Delhi District Court
Cs No. 91/02/01 Mohan vs . Sat Narain Page 1 Of 23 on 24 January, 2015
IN THE COURT OF MS. SHIVALI SHARMA: ASCJ:
CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI
CS No. 91/02/01
Unique ID No : 02401C0292332002/01
In the matter of:
Mohan Lal (deceased) through his following legal heirs /LRs:
(i) Ramesh
(ii)Sh. Rajinder
Both Ss/o Sh. Mohan Lal R/o F133, Dakshinpuri, New Delhi62
(iii) Smt. Kamla
W/o Sh. Puran Chand Mehra
D/o Late Sh. Mohan Lal
R/o Block No.B, H. No. 949, Ist Floor,
Mangolpuri, New Delhi.
(iv) Smt. Meera
W/o Sh. Rati Ram
D/o Late Sh. Mohan Lal
R/o AII, H. No. 17 & 18,
2nd Floor, Madan Gir, New Delhi62.
(v) Smt. Beena
W/o Sh. Om Prakash
D/o Late Sh. Mohan Lal
R/o AII, H. No. 17 & 18,
Ground Floor, Madan Gir, New Delhi62.
(vi) Smt. Sushila
W/o Sh. Banwari Lal
D/o Late Sh. Mohan Lal
R/o H74, Jhuggi No.6, Harijan Camp,
Back side of Subzimandi Khanpur, New Delhi.
(vii) Smt. Krishna
W/o Sh. Ladho Ram
CS no. 91/02/01 Mohan Vs. Sat Narain Page 1 of 23
D/o Late Sh. Mohan Lal
R/o DI/103, Madan Gir, New Delhi62.
(viii) Smt. Kailash
W/o Sh. Nand Kishore Mehra
D/o Late Sh. Mohan Lal
R/o H. No. 34, Sector6,
Keshavpura, Distt. Kotah (Rajasthan). ......Plaintiff(s)
V E R S U S
Sh. Satya Narain
S/o Sh. Nand Gopal
R/o H. No. 126, Ring Road,
Mochi Bagh (Satyaniketan), New Delhi. ........Defendant(s)
Date of institution : 19.04.2001
Reserved for order : 19.01.2015
Date of decision : 24.01.2015
Suit for Redemption of the Mortgaged Property by the Mortgagor,
Cancellation of lease deed dt. 22.09.1999 in favour of the defendant,
Declaration that agreement deed dt. 04.07.1984 as null and void and
that lease deed in favour of the plaintiff (deceased Mohan Lal) is still
valid.
Judgment
1.Initially a suit for Recovery of Possession, Damages and Perpetual Injunction was filed by the plaintiff against the defendant. The suit was later on amended with permission of the Court vide order dt. 19.01.2011.
2. The amended suit is for Redemption of the Mortgaged Property by the Mortgagor, Cancellation of lease deed dt. 22.09.1999 in favour of the defendant, Declaration that agreement deed dt. 04.07.1984 was null and void and that lease deed in favour of the plaintiff (deceased Mohan Lal) is CS no. 91/02/01 Mohan Vs. Sat Narain Page 2 of 23 still valid.
Plaintiff's case :
3. The case of the plaintiff is that he was allotted a plot admeasuring 80 sq. yds (actual measurement at site is 921/2 sq. yds.), bearing plot no. 126, Ring Road, J. J. Colony, Mochi Bagh which area is also known as Satya Niketan, New Delhi (hereinafter referred to as "Suit Property") by the MCD vide lease deed dt. 18.05.1962 under the Juggi & Jhompari Removal Scheme. The plaintiff had constructed a three rooms set at ground floor and a similar accommodation at its first floor and a toilet at second floor of the suit property.
4. During May 1984 when the plaintiff was facing acute financial hardship, he approached the defendant for advancing him a loan of Rs. 1,12,000/. The defendant agreed to help him on the condition of the plaintiff's handing over of his entire vacant physical possession of the suit property for personal use and occupation as his residence. The loan of Rs. 1,12,000/ was taken and on return of the loan, the plaintiff was entitled to receive the vacant possession of the suit property. The plaintiff, accordingly, delivered the vacant possession without any claim of rent to the defendant and ever since defendant has been living therein.
