Delhi District Court
Sh. Parmanand vs . Mast Amina Begum & Ors. on 23 December, 2021
Sh. Parmanand vs. Mast Amina Begum & ors.
IN THE COURT OF SH. ALOK SHUKLA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL
DISTRICT)
TIS HAZARI COURTS, DELHI.
CNR NO.:- DLCT01-000500-2008
SUIT NO.:- 91/2020
UNIQUE CASE ID NO.:- 615474/2016
IN THE MATTER OF :-
Sh. Parmanand
s/o Sh. Late Sh. Deen Dayal
r/o 11, Rajpur Road,
Civil Lines, Delhi 110054 ....Plaintiff
VERSUS
1. Mst. Amina Begum (Since deceased)
Through LRs.
(i) Ms. Fatima
d/o Late Sh. Shaukat Ali
(ii) Mr. Sher Ali
d/o Late Sh. Shaukat Ali
(iii) Ms. Mumtaz
d/o Late Sh. Shaukat Ali
w/o Sh. Saleem
(iv) Shamsher Ali
s/o Late Sh. Shaukat Ali
(Since deceased through LRs)
(a) Ms. Afroja
w/o Late Sh. Shamsher Ali
Suit No. 615474/2016 1 of 26
Sh. Parmanand vs. Mast Amina Begum & ors.
(b) Mr. Shueb
s/o Late Sh. Shamsher Ali
(c) Ms. Ilma
d/o Late Sh. Shamsher Ali
(d) Mr. Shoil
s/o Late Sh. Shamsher Ali
All above residents of:
F-1/79, Sunder Nagri,
Delhi - 110093
(v) Mr. Gulshan
d/o Late Sh. Shaukat Ali
(vi) Ms. Shabnam
d/o Late Sh. Shaukat Ali
w/o Sh. Shenaaz
(vii) Ms. Shabana
d/o Late Sh. Shaukat Ali
(viii) Sh. Afsar Ali
s/o Late Sh. Shaukat Ali
(ix) Ms. Sabina
d/o Late Sh. Shaukat Ali
All above residents of:
L-79, Gali No. 1, Sunder Nagri,
Delhi - 110093
2. Sh. Sher Ali
S/O Late Sh. Shaukat Ali
R/ o F-1/79, Sunder Nagri,
Delhi - 110093 ....Defendants
Suit No. 615474/2016 2 of 26
Sh. Parmanand vs. Mast Amina Begum & ors.
SUIT FOR POSSESSION, SPECIFIC PERFORMANCE U/S
5 & 6 SPECIFIC RELIEF ACT AND RECOVERY OF
DAMAGES/MESNE PROFIT RS. 72,000/- AND
MANDATORY AND PERMANENT INJUNCTION.
Date of institution of the Suit : 19.02.2008
Date on which Judgment was reserved : 04.12.2021
Date of Judgment : 23.12.2021
::- J U D G M E N T -::
1. The present suit is filed by the plaintiff for
possession, specific performance u/s 5 & 6 of Specific
Relief Act and recovery of damages/mesne profit
Rs.72,000/- and mandatory and permanent injunction.
PLAINTIFF'S CASE :
2. The case of the Plaintiff as per averments made in
the plaint as under:
(i) That the plaintiff Sh. Permanand, aged about 65
years, is the original allottee of flat bearing no. F1/79
DDA flat, special housing scheme sunder Nagari,
Nand Nagari Extn, Delhi.
(ii) That the plaintiff was allotted this flat mentioned
above by Delhi Development Authority vide letter
dated 13.11.1979. The plaintiff deposited the amount
with the DDA as and when demanded through the
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Sh. Parmanand vs. Mast Amina Begum & ors.
Bank. The last installment was paid by him through
State Bank of India on 27.12.1996 for Rs. 2000/-.
(iii) That plaintiff had also applied for a water connection
with Delhi Jal board and deposited Rs. 340/- on
28.11.03 vide receipt no. 772079.
(iv) That the plaintiff had been in constructive possession
of the Janta Flat bearing no.F1 /79 DDA flat special
housing scheme, Sunder Nagari, Nand Nagari, Delhi
till 24.8.07.
