Delhi District Court
Smt.Kaushal Kumar Relan vs . Harish Relan on 14 May, 2016
Smt.Kaushal Kumar Relan Vs. Harish Relan
IN THE COURT OF SH. AJAY PANDEY, ADDL. DISTRICT JUDGE
05, ROOM NO. 605, SOUTH DISTRICT, SAKET COURTS, NEW
DELHI
In the matter of
Suit No. 47/16
Case ID No. 02406C0426832015
Smt. Kaushal Kumari Relan
w/o Late Sh. Aishi Lal Relan,
B177, Ground floor, New Rajdoot Hotel,
JangpuraB, New Delhi110014 .............Plaintiff
Versus
Harish Relan
s/o Late Sh.Aishi Lal Relan
R/o 3rd floor, Plot No.18, BlockN,
Jangpura Extension, New Delhi110014
..............Defendant
Date of Institution : 26.02.2015
Date of reserving the Judgment : 05.05.2016
Date of pronouncement : 14.05.2016
Decision : Decreed
SUIT FOR EVICTION AND POSSESSION
JUDGMENT
1. Plaintiff mother has filed the present suit for eviction and possession against the defendant son seeking a decree against him to vacate and handover the possession of third floor of property bearing no. N18, Jangpura Extension, New Delhi110014 (hereinafter referred to as suit property).
Suit No. 47/16 Page 1 of 29Smt.Kaushal Kumar Relan Vs. Harish Relan PLAINT
2. In nutshell the allegations in the plaint are that the husband of plaintiff Late Sh.Aishi Lal Relan was allotted property bearing no. N18, Jangpura Extension, New Delhi 110014. He expired on 25.6.1989 leaving behind the plaintiff as widow and other children including defendant as one son. In the year 1999, all sons and daughters of plaintiff including defendant executed Relinquishment Deed in favour of the plaintiff, thereby relinquishing their rights in suit property. Some rectification in the said Relinquishment Deed, was made through registered Rectification Deed again acknowledging ownership of the plaintiff in the said property. Based on the document entire property was transferred in the name of plaintiff through a Conveyance Deed dated 07.02.2001 by L&DO and was converted into free hold. In 1994 the defendant had shifted from the property to some rental accommodation. Property was got constructed from 1999 to 2000 with ground floor, first floor, second floor and third floor. In January 2001, defendant requested the plaintiff that he wanted to reside on third floor of the property for 4 to 6 months. He further promised that he would vacate the property within 4 to 6 months. He was allowed to live in suit property. In the year 2005 defendant was asked by the plaintiff to vacate the suit property. The defendant did not vacate the property and later in the year 2006 filed a civil suit for partition/declaration/injunction bearing CS(OS)724/2006.
Suit No. 47/16 Page 2 of 29Smt.Kaushal Kumar Relan Vs. Harish Relan
3. It is further stated in the plaint that the suit of the defendant was decided by Hon'ble High Court vide judgment dated 28.11.2014 thereby declaring the plaintiff as absolute owner of the third floor of property bearing no. N18, Jangpura Extension, New Delhi. After pronouncement of the judgment plaintiff again asked the defendant to vacate the third floor of the property. No stay against the execution of the judgment dated 28.11.2014 was operating, but the defendant did not vacate the third floor of the suit property. Hence, the present suit.
4. It is submitted by learned counsel for plaintiff and not denied by learned counsel for defendant that RFA(OS)no.162/2014 preferred by the defendant against the judgment dated 28.11.2014 has been dismissed. Further an SLP no.36127/2015 preferred by him against the dismissal of RFA(OS)162/14 has also been dismissed.
WRITTEN STATEMENT
5. Defendant filed written statement taking the preliminary objection that he has been in open and hostile possession of the property since 2000 and has therefore perfected his title by way of adverse possession since last more than 14 years prior to the filing of this suit.
