Delhi District Court
Radhey Shyam (Senior Citizen) vs Parmeshwari Dass Anr on 30 April, 2025
IN THE COURT OF SH. VIRENDER KUMAR BANSAL PRINCIPAL
DISTRICT & SESSIONS JUDGE
NORTH-WEST DISTRICT, ROHINI COURTS, DELHI
CNR No. DLNW01-002097-2025
CS DJ 173-25
Radhey Shyam
S/o Johri Mal
R/o B-37, CC Colony,
Delhi Plaintiff
Versus
1) Parmeshwari Dass
S/o late Pyare Lal
R/o A-18, Saraswati Vihar,
Delhi-110034
2) Jai Bhagwan
S/o late R.D. Goel
R/o A-18, Saraswati Vihar,
Delhi-110034 Defendants
Date of institution : 20.03.2012
Date of reserving order : 26.03.2025
Date of pronouncement : 30.04.2025
JUDGMENT
Sh. Radhey Shyam (hereinafter referred as plaintiff) filed the suit for mandatory injunction, permanent injunction and recovery of damages against Sh. Parmeshwari Dass (hereinafter referred as defendant no.1) and Sh. Jai Bhagwan (hereinafter referred as defendant no.2) alleging that the plaintiff is the sole and absolute owner of property no. A-18, Saraswati Vihar, Delhi (hereinafter referred as suit property). In the year 1983, defendant no.1 approached the plaintiff to allow him to live in the suit property alongwith his wife as he was not having his own accommodation in Delhi. Defendant no.1 is the real maternal Page 1 / 44 uncle of the plaintiff. Considering the relation and the requirement, the plaintiff allowed defendant no.1 to use the suit property for his residence without any fee/rent/remuneration subject to his paying the electricity, water charges, house tax and lease charges as at that time the plaintiff was not requiring the suit premises. The plaintiff allowed the defendant to continue to reside in that premises from time to time in the capacity of licensee.
2. After about three years, defendant no.1 and his wife Angoori Devi on the ground of their illness required the plaintiff to allow their nephew Jai Bhagwan to live with them to look after them. The plaintiff allowed defendant no.2 also to live with defendant no.1 in the suit premises as he was also son of Sh. R.D. Goel, real maternal uncle of the plaintiff.
3. It is alleged that the son of the plaintiff has now completed his medical studies and wants to set up his residence- cum-clinic at the suit property. The plaintiff requested the defendant to vacate the suit property but they had not paid any heed to the requests of the plaintiff. A legal notice dated 23.12.2011 was also sent to the defendants through speed post and courier terminating their license and to handover the vacant peaceful possession of the suit property within 30 days or that they will be treated as unauthorized occupants and will be liable to pay damages @ Rs.2000/- per day.
4. After receipt of notice on 31.12.2011 at 6 PM, defendant no.2 alongwith his wife Sunita Devi and Pitam s/o defendant no.2 and adopted son of defendant no.1 came to the Page 2 / 44 plaintiff and refused to vacate the suit property. Defendant no.2 even threatened the plaintiff and hence the suit seeking mandatory injunction directing the defendants and their heirs, successors, agents and nominees, etc. to handover the vacant peaceful possession of the suit property to the plaintiff restraining the defendants, their heirs, agents, attornies, servants, successors, assignees or any other person active on their behalf from selling, transferring, letting, mortgaging, alienating, gifting, parting with possession in full or part or creating third party interest in any manner whatsoever with respect to the suit property and pass a decree, directing the defendant to pay Rs.88,000/- on account of damages alongwith pendente lite and future damages @ Rs.2000/- per day from 01.03.2012 till handing over possession.
5. Summonses of the plaint were sent to the defendants.
6. Defendant no.1 filed the Written Statement taking preliminary objections that the value of the suit property is much more than Rs.1 crore and that the court has no pecuniary jurisdiction to entertain the suit. The plaintiff has not properly valued the suit for the purposes of court fees and jurisdiction. As the plaintiff is claiming title, hence, he is liable to value the suit on the basis of market value of the entire property which is more than Rs.1 crore and is also liable to pay ad valorem court fees on the same.
7. It is alleged that suit of the plaintiff is barred by limitation and hence liable to be rejected u/o.VII Rule 11 CPC. The suit is not maintainable as it is vague and lacks in material particulars. The plaintiff has not filed the correct site plan and Page 3 / 44 does not disclose the exact position. It is alleged that the defendant is residing as owner in the suit premise right from the date of raising of construction i.e. since 06.02.1982. He being the owner is also letting out the property from time to time. This fact is also in the knowledge of the plaintiff. It is alleged that defendant no.2 is residing in portion of the premises as tenant under defendant no.1 and is also known to the plaintiff. Prior to defendant no.2, Mr. A.A. Vetal was tenant in the suit property with respect to one room and kitchen with common use of WC and washroom since 01.06.1982. He vacated the premises on 31.03.1984. Thereafter, the same portion was rented out to defendant no.2 at a rent of Rs.700/- per month. Mr. A.A. Vetal was paying Rs.250/- per month.
8. It is alleged that the plaintiff has deliberately withheld the material particulars with ulterior motives. Plaintiff received the payment from defendant no.1, which was made towards purchase of the plot and the construction on the plot has also been raised by defendant no.1. Plaintiff is left with no interest in the suit property. Defendant no.1 has also carried out extensive additions, alterations in the property from time to time being absolute and sole owner of the property. Plaintiff is very well knowing about all these facts and has never raised any objection at any point of time. The suit filed by the plaintiff is abuse of process of law. It is alleged that plaintiff received Rs.60,000/- from defendant no.1 in the year 1982 and it was also reflected by defendant no.1 in his income tax record. Besides that, defendant no.1 has also paid money to the plaintiff from time to time as the plaintiff was short of money. Plaintiff used to return the same as and when he was able to arrange money but the amount of Page 4 / 44 Rs.60,000/- was kept by the plaintiff as cost of the plot. It is alleged that plaintiff has always admitted and acknowledged that he has no right in the property and that defendant no.1 is the owner.
9. The building material for the construction of the property was also purchased by defendant no.1. The entire amount for construction of the house was paid by defendant no.1.
10. In reply on merits, it is alleged that plaintiff is aware that he is left with no interest in the property and that defendant no.1 is living as owner in his own right. Defendant no.1 has paid money to the plaintiff and also constructed the property, made additions, alterations and improvements of permanent nature in the suit property without any objection being raised by the plaintiff. It is alleged that the plaintiff was working as Teacher and informed defendant no.1 that the property can be registered in his name and other connections as the lease happens to be in his name but he always admitted that defendant no.1 is the owner of the property. Defendant no.1 made the entire investment and is now residing as owner in the suit property.
11. It is admitted that though the occupancy certificate was received in 1983 but the property was occupied on 06.02.1982 after Muhurat Havan ceremony was performed. It is denied that defendant no.1 approached the plaintiff for allowing him and his wife to live in the property. However, the relationship is not disputed. It is denied that plaintiff has allowed defendant no.1 to use the property. It is alleged that in fact right of defendant no.1 is irrevocable. It is also denied that after three years defendant Page 5 / 44 alongwith his wife approached the plaintiff and requested him to allow defendant no.1 to live in the suit property on the ground of their illness. It is alleged that defendant no.2 is living as tenant under defendant no.1 and not as alleged by the plaintiff. It is denied that the plaintiff informed them about the desire of their son or asked them to vacate the property. The plaintiff is having his own house at CC Colony and the premises are not required by him. It is denied that the plaintiff asked them to vacate the premises. It is alleged that the plaintiff was aware that he has no right in the property and that is why he has not asked them to vacate. The notice sent by the plaintiff was duly replied mentioning all these facts. It is alleged that the plaintiff has no right to terminate the alleged license and that the license was irrevocable and cannot be terminated as the right in the property has passed on to defendant no.1. All other averments are also denied.