(v) That on 24.8.07 the plaintiff visited his flat and found
that defendant no.2 was trying to put his belongings
inside the flat after he broke open the lock of the
plaintiff. When the plaintiff inquired then respondent
no.2 stated that her mother i.e. defendant no.1 purchased this flat from one Sh. Gurmeet Singh S/o Sh. Sardar Dalip Singh R/o B 46 Anarkali garden Krishna Nagar Delhi on 17.8.07. The plaintiff requested him that this flat belongs to him and he is the original allottee and further requested him to vacate the flat.
(vi) That on 25.8.07 plaintiff again visited the flat and found that defendant no.2 illegally took possession of his flat by making forged document in the name of defendant no.1. The matter was informed to the police and one FIR was registered against defendant no.1, 2, & Sh. Gurmeet Singh bearing no. 735/2007 u/s Suit No. 615474/2016 4 of 26 Sh. Parmanand vs. Mast Amina Begum & ors.
448/420/468/471/34 IPC in Police station Nand Nagari.
(vii) That defendant no.2 was arrested and was later on released on bail but defendant no.1 is still absconding and Gurmeet Singh is yet to be arrested. Both the defendants illegally and unlawfully trespassed the flat of the plaintiff.
(viii) That the defendants also filed a suit for permanent injunction before the court of Sh. Sharad Gupta Civil Judge, Karkardoma, Delhi stating that this flat belongs to slum and JJ department MCD and filed the application under order 39 rule 1 & 2 for temporary relief but same was dismissed by the Hon'ble Court stating that no interim protection can be given to a person in unlawful possession against true owner. The application was rejected by the Hon'ble court on 11.2.08.
(ix) That as such possession of the defendants in the flat in question is illegal, unlawful and unauthorized and the defendant are liable to pay misuse charges @ 12000 / - PM on account of unlawful, unauthorized use and occupation of mesne profit to the plaintiff with the effect from 25.8.07 and the defendants are liable to pay Rs. 500 / -Per Day as damages charges till the plaintiff gets the possession of his flat from the date of filing the present suit.
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(x) That the plaintiff several time requested the defendant to hand over the vacate the peaceful possession of suit property but always declined.
(xi) That the defendants have no right over the suit property whereas plaintiff is the original allotee of the suit property / flat by the DDA and the plaintiff has no other efficacious remedy available with him except to fill the present suit.
3. On the basis of aforementioned averments, the plaintiff filed the present suit against the defendants for the reliefs of for possession, recovery of damages/mesne profit and mandatory and permanent injunction.
4. Summons were issued and defendants entered appearance and filed joint written statement.
JOINT WRITTEN STATEMENT OF DEFENDANTS
5. In their joint written statements, defendants has contended :
(i) That the plaintiff has filed the present suit in the counter blast of the suit earlier filed by the defendants, hence the suit of the plaintiff is liable to be rejected.
(ii) That the plaintiff is not the owner/allottee of the suit property as claimed in the present suit, hence the suit is liable to be dismissed.
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(iii) That one Sh. Gurmeet Singh was residing in the suit property, with whom the defendants had cordial relations, who had transferred the possession of the suit property to the defendants and since then the defendant no. 1 has been paying the damages to the Development authority for use and occupation of the portion in the suit property and the plaintiff is wrongly claiming the possession of the suit property, hence the suit property is liable to be dismissed with heavy cost.
6. Defendant no. 1 expired during the pendency of the matter and vide order dated27/08/2021 LRs of defendant no. 1 was brought on record.
ISSUES
7. On the basis of the pleadings, following issues were framed vide order dated 02/09/2009:-
(i) Whether the defendant is in unauthorised possession of the suit property? OPP
(ii) Whether the defendant is the owner of the suit property? OPD
(iii) Whether the plaintiff is entitled for recovery of misuse and mesne profits and damages as prayed in the plaint? OPP Suit No. 615474/2016 7 of 26 Sh. Parmanand vs. Mast Amina Begum & ors.
(iv) Whether the plaintiff is entitled to a decree of possession of suit property, permanent injunction and mandatory injunction as prayed in the plaint? OPP
(v) Relief.
