Delhi District Court
Shanti Devi vs Urmila on 4 August, 2012
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IN THE COURT OF DR. NEERA BHARIHOKE : ADDITIONAL DISTRICT
JUDGE01 : SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Suit No. 669/11
In the matter of :
Shanti Devi ........Plaintiff
Vs.
Urmila ......Defendant
04.08.2012
ORDER :
Vide this order, I shall dispose off the application of the plaintiff filed u/o 12 Rule 6 CPC.
BRIEF FACTS OF THE CASE ARE :
2 The plaintiff purchased the suit property i.e a DDA double storey Ho. No. A56, J.J. Colony, Tigri, New Delhi by way of General Power of Attorney, Will, Agreement to Sell, Receipt, receipt an affidavit etc. The suit property was purchased by the plaintiff from one Shri Rajender Prasad S/o Sh. Phool Singh the then R/o A56, J.J. Coloby, Tigri, New Delhi on 12.06.1989 and by virtue of the said documents, the plaintiff became the owner of the suit property and came into physical possession of the same Shanti Devi Vs. Urmila Contd.....P..1 of 12 : 2 :
from the previous owner Sh. Rajender Prasad.
3 The plaintiff has a son named Prem Prakash who was married to Smt. Urmila the defendant herein. The defendant had been residing independently with her husband but is alleged to have some matrimonial disputes with her husband. The defendant had filed a complaint against her husband under the provisions of Protection of Women from Domestic Violence Act, 2005 wherein she alleged to have resided in the suit property along with her husband at one point of time and procured an exparte order on 29.05.2009.
4 Under the said exparte order dated 29.05.2009, the SHO of PS concerned was directed to give assistance to the defendant herein in breaking open the locks of the suit property and induct the defendant in physical possession of the suit property. Under the said order of Ld. MM, the defendant took the possession of the suit property. Thereafter, the plaintiff filed an application before the concerned MM for modification of the said order and the Ld. MM was pleased to vacate the said order and in the alternative passed an order against the defendant's husband to ensure that he is able to arrange alternative accommodation for her.
5 Feeling aggrieved of the said order, the defendant filed an appeal u/s 29 of the Domestic Violence Act which was dismissed vide order Shanti Devi Vs. Urmila Contd.....P..2 of 12 : 3 :
dated 11.06.2010. Despite that, the defendant has not vacated or handed over the possession of the suit premises back to the plaintiff. 6 Plaintiff has further submitted that the plaintiff was constrained to take refuge and stays in a rented house at L16, Dakshin Puri, Dr. Ambedkar Nagar, New Delhi110 062 since the date of her dispossession from the suit property. In the rented accommodation the plaintiff has been constrained to pay rent @ Rs.2500/. On the other hand, the defendant is using and occupying the suit property free of charges since 28.11.2005 since her marriage. The defendant has not vacated the same despite the requests having been made to her by the plaintiff. Hence, the present suit. 7 The defendant has filed her detailed WS. The present application u/o 12 Rule 6 has been moved in view of the following admissions which the plaintiff submits are categorical, unambiguous and unequivocal:
i In para No.4 of preliminary objection, it has been accepted that "The defendant has never been in illegal possession of the property in dispute as property in dispute has been matrimonial house of the defendant and she has been residing in the suit property since her marriage and in her capacity of being the daughterinlaw of the plaintiff" ii In para No.7 of the Preliminary Objections, it has been stated by the defendant that "Notwithstanding the title or ownership of the suit property, the defendant has been enjoying the possession of the suit property Shanti Devi Vs. Urmila Contd.....P..3 of 12 : 4 :
as her matrimonial house."
iii In para No.6 of the preliminary submissions, it has been stated that "On 20.04.2009, the plaintiff along with his entire family had left their own house without any rhyme and reason and thereafter, it has been pleaded that the defendant was disowned by the plaintiff in collusion of his family with ulterior motives". It is further stated in the same paragraph that "The plaintiff and his wife family members had been living in the rented premises in a well crafted conspiracy". It is further stated in the said Para that "She has no objection if the plaintiff and his family want to live in their own house.........................."
iv In Para No.8 of the preliminary submissions, it has been stated that "..............the defendant will leave the suit property if a separate accommodation is arranged by the plaintiff for her and ................."
