Delhi District Court
Smt. Parvesh Rani vs Kewal Krishan ( Deceased Through L.Rs) on 30 April, 2011
IN THE COURT OF SH. PITAMBER DUTT; ADJ (CENTRA)17,DELHI
Suit No. 71/04
Unique Case ID No. 02401C5160832004
1. Smt. Parvesh Rani
W/o Late Sh. Kasturi Lal
2. Sh. Vinod Kumar
S/o Late Sh. Kasturi Lal
3. Smt. Anju
W/o Late Sh. Indrash Budhiraja
All R/o H32, Ground Floor,
Ashok Vihar, PhaseI, Delhi
4. Smt. Promila
W/o Sh. Suran Arora
R/o 104, Kohat Enclave
Pitam Pura, Delhi
5. Smt. Sudha Nagpal
W/o Shri Ashok Nagpal
R/o 461, Kohat Enclave
Pitam Pura, Delhi
6. Smt. Poonam Khanna
W/o Man Mohan Khanna
R/o 114, Mukherjee Nagar,
Delhi .....Plaintiff
Versus
Kewal Krishan ( Deceased through L.Rs)
(i) Smt. Chanchal Rani
Widow of late Sh. Kewal Krishan
(ii) Sh. Vikrant
S/o late Sh. Kewal Krishan
Suit no. 71/04 1/37
Both R/o H32, First Floor,
Ashok Vihar, Phase I,
Delhi
(iii) Sh. Vikas
S/o late Sh. Kewal Krishan
R/o H32, First Floor,
Ashok Vihar, PhaseI
Delhi 110052
(iv) Smt. Renu
R/o 66, Bharat Nagar,
Delhi
(v) Smt. Sangeeta
R/o SA12, Opp. Vishal Department
Mansrover Garden, Delhi
.....Defendant
Date of Institution of Suit : 04.06.2004
Date when reserved for orders : 25.04.2011
Date of Decision : 30.04.2011
JUDGMENT
1 Vide this judgment I shall decide the suit filed by the plaintiff against the defendant for recovery of possession, damages/ mesne profit and permanent injunction. The brief fact necessitating in filing the present suit are given as under:
2 That late Sh. Kasturi Lal, husband of plaintiff no. 1 and father of plaintiff no. 2 to 6 and defendant are the coowner of the property bearing no. H32, Ashok Vihar, PhaseI, Delhi52. Shri Suit no. 71/04 2/37 Kasturi Lal filed a suit for declaration against defendant with regard to the above property. In that suit, defendant admitted his claim, accordingly a consent decree dated 19.11.1979 was passed by the court of Shri B.L. Garg, the then Sub Judge, Delhi. By virtue of the said consent decree Shri Kasturi Lal and defendant became the coowner of the above property. On 11.09.1980 an agreement was entered into between Sh. Kasturi Lal and the defendant whereby it was agreed that additional construction in the open portion of first floor would be raised and till date construction is complete, defendant shall be allowed to occupy one room in the ground floor. Pursuant to the agreement dated 11.09.80 defendant was allowed to occupy one room i.e suit property on the ground floor as a licensee for residential purposes only.
The plaintiffs were/are always ready and willing to perform their part of the agreement dated 11.09.1980. The plaintiff further alleged that in 1995 intention of the defendant became bad and he started raising construction in the open portion of first floor, accordingly late Sh. Kasturi Lal filed a suit for partition of undivided part of property bearing no. H32, Ashok Vihar, PhaseI, Delhi52. the said suit was dismissed by the court of Sh. D.S. Pawaria, the then Ld. ADJ vide order dated 18.10.2003 and an appeal against that judgment is pending.
Suit no. 71/04 3/37 3 In terms of the agreement dated 11.09.1980, defendant was bound to restore the possession of the suit property to the plaintiff on the completion of the construction at the first floor but he has not removed his belongings, thus, violated the terms of the agreement. The defendant has no right to remain in possession of the suit property, accordingly plaintiff served a legal notice dated 13.04.2004 upon the defendant whereby his license was terminated and he was called upon to deliver the possession within 15 days of the service of the notice. The said notice was duly served upon the defendant, however, despite the service of the said notice, defendant has neither replied the same nor handed over the possession of the suit property. The occupation of the defendant in the suit premises is thus of an unauthorised occupant, therefore he is liable to pay Rs. 10,000/ per month as damages for illegal use and occupation of the suit property w.e.f 01.05.2004.
On the basis of the above, present suit has been filed for adjudication.