5. The plaintiff with an intention to pay back the said loan amount and to have the possession of the suit property served a notice dt. 12.01.2001 upon the defendant. The defendant after having received the notice started threatening to transfer the possession of the suit property as a whole or in parts to third party. Notice was also replied to by the CS no. 91/02/01 Mohan Vs. Sat Narain Page 3 of 23 defendant raising false and fabricated contentions. Hence, the present suit has been filed. Declaration is also sought that lease deed dt. 22.09.1999 in favour of the defendant is null and void having been obtained by fraud. Validity of agreement dt. 04.07.1984 allegedly executed by son of plaintiff Sh. Om Prakash in favour of the defendant has also been challenged on the ground that plaintiff has no son by the name of Om Prakash.
Defendant's Case :
6. The defendant has contested the present suit by filing his WS wherein he preliminarily objected to the present suit on the ground that the plaintiff had no locus standi to file the present suit; the plaintiff has not filed the proper court fees and he has no cause of action to file the present suit and the reliefs claimed are barred by limitation.
7. On merits, it is submitted by answering defendant that the question of the plaintiff handing over possession of the suit property to the defendant does not arise in as much as the plaintiff neither has nor ever had any title or interest in the suit property and the entire story has been made up by the plaintiff with malafide intention to grab the suit property from the defendant who is the bonafide owner of the same. It is denied by the defendant that the defendant ever advanced any loan to the plaintiff and as such there was no occasion for the plaintiff to pay back the same. Other allegations of the plaint have been denied and disputed by the defendant who has prayed for dismissal of suit.
8. The plaintiff filed replication to the written statement of defendant, CS no. 91/02/01 Mohan Vs. Sat Narain Page 4 of 23 wherein he traversed the contentions raised in the written statement and reaffirmed the allegations made in the plaint.
Issues:
9. A preliminary issue was framed vide order dt. 03.07.2001.
"What is the present value of the suit property?OPP"
The said issue was disposed off vide order dt. 10.09.2004 wherein it was held that the issue framed vide order dt. 03.07.2001 has no relevance as present value of the suit property has nothing to do with the valuation of the present suit for recovery of possession. The issue was disposed off with the observation that the suit has been properly valued. The said order has attained finality.
10. From the pleadings of the parties, following issues were framed by Ld. Predecessor of this court on 08.11.2004 for trial, namely:
1. Whether the plaintiff has got any right, title or interest with respect to the suit property?OPP
2. Whether the plaintiff is entitled to the recovery of possession of the suit premises? OPP
3. Whether the plaintiff is entitled to the damages as claimed for? If so, at what rate?OPP
4. Whether the plaintiff is entitled to the relief for perpetual injunction as prayed for?OPP
5. Relief.
11. Vide order dt. 19.01.2011, the application u/o 6 Rule 17 CPC was allowed and plaintiff was directed to file amended plaint. On the amended pleadings, the following additional issues were framed vide CS no. 91/02/01 Mohan Vs. Sat Narain Page 5 of 23 order dt. 18.04.2011: 1 (a) Whether the plaintiff is entitled to decree of Redemption of the suit property?OPP 1 (b) Whether the defendant has obtained a Lease Deed dt. 22.09.1999 in his favour by committing a fraud? OPP
12. During the course of trial original plaintiff expired and his LRs were impleaded vide order dt. 02.08.2002.
Plaintiff's evidence:
13. The LR no.1 of the plaintiff Sh. Ramesh has been examined as PW1 (plaintiff has died during the pendency of the present suit). PW1 reiterated and stated on oath the contents of the plaint. PW1 has proved on record the following documents which are marked as under:
(i) Photocopy of lease deed dt. 18.05.1962 as Mark A. (During tendering of his earlier affidavit on 10.01.2003, PW1 stated on oath that original of document/lease deed Mark A was with the defendant.)
(ii) Site plan as Ex PW1/A
(iii) Legal notice dt. 12.01.2001 as Ex PW1/B
(iv) Reply dt. 27.01.2001 as Ex PW1/C
(v) Photocopy of receipt No. 849064 as Mark B
(vi) Receipt No. 273030 as Mark C
(vii) Receipt N0.50 as Mark D
(viii) Water bill as Mark E
(ix) Photocopies of receipt of Delhi Electricity Supply dt. 09.11.1970 No. 74540 and No.80328 as Mark F & G respectively.
CS no. 91/02/01 Mohan Vs. Sat Narain Page 6 of 23(x) Photocopy of letter written by Harijan Allotee Kalyan Samiti Director JJ Slum as Mark H
14. He specifically deposed that copy of patta vilekh (lease deed) dt. 18.05.1962 (Mark A) bears the photograph of his deceased father (plaintiff) at Point A/1. He further deposed that on receiving a loan of Rs. 1,12,000/ in cash from defendant, his father had vacated the suit property and handed over its vacant possession to the defendant in his presence and that of his cousin Nand Kishore (PW2). He deposed about the surviving LRs of his deceased father.