v In para No.7 of the WS on merits, it has been stated ".......... The defendant has no objection if the plaintiff wants to live peacefully" and further that "............ the defendant being the legally wedded wife of the son of the plaintiff has been using and occupying the suit property". 8 Defendant has submitted that there are no admissions on her part much less unequivocal and clear admissions and has prayed for Shanti Devi Vs. Urmila Contd.....P..4 of 12 : 5 :
dismissal of the present application. Defendant has relied on Cosmo Ferrites Ltd. Vs. Universal commercial, AIR 2006 Delhi and State Bank of India Vs. Midland Industries and Ors. AIR 1998, Delhi 153 for the same. 9 Detailed arguments were advanced by ld. counsels for both the parties. Arguments heard. Record perused carefully. 10 For passing a decree of possession in favour of plaintiff and against the defendant on the basis of admissions, it needs to be seen that there is admission on part of defendant with respect to possession over the suit property and then to determine the nature of possession whether the same are of the natrue of independent right over the suit property or is it in nature of permissive user. If the nature of possession is established by admissions to be that of permissive user, then it needs to be seen if the same was terminated validly or not .
11 Plaintiff has relied on GPA, Will, Agreement to Sell, receipt, an affidavit in support of her ownership over the suit property.
However, the defendant has denied the same as the said documents are unregistered. Plaintiff has claimed that defendant is in possession of suit property as a licencee and under Section 116 of Evidence Act, a licencee is not permitted to deny the title of licensor over the suit property.
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12 Thus, it remains to be decided whether in view of the
submissions of defendant read with documents on record, there are admissions on part of defendant to draw a conclusion that her status is that of licence in the suit property.
It is well settled that law does not require any formalities for creating a licence nor registration. It was held in Chandni Begam Vs Madho Rao, AIR 1953 Madhp 22 (29), "Even though there is no direct proof of a licence, it can be presumed from the relevant facts and circumstances of the case".
In case of Arjan Dev Vs Om Prakash, AIR 1992 Del.
2002, younger brother of the plaintiff had been living in the house with their widowed mother and sisters as family members and after his marriage, he started living separately with the plaintiff's permission and the house property was not a joint family property. Hon'ble High Court of Delhi held that he does not acquire easementary right or interest in the property of the plaintiff, he may be considered as an implied licencee under Section 54 of the Indian Easements Act, 1882.
13 Defendant has admitted that she is residing in the suit property in the capacity of being the daughterinlaw of the plaintiff. Defendant has admitted that she is residing in the suit property as she is daughter in law Shanti Devi Vs. Urmila Contd.....P..6 of 12 : 7 :
of plaintiff thus herself admitting that she is permissive user. In para No.7 of the WS on merits, defendant has submitted as "............ the defendant being the legally wedded wife of the son of the plaintiff has been using and occupying the suit property" and in para No.7 of the Preliminary Objections, it has been stated by the defendant that "Notwithstanding the title or ownership of the suit property, the defendant has been enjoying the possession of the suit property as her matrimonial house." This also amounts to admission on part of defendant that she is a permissive user as she is in possession of suit property as the same is her matrimonial house.
14 Defendant has not claimed ownership over the suit property rather she has admitted ownership of plaintiff over the suit property as she has submitted in para 6 of preliminary submissions in her WS as "I have no objection if the plaintiff and his family want to live in their own house........."
15 Defendant has claimed her right to residence in the suit property in view of provisions of D.V. Act. However, the law is well settled by way of catena of judgments for instance in S.R. Batra Vs. Taruna Batra, 2007 (3) SCC 169; also that "As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a `shared household' would only mean the house belonging to Shanti Devi Vs. Urmila Contd.....P..7 of 12 : 8 :
or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to Amit Batra nor was it taken on rent by him nor is it a joint family property of which the husband Amit Batra is a member. It is the exclusive property of appellant No. 2, mother of Amit Batra. Hence it cannot be called a `shared household'."
"Shared household" under the provisions of Domestic Violence Act has been defined to mean a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent of both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.