4 Pursuant to the summons defendant appeared and filed written statement taking various preliminary objection. That the agreement dated 11.09.1980 is not admissible in evidence or in alternative the said agreement is not enforceable in law. That suit is barred by the provision of Order 2 Rule 2 CPC. That the suit is barred by time. That the defendant has acquired the right of ownership by Suit no. 71/04 4/37 adverse possession. That the decree dated 27.11.1979 passed in suit no. 431/79 was obtained by the plaintiff by playing fraud and mis representation and same was not registered under Registration Act, as such same is not enforceable. That suit has not been properly valued. 5 On merit it is stated that defendant in open auction had given a bid of Rs. 19,400/ which was accepted by the DDA and possession letter of property bearing no. H32, Ashok Vihar, was issued in favour of defendant. He submitted the plan for raising construction, which was also sanctioned in his name. He constructed, ground floor and portion of first floor out of his own funds and completion certificate was issued in his name. Sh. Kasturi Lal never paid any amount nor he contributed any amount toward construction. The plaintiff had earlier filed suit no. 431/79 against him but he obtained the consent decree by playing fraud upon him. He further stated that plaintiffs by playing fraud got his signatures on letters addressed to the DDA for including the name of late Sh. Kasturi Lal as coowner during the pendency of the suit bearing no. 12/95. He further stated that agreement dated 11.09.1980 is inadmissible in evidence. He denied that in terms of agreement dated 11.09.1980, defendant was allowed to occupy one room as licensee with the permission and consent of Sh. Kasturi Lal for residential purposes. He stated that he is in possession of the room since 197677 onwards. Suit no. 71/04 5/37 He further, stated that being the exclusive owner he started construction on the first floor with his own funds and completed the said new construction prior to filing of suit no. 12/95. He denied that his possession in the suit property was of a mere licensee which has been terminated vide legal notice dated 13.04.2004. He further stated that defendant was under no obligation to deliver the possession to the plaintiffs nor he is liable to pay damages/ mesne profit @ Rs. 10,000/ per month w.e.f 1.5.2004 nor liable to pay future damages. All other averments have also been replied. It is prayed that suit may be dismissed with cost.
6 Plaintiff filed replication thereby denied the averment made in the written statement and reiterated the averment made in the plaint.
7 On the basis of the pleadings of the parties, vide order dated 02.06.2007 following issues have been framed for adjudication: Issue no. 1 Whether the plaintiffs are entitled to a decree to possession as prayed for? OPP Issue no. 2 Whether the plaintiff are entitled to a decree of damages/mesne profits with interest, if so, at what rate and for what period? OPP Issue no. 3 Whether the plaintiffs, are entitled to a decree of permanent injunction as prayed for ? OPP Suit no. 71/04 6/37 Issue no. 4 Whether the plaintiffs are entitled to pendente lite and future damages/mesne profits, if so, at what rate and for what period? OPP Issue no. 5 Whether the agreement dated 11.09.1980 is admissible in evidence? OPP Issue no. 6 Whether the agreement dated 01.09.1980 has been executed between the parties? OPP Issue no. 7 Whether the plaintiffs committed breach of terms and conditions of the agreement either dated 01.09.1980/11.09.1980? OPD Issue no. 8 Whether the suit is barred under the provision of Order 2 Rule 2 CPC? OPD Issue no. 9 Whether the suit is barred by law of limitation? OPD Issue no. 10 Whether the defendant has acquired the right of ownership by adverse possession qua the room in dispute? OPD Issue no. 11 Whether the suit is barred by the principle of law of estopple?