15. The plaintiff has further examined Sh. Nand Kishore as PW2. He relied upon the documents i.e letter dt. 18.05.1962 (Mark A) and stated that photograph of his maternal uncle/plaintiff was on the lease deed at Point A1. He deposed about the allotment of suit property to plaintiff, LRs of plaintiff and construction of suit property by plaintiff in consonance with deposition of PW1. He stated that he remained with plaintiff at suit property from 1970 to 1975 and his marriage was solemnized in June 1974 from the suit property. He also deposed about the mortgage in consonance with the deposition of PW1.
16. Sh. Hari Chand a member of Harijan Allottee Kalyan Samiti has been examined as PW3. He deposed that the document Ex PW3/1 bears his signatures at Point A. He also identified the signatures of Late Sh. Banarsi Dass, Late Sh. Nandram, Late Sh. Ram Gopal, Late Sh. Ganga Ram, Late Sh. Bansi and Sh. Sri Chand & Ors who put their signatures in CS no. 91/02/01 Mohan Vs. Sat Narain Page 7 of 23 his presence.
17. PW4 is a summoned witness Sh. Shankar Lal, UDC, Lease and Liquidation, Slum and JJ Deptt. MCD, Delhi. He proved on record the perpetual lease deed dt. 18.05.1962 in favour of Sh. Mohan S/o Ganga Ram as Ex PW4/1 (earlier Mark A). He also deposed that Ex PW4/1 bears photograph of Sh. Mohan Lal (the original allottee) at Point A.
18. He deposed that there was no representation of Sh. Mohan Lal to transfer the suit property on the summoned record. As per record, on request of defendant, lease deed dt. 22.09.1999 was executed in his favour. He could not tell if contents of request of defendant were verified or not. He deposed that generally death verification is done by the department but he had no personal knowledge if the same was done in this case or not. He deposed that there was no death verification report on record but an affidavit of one Om Prakash affirming the factum of death of Mohan Lal. He testified that suit property was transferred in the name of defendant on the basis of his application stating that he had purchased the suit property from one Om Prakash S/o Sh. Mohan on the basis of GPA dt. 18.05.1984. He also admitted that as per record no notice was sent to Mohan Lal or his LRs regarding receipt of this document.
Defendant's evidence:
19. The defendant examined himself as DW1. He deposed that plaintiff had no right, title or interest in the suit property. He had initially acquired suit property from Sh. Om Prakash. Subsequently, the previous allotments in the area were cancelled and the possession was regularized CS no. 91/02/01 Mohan Vs. Sat Narain Page 8 of 23 by way of a perpetual lease deed issued by DDA recognizing him as the owner of the suit property. The perpetual lease deed in this regard is Ex DW1/A1. He denied the contention of the plaintiff regarding loan and mortgage.
20. In his cross examination, DW1 testified that he had purchased the suit property from Om Prakash S/o Late Sh. Mohan Lal on seeing the document dt. 29.07.1981 (Ex DW1/A2) where it has been shown that Om Prakash is the legal heir of Late Sh. Mohan Lal who was the original allottee of suit property. Document showing transfer of suit property in favour of Sh. Om Prakash was marked as Ex DW1/A3.
21. I have heard the arguments on behalf of Ld. counsel for the parties and perused the material available on record.
FINDINGS:
22. Now, I shall proceed to give my issue wise findings: Issue no. 1 Whether the plaintiff has got any right, title or interest with respect to the suit property?OPP
23. The onus to prove this issue was upon the plaintiff. The case of the plaintiff is that he was the original allottee of the suit property. The patta vilekh/lease deed in this respect dt. 08.05.1962 in the name of Sh. Mohan S/o Sh. Ganga Ram has been proved as Ex PW4/1 by summoning the relevant record from the department through PW4. PW4 has also deposed that the photograph of the original allottee Sh. Mohan S/o CS no. 91/02/01 Mohan Vs. Sat Narain Page 9 of 23 Ganga Ram has been affixed at Point A/1 (Point A) on the backside of document Ex PW4/1. The PW1 who is son of the deceased plaintiff and PW2, nephew of the deceased plaintiff have identified the photograph at Point A/1 on document Ex PW4/1 as that of the plaintiff herein. No suggestion whatsoever has been given to PW1 or PW2 that the photograph at Point A/1 in document Ex PW4/1 is not that of plaintiff. In fact, there is no cross examination of these witnesses on the said point. Similarly, there is no cross examination of PW4 on the point that the photograph at Point A/1 (Point A) is not that of original allottee Mohan S/o Ganga Ram. Thus, the plaintiff has duly discharged the onus on him to prove that the suit property was originally allotted by a perpetual lease deed dt. 18.05.1962 in favour of the plaintiff.