6. Further preliminary objection is taken by the Suit No. 47/16 Page 3 of 29 Smt.Kaushal Kumar Relan Vs. Harish Relan defendant that the suit is barred by law of limitation and is not framed as per the Hon'ble High Court rules and orders, and that plaintiff has not served any notice upon the defendant to deliver possession of the suit property and that defendant is owner and in possession on account of oral family agreement between the parties.
7. In reply on merits, filing and decision in CS(OS)724/2006 and RFA(OS)162/15 is admitted. It is stated that plaintiff did not make any request to the defendant to vacate the suit premises, rather she had herself given the premises to the defendant being his share in suit property, as the defendant had executed Relinquishment Deed and Rectification Deed of the property in favour of the plaintiff at her promise because plaintiff is his mother and he trusted her to be just, fair and honest .
8. It is admitted that defendant shifted to rented accommodation in the year 1994. It is however stated that he shifted back to the premises in the year 2000 and not in the year 2001. Any request from the plaintiff to vacate the suit property is denied. It is stated that even the present suit is filed without serving any notice upon the defendant. It is further stated that the plaintiff is wrongly interpreting the judgment in CS(OS)724/2006 and the possession of the defendant is neither unauthorized nor illegal because he is owner of the portion of premises in his possession. It is Suit No. 47/16 Page 4 of 29 Smt.Kaushal Kumar Relan Vs. Harish Relan further stated that there is no cause of action in favour of the plaintiff and the defendant has been in possession of the suit premises since the year 2000 and therefore being in possession of the premises for more than 14 years, he has become owner of the premises by way of adverse possession. Hence, dismissal of suit is prayed.
PROCEEDINGS
9. Earlier the case was pending before Hon'ble High Court of Delhi. Meanwhile by notification no.27187/DHC/Orgl. Dated 24.11.15, the pecuniary jurisdiction of the District Courts at Delhi was enhanced and the case was sent to the Court of District Judge, South (Saket Courts) vide order dated 08.12..2015.
10. The case was received in this Court on 09.02.2016.
11. The case was fixed for arguments on application filed by plaintiff under Order XV Rule 1A CPC on 23.03.2016.
12. On 23.03.2016 while perusing the file, the Court was of the opinion that the suit of the plaintiff might be decreed in view of the pleadings of the parties. At request of learned counsels for the parties the matter was fixed for arguments on this aspect.
Suit No. 47/16 Page 5 of 29Smt.Kaushal Kumar Relan Vs. Harish Relan
13. Vide order dated 30.04.2016 the Court granted an opportunity to the defendant to address his arguments on the point of passing a decree on admissions on the basis of pleadings of the parties.
14. The Court has considered the rival contentions of learned counsels for the parties.
15. Learned Counsel for defendant Sh.Bala Krishnan has submitted that no judgment on admissions can be passed in the facts and circumstances of the case because the plaintiff has not filed any application under Order XII R 6 CPC. He has further submitted that even otherwise there is no clear and/or categorical admission of ownership of the plaintiff by the defendant. He further submits that the defendant has rather claimed the ownership of the portion of the property in his possession. He also submits that neither on the basis of alleged documents of property existing in favour of the plaintiff nor on the basis of the judgment in CS(OS)724/2006, plaintiff can be declared as owner of suit property, that too without any trial.
16. Learned Sh.Bala Krishanan has further submitted that various triable issues have been raised by the defendant by denying the pleadings in the plaint. Various defences including the existence of family settlement through which the possession of the suit property was received by the Suit No. 47/16 Page 6 of 29 Smt.Kaushal Kumar Relan Vs. Harish Relan defendant, and the plea of adverse possession are raised which are required to be tried and adjudicated by the Court.
17. He further submits that apart from mixed issues of law and facts including the issue of limitation and the plaint not being properly framed as per the Hon'ble High Court rules and orders, objections qua ownership of plaintiff are taken. He submits that the plaintiff has heavily relied upon the judgment dated 20.11.2014 in CS(OS)724/2006 but in the said judgment the issue of ownership of plaintiff was never raised or adjudicated. He submits that the said suit of the defendant was rejected only on the ground of limitation and there was no occasion for adjudication of ownership of either party in any portion of the suit property.