12. Defendant no.1 has also made additional submissions alleging that plaintiff created interest of defendant no.1 in the property with transfer of property and acting upon the same, the defendant executed work of permanent character by constructing the property and also made improvements, additions and alterations in its execution. He constructed WC in the year 1985 and incurred an expense of Rs.10,000/-. He also constructed a bathroom and WC in the year 1992 and incurred an expense of Rs.25,000/-. The work, which defendant no.1 got executed, is of permanent character and, therefore, the plaintiff cannot now revoke the license.
13. It is alleged that the plaintiff is estopped by acquiesce Page 6 / 44 after creating rights of defendant no.1 in the property and not raising any objection to the construction of WC, bathroom, wash basin and running of charitable trust from the premises in dispute in the name of Angoori Devi Charitable Trust. Defendant no.1 has also invested in renovation of kitchen by fixing of granite stone slab and tiles in the bathrooms in the year 2002 and 2006 respectively. The painting and polishing is also got done every two to three years. It is alleged that as the property was purchased for the benefit of defendant no.1 with the money of defendant, therefore, the plaintiff is not having any right. It is prayed that the suit be dismissed.
14. The plaintiff filed the replication to the Written Statement denying the averments made in the Written Statement. It is denied that the property was purchased from the money given by defendant or that he has taken any money from the defendant. It is also denied that Mr. A.A. Vetal was the tenant or that thereafter defendant no.2 was inducted as tenant. It is also denied that defendant no.1 has raised any construction as alleged. It is alleged that the contentions are after-thought, imaginary, baseless and without any proof. It is submitted that defendant no.1 cannot claim ownership right in the property. It is specifically denied that plaintiff received Rs.60,000/- from defendant no.1 in the year 1982 or that the same were reflected in his income tax records. It is alleged that plaintiff has taken a friendly loan of Rs.40,000/-, which was interest free and was returned by the plaintiff to defendant no.1 on 07.05.1985 vide cheque no. 414 payable at PNB, R.P. Bagh Branch and had also paid remaining Rs.30,000/- vide cheque no. 216 on 05.06.1986. It is denied that defendant no.1 paid money to the plaintiff from time to time or that the plaintiff has kept Rs.60,000/- as cost of Page 7 / 44 the plot. It is also denied that defendant paid entire cost of construction. It is alleged that plaintiff has purchased this plot and has also raised construction after complying with the legal formalities of CCS Rules being the government servant.
15. Defendant no.2 also filed the WS separately alleging that he is tenant under defendant no.1 in portion of a property, as such the plaintiff has no right to maintain the suit against him. Plaintiff has no locus standi to file the suit. The suit against him is barred u/s.50 Delhi Rent Control Act. It is alleged that defendant no.1 let out the property to him as owner/landlord. In reply on merits, he denied the averments made. It is pertinent to mention here that during pendency of the suit, defendant no.2 moved application u/s.151 CPC requesting that name of defendant no.2 be deleted from the array of the parties as he has already handed over the possession of the suit property to defendant no.1 in August 2013 but the same was dismissed.
16. Replication to the Written Statement of defendant no.2 was filed by plaintiff wherein he denied the averments made in the written statement filed by defendant no.2 and re-asserted the facts mentioned in the plaint.
17. An application u/s. VI Rule 17 CPC was moved by defendant no.1 to amend the Written Statement to incorporate the fact that defendant no.2 is no more in possession of the suit property and has vacated the same during the pendency of the suit and also in para 14 of the preliminary objection, which now he wants to amend that only a sum of Rs.20,000/- was kept as cost of the plot and the remaining amount of Rs.40,000/- was kept by him as required by plaintiff and that he has been making Page 8 / 44 investment in the property for improvement and stability. The application was allowed subject to cost of Rs.5000/- and the amended written statement was accordingly filed, which was taken on record.
18. From the pleadings of the parties, before the amendment of the WS, the following issues were framed vide order dated 26.08.2013:
1. Whether the suit is not valued properly for the purposes of court fees and jurisdiction? OPD
2. Whether the suit is within time? OPP
3. Whether the plaintiff is entitled for the decree of mandatory injunction against the defendants, as prayed in prayer no. (A) of the plaint? OPP
4. Whether the plaintiff is entitled for a decree of permanent injunction against the defendants, as prayed in prayer no. (B) of the plaint? OPP
5. Whether the plaintiff is entitled for a monetory decree against the defendants, as prayed in prayer no. (C) of the plaint? OPP
6. Relief.
19. After the amendment was allowed, additional issue was framed on 20.11.2013 as follows:
2A. Whether the license is irrevocable? OPD
20. Thereafter, the case was fixed for prosecution evidence. Plaintiff himself appeared in the witness box as PW1, tendered his affidavit Ex. PW1/1 in evidence, re-asserting and re- affirming the facts mentioned in the plaint. He also relied upon the documents i.e. the site plan and suit property Ex. PW1/A, the perpetual sub lease in the name of the plaintiff with respect to the suit property as Ex. PW1/B, the occupancy certificate issued by DDA dated 05.07.1982 in the name of the plaintiff, letter Page 9 / 44 issued by MCD, Assessment & Collection Department, to the appellant herein dated 07.08.1986, receipt of water meter charges with respect to the suit property in favour of the plaintiff dated 05.05.1981, letter from MCD dated 19.09.2011 Ex. PW1/F, according to which the property stands assessed in the name of Sh. Radhey Shyam Gupta only for the purposes of realization of property tax and is shown as self use for residential purposes and as per the documents placed on record Sh. Radhey Shyam Gupta is the original allottee and no transfer/mutation has been carried out in the records, copy of the notice dated 23.12.2011 terminating the license is proved as Ex. PW1/G, the courier receipt and the postal receipts are proved as Ex. PW1/H (colly.), the reply received from defendant no.1 is proved as Ex. PW1/I, the envelope in which the reply was received is proved as Ex. PW1/J, the memorandum received from the Deputy Director, Education by the plaintiff herein with respect to becoming member of the society and making installments is proved as Ex. PW1/K, list of the members of the society running into 16 pages wherein his name appeared at sl.no.883, membership no.2248 is proved as Ex. PW1/J (L), the copy of occupancy certificate dated 05.07.1982 issued by DDA, Building Section, running into 18 pages is proved as Ex. PW1/M, the letter received by Radhey Shyam from MCD dated 07.08.1986 running into 9 pages with respect to the house tax is proved as Ex. PW1/N, the documents of income tax of the plaintiff regarding assessment of income tax running into 26 pages are proved as Ex. PW1/O, the certificate issued by O.P. Mittal & Associates (Valuer) with respect to the material required for construction and their details are proved as Ex. PW1/P, the photocopy of the passbook of the plaintiff is proved as Ex. PW1/Q and the printout of a document taken from the site of magicbrick.com is proved as Ex. PW1/R. Page 10 / 44
21. During cross-examination by Ld. Counsel for defendant no.1, the witness deposed that in the year 1980, defendant no.1 was residing at property no.296, Kucha Sanjog Ram, Khari Bawli, Naya Baans, Delhi. He used to visit defendant no.1 at his residence in Kucha Sanjog Ram. His mother is the eldest sister of defendant no.1. He has no knowledge if defendant no.1 has constructed any house in Delhi. Defendant no.1 has not given him Rs.40,000/- as interest free loan after June 1981 for construction of the house. The said amount was given in cash. He denied the suggestion that defendant no.1 also gave him Rs.20,000/- towards cost of the plot.