24. Per contra, the case of the defendant is that the suit property was alloted to one Mohan Lal (not being the plaintiff) and he had purchased the suit property from one Om Prakash S/o Late Mohan Lal (original allottee). He has relied upon a document dt. 29.07.1981 (DW1/A2) being a letter issued by DDA, Slum & JJ Wing stating that Sh. Om Prakash has been recognized as LR of Sh. Mohan Lal who was the original allottee of Plot no. 126, Moti Bagh, JJ Colony. The other documents relied upon by defendant (DW1) is Ex DW1/3 which is a letter from Slum & JJ Department dt. 03.07.1984 to Sh. OmPrakash S/o Lt. Mohan Lal informing him that he had already been recognized as LR of original allotee Sh. Mohan Lal. It is submitted that on the basis of these documents clearly Sh. Om Prakash was the only LR of the original allottee Mohan Lal and defendant had purchased the suit property from the said Om Prakash. On the basis of said purchase a perpetual lease deed has CS no. 91/02/01 Mohan Vs. Sat Narain Page 10 of 23 already been executed in his favour i.e. Ex DW1/A1. In view of execution of a fresh perpetual lease deed by DDA in his favour he has been recognized as owner of the suit property and all the previous allotments stand cancelled. Thus, he is the owner of the suit property.
25. No efforts have been made by the defendant for summoning the record from the department to prove the documents on the basis of which Sh. Om Prakash was recognized as LR of the original allottee Mohan Lal. Even the said Om Prakash has not been summoned or produced as a witness in support of his case.
26. On the other hand, the plaintiff has examined a witness from the department as PW4. During his deposition PW4 has categorically stated that there is no verification report in the entire file regarding the factum of death of Mohan Lal. There was only an affidavit of Sh. Om Prakash given to the department affirming the fact that Mohan Lal had expired. There was no verification report regarding the relation of Sh.Om Prakash with Sh. Mohan Lal on the summoned record. The basis of transferring the lease deed in favour of the defendant was only his application that he had purchased the suit property from one Sh. Om Prakash S/o Mohan Lal on the basis of GPA dt. 08.05.1984. Since the said GPA was registered, no other verification was made. PW4 had admitted that the department had acted only on the basis of affidavit, mutation documents and indemnity bond submitted by Om Prakash wherein he had stated that he was the only son of Mohan Lal. No notice was sent to Mohan Lal or his LR because Om Prakash had given an affidavit and an indemnity bond stating that he was the only son/LR of deceased Mohan Lal. In his cross CS no. 91/02/01 Mohan Vs. Sat Narain Page 11 of 23 examination, he also stated that as per their record the file produced was the complete record qua the suit property.
27. Thus, from the evidence on record, it is absolutely clear that no proper verification has been done by the concerned Slum & JJ Department before recognizing Sh. Om Prakash as the only legal heir of original allottee Mohan Lal and prior to issuance of documents Ex DW1/A2 & A3. Document Ex DW1/A3 also contains a clear statement the in case it is discovered that the mutation has been obtained by mis statement, mis representation or fraud, the action taken will be liable for cancellation without any compensation. Thus, the claim of the defendant that in view of execution of perpetual lease deed dt. 22.09.1999 (Ex DW1/A1) in his favour, all previous allotments stands cancelled holds no water.
28. In a civil trial, the case has to be decided on the basis of preponderance of probabilities. Considering the evidence that has been produced on record, the case of the plaintiff appears to be more probable and acceptable. The nonquestioning and nonchallenging of the statements of PW1, PW2 & PW4 that the original lease document Ex PW4/1 bears the photograph of plaintiff at Point A/1 is clearly supporting the case of the plaintiff. Moreover, the defendant has stated in paragraph 6A of his WS that one Sh. Om Prakash claiming himself to be son of the plaintiff had executed an agreement dt. 04.07.1984 in his favour. This is also an admission regarding the allotment of suit property to the plaintiff and not to some other Mohan Lal as alleged by the defendant.