18. Learned Counsel for the defendant therefore submits that there is no occasion to pass any judgment or decree on admissions on the basis of pleadings of the parties.
19. He further submits that there is no discussion in judgment of CS(OS)724/2006 about the ownership of either party in the suit property and only one line passing reference was made by the Hon'ble Single Judge of Hon'ble High Court qua the declaration of ownership of plaintiff in the suit property. He further submits that the Learned Single Judge did not even specify as to which portion of the suit property, plaintiff was referred to as owner. He further submits that Suit No. 47/16 Page 7 of 29 Smt.Kaushal Kumar Relan Vs. Harish Relan said reference cannot be construed as ratio decidendi in the case. More so, when as per the pleadings of the defendants in that case, who is plaintiff in the present case, major portion of the property bearing no. N18, Jangpura Extension, New Delhi110014 was already sold to third party, prior to filing of the suit CS(OS)724/2006 but the Hon'ble Single Judge referred the plaintiff herein as owner of entire property including already sold out portion.
20. It is therefore submitted by learned Sh.Bala Krishnan, Counsel for defendant that issues of law and facts are required to be adjudicated in the present case and the suit cannot be disposed off only on the basis of admitted pleadings of the parties.
21. Arguments considered. Record perused.
ADMITTED FACTS:
22. Admitted facts of the case are :
(i) Husband of plaintiff and father of defendant Mr.Aishi Lal was allotted the property No. N18, Jangpura Extension, New Delhi11014.
(ii) He died on 25.09.1989 leaving behind five LRs including plaintiff and defendant.
(iii) Defendant alongwith other legal heirs Suit No. 47/16 Page 8 of 29 Smt.Kaushal Kumar Relan Vs. Harish Relan executed relinquishment deed dated 18.11.1999 and rectification deed dated 30.032000 in favour of the plaintiff, thereby relinquishing their share.
(iv) Property was mutated and converted to free hold in the name of plaintiff by the office of L&DO.
(v) Defendant shifted to another property from the suit property in the year 1994.
(vi) Defendant came back in the property in the year 2001 or in the year 2000 (plaintiff claims that defendant was allowed to live in the property in June, 2001 whereas defendant claims that he is living since the year 2000).
(vii) Plaintiff sold second floor of the property vide sale deed dated 04.03.2002 and thereafter the first floor of the property in December, 2004.
(viii) Defendant filed one suit CS(OS)724/2006 for partition, declaration, permanent injunction against the plaintiff.
(ix) The suit for partition, declaration, injunction bearing CS(OS)724/2006, filed by defendant was dismissed vide judgment dated 28.11.14 by Hon'ble High Court of Delhi.
(x) Appeal against the judgment dated 28.11.2014, filed by the defendant vide RFA(OS)162/14 was dismissed.
(xi) SLP no.36127/2015 against the order of dismissal of RFA(OS)162/14 was also dismissed.
Suit No. 47/16 Page 9 of 29Smt.Kaushal Kumar Relan Vs. Harish Relan PLEA OF PLAINTIFF:
23. Plaintiff claims that she was the owner of the suit property, third floor of which was permitted to be occupied by the defendant, being her son. Defendant has not vacated the same despite her demand. Hence the suit for possession for said portion.
DEFENCE OF DEFENDANT:
24. From the written statement two contradictory defences are inferred:
(i) That the defendant is owner by adverse possession be cause he is in property for a period of more than 14 years.
(ii) The defendant is owner in possession on account of fam ily agreement reached between the parties whereby the de fendant executed certain documents in favour of plaintiff i.e. relinquishment deed, rectification deed etc. FINDINGS:
25. As already discussed by the Court, it is admitted case that the plaintiff was the recorded owner of the free hold property no.N18, Jangpura Extension, New Delhi and property was mutated as freehold in her name in the records of L&DO.
