present suit in collusion as they all want to remarry of defendant no. 1 with another lady as the defendant no. 2 asked for her matrimonial rights. It is further submitted that that plaintiff no. 2 with defendant no. 1 used to beaten and threatens to the defendant no. 1 and used to harass her to leave the suit property and defendant no. 1. It is further submitted that defendant no. 2 only wants to live with defendant no. 1 in her matrimonial home.
REPLICATION
11. In the replication, the plaintiffs have denied all the contentions of the defendant no. 1 & 2 on merits and submitted that plaintiff no. 2 is the husband of the plaintiff no. 1 and therefore has full interest in the present suit. It is further submitted that plaintiff no. 1 being the absolute and true owner of the suit property has a right to peaceful enjoyment of her property which is being disturbed by the defendants. It is further submitted that the plaintiffs have no concern with the dispute between the defendants. This fact is denied by the plaintiff that the suit property was re-constructed in January 2018 from the earnings of defendant no. 1 and defendant no. 2 must provide a strict proof against CS SCJ No. 1365/2019 Asha seth vs. kanishk seth Page No. 7 of 15 the same and dispute between defendant no. 1 & 2 has disturbed the peaceful living of the plaintiffs. It is further submitted that plaintiffs have no concern with the dispute between the defendants and plaintiff no. 1 is the absolute and true owner of the suit property.
12. It is pertinent to mention here that as defendant no. 1 was stopped appearing in the Court, he was proceeded ex-parte vide order dt. 05.04.2022 and on the same day ld. Counsel for plaintiff has filed the death certificate of plaintiff no. 2 who had died on 01.05.2021. Issues
13. On the basis of pleadings, following issues were framed on 12.12.2019
1. Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for? (OPP)
2. Whether the plaintiff is entitled to decree of mandatory injunction as prayed for? (OPP)
3. Whether the plaintiffs are entitled for decree of damages, as prayed for, if yes, for which period and at what rate?(OPP)
4. Relief.
Plaintiff's evidence
14. In support of his case, the plaintiff has examined only one witness i.e. PW-1.
PW-1 is the plaintiff i.e. Ms. Asha Seth tendered his evidence by way of affidavit Ex. PW-1/A and relied upon the following documents:-
(i) Ex PW1/1 (colly running into 8 pages) is the sale deed dt.
29.09.2006 CS SCJ No. 1365/2019 Asha seth vs. kanishk seth Page No. 8 of 15
(ii) Ex PW1/2 is the copy of police complaint dt. 26.02.2019.
(iii) Ex PW1/3 is the legal notice dt. 07.04.2019.
The witness was duly cross-examined.
15. Defendant no. 2 has examined one witness in support of her case i.e. DW-1 Ms. Shikha Seth. She tendered her evidence by way of affidavit Ex. DW-1/A and relied upon the following documents:-
(i) Ex DW1/1 is the copy of Adhar Card. (ii) Ex DW1/2 is the copy of complaint to ACP CAW Cell Kirti Nagar
dt. 26.09.2019 is de-exhibited and marked as Mark A. The witness was duly cross-examined.
Final arguments
16. I have heard final arguments as addressed by Sh. Rohit Malik, Ld. Counsel for the plaintiff and Shri Achin Kashyap, Ld. LAC for defendant no. 2 and perused the judicial record. Written submission filed by both the parties are also taken into consideration. Findings My issue wise findings are as under :