22. He is not aware if the market value of the land under occupation of defendant no.1 was more than Rs.82,000/- per sq.meter in March 2012. He is also not knowing if the circle rate in the area of the plot was more than Rs.43,000/- per sq.meter in March 2012 or that the market value of the property in question was more than Rs.1 crore. He had given the value on the basis of index no. 2011-12 of Govt. of India for income tax purposes. He cannot tell the value of the property as he is not in sale and purchase of the property. He is not aware if defendant no.1 was submitting income tax return in 1981 and thereafter. He had given the property to defendant to reside therein in the year 1983. The construction of the property was completed in December 1981. He is not aware if defendant had performed any Muhurat Page 11 / 44 or Hawan in the property. He is not having any document to show that possession was handed over in 1983. He admitted that he and his family never resided in the suit property. He denied the suggestion that property was not given to the defendant either on rent or on license fees. No deed was executed. He volunteered that it was under mutual understanding.
23. He denied the suggestion that defendant no.1 used to let out the property on rent from time to time. The witness volunteered that under RTI information from North MCD, he has come to know that defendant had neither made any construction nor let out the property.
24. He stated that he cannot admit or deny if any person by the name of A.A. Vetal resided in the suit property as tenant from 01.06.1982 to 30.03.1984. He volunteered that he has never seen anyone there. Similar is his reply about issuance of rent receipt by the defendant. Till 1986 he deposited the house tax of the property and thereafter asked the defendant to deposit the same.
25. He denied the suggestion that the property was constructed by defendant no.1. He also denied the suggestion that defendant no.1 is residing in the property since 06.02.1982. He denied the suggestion that front portion of the property was covered subsequently. He deposed that it was open till 2006.
26. He had not intimated the MCD that he has given the suit property to defendant no.1 for use as residence and that defendant no.1 is in possession of the same. He denied the suggestion that after the property was constructed, the property Page 12 / 44 remained vacant. He had not informed his department or post office that he lived in the suit property. He denied the suggestion that defendant no.1, after vacating the property of Kucha Sanjog Ram, started living in the suit property. He admitted that he had not informed MCD or any other authority that defendant no.1 is living in the property as a licensee since 1983. He volunteered that in June 1986, he informed the said fact to the authorities but he has not placed any such document on record.
27. The property is in the same condition today as it was in the year 1981 and there is no addition/alteration. He admitted that in 1981, there was no toilet beneath the staircase and no kolki. Front portion was not covered. There was no bathroom on the backside. He denied the suggestion that there was no bathroom on the first floor. He volunteered that those were there and he also paid the penalties to DDA.
28. He denied the suggestion that O.P. Mittal (Architect) supervised the construction. He volunteered that he and his father supervised the construction. He admitted that valuation report given by O.P. Mittal had been filed by him in MCD. He admitted that in 1988 and 2002 he has not made any improvement in the property. He denied the suggestion that defendant no.1 had carried out additions and alterations in the property. He stated that in June 1986 he informed MCD that defendant no.1 is living in the house but he does not know if MCD has ever verified this fact.
29. He had duly informed his department that he has taken Rs.35,000/- from defendant no.1 in June 1979. He had not filed Page 13 / 44 any document to show that per day rent of the premises is Rs.2000/-. He has also not placed any document on record to the fact that property in the area where the suit property is located had been let out @ Rs.2000/- per day. In Ex. PW1/R, it is not mentioned that the rates mentioned are for residential property. He did not verify if any property had been let out by magicbricks.com at the said rate. He never got the property assessed by the MCD showing the rent @ Rs.2000/- per day.
30. No license/rent deed was executed to the effect that defendant no.1 is occupying the property as licensee. He stated that he cannot comment if the site plan filed by the defendant today Ex. PW1/D1 depicts the position of construction as on today. He denied the suggestion that construction was carried out by defendant no.1 and that the house was constructed under the supervision of defendant no.1. He denied the suggestion that defendant no.1 is having control over the premises for the last 33 years. The witness stated that the defendant is residing there since 1983 and control is not of the defendant but of his.
31. He admitted that Jai Bhagwan used to live in the property but denied the suggestion that he used to pay the rent and that rent receipts were issued by defendant no.1. It is volunteered that Jai Bhagwan is nephew and son in law of defendant no.1. He denied the suggestion that prior to Jai Bhagwan, A.A. Vetal was the tenant.
32. During cross-examination by Ld. Counsel for defendant no.2, he deposed that he impleaded Jai Bhagwan in the case because he was a licensee and was staying in the premises with his permission. He has not filed any document to show that Page 14 / 44 he was a licensee. He denied the suggestion that at the time of filing of the plaint, defendant no.2 had two rooms, kitchen, bathroom and a latrine with him. The witness volunteered that he (Jai Bhagwan) stayed with defendant no.1. He denied the suggestion that defendant no.2 on 01.09.2013 handed over the vacant peaceful possession to defendant no.1. He denied the suggestion that defendant no.1 rented out the premises to defendant no.2 at a monthly rent of Rs.700/-. He volunteered that defendant no.2 is son in law of defendant no.1.
33. A question was put to him whether he was present when A.A. Vetal handed over the peaceful possession of the demised portion to defendant no.1 and he answered that it was never let out to him. Another question was put to him that the portion in occupation of defendant no.2 could not fetch rent of Rs.2000/- per day and the witness answered that defendant no.2 was not in occupation of any separate portion. He was living in joint family. He is not aware if defendant no.2 is residing at Sector-22, Rohini since September 2013.
34. The plaintiff has also examined Sh. Sunil Mann, AZI from North MCD, who brought the payment register and payment receipt no. CZ-601784 dated 22.06.2011 and proved the copies of the same as Ex. PW2/1 & PW2/2. He had also proved the copy of the self assessment property tax form for the Financial Year 2011-12 that it was issued by their office. In reply to application dated 26.09.2014 and the same are Ex. PW2/3 & PW2/4.
35. During cross-examination by Ld. counsel for defendant Page 15 / 44 no.1, he stated that he had not seen the original documents referred to in his examination in chief. He had seen the original receipts. Same were issued by their department and are correct. Copies of the same are Ex. PW2/R1 to R4. With respect to the self assessment form Ex. PW2/R5, he stated that he cannot say if the same was received in their office. With respect to the receipt Ex. PW2/R6, he stated that the receipt was received and duly recorded in their office.
36. Thereafter, the plaintiff closed his evidence and the case was fixed for evidence of defendant.
37. Pitam appeared in the witness box as DW1, filed his affidavit Ex. DW1/A in evidence mentioning the facts as mentioned in WS and also relied upon documents i.e. DW1/1 to 26 which are the receipts. He also proved on record one valuation report dated 15.04.1982. The document Ex. DW1/40 design and supervision charges raised from the office of Mittal & Associates. Out of these documents Ex. DW1/1 to DW1/7 were de-exhibited and the documents Ex. PW1/27 to 38 were not found on record.
38. During cross-examination by Ld. counsel for plaintiff, he admitted that the documents Ex. PW2/4 bears signatures of his father at Point A. He admitted that vide cheque no. 255180 dated 13.06.2011, his father deposited house tax of Rs.1879/- for the Financial Year 2011-12. He denied the suggestion that defendant no.2 alongwith his wife and son are also residing in the suit property. He admitted that there is a water connection in the suit premises but he is not sure if the water bills are received in the name of the plaintiff. He admitted that he is receiving the regular Page 16 / 44 water bills, which he is paying. He has no idea in whose name the electricity bills of the suit premises are received. The original bills Ex. DW1/X1 and DW1/X2 of the electricity were shown to the witness of the premises but he is not sure if the water bills are received in the name of the plaintiff. He admitted that the suit is built on a plot of land in Delhi Teachers Cooperative House Building Society (DTCHBS).