PLAINTIFF'S EVIDENCE
8. Plaintiff examined himself as PW1 and relied upon the documents i.e. site plan ExPW1/1, certified copy of letter dated 08.11.1979, ExPW1/2, certified copy of receipt dated 27/12/1996 of SBI is ExPW1/3, Receipt no. 772079 dated 28.11.2003 is ExPW1/4, certified copy of FIR no. 735/2007 u/s 448/420/468/471/34 IPC PS Nand Nagri is ExPW1/5, certified copy of bail orders are ExPW1/6 (Colly), copy of letter dated 08/02/2008 is ExPW1/7 and its reply is ExPW1/6A, copy of order dated 11/2/2008 is ExPW1/8, copies of letter no. 1687/PIO/D (H)-01/07/2052 issued by the DDA dated 21/11/2007 is ExPW1/9, copies of letter no. 17 (140)/79/SHB issued by the DDA dated 21/11/2007 is ExPW1/10, copy of letter no. 17 (140)/79/SHB/23 issued by the DDA dated 19/09/2001 is ExPW1/11, copy of letter no. 17 (140)/79/SHB issued by the DDA dated 19/09/2001 is ExPW1/12, copy of letter no. 17 (140)/79/SHB issued by the DDA dated 19/09/2001 is ExPW1/13, copy of letter no. R/192/AD/EZ-B/D-114 issued by the MCD dated 15.10.2001 is ExPW1/14, copy Suit No. 615474/2016 8 of 26 Sh. Parmanand vs. Mast Amina Begum & ors.
of letter no. R/192/AD/EZ-B/D-75 issued by the MCD dated 12.07.2001 is ExPW1/15, copy of letter no. R/192/AD/EZ-B/D-80 issued by the MCD dated 01.08.2001 is ExPW1/16, copy of letter no. R/192/AD/EZ- B/D-102 issued by the MCD dated 07.09.2001 is ExPW1/17, copy of acknowledgment receipt no. F-17 (140) 79-SHB issued by the DDA dated is ExPW1/18, copy of letter no. F-17 (140) 79-SHB possession letter issued by the DDA dated 18.12.1979 is ExPW1/19, copy of letter no. F-17 (140) 79-SHB possession letter issued by the DDA dated 08.11.1979 is ExPW1/20, copy of annexure issued by the DDA dated 08.11.1979 is ExPW1/21, copy of application form no. 230 issued by the DDA is ExPW1/22, copy of challan no. 230 issued by the DDA dated 06.02.1979 is ExPW1/23, copy of income certificate dated 16.08.1979 is ExPW1/24, copy of the undertaking by Parmanand dated 25/07/1979 is ExPW1/25, copy of affidavit of Parmanand dated 26/07/1979 ExPW1/26, copy of possession letter dated 16/08/1979 issued by DDA is ExPW1/27, Copy of corrigendum letter issued by the DDA dated 06/02/1979 is ExPW1/28, copy of receipt no. 83604 dated 16/08/1979 issued by the DDA is ExPW1/29, copy of Receipt no. 11811 dated 07/11/1979 issued by DDA is ExPW1/30, copy of account receipt issued by the Housing AC DDA dated 8/11/1979 is ExPW1/31 and copy of memo dated 25/8/2007 issued by PS Nand Nagar, Delhi is ExPW1/33.
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9. PW2 Sh.Shankar Lal, UDC Eazst Zone B Slum and JJ Deptt. MCD, Welcome, Seelampur, Delhi has produced the record pertaining to plot no F1/79 Sunder Nagri, Nand Nagri Extension, Delhi and has exhibited entire photocopy of file as ExPW2/A, copy of original possession slip as ExPW2/A-5 and photocopy of relevant page of site register as ExPW2/1.
10. PW3 Sh. Ishwar Kumar, Ahlmad in the court of Ms. Shivali Sharma, Ld. MM, Karkardooma Court has produced the record pertaining to FIR no. 735/07 US 448/420/468/471/34 IPC PS Nand Nagri, State vs. Sher Ali @ Pappu, Amina begum and Gurmit Singh and deposed that ExPW1/5, ExPW1/3, ExPW1/20 and ExPW1/28 are according to the file.
11. PW4 Sh. Rinku Kumar, Ahlmad in the court of Sh.Ajay Gupta, Ld. Addl. Sr. Civil Judge, Karkardooma Court has produced the record pertaining to suit no. 542/07 titled as Amina vs. Parmanand and deposed that ExPW1/8 is according to his original file.
12. PW5 Smt. Lokesh Tyagi, Asst. Director Slum & JJ, EZB, MCD, Delhi has deposed as PW5 that letter dated 08/02/2008 ExPW1/7 was signed by her and according to her the flat no. F-1/79, Sunder Nagri, JJ Colony does not belong to Slum & JJ Department, MCD and as per record the property pertains to DDA.