17. For the sake of convenience the issue no. 1 and 2 are taken together.
Issue no. 1 :. Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for? (OPP) And Issue no. 2. Whether the plaintiff is entitled to decree of mandatory injunction as prayed for? OPP Both the issues are taken together for the sake of convenience and as they are interrelated. The onus to prove the same was CS SCJ No. 1365/2019 Asha seth vs. kanishk seth Page No. 9 of 15 upon the plaintiffs. The plaintiff no. 1 has claimed herself to be owner of property on the basis of original GPA, agreement to Sell, receipt and affidavit dt. 29.09.2006 i.e. Ex. PW-1/1. Defendant no. 1 is the son of the plaintiff and defendant no. 2 is the wife of defendant no. 1 and daughter in law of plaintiff. It is stated that defendants are living in the second floor of the suit premises and that defendant no. 2 wants to grab the suit property. Plaintiffs avers that defendant no. 2 ill treats them and threatens to implicate them in false cases. Plaintiffs fears dispossession by the hands of defendant no. 2 and submits that they have filed police complaints against the defendant no. 2 also. Copy of which is exhibited as Ex. PW-1/2. Plaintiffs are stated to be senior citizens suffering from age related problems and that they are going through extreme mental pain and agony due to the acts and conduct of defendant no. 2. Further that, the defendants are licensee in the suit premises and the plaintiffs have duly served a legal notice asking the defendants to vacate the suit premises. Copy of the legal notice is Ex. PW-1/3 (colly). Moreover, the use and occupation of the defendants at the second floor of the suit property from the date of filing of the present case is totally illegal and unauthorized and subsequent to the termination of licensee and that their status is of a tress passer/unauthorized occupant. No reply was filed by defendant no. 1 in the present case and he was proceeded ex-parte. Defendant no. 2 the daughter in law of the plaintiffs has stated that the property was purchased by plaintiff no. 1 in the shape of ground floor and first floor only in the year 2006 and that from the earning of defendant no. 1 that is the husband of the defendant no. 2, the suit premises was reconstructed in January 2018 and now consists of ground floor, upper CS SCJ No. 1365/2019 Asha seth vs. kanishk seth Page No. 10 of 15 ground floor, first floor, second floor and third floor. Also that, after demolishing the old construction and completion of construction in 2018, the plaintiff started living on the second floor with her husband. Further that, now the defendant no. 1 is not living with her as he and plaintiffs are harassing her and he is living with his parents at the ground floor. Moreover, that the plaintiffs are threatening to get defendant no. 1 re- married and are harassing, threatening and beating her. Further that, the present suit is filed by the plaintiffs in collusion with defendant no. 1. The defendant no. 2 submits that defendants are not residing in the property on license basis but out of love, affection and harmony and that defendant no. 1 has given his share for reconstruction of the said property after demolishing the old construction of the house property and that defendant no. 2 is living in the suit premises as co-owner. Defendant no. 2 alleges that the suit property was constructed by common fund of her husband i.e. defendant no. 1.
18. Plaintiff no. 1 specifically deposed that she is the owner of the suit property bearing no. WZ-45, Rattan Park, New Delhi by virtue of on the basis of original GPA, agreement to Sell, receipt and affidavit dt. 29.09.2006. Copy of which is exhibited as Ex. PW-1/A. During the cross- examination the plaintiff no. 2/PW-1, she admitted that the property at the time of buying in the year 2006 was constructed upto only one floor and that she got the property reconstructed in the year 2018. She denied that defendant no. 1 has invested his money for reconstruction of the property and that she has filed a collusive suit for harassing defendant no. 2. Defendant no. 2 failed to put on record any document in support of her being a co-owner of the suit premises or that her husband defendant no. 1 CS SCJ No. 1365/2019 Asha seth vs. kanishk seth Page No. 11 of 15 has paid for the reconstruction of the suit premises thereby creating any right, title or interest of defendant no. 2 in the said property.
19. Though, law is well settled that Ex.PW1/1 (colly) is not sufficient to prove that plaintiff is the absolute owner of the property. These documents cannot create any right, title or interest in immovable property. Reliance is placed on the decision of Hon'ble Supreme Court of India in "Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana & Ors." (AIR) 2012 SC 206".
20. Nonetheless, the whole case of the defendants are based on the fact that they are not a licensee in the present suit property and that defendant no. 2 has claimed herself to the co-owner of the property as defendant no. 1 her husband has contributed to the reconstruction of the suit premises. However, no document/material produced by the defendants in this regard. Thus, it is apparent that the plaintiffs have a better title/right for possession of the suit property than the defendants. So, I am satisfied that plaintiff no.1 is the owner/entitled to the possession of the suit property. Reliance is placed on the decision of Hon'ble High Court of Delhi in "Sachin & Ors. Vs. Jhabbu Lal & Anr." 2017 (1) CLJ 162 Delhi.
21. Though, the defendant no. 2 has nowhere claimed the suit premises to be her shared household under the provisions of Protection of Women from Domestic Violence Act, 2005 (D.V. Act), however, taking into account that defendant no. 2 is the daughter in law of the plaintiffs, her rights under the same are also taken into consideration.