26. Now lets deal with the defence of the defendant.
27. Two mutually contradictory and self destructive defences are taken by the defendant.
Suit No. 47/16 Page 10 of 29Smt.Kaushal Kumar Relan Vs. Harish Relan
28. At the first instance defendant had raised defence of adverse possession but the ingredients of adverse possession are not satisfied from the pleadings in written statement. It is settled law that the adverse possession needs to be specifically pleaded. The party claiming the adverse possession has to specifically state and prove as to when his possession became hostile to the actual owner. Even if the avernments in the written statement are taken on their face value, Court do not see that the requirement of adverse possession are satisfied.
29. In para 16 of the plaint it is stated by plaintiff that defendant requested her that he wants to reside on the third floor of property for a period of four to six months as his landlord was forcing him to vacate the property.
30. In reply to this para defendant did not make specific denial of the allegations therein but stated that the defendant had shifted in the premises in the year 2000 and not in the year 2001.
31. Order VIII R 3 CPC mandates that denial in the written statement should be specific and the defendant must deny each allegation of fact which he does not admit as truth.
32. Order VIII R 5 CPC provides that every allegation of fact in the plaint, if not denied specifically or by necessary Suit No. 47/16 Page 11 of 29 Smt.Kaushal Kumar Relan Vs. Harish Relan implication shall be taken to be admitted except as against a person under disability.
33. In the facts and circumstances, in the absence of the specific denial of the fact that the defendant requested the plaintiff to allow him to live in the premises, it should be considered that defendant admitted these facts stated in the plaint.
34. In the entire written statement the defendant has not stated that from the year 2000 to the year 2006 when he filed CS(OS) 724/2006, he ever occupied any portion of the suit property against the wishes of the plaintiff. It is not stated that the defendant ever entered into the property in the year 2000 against the objections or wishes of the plaintiff. It is not stated that defendant ever show any hostility towards the ownership of the plaintiff.
35. In the entire pleadings of the defendant, there is no plea of denial of title of the true owner i.e. the plaintiff. The law of adverse possession has been settled by Hon'ble Supreme Court in catena of judgments.
36. In the judgment of K. Gopalan and Subbulakshmi, G. Gurumurthy and G. Venkataraman vs. Muthulakshmi (Supra), Hon'ble Madras High Court relied upon judgment reported in MANU/SC/8429/2006 : (2006) 7 S.C.C. 570 in Suit No. 47/16 Page 12 of 29 Smt.Kaushal Kumar Relan Vs. Harish Relan the case of T. Anjanappa and Ors. v. Somalingappa and another, and quoted following observation of the Hon'ble Supreme Court:
"Adverse possession means a hostile possession which is expressly or impliedly in denial of title of the true owner. Under Article 65 of the Limitation Act, burden is on the defendants to prove affirmatively. A person, who bases his title on adverse possession, must show by clear and unequivocal evidence i.e., possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e., possession was hostile to the real owner and amounted to a denial of his title to the property claimed.
Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that, a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's tile. One who holds possession on behalf of another does not by mere denial of that other's title make his possession averse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title, by pretending that he had no title at all."
37. In the judgment titled as Konda Lakshmana Suit No. 47/16 Page 13 of 29 Smt.Kaushal Kumar Relan Vs. Harish Relan Bapuji vs. Govt. of A.P. And Others (Supra), Hon'ble Supreme Court held : "The question of a person perfecting title by adverse possession is a mixed question of law and fact. It must be shown by the person claiming title by prescription that he has been in possession of the land for the statutory period which is adequate in continuity; in publicity and in extent with the animus of holding the land adverse to the true owner. Mere possession of the land, however long it may be, would not ripen into possessory title unless the possessor has animus possidendi to hold the land adverse to the title of the true owner. It is true that assertion of title to the land in dispute by the possessor would, in an appropriate case, be sufficient indication of the animus of the possidendi to hold adverse to the title of the true owner. But such an assertion of title must be clear and unequivocal though it need not be addressed to the real owner. For reckoning the statutory period to perfect title by prescription both the possession as well as the animus possidendi must be shown to exist. Where, however, at the commencement of the possession, there is no animus possidendi, the period for purpose of reckoning adverse possession will commence from the date when both the actual possession and the assertion of title by the possessor are shown to exist. The length of possession to perfect title by adverse possession as against the Government is 30 years.