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13. PW6 Sh. Ashok Kumar s/o Sh. Balbeer Singh, UDC, LAB Housing DDA has deposed that plaintiff is the allottee/owner of the suit property and stated the ExPW1/2, ExPW1/9 to ExPW1/27 and ExPW1/30 and ExPW1/31 are issued under RTI to the plaintiff.
DEFENDANTS' EVIDENCE
14. Defendant no. 1 Smt. Amina Begum has deposed as DW1 and relied upon the documents exhibited as ExDW1/A to F as per affidavit ExDW1/X1.
15. DW2 Sh. Narender Kumar Gautam, Junior Judicial Assistant, Record Room (Civil) Karkardooma, Delhi has brought the case file vide Civil Suit no. 542/07 case titled as Amina begum and anr. vs. Parmanand and ors. exhibited documents as ExDW2/A and ExDW2/B.
16. DW3 Sh. Rais Malik has tendered his evidence by way of affidavit ExDW3/A and relied upon documents certificate copy of GPA, agreement to sale, receipt, possession letter order dated 17/8/2007 as ExDW3/1 (Colly).
17. DW4 Sh.Gurmeet Singh has deposed that he know Sher Ali @ Pappu, Defendant no. 2 and one day Sher Ali called him at Sunder Nagri, Nand Nagri at their residence and offered some alcohol. DW4 further deposed that he Suit No. 615474/2016 11 of 26 Sh. Parmanand vs. Mast Amina Begum & ors.
did not realize at that time as to why Defendant no.2 was offering more whiskey to him. DW4 further deposed that when he was over drunk, he wanted to go back to his home then Sher Ali offered his help. When the case was begun and FIR was lodged by the plaintiff, he came to know that Sher Ali might have got some documents signed by him. He proved documents ExDW4/1, mark D-4 and mark D- 4/1.
FINDINGS
18. I have heard the Ld. counsel for the parties and have given thoughtful consideration to the rival contention and carefully perused the record.
Issue wise findings Issue no. 1 & 2
(i) Whether the defendant is in unauthorised possession of the suit property? OPP
(ii) Whether the defendant is the owner of the suit property? OPD Findings and Conclusion
19. The issues no. 1 and issue no. 2 are interconnected and therefore, both the issues are taken up together for adjudication. The present suit is filed by the plaintiff Suit No. 615474/2016 12 of 26 Sh. Parmanand vs. Mast Amina Begum & ors.
asserting that he is owner of the flat bearing no. F1/79, DDA Flats, Special Housing Scheme, Sunder Nagri, Nand Nagri Extension, Delhi. It is stated by the plaintiff that on 24/08/2007, when he visited the suit property, he found that defendant no. 2 was trying to put his belongings inside the flat after breaking the lock put up by the plaintiff. Plaintiff has stated in the plaint that he requested the defendant that the flat belongs to him and requested the defendant to vacate the flat. According to the plaintiff when he again visited the suit property on 28/9/2007 he found that the defendant no. 2 has illegally taken the possession of his suit property by making forged documents in the name of defendant no. 1. Thereafter, the plaintiff filed an FIR no. 735/07 against the defendant no. 1, 2 and one Sh. Gurmeet Singh.
20. Plaintiff has deposed as PW1 and has exhibited the site plan of the suit property as ExPW1/1, certified copy of the letter dated 8/11/1979 issued by DDA as ExPW1/2, proof of payment of installments as ExPW1/3, application for water connection made to Delhi Jal Board as ExPW1/4. PW1 has also exhibited the certified copy of the FIR bearing no. 735/07 and certified copy of the bail orders of the defendant as ExPW1/6 colly. PW1 has also filed letter dated 08/02/2008 ExPW1/7 wherein the Director (EZB) Slum and JJ Department, MCD, Seelampur, has stated that the suit property does not Suit No. 615474/2016 13 of 26 Sh. Parmanand vs. Mast Amina Begum & ors.