CS no. 91/02/01 Mohan Vs. Sat Narain Page 12 of 2329. Thus, from the evidence on record, I have no hesitation in holding that plaintiff was the original allottee of the suit property. In view of the reasons given above, this issue is decided in favour of the plaintiff and against the defendant.
Issue no.1 (a) Whether the plaintiff is entitled to decree of Redemption of the suit property?OPP
30. The case of the plaintiff is that he had mortgaged the suit property by handing over the possession of the suit property to the defendant in consideration of loan of Rs. 1,12,000/ on the understanding and assurances of the defendant that on paying back of said loan amount by the plaintiff, the defendant shall vacate and deliver back the possession of the suit property to the plaintiff. It was mutually and orally agreed between the parties that the plaintiff shall not claim any rent for the suit property and defendant shall not charge any interest on the loan amount so advanced to the plaintiff. With great difficulties the plaintiff made arrangements for paying back the loan amount and sent notice dt. 12.01.2001 (Ex PW1/B) through his counsel to the defendant showing his intention to pay back the loan amount and to have the possession of the suit property and giving one month time to the defendant for making arrangements for alternate accommodation. The said notice was duly served upon the defendant but he failed to comply with the same. Thus, the plaintiff is entitled to the redemption of the mortgage.
31. In order to prove his case, PW1 had deposed all these facts in his evidence by way of affidavit (Ex PW1/X). It is also deposed by PW1 that the loan amount was received in cash from defendant. Plaintiff had CS no. 91/02/01 Mohan Vs. Sat Narain Page 13 of 23 vacated and handed over the vacant possession of the suit property to the defendant in the presence of PW1 & PW2. Interestingly PW1 has not been cross examined on the said point.
32. It is argued by Ld. counsel for the defendant that PW2 had not supported the testimony of PW1 to this effect. Although PW2 had deposed about the vacation of the suit property by the plaintiff in favour of the defendant against the loan of Rs.1,12,000/, however, he never stated that this was done in his presence. Although, the said submission made by Ld. counsel for the defendant is factually correct ,however, it does not take away credence from the deposition of PW1 to the said effect which has not even been challenged in the cross examination. Although PW2 has not deposed about his presence at the time of handing over of the possession of the suit property to the defendant but he has also not denied the same. In these circumstances, the unrebutted testimony of PW1 to this effect shall stand. Even if it is presumed that PW2 was not present at the said time presence of PW1 at the time of said transaction has been duly proved on record.
33. Interestingly, in the cross examination of PW1, a suggestion has been given to the effect that the transaction that had taken place qua the suit property was for sale and not for loan. This is a positive averment made on behalf of defendant clearly indicating that there was some transaction between the plaintiff and the defendant qua the suit property. This also reflects to the falsity of the claim of the defendant that the suit property was never allotted to the plaintiff.
CS no. 91/02/01 Mohan Vs. Sat Narain Page 14 of 2334. The service of legal notice (Ex PW1/B) showing the intention of the plaintiff to redeem the mortgage is not disputed as the same was also replied to vide reply dt. 27.01.2001 (Ex PW1/C).
35. It has been argued by Ld. counsel for the defendant that the mortgage of the suit property as per the case of the plaintiff was a usufructuary mortgage as defined in Section 58 (d) of Transfer of Property Act, 1882 for a sum of Rs.1,12,000/. Accordingly, by virtue of Section 59 of Transfer of Property Act, 1882 it could be effected only by way of a registered document signed by mortgagor and attested by atleast two witnesses. In view of nonregistration of the mortgage in the present case, the plaintiff is not entitled to claim any redemption of the same. Reliance in this regard has been placed upon the decision of Superior Courts in
(i) Fulchand Munda Vs State of Bihar, AIR 2008 SCC 1139
(ii) Kolathoor Variath Vs Pairaprakottoth cheria, AIR 1974 SC 689
36. I have carefully perused the citations relied upon by Ld. Counsel for defendant. Section 59 of Transfer of Property Act is reproduced hereinunder for the sake of convenience:
59. Mortgage when to be by assurance.Where the principal money secured is one hundred rupees or upwards, a mortgage (other than a mortgage by deposit of title deeds) can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.
CS no. 91/02/01 Mohan Vs. Sat Narain Page 15 of 23Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid or (except in the case of a simple mortgage) by delivery of the property.
37. A bare perusal of Section 59 of Transfer of Property Act clearly shows that there is an exception to the registration of mortgage i.e. in case there is mortgage by deposit of title deeds, it does not require any registration or written agreement.