A building constructed by the appellant on the land in dispute with the permission of the court can be said to be not unauthorized. But certainly the appellants' possession of the land in dispute,if otherwise adverse to the title Suit No. 47/16 Page 14 of 29 Smt.Kaushal Kumar Relan Vs. Harish Relan of the first respondent, does not acquire the character of the permissive possession on the ground the appellant sought permission of the court to erect a building thereon.
The lessee of a Maqtedar (the Inamdar) cannot acquire title to the demised land by adverse possession either as against the State or the Maqtedar (Inamdar) so long as his possession under the lease continues.
Regarding the animus of the appellant, admittedly he claimed as a lessee under the Inamdar. The possession of the land from 1954 under an alleged lease agreement till the date of filing of written statement in the present suit in 1987, when he pleaded adverse possession for the first time, cannot be treated as adverse because there was no animus possidendi during the said period. Before the date of filing of written statement he never claimed title to the land in dispute adverse to the State. On the other hand, he paid Siwaijamabandi and applied for occupation of rights.
Further, there was nothing on record to show that appellant's lessor ever claimed the land in dispute adverse to the State. On these facts, there is no scope to invoke the principle of tacking the possession of the Inamdar or presumption of continuity of possession backward. There can be no doubt that passing of adverse order against the appellant would not cause any interruption in his possession. So also filing of application before statutory authority under the Inams Abolition Act for occupancy rights, causes no interruption in the continuity of possession of the appellant but it does abrogate his animus to hold the Suit No. 47/16 Page 15 of 29 Smt.Kaushal Kumar Relan Vs. Harish Relan land in derogation of the title of the State and breaks the chain of continuity of the animus.
It must, therefore, be held that the appellant neither proved factum of possession of the land in dispute for a period of 30 years nor succeeded in showing that he had animus possidendi for the whole statutory period. Therefore, the confirming view of the High Court that the appellant failed to acquire title to the land in dispute by adverse possession must be maintained."
38. In the case in hand, the plaintiff specifically pleaded in para 10 of the plaint that defendant left the suit property in the year 1994. Thereafter, in para 16 of the plaint plaintiff further pleaded that he requested the plaintiff to reside in the suit property for a period of 4 to 6 months.
39. There is no denial of leaving the property in the year 1994. There is further no denial in the written statement that defendant did not request the plaintiff to reside on the third floor of the property.
40. From the pleadings in the written statement defendant appears to be claiming ownership by adverse possession, merely on the basis of 14 year long possession of the property. There is however no animus possidendi to hold the land adverse to the title of plaintiff.
41. In the entire written statement it is not spelled Suit No. 47/16 Page 16 of 29 Smt.Kaushal Kumar Relan Vs. Harish Relan that the defendant ever placed the plaintiff to a notice of possessing the property against her wishes or adverse to her title.
42. In the absence of specific plea by the defendant, his possession cannot be considered as adverse to his own mother.
43. Similarly, in the case Karnataka Board of Wakf vs. Govt of India and Others (2004) 10 Supreme Court Cases 779, Hon'ble Supreme Court held that: "In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Nonuse of the property by the owner even for a long time won't affect his title. But the possession will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is wellsettled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important Suit No. 47/16 Page 17 of 29 Smt.Kaushal Kumar Relan Vs. Harish Relan factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the right of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
44. In the case in hand, pleadings of the defendant do not satisfy the ingredients of adverse possession emphasized by the Hon'ble Supreme Court in the aforementioned cases.
45. For the sake of arguments if it is considered that the defendant held the property as against the title of the plaintiff on filing of CS(OS)724/2006, the present suit was filed in the year 2015. The defendant therefore did not occupy the property for the qualifying period requisite for perfecting the title by way of adverse possession.
46. Otherwise this plea is also not available to the defendant because the civil suit CS(OS)724/2006 was not filed by the defendant claiming him as occupier of the property adverse to the title of plaintiff true owner.