belong to Slum and JJ Department, MCD, rather it belongs to DDA. PW1 has also exhibited several documents pertaining to the suit property which are exhibited as ExPW1/9 to ExPW1/32. PW1 has further deposed that the suit property was allotted to him and while visiting the suit property on 24/08/2007, he came to know that defendant no. 2 was trying to put his belongings inside the suit property after breaking open the lock put by the plaintiff and on inquiry defendant no.2 informed the PW/1 that her mother defendant no.1 purchased the flat from one Sh. Gurmeet Singh. PW/1 has further deposed that he informed Defendant No.2 that the suit property belonged to him and asked him to vacate the flat. PW2 has further deposed that on 25/8/2007 when the PW1 again visited the flat, he found that defendant no. 2 had taken illegal possession of the suit property and has also forged documents in the name of defendant no. 1. PW1 further deposed that he lodged an FIR bearing no. 735/2007 against the defendant no. 1, 2 and Sh. Gurmeet Singh under sections 448/420/469/471/34 IPC.
21. PW1 has duly proved the site plan which is ExPW1/1, the allotment letter dated 8/11/1979 which is ExPW1/2 which shows that the suit property was alloted to the plaintiff. The PW1 has also duly proved the FIR lodged by the plaintiff against the defendant which is ExPW1/5. During his cross examination, plaintiff was also confronted Suit No. 615474/2016 14 of 26 Sh. Parmanand vs. Mast Amina Begum & ors.
with the photocopies of the documents allegedly executed by the plaintiff in favor of Sh. Gurmeet Singh i.e. GPA Mark X, agreement to sell Mark Y and receipt dated 13/05/2004 mark Z. However, the witness denied the photographs at point A on all these photocopies of the documents stating that those photographs are not his photographs. The witness also denied the signatures mentioned at point B on all those documents. PW1 also denied the suggestion that he sold the property bearing no. F-1/79, situated at F-1 Block, Ilaka Shahdara, Sunder Nagri, Delhi to one Sh. Gurmeet Singh. PW1 also denied the fact that the flat had been sold by Sh. Gurmeet Singh to Ms. Amina Begum for a consideration of Rs.4,50,000/-.
22. PW2 UDC, East Zone B Slum and JJ Department, MCD has exhibited part of the original file of of plot no. F- 1/79, J.J. Colony, Sunder Nagr, Nand Nagri, Delhi and copy of original possession slip ExPW/A-5. PW2 deposed as per record that the said plot is allotted to one Sh. Pratap Singh. PW2 deposed that he cannot say whether the flat no. F1/79 J.J. Colony, Sunder Nagr, Nand Nagri, Delhi is under jurisdiction of MCD or not.
23. PW3 Ahlmad from the court of Ld. MM brought the court record pertaining to FIR NO. 735/07 and stated that the FIR which is ExPW1/5 is according to the court file. PW3 further deposed that Fard makboojgi of original Suit No. 615474/2016 15 of 26 Sh. Parmanand vs. Mast Amina Begum & ors.
papers ExPW1/33 and the ExPW1/3, ExPW1/20 and ExPW1/28 is in accordance with the court file.
24. PW4 Ahlmad from the court of Ld. Addl. Senior Civil Judge deposed that ExPW1/8 (order dated 11/2/2008) passed by the Ld. Civil Jude, Karkardooma, Delhi is according to the original record of the court file.
25. PW5 Assistant Director Slum & J.J., EZB, MCD, Delhi deposed that ExPW1/7 was signed by her. PW5 further deposed that as per record the suit property does not belong to Slum and JJ Department, MCD and as per record the property pertains to DDA.
26. PW6 UDC, LAB Housing, DDA deposed that as per the records the suit property was alloted to the plaintiff on 18/07/1979 and the possession letter was given on 08/11/1979. The witness further deposed that ExPW1/2, ExPW1/9 to ExPW1/27 and ExPW1/30 and ExPW1/31 were issued under RTI to the plaintiff and the same are in accordance with the original on the records. The witness further deposed that as per the records, the suit property falls under the jurisdiction of DDA and as per file the said flat was allotted and possession delivered to plaintiff.
27. From the testimony of the witnesses and the documents placed by the plaintiff on record duly verified by the official witness PW6. It is evident that the suit Suit No. 615474/2016 16 of 26 Sh. Parmanand vs. Mast Amina Begum & ors.
property was allotted to the plaintiff by DDA in the year 1979. The defendant at the time of arguments contended that as per testimony of PW2, the suit property does not belong to the plaintiff and some other person namely, Sh. Pratap Singh is recorded of the owner of the suit property. Testimony of PW2 made it clear that the the said witness referred to plot no. 79, which is in the name of Sh. Pratap Singh and he did not make any reference to the suit property i.e. flat no. F-1/79 Sunder Nagri, J.J. Colony, Delhi. Further defendant himself confronted the plaintiff who deposed as PW1 with mark 'X', 'Y', and 'Z' to contend that the plaintiff sold the flat to one Sh. Gurmeet Singh, who in turn sold it to defendant no.1.