38. In the instant case, earlier evidence was led on the point of valuation of the suit property. At that time PW1 Ramesh had tendered his affidavit in evidence on 10.01.2003 and had relied upon the allotment letter dt. 18.05.1962 in favour of the plaintiff which was marked as Mark A. At the time of tendering of said document, PW1 had categorically stated that the original of the said document/patta vilekh was with the defendant. There was no cross examination of PW1 to that effect. Not even a suggestion was given that the said document in original was not lying with the defendant.
39. Similarly, evidence was also led by defendant on the point of valuation. In his crossexamination recorded on 28.02.2003 the defendant had testified that he had obtained the original documents of allotment. This is a clear and unambiguous admission of the defendant of being in possession of the title documents of the suit property.
CS no. 91/02/01 Mohan Vs. Sat Narain Page 16 of 23Moreover, at the time of cross examination of PW1 later on, a suggestion has been given to the witness that he did not have any receipt of any alleged handing over of the title deed to the defendant which was admitted by PW1. However, no suggestion has been given that the original lease deed was never handed over to the defendant by the plaintiff. DW1 in his subsequent evidence has also not denied that he is not in possession of original lease deed. Infact, his entire evidence is absolutely silent on this issue.
40. Despite admission of the defendant of being in possession of the title documents of the suit property, he has failed to explain his possession thereof. His claim of having purchased the suit property from Om Prakash has already been rejected. Thus, testing on the scale of preponderance of probabilities, I have no hesitation in holding that on the basis of evidences on record it has been proved that the suit property was mortgaged by the plaintiff with the defendant and alongwith the vacant possession of the suit property, the title documents of the suit property were also handed over to the defendant at the time of creation of mortgage. Thus, the mortgage was not required to be compulsorily registered under Section 59 of Transfer of Property Act, 1882
41. In view of the reasons given above, it is held that the plaintiff is entitled to a decree of redemption of the suit property. This issue is accordingly decided in favour of the plaintiff and against the defendant.
Issue no. 1 (b) Whether the defendant has obtained a Lease Deed dt. 22.09.1999 in his favour by committing a fraud? OPP CS no. 91/02/01 Mohan Vs. Sat Narain Page 17 of 23
42. The onus to prove this issue was upon the plaintiff. In view of my findings given under issue no.1 above, it has been proved on record that plaintiff was the original allottee of the suit property. The case of the defendant is that he had purchased the suit property vide agreement dt. 04.07.1984 from one Om Prakash S/o deceased Mohan Lal (original allottee). The said agreement dt. 04.07.1984 has not been placed or proved on record. The plaintiff was the original allottee of the suit property as held earlier. He was alive at the time of filing of the present suit i.e. in the year 2001 and expired only on 18.04.2002 where after his LRs were brought on record. Thus, the agreement dt. 04.07.1984 for sale of suit property by one Sh. Om Prakash claiming himself to be son of deceased Sh. Mohan Lal (original allottee) is definitely a null and void agreement. On the basis of said agreement and sale, the defendant had obtained the lease deed dt. 22.09.1999. The plaintiff has duly proved on record that he had handed over the possession of the suit property to the defendant in view of the mortgage against a loan of Rs.1,12,000/ in May, 1984. Thus, execution of documents dt. 04.07.1984 after the said mortgage in respect of the property despite being aware of the fact that the plaintiff was the original allottee of the suit property, clearly shows that the defendant had obtained the lease deed dt. 22.09.1999 by committing a fraud in connivance with one Sh. Om Prakash. This issue is accordingly decided in favour of the plaintiff and against the defendant.
Issue no.2 Whether the plaintiff is entitled to the recovery of possession of the suit premises? OPP
43. The onus to prove this issue was on the plaintiff. As discussed and held in the issues herein above, the plaintiff has duly proved that he was CS no. 91/02/01 Mohan Vs. Sat Narain Page 18 of 23 the original allottee in respect of the suit property, he had mortgaged the suit property for a sum of Rs. 1,12,000/ with the defendant by handing over vacant physical possession as well as title documents of the suit property to him; he had duly served a legal notice (Ex.PW1/B) upon the defendant for redemption of the mortgage and handing over the vacant physical possession of the suit property to him; the defendant had failed to comply with the said notice and plaintiff is ready and willing to pay the loan amount of RS.1,12,000/ to the defendant. Considering these findings and the finding while deciding Issue No.1 (a) that the plaintiff is entitled to a decree of redemption of suit property, I have no hesitation in holding that as necessary corollary, the plaintiff is entitled to recovery of possession of the suit property. This issue is accordingly, decided in favor of the plaintiff and against the defendant.