39. He admitted that defendant no.2 was his real father. The relationship between defendant no.1 and defendant no.2 is that father of defendant no.2 was real brother of defendant no.1. He admitted that Smt. Sunita Goel is his real biological mother, who is still alive. The name of wife of Parmeshwari Dass was Smt. Angoori Devi. He is not aware if Angoori Devi was having any sister. Entire house was in possession of Parmeshwari Dass in the year 2013 except the back portion, which was given on rent. No rent receipt in his presence was issued to Jai Bhagwan (defendant no.2) by Parmeshwari Dass. He was asked that in his affidavit he has mentioned that rent receipts were issued to Jai Bhagwan to which he stated that to the best of his knowledge the rent was paid but he does not exactly remember whether any rent receipt was issued in his presence or not. He denied the suggestion that no rent was paid by Jai Bhagwan to Parmeshwari Dass. He also denied the suggestion that they both lived in joint family as they were close relatives. He is not aware if Adoption Deed by which he was adopted was filed in the court or not. He had seen the adoption deed but he does not remember when the adoption deed was executed. To the best of his knowledge, it was in the year 1995.
Page 17 / 4440. He knows Smt. Urmila. He is not aware what was his relation with her but he used to tie rakhi to her. He had heard that Parmeshwari Dass brought her up, educated and got her married but he had never seen her residing with Parmeshwari Dass.
41. As per his knowledge, the transfer of any immovable property would take place by way of power of attorney, sale deed and oral agreement. The following question was put to him:
"Q. Are you aware that the seller of immovable property should himself have right to sell the property before he transfers the property in anyone?
Ans. It is not always correct. He may even transfer his rights such as leasehold rights by oral agreement."
42. He has not seen any document pertaining to payment of Rs.20,000/- as cost of the suit property as mentioned in para 9 of the affidavit. He volunteered that he has only heard from neighbours and relatives that the cost of Rs.20,000/- was given by his father to the plaintiff for the purchase of the suit property. He admitted that to become an owner in Saraswari Vihar Colony, it is mandatory to become member of the society of DTCHBS. He volunteered that it is not necessary to become the member if the entire payment has been made by the previous owner. He also added that he does not know whether there is any such rule or not. He does not remember whether he or Parmeshwari Dass moved any application for becoming member of DTCHBS. He does not know whether he or Parmeshwari Dass filed any application before any authority claiming ownership of the suit property. He admitted that suit property falls under DTCHBS and plaintiff is merely a lessee of the society. He does not know whether the lease charges till date are being paid by the plaintiff or not. He admitted that he has never paid the lease charges. He Page 18 / 44 admitted that his father had never taken any permission for construction in the suit property. The completion certificate is in the name of the plaintiff. He volunteered that same was obtained by them in the name of the plaintiff. He also admitted that electricity and water meters installed in the premises are in the name of the plaintiff.
43. He has no idea about the value of the suit property. At the time of filing of affidavit by way of evidence, the value of the suit property was around Rs.2 crores. He cannot say the exact value of the suit property as per the circle rate. The suit property is not on fully commercial road. He admitted that property is on mix land use. He volunteered that the land is residential land, which need to be converted to commercial as per the by-laws. He denied the suggestion that residential property fetches the rent of approximately 10% of its value. He has no idea about the rent of the similar premises. He was shown a photograph Ex. DW1/AA and after seeing the same, he admitted that earlier in the adjoining property, one of the floors was used for commercial purposes. He also admitted that another nearby properties after two plots are used for commercial purposes in the name of M/s Colourplus. He has no idea as to whether the rent on the said road is charged @ Rs.150/- to Rs.250/- per sq. feet.
44. He has no knowledge regarding the prevalent market rent in the locality. He has no idea that in the year 2004 the plaintiff appeared in response to the MCD notice qua the commercial use. He volunteered that the property was used for the purposes of charitable trust, which was closed as the same cannot be run from a residential property. It was put to him Page 19 / 44 whether he can tell that the charitable trust was closed in the year 2001 or 2015. He answered that probably it is not functioning for the last 4-5 years as per his knowledge (this statement was recorded on 14.01.2020). He has no knowledge what work was being done by his father during the period 1975-80. He volunteered that he born in the year 1988. As per his knowledge, the last work which his father was performing was with regard to the bilties of railways in the area of foodgrain.
45. As per his knowledge, his father had not taken any permission from MCD/DDA for addition or alteration/renovation in the suit property. He has no idea whether in DDA property the permission has to be sought for addition/alteration or renovation. The following question was put to the witness:
"Q. Have you or late Sh. Parmeshwari Dass ever issued any legal notice/ intimation to the plaintiff for the execution of titled documents in favour of late Sh. Parmeshwari Dass or you the witness?
Ans. The property was purchased and constructed in permanent structure on good faith from plaintiff being relative of defendant no.1 in the good faith, it was told that the property shall be transferred after the retirement from the teaching job to which there was multiple discussion held being relative for execution of documents, oral communication and notice was given to plaintiff to execute the documents."
46. No written intimation/notice/communication was served or executed upon the plaintiff. Another question was put to the witness as follows:
"Q. I put to you that the plaintiff had returned Rs.40,000/- to late Sh. Parmeshwari Dass in 1986 as via cheque as mentioned in Ex. PW1/Q, what do you have to say?
Ans. I do not remember the same, I need to check the facts."
47. The witness has also brought the rent agreement dated Page 20 / 44 06.11.2017 executed between him and Ms. Sushma Mittal Ex. DW1/X with respect to property no. E-187, Antriksh Apartment and he stated that even today he is fetching a rent of Rs.20,000/- from the property. He denied the suggestion that he is taking rent of more than Rs.70,000/-. He admitted that site plan filed by him is incorrect. He volunteered that property was constructed according to the site plan. Later on they had re-constructed their property, thus making it out of the site plan. He cannot tell in which year son of the plaintiff namely Dr. Parnav Gupta was born. He cannot say whether loan of Rs.40,000/- was repaid by the plaintiff to late Sh. Parmeshwari Dass in 1985 and 1986 and not in 1996. The following question was put to him:
"Q. Whether you have filed any document qua your claim that late Sh. Parmeshwari Dass was the owner of suit property?
Ans. I need to check the documents which you have submitted."
48. The court file was given to the witness to check the document but he replied without seeing the court file, as follows:
"The suit property has not been converted into free hold property and its a lease hold property presently. As far as I recalled we have submitted that construction related documents, telephone bills etc."
49. He denied the suggestion that defendant no.2 never resided in the suit premises as a tenant. He also denied the suggestion that late Sh. Parmeshwari Dass resided in the suit property as a licensee. He also denied the suggestion that defendant no.2 resided in the suit property as licensee. A document issued by the Deputy Assessor and Collector, MCD to the plaintiff with respect to the suit property with respect to running a charitable dispensary was put to the witness and asked whether it was assessed in the name of the plaintiff and he denied Page 21 / 44 the same.
50. Sh. Jai Bhagwan Aggarwal was examined as DW2. He filed his affidavit mentioning that the parties in the suit are related to each other. Defendant no.1 was known to him since 1980 when he purchased the suit property and that late Sh. Parmeshwari Dass was the owner of the suit property and has been residing there since 1982 till death. He also mentioned that Parmeshwari Dass had been letting out the suit premises from time to time to different tenants and that Sh. A.A. Vetal was tenant in respect of the suit property. Parmeshwari Dass had paid the cost of the plot to the plaintiff and constructed the property out of his own fund with the knowledge and consent of the plaintiff, who never objected to the same. Entire construction on the suit property including extensive additions/alterations and renovations in the property from time to time were done by late Parmeshwari Dass, out of his own individual funds. Radhey Shyam never obstructed the induction of tenants into the suit property by Parmeshwari Dass or even raising permanent construction. The friends and relations visiting Parmeshwari Dass were aware that Parmeshwari Dass is the owner of the property.
51. During cross-examination by learned counsel for plaintiff, following questions were put to him as follows:
"Q. What is the rent of the ground floor at A-17, Saraswati Vihar, Delhi as on today?