28. In view of the above said discussion the plea of the defendant that plaintiff is not the owner of the suit property is not tenable and the plaintiff has successfully proved that he is the owner of the said property. Plaintiff has further proved ExPW1/5, which is the FIR lodged by the plaintiff against the defendants and Sh. Gurmeet Singh which shows that the plaintiff on coming to know that the defendant has entered the suit property illegally, plaintiff lodged the said FIR which is duly proved by the testimony of PW1 and testimony of PW3 who had deposed on the basis of the record that ExPW1/5 is according to the court record pertaining to FIR no. 735/07.
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29. Defendant no.1 has deposed as DW1 and stated in her examination in chief that the suit property was purchased by her from Sh. Gurmeet Singh vide G.P.A., Agreement to sell, Receipt, Possession letter, Affidavit dated 17.08.2007 collectively marked as Mark B. DW1 has further deposed that Sh. Gurmeet Singh purchased the suit property from the plaintiff vide G.P.A., Agreement to sell, Receipt, deed of will dated 17.08.2007 collectively marked as Mark A. This stand taken by the witness is in clear contradiction with the joint written statement filed by the defendants, wherein defendants have flatly denied that the suit property was originally alloted to the plaintiff. The defendants have also not pleaded in the written statement that the Sh. Gurmeet Singh purchased the suit property from the plaintiff vide G.P.A., Agreement to sell, Receipt, deed of will dated 17.08.2007. It is settled law that no evidence can be led without pleadings. The Hon'ble Supreme Court vide catena of judgments viz., (i) M Siddiq (Ram Janamabhumi Temple) vs. Suresh Das (2020) 1 SCC 1 (ii) Ravinder Singh vs. Juneja Singh (2000) 8 SCC 191, (iii) Union of India vs. R. Bhushal (2006) 6 SCC 360 and (iv) Anathula Sudhakar vs. P. Buchi Reddy (20008) 2 AWC 1768 (SC) has held that no amount of evidence or arguments can be looked into in absence of pleadings and issues.
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30. Even otherwise the onus to prove documents marked as Mark A and Mark B was on the defendants. Defendant has examined Sh. Rais Malik as DW3, who deposed that the documents marked as Mark B were executed by Gurmeet Singh in favor of Defendant No.1, who had also paid an amount of Rs. 3,60,000 to Gurmeet Singh. DW2, Junior Judicial Assistant, record room (Civil), Karkardooma exhibited the statement of Raees Malik as PW2 and Abdul Qayum as PW3 in the suit filed by the defendant no.1 against the plaintiff as Ex.DW2/A and Ex. DW2/B.
31. DW4 Sh. Gurmeet Singh was summoned on the application of the defendant and has stated that defendant no. 2 got certain documents signed from him after getting him drunk. DW4 has further deposed that he came to know about the execution of alleged documents by him, when the FIR was registered against him and the defendants qua the suit property. DW4 has specifically denied receiving any consideration from the defendants no. 1 and 2 qua the sale of the suit property. DW4 ha also deposed that the documents relied upon by the defendants were executed by him in the state of intoxication and he filed a complaint before the police to this effect. DW4 also exhibited cancellation deed of GPA as DW4/1, complaint dated 22/03/2009 as mark D-4 and legal notice dated 22/03/2009 as mark D-4/1. DW4 was cross-examined by the Suit No. 615474/2016 19 of 26 Sh. Parmanand vs. Mast Amina Begum & ors.
Ld.counsel for the defendants after seeking permission from the court. DW4 stated that ExDW3/1 (Colly) does not bear his signatures at point 'X' and his thumb impression at point 'Z' or anywhere else. Further on being confronted with GPA dated 13/05/2004 mark 'A', the witness denied that same bears his signatures at point 'X'. From the testimony of DW4 it is clear that DW4 has denied having purchased the suit property from the plaintiff and has also deposed that the defendant no.2 got him drunk and in the state of intoxication, defendant no.2 got his signatures on certain documents about which he became aware when the FIR was lodged by the plaintiff.