22. The Hon'ble High Court of Delhi in "Vinay Verma Vs. Kanika Pasricha & Anr." CM(M) 1582/2018 observed that "the two CS SCJ No. 1365/2019 Asha seth vs. kanishk seth Page No. 12 of 15 statues i.e. the Protection of Women from Domestic Violence Act, 2005 (D.V. Act) and The Maintenance and Welfare of Parents and Senior Citizen's Act, 2007 (PSC Act) would have to be borne in mind while passing orders, maintaining the balance between two warring parties, namely the parents/in-laws and children/their families. The conflict between the rights of the parents and the rights of the daughter-in-law which have arisen out of the D.V. act and the PSC act requires to be resolved. "It is further held that if the relationship is acrimonious, then the parents ought to be permitted to seek eviction of the son/daughter-in-law from their premises. In such circumstances, the obligation of the husband to maintain the wife would continue in terms of the principals under D.V. Act." "In case, the son or his family is ill treating the parents, then the parents would be entitled to seek unconditional eviction from their property so that they can live a peaceful life and also put the property to use for their generating income and for their own expenses for daily living."
23. Thus, in this context the relationship between the plaintiffs and the defendants are to be taken into consideration. The plaintiff no. 2/PW-1 has filed Ex. PW-1/2 to show the acrimonious relationship between the plaintiffs and the defendants and it is admitted by defendant no. 2 also that the relations between her and the plaintiffs are not cordial and that she has also filed a police complaint against them which is Mark A. During the course of the arguments ld. Counsel for defendant no. 2 argued that even if it is presumed that the property was reconstructed out of the funds of plaintiff no. 1 and that he has died intestate during the trial, defendant no. 1 is a legal heir of plaintiff no. 1, therefore, defendant CS SCJ No. 1365/2019 Asha seth vs. kanishk seth Page No. 13 of 15 no. 2 is entitled to live in the property being the lawfully married wife of defendant no. 1. The said argument is untenable in the eye of law as the husband of defendant no. 2 i.e. defendant no. 1 is still alive and no right or interest in the property of plaintiff no. 2, if any, in favour of defendant no. 1 accrues to the defendant no. 2 till he is alive.
24. The plaintiffs have also sought the permanent and mandatory injunction that the defendants be restrained from interfering or intervening in the personal lives of the plaintiffs. The said relief is not specific and is vague and therefore cannot be granted by the Court taking into account the facts and circumstances of the case.
25. No material proof has come on record to show that the plaintiffs have filed the present suit in collusion with defendant no. 1 to evict defendant no. 2 from the suit premises and the argument of the ld. Counsel for the defendant no. 2 that the ld. counsel appearing for plaintiffs is also appearing on behalf of defendant no. 1 in divorce proceedings pending between the defendants cannot be the sole ground for denying the reliefs to the plaintiffs, if they are found entitled.
26. Accordingly, in view of the above discussion, case laws discussed as above and the evidence on record, the present issues are decided in favour of the plaintiffs and against the defendants.
27. Issue no. 3. : Whether the plaintiffs are entitled for decree of damages, as prayed for, if yes, for which period and at what rate?(OPP) The onus to prove the above said issue is upon the plaintiff, however, no evidence led by plaintiff no. 1/PW-1 in support of the damages claimed @ Rs. 10,000/- per month. No document or witness was CS SCJ No. 1365/2019 Asha seth vs. kanishk seth Page No. 14 of 15 examined by the plaintiff to support the amount claimed as damages. Thus, considering the undisputed fact that defendant no. 2 is the daughter in law of the plaintiffs and defendant no. 1 is their son, the Court is not inclined to grant the said relief to the plaintiffs, accordingly, the present issue is decided in the favour of the defendants and against the plaintiffs.
28. Relief :
Hence, in view of findings of issues above, the plaintiff no. 1 is held entitled to a decree of mandatory injunction against the defendants, whereby the defendants are directed to peacefully vacate the suit premises bearing no. WZ-45C, Rattan Park, New Delhi-110015 measuring 50 sq. yards constructed up to three floors (ground, first and second). Also, the plaintiffs are held entitled to a decree of permanent injunction against the defendants restraining them, their agents, friends, servants, relatives, associates etc. to encroach, raising illegal construction, create any third party interest in any manner at the suit property bearing no. WZ-45C, Rattan Park, New Delhi-110015 measuring 50 sq. yards constructed up to three floors (ground, first and second). No order as to costs. Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in open Court (Mahima Rai Singh)
on 28th Day of January 2023 SCJ cum RC(West)
Tis Hazari Courts, Delhi.
(This judgment contains 15 pages.)
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