Ans. Rs.2,40,000/- per month. Vol. The ground floor of A-17, Saraswati Vihar, Delhi is used for commercial purpose. Q. Whether you have rented out any portion of A-17, Saraswati Vihar, Delhi for residential purpose and what is the rent?Page 22 / 44
Ans. Not rented out."
52. He also stated that he cannot tell what will be the rental of residential floor of A-17. He even cannot tell whether the rental will be Rs.1000/- or Rs.4 lacs. There is difference between the commercial rate and residential rate as electricity charges and water charges are different for both. Following question was also put to him:
"Q. As per your affidavit, it is stated that Parmeshwari Dass purchased the suit property in the year 1980. What do you have to say?
Ans. I know Sh. Parmeshwari Dass since 1980. Sh. Parmeshwari Dass had purchased the suit property in the year 1982-83 and has raised the construction on the suit property at the same time. Then court questions were put to him as follows:
Court question: From whom did, Sh. Parmeshwari Dass purchased the suit property?
Ans. The plaintiff herein.
Court question: For what sale consideration?
Ans. I cannot tell.
Q. Can you tell the court what documents were executed as per the alleged sale between the plaintiff and Sh. Parmeshwari Dass as per your statement?
Ans. I cannot tell.
Q. Can you tell the court what document of ownership you have seen of the property bearing no. A-18, Saraswati Vihar, Delhi?
Ans. I have never seen any document till date. Q. Is it correct that to construct a property at Saraswati Vihar, there is requirement of sanction plan for the property bearing no. A-18?
Ans. I do not have any knowledge about the said aspect. I have never seen any such document.
Q. When Sh. Jai Bhagwan i.e. defendant no.2 in the present Page 23 / 44 case entered into the suit property?
Ans. I cannot tell when he came to the suit property. However, he used to reside there.
Q. Can you tell the date, time, month or year when such alterations were carried out by Sh. Parmeshwari Dass? Ans. Every 2-3 years on Diwali, the whitewash was done by Sh. Parmeshwari Dass.
Q. How can you say that Sh. A.A. Vetal resided in the property as tenant with knowledge of the plaintiff? Ans. I cannot tell whether Sh. A.A. Vetal resided in the property as tenant with knowledge of the plaintiff. Vol. one room on the backside of the suit property was rented out to Sh. A.A. Vetal by Sh. Parmeshwari Dass."
53. He denied the suggestion that Sh. Parmeshwari Dass and Sh. Pitam Goel have not raised any construction over the suit property. Thereafter, the defendant has also closed his evidence and the case was fixed for arguments.
54. I have heard Ld. counsel for the plaintiff, Ld. counsel for the defendant. They have also filed their written arguments. I have gone through the same. My issuewise findings are as follows:
55. Issue No.1:
Whether the suit is not valued properly for the purposes of court fees and jurisdiction?
The onus was upon the defendant in this regard though it is claimed that the valuation of the suit property is more than Rs.1 crore and as the plaintiff is seeking possession in the form of mandatory injunction the plaintiff was required to value it accordingly which goes beyond the jurisdiction of the court. Ld. Page 24 / 44 Counsel submitted that even the witness DW1 has deposed that the present value of the suit property is Rs.2 crores whereas the plaintiff has valued the suit property at Rs.6,92,130/- only for the relief of mandatory injunction, which is not in accordance with the market value of the suit property. It is prayed that as the plaintiff has not valued the suit properly, as it should have been more than Rs.1 crore. If that valuation is taken then the suit goes beyond the pecuniary jurisdiction of the court. The plaintiff has not been able to show on what ground and how he assessed the value of Rs.6,92,190/-. It is argued that on this count itself as plaintiff has not valued it properly and the valuation should have been more than Rs.1 crore the court shall decide the issue in favour of the plaintiff, direct the plaintiff to value it in accordance with the market value of the land and properly and thereafter, the court shall return the plaint as it goes beyond the pecuniary jurisdiction of the court.
56. Ld. Counsel for the plaintiff submitted that plaintiff is seeking possession from the licensee i.e. the defendants herein, who were permitted to live in the property being the close relatives of the plaintiff. He has valued the property on the basis of index no. 2011-12 of Govt. of India for income tax purposes and that is the proper value. Ld. counsel further submitted that even Section 7(iv)(d) of the Court Fees Act permits the plaintiff in suit for injunction to value the same at amount deemed appropriate by him and he has accordingly done it that also on the basis of indexation. It is prayed that even otherwise defendant has not been able to bring any document or evidence on record that the valuation made by the plaintiff is malafide or is not correct. It is submitted that in view of all these facts the issue be Page 25 / 44 decided against the defendant and in favour of plaintiff.
57. After hearing the arguments and going through the record, I find that in fact the issue with respect to the valuation of the suit and the pecuniary jurisdiction has already been decided by my Ld. Predecessor vide detailed order dated 03.08.2013 which has attained finality. Even otherwise, according to Section 7(iv)(d) of the Court Fees Act, plaintiff can value the suit for injunction at the amount deemed appropriate by him. It is only with respect to the suit for possession as per sub section (v) of Section 7 of the Court Fees Act, which requires the suit to be valued in accordance with the market value of the property. Here in the present case, the plaintiff has filed the suit for mandatory injunction whereby he is seeking direction to the defendant no.1 & 2 to deliver vacant peaceful possession of the property to him. Under the circumstances, in my opinion, firstly, as plaintiff has valued the suit in accordance with Section 7 Sub Section (iv) Clause (d) of the Court Fees Act. Secondly, he has also given the reasoning that he has valued it on the basis of indexation no. 2011-12 of Govt. of India for income tax purposes. Thirdly, as it is not suit for possession, therefore, plaintiff was not required to value the suit for the purposes of jurisdiction as per the market value of the property and pay the ad valorem court fees. Fourthly, the defendant has not been able to bring on record any document or evidence that the valuation made by the plaintiff is not correct or that the valuation is arbitrary or deliberately under valued. Here in this regard, cross-examination of DW1 dated 14.01.2020 is very relevant wherein he has deposed as follows:
"I have no idea about the value of the suit property. At the time of filing of affidavit by way of evidence, the value of the suit property was around Rs.2 crores. Vol. But I cannot say the exact value of the suit property as per circle rate."Page 26 / 44
58. It is important to note that the onus of proving this issue was on the defendant. He has not been able to firstly bring on record that what was the value of the property. Secondly, that valuation as made by the plaintiff is erroneous or wrong. Thirdly, the law permits the plaintiff to put his own value and not the market value as per Section 7(iv)(d) of the Court Fees Act coupled with the fact that the Court vide order dated 03.08.2013 has already held that the plaintiff has rightly valued the suit for the purposes of jurisdiction and Court Fees. Hence, in my opinion, the onus, which was on the defendant, has not been discharged. He has not been able to show that plaintiff has not properly valued the suit for the purposes of jurisdiction and court fee. The issue is, accordingly, decided against the defendants and in favour of the plaintiff.
59. Issue no. 2 Whether the suit is within time? OPP No such argument has been put forward by defendant that the suit is barred by limitation. Even otherwise, the law also does not put any limitation for filing the suit for mandatory injunction against the licensee. Whenever the licensee is terminated, the suit has to be filed thereafter. In this case, legal notice dated 23.12.2011 Ex. PW1/G terminating the license was sent to the defendant through registered post and courier. Receipts are proved on record as Ex. PW1/H (colly.). The defendant was duly served with that notice as they have also sent a reply to the same, which is dated 06.03.2012 Ex. PW1/I. The suit, thereafter, has been filed on 20.03.2012 i.e. within three months from the date of notice dated 23.12.2011. All these facts Page 27 / 44 clearly show that the suit is filed within limitation. The issue is, accordingly, decided in favour of the plaintiff and against the defendants.