Suit No. 47/16 Page 18 of 29Smt.Kaushal Kumar Relan Vs. Harish Relan Defendant filed the said suit claiming himself as joint owner and entitled to partition of suit property N18, Jangpura Extension, New Delhi110014.
47. The plea of ownership and the plea of the adverse possession are mutually inconsistent.
48. For claiming the rights by prescription, the defendant must disclaim his rights in the property and assertion of his independent hostile adverse possession to the knowledge of transferor and that the transferor has acquiesced to his illegal possession during the entire period of 12 years i.e. upto completing the period of his title by prescription nec vi, ne clam, ne precario (not by violence, not by stealth, not by permission).
49. The pleas based on title and adverse possession are mutually inconsistent and latter does not began to operate until the former is renounced. In the entire written statement the defendant has not stated that he is renouncing his claim for title, hence, the period for prescription would not commence.
50. In view of the above discussion of the Court it is ample clear that there are no pleadings to satisfy the claim of title by prescription. In the absence of such pleadings, defendant cannot prove the same on record. Hence, the Suit No. 47/16 Page 19 of 29 Smt.Kaushal Kumar Relan Vs. Harish Relan Court need not to go into the issue of the adverse possession merely referred by the defendant in the written statement without supporting pleadings thereof.
51. The next plea taken by the defendant was about being the owner of the third floor of N18, Jangpura Extension, New Delhi110014.
52. In para 27 of the written statement it is specifically stated by him that his possession over the premised is neither unauthorized nor illegal but he is the owner of the said premises.
53. Similarly in para 6 of the preliminary objections defendant claimed himself owner in possession of the premises on account of oral family settlement reached between the parties.
54. The Court is of the opinion that the plea of the oral family settlement is not sustainable.
55. The judgment dated 28.11.2014 in CS(OS)724/2006, is available on court record. Following reliefs were sought by the defendant in the said suit:
a) Property bearing no. N18, Jangpura Extension, New Delhi110014 may please be ordered to be partitioned by giving 1/5th share each to plaintiff and defendants no.1 to 4.Suit No. 47/16 Page 20 of 29
Smt.Kaushal Kumar Relan Vs. Harish Relan
b) Preliminary decree for declaration may please be ordered to be passed declaring Relinquishment deeds dated 18.11.99, Rectification Deed dated 30.03.2000 and Sale Deeds dated 04.03.2002, 03.12.2004 and 16.08.2005 to be null and void.
c) A decree for permanent injunction be also passed in favour of the plaintiff and against defendants restraining the defendants from interfering in the possession of the plaintiff in the third floor of property bearing N18, Jangpura Extension, New Delhi.
d) Cost of the application be also awarded.
56. The suit of the defendant was dismissed. The necessary consequence of the same is that relinquishment deeds dated 18.11.1999 and rectification deed dated 30.03.2000 are existing in favour of plaintiff.
57. These deeds have been acted upon by the concerned authorities and the entire property N18, Jangpura Extension, New Delhi110014 was converted freehold in favour of plaintiff. Plaintiff further sold the portion of the property in favour of third parties.
58. The defendant is claiming the family settlement against the registered relinquishment deeds and title documents of plaintiff. A challenge to the said deeds in CS(OS)724/2006, has already been rejected.
Suit No. 47/16 Page 21 of 29Smt.Kaushal Kumar Relan Vs. Harish Relan
59. In the opinion of Court, after acquisition of complete title over property no. N18, Jangpura Extension, New Delhi110014, any promise, referred by the defendant, with the mother, true owner of the property can not be termed as family settlement. Moreso when the defendant has not referred that the other sons and daughters of late Sh.Aishi Lal were party to the said family settlement.
60. Such oral promise without consideration , cannot be acted upon against the true recorded owner of the property.
61. Any creation of interest in the immovable property could have been only through registered document in view of Section 17 of the Registration Act, 1908.
62. When the plaintiff herself became the exclusive recorded owner of the property no alleged oral family settlement can be pleaded against her transferring the title in the immovable property to any third person.