16 Defendant has not claimed either that suit property belongs to her husband or has been taken on rent by her husband or belonging to joint family of which her husband is a member. Thus the said definition of shared household as well as the observations made in the above Shanti Devi Vs. Urmila Contd.....P..8 of 12 : 9 :
referred judgment do not support her pleas. There is admission on her part that she is claiming to be in possession by virtue of her right of residence but as observed hereinbefore, she has no such right.
17 Thus defendant has admitted to be in possession of the suit property. The defendant has submitted that there are no clear admissions as she has claimed possession on the basis of her right to be in possession. Mere possession over the suit property does not divest the actual owner of the right to be in possession over the suit property. It was held in the matter of Joseph Severance & Ors. Vs Benny Mathew & Ors. (Supra) that "The correct position in law is that the licensee may be the actual occupant but the licensor is the person having control or possession of the property through his licensee even after termination of the licence." This conclusion further draws support from observations of Hon'ble Supreme Court of India in the matter of Sant Lal Jain Vs Avtar Singh, AIR 1985 SC 857 where the appellant had filed a suit for mandatory injunction after termination of licence of respondent and respondent had taken an objection that suit for mandatory injunction is not maintainable and appellant should have filed a suit for possession. The observations made by Hon'ble Supreme Court of India are "The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled.
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Therefore, we are of the opinion that the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction."
18 By analysing nature of possession of defendant in the suit property in view of statutory provisions and law laid down in judicial pronouncements in the facts of the case, status of defendant is that of permissive user and thus that of an implied licencee in view of observations made hereinbefore.
19 In view of the finding that the possession of the defendant in the suit property is of the nature of permissive user i.e. that of a licencee, defendant cannot deny title of the plaintiff over the suit property in view of section 116 of Evidence Act.
20 What remains to be seen on the basis of admission of defendant is that whether plaintiff is entitled to claim the possession of the suit property in the facts of the case.
21 Plaintiff has claimed the relief of possession on the basis of revocation of licence. Under Section 60 of Indian Easements Act, 1882, a licence is revocable. Thus plaintiff is well within her right to revoke the said Shanti Devi Vs. Urmila Contd.....P..10 of 12 : 11 :
implied licence. Plaintiff has accordingly revoked the implied licence granted in favour of defendant by filing of this suit.
22 In Para No.8 of the preliminary submissions, defendant has submitted that "..............the defendant will leave the suit property if a separate accommodation is arranged by the plaintiff for her and ................." The said submission again reveals that defendant is trying to retain her possession over the suit property as a weapon to procure another alternate accommodation from the plaintiff. The plaintiff is not under any obligation to provide the same to her under any law and the same has been specifically denied to defendant by virtue of order dated 11.06.2010. Thus the nature of possession of defendant over the suit property is unauthorised and she is not entitled to retain the same in case her licence is revoked by the plaintiff. 23 In view of observations made herein, the status of the plaintiff is that of a licence which has been revoked by the plaintiff by filing the present suit. No issue in relation to relief of possession needs to be decided which requires a trial or leading of evidence in view of observations made hereinbefore. Accordingly, plaintiff is entitled to relief of possession on the basis of admissions under Order 12 Rule 6 CPC. Decree of possession is accordingly passed in favour of plaintiff and against the defendant.
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24 Ironically, the plaintiff who is the owner of the suit
property has been dispossessed from her property by the defendant and has been constrained to take refuge and stay in a rented house and the defendant is residing in the suit property and in her WS, defendant has submitted that she has no objection if the plaintiff wants to live in the suit property peacefully. The plight and the agony of the plaintiff can be weighed from such submissions on the part of defendant.
25 However, under Section 63 of Indian Easements Act, 1882, where licence is revoked, a licencee is entitled to a reasonable time to leave the property affected thereby, and to remove any goods which he has been allowed to place on such property. Therefore, two months time is being given to the defendant to vacate and hand over the possession of the suit property to the plaintiff.
26 With these directions decree of possession is hereby passed on the basis of admissions in favour of the plaintiff and against the defendant. Decree sheet be prepared accordingly. Dictated and announced in the open court on 04.08.2012 (Dr. Neera Bharihoke) ADJI(South) Saket Courts 04.08.2012 Shanti Devi Vs. Urmila Contd.....P..12 of 12