60. Issue no. 2A 2A. Whether the license is irrevocable?
Ld. Counsel for defendant submitted that the defendant is the owner as he has purchased the property and had paid Rs.20,000/- as sale consideration/value of the plot to the plaintiff, hence, became the owner but for the sake of arguments, even if it is presumed that he is a licensee, he, according to the evidence, has raised the entire construction of the suit property regarding which he has placed on record the documents i.e. the bills of purchasing building material, which are Ex. DW1/9 to 23. Ld. Counsel submitted that in some of the bills, the name of the defendant is mentioned and in all the bills, A-18, Saraswati Vihar is mentioned. These bills clearly show that the building material was purchased by the defendant. Then there is a document Ex. DW1/8, which is regarding sending of the Saria at A-18, Saraswati Vihar and it is dated 15.05.1981. Ld. Counsel further submitted that there is bill of Nafees Furniture House regarding the wood work and the rate list, which are Ex. DW1/25 & 26. Ld. Counsel submitted that the suit property was got constructed by the plaintiff and under the supervision of Mittal & Associates. The document Ex. DW1/40 clearly shows that it was designed and supervised by Mittal & Associates and they have also charged the same. The letter in this regard is proved on record as Ex. DW1/14. The valuation report was also submitted by Mittal & Associates and he has written letter to the defendant herein on Page 28 / 44 15.04.1982 Ex. DW1/39 asking him to collect the report. Ld. Counsel submitted that besides that, he has carried out from time to time the addition and alteration in the property. Ld. Counsel submitted that as he has carried out the addition/alterations and raised permanent structures, hence, even if it was given on license, now he has the right in the property as he has raised permanent structure and, thus, the license has become irrevocable in accordance with Section 60(b) of the Easements Act and the plaintiff cannot terminate the same.
61. Ld. Counsel for the plaintiff submitted that according to the documents available on record, the perpetual sub lease document was executed in favour of the plaintiff herein and the same is proved on record as Ex. PW1/B. The property is still in the name of the plaintiff as has also been replied by the MCD very recently i.e. on 19.09.2011 wherein it is specifically mentioned that the property assessed in the name of plaintiff and as per their record he is the original allottee and thereafter since then till date no transfer or mutation has been carried out. Ld. Counsel further submitted that in this case, the completion certificate was also issued only in the name of the plaintiff and this fact is also admitted by DW1. The certificate issued by the Valuer is also in the name of the plaintiff, which is Ex. PW1/10. Ld. Counsel submitted that there is no construction carried out by defendant or at his instance. No renovation has been carried. The witness of the defendant i.e. DW2 has himself stated during cross-examination as follows:
"Q. Can you tell the date, time or month or year when such alterations were carried out by Sh. Parmeshwari Dass? Ans. Every 2-3 years on Diwali, the whitewash was done by Sh. Parmeshwari Dass."Page 29 / 44
62. Ld. Counsel submitted that carrying out the whitewash or keeping the house habitable does not mean to addition/alteration. It is submitted that according to the by-laws that if you want to make any addition or alteration in the house then you have to take permission from the DDA as the property belongs to DDA. No such permission has been taken till date as also admitted by DW1 & DW2 is even not aware whether any such permission was obtained or not. Ld. Counsel submitted that the onus was upon the defendant to prove and establish that after the property was given on license to them they have carried out certain permanent construction in the property with the consent of the plaintiff and, therefore, now it has become irrevocable license. Firstly, there is no such construction carried out, secondly there is no such consent on record that he agreed to any such construction. Thirdly, according to the evidence of DW1 Parmeshwari Dass came to live in the property in the year 1982-
83. According to DW2, Parmeshwari Dass i.e. defendant no.1 purchased the suit property in the year 1982-83. If that is the situation, then the question that he raised the construction even does not arise as the occupancy certificate is dated 05.07.1982 issued by DDA and is Ex. PW1/M. Ld. Counsel submitted that all these facts clearly show that there is no such construction raised by the defendant. Even no such evidence has been adduced, therefore, the defendant has failed to prove and establish the issue, onus of which was upon the defendant. It is prayed that issue be decided in favour of plaintiff and against the defendant.
63. After hearing the arguments and going through the record, I find that the onus was upon the defendant to establish Page 30 / 44 that it was an irrevocable license. Firstly, there is no such document placed on record that license, which was created in favour of the defendant was irrevocable. There is no payment shown or proved to have been made to the plaintiff by defendant no.1 at the time of creation of license. Plaintiff has admitted that he has received certain amount and according to the evidence particularly the passbook, which has been placed on record by the plaintiff, he has already returned Rs.40,000/- to the defendant, the photocopy of the passbook is proved as Ex. PW1/Q. Onus was on the defendant to establish this fact, which he has not been able to prove that he has made any payment to the plaintiff at the time of creation of license making the license irrevocable.
64. The other contention raised is that defendant has raised the construction over the plot but again there is no such evidence. The record shows that the completion certificate of the building was issued on 05.07.1982 by DDA and has been proved on record as Ex. PW1/M. The sub-lease of the property was created in the name of the plaintiff in the year 1975 Ex. PW1/B. Occupancy certificate is dated 05.07.1982 Ex. PW1/M. According to the statement of DW2, defendant no.1 purchased the property in 1982 or 1983. If that is the situation that he purchased the property in 1982 or 1983 as deposed by DW2, then this contention that the construction was raised by the defendant is itself wrong. So far as the additions/alterations are concerned, admittedly, no such permission from the competent authority to carry out any addition/alteration has been obtained. No such document has been placed on record that defendant no.1 or his successor in interest has obtained any permission from the competent authority to carry out any addition /alteration in the suit property. It is also important to note that according to DW2, Page 31 / 44 the additions/alterations were carried out by Parmeshwari Dass i.e. defendant no.1 every 2-3 years on Diwali and that is whitewash of the property.
65. Keeping in view this evidence and the fact that there is no document placed on record that any construction was got carried out by defendant. Merely placing on record certificate, bills of purchasing some building material does not mean that he carried out the construction as alleged. Putting the marble on the kitchen slab, getting the WC repaired or carrying out certain repairs for keeping the house habitable will not fall in the category of raising permanent construction, which would make the license irrevocable under Section 60(b) of Indian Easements Act, 1882.
66. It is also important to note here that a license becomes irrevocable under Section 60(b) of Indian Easements Act, 1882 provided the following three conditions are satisfied:
1) the occupier must be a licensee;
2) he should have acted upon the license; and
3) executed a work of permanent character and incurred expenses for the execution of the work.
67. In the present case, the defendants do not claim themselves to be the licensee. The defendant no.1 claims himself to be the owner of the property. The defendant no.2 claims himself to be the tenant of defendant no.1. Therefore, the first condition itself is not fulfilled. The other condition required to be fulfilled is that he has raised constructions of permanent character and has incurred expenses. As discussed above, the defendant has not been able to prove this fact. Keeping in view the above discussion, in my opinion, as the defendant has not been able to Page 32 / 44 show firstly that the license created was irrevocable or that he has carried out construction in the suit property leased out to him incurring expenses, therefore, they have not been able to discharge the onus which was upon them. The issue is accordingly decided in favour of the plaintiff and against the defendant. He has not been able to discharge the onus, which was upon him. Hence, the issue is, accordingly, decided in favour of the plaintiff and against the defendants.
68. Issue no. 3 Whether the plaintiff is entitled for the decree of mandatory injunction against the defendants, as prayed in prayer no. (A) of the plaint?
Ld. Counsel for the plaintiff submitted that he is the allottee of the property as per the document of the MCD Ex. PW1/F and the property still stands in his name. It has not been mutated in the name of any other person including defendant no.1 till date. The completion certificate and the occupancy certificate is also in the name of the plaintiff. The property is assessed in the name of the plaintiff for the purposes of house tax. The electricity meter is also in the name of the plaintiff and the electricity bills have been proved on record, which are Ex. DW1/X1 & X2. The defendant No.1 himself filled the self assessment form proved on record as Ex.PW2/4. In that form, the defendant has mentioned the name of plaintiff in the column of owner. This document is clear admission on the part of defendant that plaintiff is owner of suit property.