63. Hence it can be safely said that the plea of alleged family settlement is also not available to the defendant.
64. The other pleas in the written statement are not substantiated by pleadings as it is not mentioned how the suit is barred by limitation and how it is not framed as per Suit No. 47/16 Page 22 of 29 Smt.Kaushal Kumar Relan Vs. Harish Relan Hon'ble High Court rules and orders. The Court rather finds that the suit is within limitation. The plaintiff has claimed that the defendant was allowed to reside in the suit in the year 2001 and that she asked him to vacate the property in 2005. If the limitation is counted from the beginning of the year 2005, the suit filed on 23.2.2015 is within the limitation period of 12 years for filing a suit for possession.
65. Next plea taken by learned counsel for defendant during the arguments was that the defendant was never asked by the plaintiff to vacate the premises in his possession.
66. In para 20 of the plaint, plaintiff pleaded that she asked the defendant to vacate the premises in 2005 and defendant refused to vacate the same. There is no specific denial of the same. In para 26, plaintiff again pleaded that after passing of judgment and order dated 28.11.2014 in CS(OS)724/2006 she again asked the defendant to vacate the property and he refused to do so. In reply to this para defendant stated that he was never asked by the plaintiff to vacate the suit property.
67. Even if the plea of defendant in this regard is taken at its face value, it is of no consequence.
68. Defendant has been served with the summons of the present suit alongwith a copy of plaint reflecting the clear Suit No. 47/16 Page 23 of 29 Smt.Kaushal Kumar Relan Vs. Harish Relan intentions of the plaintiff to seek her property from him.
69. In Jeevan Diesels and Electricals Limited Vs. Jasbir Singh Chadha (HUF), 182 (2011) DLT 402, while dealing with arguments about non service of notice for termination of tenancy and vacation of tenanted premises, Hon'ble High Court of Delhi held as follows:
"The second argument that the legal notice dated 15.07.2006 was not received by the appellant, and consequently the tenancy cannot be said to have been validly terminated, is also an argument without substance and there are many reasons for rejecting this argument. These reasons are as follows:
(i) The respondents/ plaintiffs appeared in the trial Court and exhibited the notice terminating tenancy dated 15.07.2006 as Ex.PW1/3 and with respect to which the registered receipt, UPC and AD card were exhibited as Ex.PW1/4, to Ex.PW1/6. The notice admittedly was sent to the correct address and which aspect was not disputed before the trial Court. Once the respondents/plaintiffs led evidence and duly proved the service of legal notice, the appellant / defendant was bound to lead rebuttal evidence to show that the notice was not served although the same was posted to the correct address. Admittedly, the appellant /defendant led no evidence in the trial Court. In fact, even leading of evidence in rebuttal by the appellant would not have ordinary helped the appellant as the notice was sent to the correct address. In my opinion, therefore, the trial Court was justified in arriving at a finding that the legal Suit No. 47/16 Page 24 of 29 Smt.Kaushal Kumar Relan Vs. Harish Relan notice dated 15.07.2006 was duly served upon the appellant resulting in termination of the tenancy.
(ii) The Supreme Court in the case of Nopany Investments (P) Ltd. v. Santokh Singh (HUF), 146 (2008) DLT 217 (SC)=I (2008) SLT 195=2008 (2) SCC 728 has held that the tenancy would stand terminated under general law on filing of a suit for eviction.
Accordingly, in view of the decision in the case of Nopany (supra) I hold that even assuming the notice terminating tenancy was not served upon the appellant (though it has been served and as held by me above) the tenancy would stand terminated on filing of the subject suit against the appellant/ defendant......."