32. In view of of the abovesaid discussion, the defendant has failed to prove the documents of ownership marked as Mark 'A' and Mark 'B', especially documents marked as Mark 'A' as these documents cannot be even read into evidence in absence of any pleading in the joint written statement filed by the Defendants, wherein they have flatly denied that the suit property was originally alloted to the plaintiff. The onus to prove the issue no.2 that the defendant is the owner of the suit property was on defendants, who has failed to discharge the onus and the issue is decided against the defendant. Plaintiff on the other hand has been able to prove that the suit property belonged to the plaintiff and the defendant has entered the suit property unauthorizedly. Thus the issue no. 1 is decided in favour of the plaintiff.
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Issue no. 4 Whether the plaintiff is entitled to a decree of possession of suit property, permanent injunction and mandatory injunction as prayed in the plaint? OPP Findings and Conclusion
33. In view of the fact that the issue no. 1 is decided in favour of the plaintiff and issue no. 2 is against the defendant, plaintiff is entitled to decree of possession of suit property, permanent injunction and mandatory injunction as prayed in the plaint.
Issue no. 3 Whether the plaintiff is entitled for recovery of misuse and mesne profits and damages as prayed in the plaint? OPP Findings and Conclusion
34. In the plaint plaintiff has claimed an amount of Rs.12,000/- per month from the defendant on account of unlawful and unauthorised use and occupation as mesne profit w.e.f. 25/08/2007 and has also claimed an amount of Rs.500 per day as damage charges till the possession of Suit No. 615474/2016 21 of 26 Sh. Parmanand vs. Mast Amina Begum & ors.
the suit property handed over to the plaintiff. In his examination in chief the plaintiff has reiterated the averments made in the plaint with regard to the misuse of property, damages and charges claimed in the plaint. The plaintiff has duly proved the fact that the defendant is in unauthorized occupation of the suit property and therefore, the plaintiff is entitled to claim mesne profit.
35. In the present case the plaintiff has led his own evidence regarding the rate of mesne profit and the defendant has not cross examined him on this aspect. However except for the self serving deposition of the plaintiff that he is entitled to an amount of Rs. 12000 per month, no other evidence was led by the plaintiff to prove the rate of rent in the area. The Hon'ble High court in Hindustan Petroleum Corporation Ltd. Vs. Mohanjit Singh (Deceased) Through Legal Heirs, 2019 SCC OnLine Del 9419 has held as under:
31. Reference with advantage can also be made to the judgment of the Division Bench of the Kerala High Court in K.R. Saraswathi Amma v. S. Thankappan Pillay 1977 SCC OnLine Ker 112 reiterating as under:--
"It is pointed out on behalf of the 1st Defendant that the claim made in the plaint in respect of mesne profits is only at the rate of Rs. 5,000 per annum and it is contended that the decree cannot award anything more. This is to misunderstand the nature of the claim for mesne profits made in this particular case and the nature of such a claim in general. Having regard to the definition of 'mesne profits' in Section 2(12) of the Code, it is apparent that mesne profits are something which a Plaintiff Suit No. 615474/2016 22 of 26 Sh. Parmanand vs. Mast Amina Begum & ors.
cannot evaluate and which it is solely for the court to determine on the evidence before it. As in a suit for an account the Plaintiff can only mention rough figure as the amount which will be found due to him, and that is why the second paragraph of Order VII Rule 2 of the Code makes an exception to the general principle laid down in the first paragraph that in a suit for money the plaint shall state the precise amount claimed and says that when the claim is for mesne profits, or for an amount which will be found due on taking unsettled accounts, the plaint need only state approximately the amount sued for. Section 11 of the Court Fees Act, 1870 makes the position even clearer. It shows that the claim in a suit for mesne profits is only a rough estimate even if a precise amount is stated and that it is for the court to ascertain is the true amount. And this can be in excess of the amount claimed. For, it says that in suits for mesne profits or for an account, if the profits or amount decreed are in excess of that claimed, the decree shall not be executed until the difference in court fee is paid. In this particular case, the relief sought in respect of the mesne profits (by prayer No. 2 in the plaint is that the court should award all profits received by the Defendants from the property, both before and after the institution of the suit, at the rate estimated by the Plaintiff at 35,625 fanams (Rs. 5,000) per annum. This, it seems to us, is just what is required by Order VII Rule 2 of the Code".