69. Ld. Counsel further submitted that defendant no.1 being the maternal uncle of the plaintiff and was not having any residence in Delhi, requested the plaintiff to allow him to reside Page 33 / 44 in the property. Considering the close relation, the plaintiff allowed defendant no.1 to reside in the property as a licensee. In between, defendant no.1 requested that defendant no.2 also wants to live with him and with the permission of the plaintiff, defendant no.2 also started residing in the same house. Ld. Counsel submitted that defendant no.1 alleged that he has rented out the property firstly to A.A. Vetal and then to defendant no.2. A.A. Vetal has not been examined as witness and there is also no evidence that he ever resided in this property. So far as defendant no.2 is concerned, he is relative of defendant no.1 i.e. son of brother of defendant no.1 but he has not been examined by the defendant reasons best known to him.
70. Ld. Counsel further submitted that the defence taken by the defendant is that he has purchased the property. Ld. Counsel submitted that it is the settled law and also the requirement of law that any immovable property of more than Rs.100/- can be transferred only on execution of a document, which is required to be registered. Admittedly, there is no such document. The defendant has alleged that it was oral transaction, which is not recognized by law. Ld. Counsel further submitted that according to the defendant he has paid money to the plaintiff to purchase the suit property but no such evidence has been placed on record. Rather it is the plaintiff, who admitted that he has taken some money from defendant no.1 but that money was not taken for purchasing the suit property and he has also returned that money i.e. Rs.40,000/- to defendant no.1. In this regard, he has also placed on record the photocopy of his passbook proved as Ex. PW1/2. No payment was ever made by defendant no.1 to the plaintiff towards the purchase of the suit property.
Page 34 / 4471. Ld. Counsel further submitted that till date, defendant no.1 or his successor-in-interest has not served any notice on the plaintiff asking him to execute the sale deed or to execute the documents of transfer in the name of defendant no.1 or his successor-in-interest. This fact itself shows that no such transaction has ever taken place.
72. Ld. Counsel submitted that as the plaintiff is the owner as per the documents proved on record and he allowed the defendant to reside in the property being close relative thereby creating a license in his favour and thereafter defendant no.2 started residing with defendant no.1 with the permission of the plaintiff as their family member being close relatives with the permission of the plaintiff. Now the license has been revoked/terminated vide notice dated 23.12.2011. The notice has been duly served, therefore, the plaintiff is entitled to get the possession of the suit property. It is submitted that the onus, which was on the plaintiff has been discharged. He has proved all the facts required. It is prayed that the issue be accordingly decided in favour of the plaintiff and against the defendants.
73. Ld. Counsel for the defendant submitted that on 27.09.1975, Govt School Teachers Cooperative House Building Society, in whose favour Union of India has executed a lease of the entire property, out of that, sub lease was executed in favour of the plaintiff. The plaintiff was not having the funds at that time and was in need of money. Plaintiff approached defendant no.1 to sell out the suit property. Defendant no.1 found the offer attractive and agreed to buy the suit property. He gave Rs.60,000/- to the plaintiff. Out of that Rs.60,000/-, Rs.20,000/- was the cost of the plot and Rs.40,000/- was a friendly loan.
Page 35 / 4474. Ld. Counsel submitted that it is also to be noted here that defendant no.1 is maternal uncle of the plaintiff. These facts clearly show that the plaintiff sold the property to defendant no.1 for a total consideration of Rs.20,000/-. There was no conflict between the parties and transfer of this Rs.20,000/- was also reflected in the income tax return of the plaintiff. This transaction, which took place between the plaintiff and the defendant, was known to all the close relatives. Defendant no.1 occupied the property as owner on 06.02.1982 and since then till date he is continuously exclusively and uninterrupted possession of the property. He is also paying the house tax and the electricity bills. All these facts clearly say that he is the owner of the property. Even the neighbours know that he is the owner of the property. He has raised permanent structure and no one will raise any such construction and invest his hard earned money without having ownership rights. He has also made substantive additions and alterations and also rented out the property from time to time to various tenants, firstly to Mr. A.A. Vetal i.e. one room and kitchen with common use of WC and bathroom since 01.06.1982 till 31.03.1984. The same was again let out to defendant no.2, who vacated the premises in August 2013.
75. Ld. counsel has also argued that in fact the suit property was purchased by the plaintiff for the defendant, using the funds of the defendant. The suit property was of Govt. School Teachers Cooperative House Building Society. As plaintiff was a Teacher, hence, he was entitled to be member of the society. The plaintiff became the member of the society and the plot was allotted in his money, but money for the same was given by the defendant no.1. Ld. counsel submitted that it was mutual understanding between the plaintiff and the defendant Page 36 / 44 no.1 that property is owned by defendant no.1 as money was given by defendant no.1 to plaintiff for purchase of the same.
76. Ld. Counsel submitted that plaintiff never objected to the same knowing fully well that he had sold the property and received the consideration, but now the plaintiff with malafide intention filed the suit knowing that the value of the suit property has gone high. Ld. Counsel submitted that the plaintiff is having no right, title or interest in the suit property. Defendant no.1 was never a licensee but the plaintiff has come up with the false claim to grab the property. It is prayed that keeping in view all these facts and the evidence, it is clear that defendant no.1 was not a licensee. He was there in the suit property for the last more than 30 years as owner and was also treated as owner. It is prayed that the onus, which was on the plaintiff, has not been discharged. Therefore, the issue be decided against the plaintiff and in favour of the defendant.
77. Ld. Counsel for plaintiff further submitted that if the plea of the defendant is to be considered then he is the Benami owner of the suit property but Section 4 of the Prohibition of Benami Property Transaction Act itself prohibits the same and provides that no defence based on any right in respect of any property held Benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. Ld. Counsel submitted that in the present case if the arguments of the defendant is considered, it is made clear that he is claiming himself to be the Benami owner and claiming that the property was purchased Benami in the name of the plaintiff. Ld. Counsel submitted that Page 37 / 44 in view of this specific provision, this argument of the defendant is not tenable at all. He further submitted that it is settled proposition of law that once a person is permitted to reside in the property as a licensee then he will always be a licensee and cannot claim that by staying/residing in the property for a considerable long time, he has become the owner.
78. After hearing the arguments and going through the record, I find that in the present case there is a sub lease deed executed in favour of the plaintiff with respect to the suit property that has been proved on record as Ex. PW1/B. Occupancy certificate is also in the name of plaintiff issued on 05.07.1982 by the DDA. According to the MCD records, which the MCD has communicated vide letter dated 19.09.2011 Ex. PW1/F, the property is still in the name of the plaintiff assessed in his name and has not been transferred or mutated in the name of any other person. The relationship between the plaintiff and defendant is admitted that they are close relatives. Defendant no.1 is maternal uncle of the plaintiff. The case of the plaintiff is that defendant was not having any place to reside and he permitted him on his request to reside in the property. The fact that defendant no.1 was not having any other property is also admitted by DW1 when he stated that he has not inherited any other property except the suit property. This fact lends credit to the claim of the plaintiff that defendant no.1 was not having any other residence. He was residing in some property at Kucha Sanjog Ram, Khari Bawli, Naya Baans, Delhi and thereafter in 1982, he shifted to the premises in dispute.