70. It was further held : "in suit for possession filed by landlords against the tenants where the tenancy is a monthly tenancy and which tenancy can be terminated by means of a notice under Section 106 of the Transfer of Property Act. Once we take the service of plaint in the suit to the appellant/defendant as a notice terminating tenancy, the provision of Order 7 Rule 7, CPC can then be applied to take notice of subsequent facts and hold that the tenancy will stand terminated after 15 days of receipt of service of summons and the suit plaint. This rationale ought to apply because after all the only object of giving a notice under Section 106 is to give 15 days to the tenant to make alternative arrangements. In my opinion, therefore, the argument that the tenancy has not been validly terminated, and the suit could not have been filed, fails for this reason also. In this regard, I am keeping in view the amendment brought about to Section Suit No. 47/16 Page 25 of 29 Smt.Kaushal Kumar Relan Vs. Harish Relan 106 of the Transfer of Property Act by Act 3 of 2003 and as per which Amendment no objection with regard to termination of tenancy is permitted on the ground that the legal notice did not validly terminate the tenancy by a notice ending with the expiry of the tenancy month, as long as a period of 15 days was otherwise given to the tenant to vacate the property. The intention of Legislature is therefore clear that technical objections should not be permitted to defeat substantial justice and the suit for possession of tenanted premises once the tenant has a period of 15 days for vacating the tenanted premises. Court."
71. Defendant was a mere licencee or permissive user in the premises of his mother. He cannot claim any protection against the true owner. There was no requirement of law or under any statute for service of a formal written notice for termination of licence or withdrawal of permission in favour of defendant because the licence or permission to live in the property did not create any interest over the same in favour of defendant. Even in the cases of creation of tenancy where the rights are created in favour of tenant by statute , the Hon'ble Supreme Court and Hon'ble High Court of Delhi have gone to the extent that the same can be terminated by way of service of summons of suit for possession. Hence this plea of nonservice of notice for vacation of suit premises is also not required to be seen in favour of the defendant.
Suit No. 47/16 Page 26 of 29Smt.Kaushal Kumar Relan Vs. Harish Relan
72. In Maria Margarida Sequeria Fernandes and Others vs. Erasmo Jack de Sequeria (Dead) through L.Rs., Civil Appeal No.2968 of 2012 (arising out of SLP (C) No.15382 of 2009), the facts of the case in nutshell were that the plaintiff, owner of the property kept her brother in her house. Later on, brother filed a suit for injunction seeking relief to restrain her sister, owner of the property, to interfere in his possession. Hon'ble Supreme Court rejected the claim of brother and laid down following principles: "101.Principles of law which emerge in this case are crystallized as under:
1. No one acquires title of the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.
3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.
5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or Suit No. 47/16 Page 27 of 29 Smt.Kaushal Kumar Relan Vs. Harish Relan interest whatsoever for himself in such property irrespective of his long stay or possession.
102. In this view of the matter, the impugned judgment of the High Court as also of the Trial Court deserve to be set aside and we accordingly do so.
Consequently, this court directs that the possession of the suit premises be handed over to the appellant, who is admittedly the owner of the suit property."
73. In the case in hand also, the defendant son, was permitted to reside in the property by the plaintiff mother. He filed the suit CS(OS)724/2006 against the mother. The said suit has been already dismissed. The Hon'ble High Court while dismissing the said suit, even made the observation that the plaintiff was the owner of the property occupied by defendant. The plaintiff has then filed the present suit for recovery of possession from him. Interestingly no mesne profits/damages are claimed by plaintiff though the property is situated in the posh locality of Jang Pura.
74. From the admitted pleadings of the parties and previous history of litigation, this Court is of the opinion that no issue for adjudication survives between the parties. The plaintiff is entitled for an outright decree for possession of the suit premises.
75. The suit of the plaintiff is accordingly decreed with cost against the defendant thereby directing him to Suit No. 47/16 Page 28 of 29 Smt.Kaushal Kumar Relan Vs. Harish Relan vacate and handover the peaceful possession of the third floor of the property bearing no.N18, Jang Pura Extension, New Dehi110014 to plaintiff.
76. Decree sheet be drawn accordingly.
77. File be consigned to record room.
Announced in the open (AJAY PANDEY)
Court on 14.05.2016 ADJ05 (SOUTH DISTRICT)
(Judgment contains 29 pages) SAKET COURTS, NEW DELHI
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