Issue no.3 Whether the plaintiff is entitled to the damages as claimed for?If so, at what rate?OPP
44. The onus to prove this issue was on the plaintiff. The plaintiff had duly served the legal notice dated 12.01.2001 (PW1/B) upon the defendant for redemption of the mortgage and handing over vacant physical possession of the suit property to him within one month of the notice. The defendant had failed to comply with the said notice thus, he was in illegal possession of the suit property since 12.02.2001 as he was given one month time for vacation of the suit property. Since the defendant is in illegal and unauthorized possession of the suit property and had refused to redeem the loan amount and return the suit property to the plaintiff, the plaintiff has been deprived of his lawful rights to occupy and use the suit property. Thus, he is entitled to claim damages CS no. 91/02/01 Mohan Vs. Sat Narain Page 19 of 23 from the defendant.
45. As regards the quantum of damages, the plaintiff has claimed damages @ Rs. 10,000/ per month w.e.f. March 2001 till the possession of the suit property is restored to him. No evidence has been led on behalf of the plaintiff as regards the quantum of damages. However, admittedly the suit property is admeasuring about 92 sq. yards and is situated in Satya Niketan, New Delhi. The defendant in his own affidavit dated 06.02.2003 has stated that the suit property is a 2.5 storey constructed building located at 126, Ring Road, Satya Niketan, New Delhi which is a residential area. It falls within the close proximity to civic amenities like Shri Venkateswara College, B.R. Sur Homeopathic Hospital, Charak Palika NDMC Hospital, Anand Niketan, Shanti Niketan Market, Springdales School, Computer Centers, Shopping Arcades, Cinema Hall, Mother Dairy etc. It is at a distance of about 200 meters from the ring road having 2530 ft. Pucca road on the front side and 1012 ft. Pucca road on the back side. There is no jhuggi in the vicinity of the suit property and all the houses in the said residential area are pucca houses. There are authorized electricity and water connections in whole of the residential area. The entire area is well developed and is in close proximity from south campus. All the residents of the locality are well educated and economically well off. Total value of the suit property is about Rs. 61,50,200/ as on 15.04.2001. The defendant has also relied upon the valuation report of Sh. B.P. Singh, a government approved valued dated 15.04.2001 which is Ex.DW2/1 in support of his deposition regarding the location and valuation the suit property.
CS no. 91/02/01 Mohan Vs. Sat Narain Page 20 of 2346. It is a settled law that even if no evidence is led on the point of damages/mesne profit, the court can take into consideration the location of the property and other details in arriving at a justified amount of damages to be paid to the plaintiff. Reliance in this regard is placed upon the decision of our own High Court in National Radio & Electronic Co. Vs Motion Pictures Association 122 (2005) DLT 629.
47. Considering the own admissions of the defendant regarding the location and neighbouring areas of the suit property I am of the opinion that damages of RS. 10,000/ are not excessive but appropriate as the property can fetch at least RS. 10,000/ as rental income.
48. In these circumstances, damages @ RS. 10,000/ per month are awarded in favor of the plaintiff and against the defendant w.e.f. March 2001 till the handing over of the vacant possession of the suit property to the plaintiff by the defendant. This issue is accordingly decided in favor of the plaintiff and against the defendant. However, this relief shall be executable after filing of necessary court fees.
Issue no.4 Whether the plaintiff is entitled to the relief for perpetual injunction as prayed for?OPP
49. The plaintiff has sought a perpetual injunction restraining the defendant from alienating, transferring in any manner the possession of the suit property or creating any third party interest in the suit property. In view of my findings given above, the plaintiff is the original allottee of the suit property and defendant has no right, title or interest therein.
CS no. 91/02/01 Mohan Vs. Sat Narain Page 21 of 23Thus, the plaintiff is entitled to the relief of perpetual injunction as claimed. This issue is accordingly, decided in favor of the plaintiff and against the defendant.
RELIEF
50. In the light of above discussion, the suit of the plaintiff is decreed and following reliefs are granted in his favour:
(i) A decree of redemption of the suit property bearing no. 126, Ring Road, JJ Colony, Mochi Bagh (Satya Niketan), New Delhi as shown in red colour in the site plan Ex PW1/A is passed in favour of plaintiff and against the defendant.