79. All these facts clearly show that the plaintiff is the owner of the property till date. It is pertinent to mention here that Page 38 / 44 the doc. PW2/4 has been admitted to be signed by defendant No.1 by DW1. In this document, the defendant has mentioned that plaintiff i.e. Radhey Shyam is the owner of the suit property. It is admitted that till date neither defendant no.1 nor his successor-in-interest has ever served any notice upon the plaintiff that they have already paid consideration of the suit property to him and, therefore, he shall execute the documents in favour of defendant no.1 or his successor-in- interest. The requirement of law is that if an immovable property of more than Rs.100/- is transferred then the only way recognized by the law is through a registered document. There is no such document executed till date and admittedly the suit property is valued more than Rs.100/-. The third ground taken by the defendant is that property was in fact purchased by him and payment was made by him. Firstly, there is no such document placed on record. Plaintiff has denied having received the consideration. Hence, the onus was upon defendant no.1. The plaintiff has also placed on record the photocopy of his passbook Ex. PW1/Q wherein there are entries showing that he has returned the amount received i.e. Rs.40,000/- to defendant no.1 through cheques.
80. Under the circumstances, it is even not proved that any money was transferred by the defendant no.1 to the plaintiff as sale consideration of the plot. It is also alleged that as he is the owner and recognized as owner, therefore, he has to be treated as owner but there is no such law. If a person is in permissive possession of a house, he cannot claim to be the owner after passage of time. In the present case, as per the evidence, he was allowed to reside in 1982. There is no document placed on record that he has purchased the property. Once his possession is permissive as a licensee, that cannot graduate to ownership even Page 39 / 44 with the passage of 30 years of time. Merely because, neighbours recognized him as owner or he informed the neighbours that he is the owner, will not change the status. So far as his claim that the property was purchased for him, that is hit by Section 4 of the Prohibition of Benami Transaction Act.
81. Section 4 of the Prohibition of Benami Transaction Act reads as follows:
"4. Prohibition of the right to recover property held benami:-
(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property."
82. From the bare reading of the Section, it is clear that no one is allowed to claim that he is the actual owner but property was purchased in the name of some other person. In the present case, the defendant claims in defence that he is the owner of the suit property but it was purchased in the name of the plaintiff. In my opinion, in view of Section 4 of the Prohibition of Benami Transaction Act, no relief on this count can be given to the defendant.
83. Keeping in view all these facts and the documents, particularly the document Ex. PW1/B, according to which the sub lease of the suit property was executed in the name of plaintiff, the document Ex. PW1/F that the plaintiff is the original allottee and till date he is assessed in the records of the MCD for the purposes of house tax and the property is not transferred or Page 40 / 44 mutated in the records in the name of some other person(s). The completion certificate is also in the name of the plaintiff. It is pertinent to mention that defendant filed the self-assessment form for property tax with respect to the suit property dated 14.06.2011, proved on record as Ex. PW2/4. Admittedly, it bears signature of defendant no.1 at point 'A'. The defendant himself has mentioned in that form that plaintiff is owner of the property in suit. Admittedly, till date neither defendant no.1 nor his successor in interest has filed any suit or served any notice on the plaintiff claiming that he is the owner or asking the plaintiff to execute the transfer document in favour of the defendant no.1 or his successor-in-interest. There is no evidence that defendant carried out any construction or any addition or alteration as discussed earlier while deciding Issue No.2A, in my opinion, the status of defendant no.1 & 2 remains as of licensee in the suit property, which has been terminated vide notice dated 23.12.2011 Ex. PW1/G, which was duly served upon the defendant as is also reflected from the fact that defendant no.1 has sent the reply Ex. PW1/I to the notice. Therefore, in my opinion, the onus, which was on the plaintiff, has been discharged and he has been able to prove and establish the issue. Accordingly, the issue is decided in favour of the plaintiff and against the defendants.
84. Issue No.4:
Whether the plaintiff is entitled for a decree of permanent injunction against the defendants, as prayed in prayer no. (B) of the plaint?
In view of the discussion and findings on issues no. 2A & 3, it is clear that the plaintiff is the original allottee and the owner of the property in dispute. Defendant is only the licensee. The license has also been terminated vide notice dated Page 41 / 44 23.12.2011 Ex. PW1/G, hence, now defendant is even not having right to continue in possession of suit property. Therefore, the plaintiff is having a good prima facie case in his favour to protect his rights in the suit property so that no third party interest, in any manner whatsoever, is created in the suit property by the defendants, their successors-in-interest, etc., as defendants are only licensee and having no substantive right in the property. On the other hand, the plaintiff is the owner, therefore, owner/allottee. Therefore, balance of convenience is also in favour of the plaintiff and against the defendants. If the defendants create any third party interest, that will affect the rights of the plaintiff in the suit property and will cause irreparable loss, which cannot be compensated, in terms of money, as the actual owner/allottee is only the plaintiff and his valuable rights in the property will be compromised if defendants create any third party interest.
85. In my opinion, any such damage to the rights of the plaintiff in the property cannot be compensated in terms of money. Keeping in view all these facts, in my opinion, as the plaintiff is able to show his rights in the property and on the other hand, defendant is held to be only a licensee, rights of the plaintiff deserves to be protected. The issue is, accordingly, decided in favour of the plaintiff and against the defendants.
86. Issue No.5:
Whether the plaintiff is entitled for a monetory decree against the defendants, as prayed in prayer no. (C) of the plaint?
The onus was upon the plaintiff to prove and establish that he is entitled to damages @ Rs.2000/- per day from the defendant from the date of termination of his license w.e.f.Page 42 / 44
01.03.2012 but no such evidence has been brought on record by the plaintiff. He has placed on record one document Ex. PW1/R but that is downloaded from the website of the magicbrick.com. There is nothing on record to show that any similarly situated property has been let out and will fetch the rent as mentioned in document Ex. PW1/R. According to this document, commercial showroom for rent in Saraswati Vihar is available on rent of Rs.2.5 lacs (per month) and it was posted on 12.06.2012. Firstly, this is with respect to the commercial property whereas the suit property is residential as is mentioned in all the documents. Secondly, it is not clear whether any residential property in the vicinity has been rented out at any such rent or at a rent of Rs.2000/- per day. Onus was on the plaintiff to prove and establish this fact but the plaintiff has not been able to bring any such document on record that he is entitled to damages @ Rs.2000/- per day. In any case, as the license of the defendant has been terminated and he was required to vacate the premises thereafter, which he has not done, hence, he is liable to pay the user charges/damages to the plaintiff for continuing to be in occupation of the suit property even after termination of license.
87. Keeping in view all these facts, the area where the property is situated i.e. Saraswati Vihar and the defendant himself is saying that the property, which he has let out, is fetching rent of Rs.20,000/-, in my opinion, charges @ Rs.15,000/- per month will suffice and meet the ends of justice from 01.03.2012 onwards with interest @ 6% per annum thereon till the defendants hands over the vacant peaceful physical possession of the suit property to the plaintiff.
88. Relief.
Page 43 / 44In view of the above discussions and the findings on the issues, the defendants are directed to handover the vacant peaceful physical possession of the suit property i.e. A-18, Saraswati Vihar, Delhi to the plaintiff. Secondly, defendant is also directed to pay user charges and damages to the plaintiff @ Rs.15,000/- per month from 01.03.2012 till the date of handing over that vacant peaceful physical possession of the suit property to the plaintiff with interest @ 6% per annum. Thirdly, the defendants, their heirs, agents, successors-in-interest, nominees or any other person acting on their behalf are restrained from selling, transferring, mortgaging, alienating, gifting, parting with possession or creating third party interest, in any manner whatsoever, in the suit property bearing no. A-18, Saraswati Vihar, Delhi.
89. In view of the above, the suit of the plaintiff is, accordingly, decreed with cost. Decree sheet be drawn accordingly. File be consigned to Record Room.
Announced in the open Court today i.e. 30th April, 2025 Digitally signed VIRENDER by VIRENDER KUMAR KUMAR BANSAL Date: 2025.04.30 BANSAL 16:26:42 +0530 (Virender Kumar Bansal) Principal District & Sessions Judge (NW) Rohini Courts, Delhi (sb) Page 44 / 44