32. This Court in Holiday Home v. R.P. Kapur 2010 SCC OnLine Del 4481 has held that enquiry under Order 20 Rule 12 of the CPC is warranted only where the landlord has not been able to adduce sufficient evidence during trial; else, if sufficient evidence during trial has been led, there is no need for a separate enquiry under Order 20 Rule 12. Similarly in Kavita Gambhir v. Hari Chand Gambhir 162 (2009) DLT 459 it was held that it is in the discretion of the Court whether mesne profits are determined along with the adjudication for the relief of recovery of possession or an enquiry thereto has to be ordered after the adjudication as to the recovery of possession. Thus it is not as if the higher rate than claimed can be given only Suit No. 615474/2016 23 of 26 Sh. Parmanand vs. Mast Amina Begum & ors.
in an enquiry and not if the issue of mesne profits is decided along with the issue of recovery of possession of the premises.
36. The Hon'ble High Court in Chander Bhan Dass Vs. Shri Ram Nath Sharma2011 SCC OnLine Del 5486 held as under:
9. There is also an issue with respect to the claim of mesne profits. I may note that except a self serving deposition of the appellant that rents of same premises will be Rs. 5,000/- per month, no other evidence was led to prove the rate of rent in the area. However, I may note that in the evidence by way of affidavit, filed on behalf of the respondent/defendant, there is no averment that the rate of rent in the area is not Rs.
5000/- per month. Since, however, the onus of proof to prove mesne profits was on the appellant/plaintiff, therefore, I cannot grant an amount of Rs. 5000/- per month, though the property is situated in prime location in Delhi, namely, Pahar Ganj. In the facts and circumstances of this case I therefore grant mesne profits @ Rs. 500/- per month for a period of three years prior to the date of filing of the suit, pendente lite and future till the respondent hands over possession of the suit premises to the appellant/defendant.
37. In view of the established legal preposition, this court is of the opinion that as the plaintiff has failed to lead cogent evidence as to the quantum of mesne profit, this court may take judicial note and determine the damages/mesne profit to which the Plaintiff is entitled. In the present case, the plaintiff has neither mentioned the area of the suit property in the plaint nor the same is mentioned in the site plan Ex.PW1/1. The property is situated in Sunder Nagri, Nand Nagri, Delhi. The rental of the property in Delhi are on the higher side, however, in Suit No. 615474/2016 24 of 26 Sh. Parmanand vs. Mast Amina Begum & ors.
view of the facts and circumstances of the case, the court is of the considered opinion that ends of justice would be met if the plaintiff is granted mesne profit/damages @ 2,000 per month from date of unauthorized occupation of the defendant i.e. from 25.08.2007 till handing over of the possession of the suit property.
Relief
38. In view of the discussions, as adumbrated above, I hereby pass the following :: - FINAL ORDER - ::
A. A decree of possession of suit property bearing no. F- 1/79 DDA Flat, Special Housing Scheme, Sunder Nagari, Nand Nagari, Delhi, as shown in the in site plan ExPW1/1 is passed in favour of plaintiff and against the defendants, thereby directing the defendants to hand over the vacant and peaceful physical possession of the suit property to the plaintiff.
B. A decree of recovery of damages/mesne profit is passed in favour of the plaintiff and against the defendants for unlawful and unauthorised use and occupation of the suit property @ 2,000 p.m. from 25/08/2007 till the possession is handed over by the Defendants to the plaintiff. The plaintiff is directed to pay the court fee on the said amount Suit No. 615474/2016 25 of 26 Sh. Parmanand vs. Mast Amina Begum & ors.
till the date of decision and only that decree would be executable in respect of this relief. C. A decree of permanent injunction is passed in favour of plaintiff and against the defendants, thereby restraining the defendants, their legal heirs, relatives, successors, assigns, attorneys, agents associates, etc. from parting with possession or creating any third party right in the suit property i.e. F-1/79 DDA Flat, Special Housing Scheme, Sunder Nagari, Nand Nagari, Delhi as shown in site plan ExPW1/1.
Decree sheet be prepared.
File be consigned to Record Room, after due compliance.
Announced in the open court on this 23rd Day of December, 2021.
(ALOK SHUKLA)
ADJ-07 (Central)
Tis Hazari Courts, Delhi
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