(ii) As a necessary corollary to Relief No. (i), A decree of possession of the property No. 126, Ring Road, JJ Colony, Mochi Bagh (Satya Niketan), New Delhi as shown in red colour in the site plan Ex PW1/A is also passed in favour of the plaintiff and against the defendant.
(iii) A decree of damages @ Rs.10,000/ per month are awarded in favor of the plaintiff and against the defendant w.e.f. March 2001 till the handing over of the vacant possession of the suit property to the plaintiff by the defendant. This shall be executable only after filing of necessary court fees.
(iv) A decree of perpetual injunction is passed in favour of plaintiff and against the defendant thereby restraining the defendant from alienating, transferring or creating third party interest in the suit property bearing No. 126, Ring Road, JJ Colony, Mochi Bagh (Satya Niketan), New Delhi.
CS no. 91/02/01 Mohan Vs. Sat Narain Page 22 of 23(v) A decree of cancellation of lease deed dt. 22.09.1999 is passed in favour of plaintiff and against defendant and it is declared that lease deed dt. 22.09.1999 executed in favour of the defendant on the basis of agreement dt. 04.07.1984 is null and void.
(vi) A decree of declaration is also passed in favour of the plaintiff and against the defendant thereby declaring plaintiff to be the original allottee of property bearing no. No. 126, Ring Road, JJ Colony, Mochi Bagh (Satya Niketan), New Delhi by virtue of lease deed dt. 18.05.1962 (Ex PW4/1).
(vii) Cost of the suit is also awarded in favour of the plaintiff and against the defendant.
51. Decree sheet be prepared accordingly. Site plan (Ex PW1/A), lease deed dt. 18.05.1962 (Ex PW4/1) and cancelled lease deed dt. 22.09.1999 (Ex DW1/A1) shall form a part of the decree sheet.
52. File be consigned to Record Room, after due compliance.
Announced in the open court today i.e 24th January, 2015 (Shivali Sharma) Additional Senior Civil Judge:
Central District: Tis Hazari Courts: Delhi CS no. 91/02/01 Mohan Vs. Sat Narain Page 23 of 23 CS no.91/02/01 Mohan Vs Sat Narain 24.01.2015 Present: Ld. Proxy counsel for the plaintiff.
Defendant in person.
Vide separate order pronounced in the open court, the suit of the plaintiff is decreed and following reliefs are granted in his favour:
(i) A decree of redemption of the suit property bearing no. 126, Ring Road, JJ Colony, Mochi Bagh (Satya Niketan), New Delhi as shown in red colour in the site plan Ex PW1/A is passed in favour of plaintiff and against the defendant.
(ii) As a necessary corollary to Relief No. (i), A decree of possession of the property No. 126, Ring Road, JJ Colony, Mochi Bagh (Satya Niketan), New Delhi as shown in red colour in the site plan Ex PW1/A is also passed in favour of the plaintiff and against the defendant.
(iii) A decree of damages @ Rs.10,000/ per month are awarded in favor of the plaintiff and against the defendant w.e.f. March 2001 till the handing over of the vacant possession of the suit property to the plaintiff by the defendant. This shall be executable only after filing of necessary court fees.
(iv) A decree of perpetual injunction is passed in favour of plaintiff and against the defendant thereby restraining the defendant from alienating, CS no. 91/02/01 Mohan Vs. Sat Narain Page 24 of 23 transferring or creating third party interest in the suit property bearing No. 126, Ring Road, JJ Colony, Mochi Bagh (Satya Niketan), New Delhi.
(v) A decree of cancellation of lease deed dt. 22.09.1999 is passed in favour of plaintiff and against defendant and it is declared that lease deed dt. 22.09.1999 executed in favour of the defendant on the basis of agreement dt. 04.07.1984 is null and void.
(vi) A decree of declaration is also passed in favour of the plaintiff and against the defendant thereby declaring plaintiff to be the original allottee of property bearing no. No. 126, Ring Road, JJ Colony, Mochi Bagh (Satya Niketan), New Delhi by virtue of lease deed dt. 18.05.1962 (Ex PW4/1).
(vii) Cost of the suit is also awarded in favour of the plaintiff and against the defendant.
Decree sheet be prepared accordingly. Site plan (Ex PW1/A), lease deed dt. 18.05.1962 (Ex PW4/1) and cancelled lease deed dt. 22.09.1999 (Ex DW1/A1) shall form a part of the decree sheet.
File be consigned to Record Room, after due compliance.
(Shivali Sharma) ASCJ/Central/Delhi 24.01.2015 CS no. 91/02/01 Mohan Vs. Sat Narain Page 25 of 23