OPD Issue no. 12 Whether the plaintiff is entitled to take benefits under the decree dated 27.11.1979? OPD Issue no. 13 Whether the suit has not been valued properly for the purposes of court fees and jurisdiction? OPD Issue no. 14 Relief 8 Vide order dated 19.12.2007 issues were reframed whereby issue no. 6 was deleted and issue no. 7 & 12 were reframed as under: Issue no. 7 Whether the plaintiff committed breach of terms and conditions of the agreement dated 11.09.1980? OPD Issue no. 12 Whether the plaintiff is entitled to take benefit under the decree dated 22.11.1979? OPD Suit no. 71/04 7/37 9 In order to prove their case plaintiffs examined Sh. Vinod Kumar as PW1 who reiterated the averment made in the plaint in his examination in chief. He exhibited the copy of the power of attorney as Ex. PW1/1, Certified copy of the consent decree dated 21.12.79 as Ex. PW1/2, Copy of the letter dated 22.12.79 as Ex. PW1/3, Copy of letter dated 29.02.80 as Ex. PW1/4, Copy of the notice dated 22.01.81 as Ex. PW1/5, Letter dated 23.02.81 as Ex. PW1/6, Certified copy of the order dated 26.08.91 as Ex. PW1/7, Copy of the mutation letter dated 19.04.04 as Ex. PW1/8, Mutation letter dated 20.11.97 as Ex. PW1/7A. Statement of DW1 in the previous suit as Ex. PW1/9, Copy of agreement dated 11.09.1980 as Ex. PW1/10, Site plan Ex. PW1/11, Copy of the previous suit as Ex. PW1/12, Written statement as Ex. PW1/13, Copy of report of Local Commissioner in the previous suit as Ex. PW1/14, Legal notice dated 13.04.2004 as Ex. PW1/5, Postal receipt as Ex. PW1/16, UPC Ex. PW1/17, the photographs as Ex. PW1/18, negatives as Ex. PW1/19. 10 Sh. Vinod Kumar also examined himself in rebuttal and exhibited the copy of reply to the application under order 39 Rules 1 & 2 CPC filed by the defendant in the previous suit as Ex. PW1/19 and the order dated 5.12.1995 as Ex. PW1/20.
11 Plaintiff also examined Shri R.K. Gupta, Assistant Zonal Suit no. 71/04 8/37 Inspector, MCD as PW2 who exhibited the letter dated 9.3.79 as Ex. PW2/1, letter dated 23.08.94 as Ex. 2/2, letter dated 22.12.79 submitted by Kasturi Lal and Kewal Kishan with the MCD, as Ex. PW2/3. Letter dated 28.02.80 as Ex. PW2/4, letter dated 23.02.80 as Ex. PW2/5, Assessment order of income tax Ex. PW2/6 & PW2/7, affidavit of Kewal Kishan as Ex. PW2/8.
Plaintiff also examined Sh. J.M. Kalra, Advocate as PW3 and Sh. Ram Shakal Mazi, T.A Income Tax Office as PW4. 12 In order to answer the claim of the plaintiff, defendant examined himself as DW1 and reiterated the averment made in the written statement in his examination in chief.
13 I have heard both the ld. counsel for the parties and perused the pleadings, evidence and other material placed on record. My issuewise findings is as under:
Issue no. 1: Whether the plaintiffs are entitled to a decree to possession as prayed for? OPP Issue no. 5: Whether the agreement dated 11.09.1980 is admissible in evidence? OPP Issue no. 7: Whether the plaintiff committed breach of terms and conditions of the agreement dated 11.09.1980? OPD
14 Issue no. 1, 5 & 7 are taken together as they are interconnected. The onus of issue no. 1 & 5 are upon the plaintiff Suit no. 71/04 9/37 whereas onus to prove issue no. 7 is upon the defendant. 15 The plaintiffs have taken a plea that Sh. Kasturi Lal, husband of plaintiff no. 1 and father of plaintiff no. 2 to 6 and defendant became coowner of property bearing no. H32, Ashok Vihar, PhaseI, Delhi by virtue of a consent decree dated 19.11.79. By that decree, plaintiff became the absolute owner of ground floor whereas the defendant became the absolute owner of first floor of the property. The property duly mutated in their respected names with the MCD and DDA. On 11.9.1980 an agreement was executed between Sh. Kasturi Lal and the defendant whereby defendant was allowed to occupy the suit premises as a licensee till the additional construction at the open portion of first floor is made. However, defendant did not deliver the possession to the plaintiff after completion of the construction and even despite the service of the legal notice. 16 On the other hands defendant has taken a plea in the written statement that plot No. H32, Ashok Vihar was purchased by him in an open auction and he raised construction from his own funds. Sh. Kasturi Lal never contributed any amount and defendant continue to be the exclusive owner of the whole property. He further pleaded that Kasturi Lal had obtained a decree against him by playing fraud and misrepresentation. The said decree was also not registered under Suit no. 71/04 10/37 the Indian Registration Act, thus same is not enforceable. He further taken a plea that Kasturi Lal committed breach of the terms and conditions of agreement dated 11.9.1980, therefore the suit is not maintainable.
17 Plaintiff has placed on record the consent decree dated 22.11.79 passed in suit no. 431/79 titled as Kasturi Lal Vs Kewal Kishan as Ex. PW1/2. A perusal of the said decree shows that Sh. Kasturi Lal was declared owner of the entire ground floor forming part of property bearing no. H32, Ashok Vihar alongwith lease hold rights whereas defendant was declared owner in respect of entire first floor of the property alongwith lease hold rights. The said decree has been duly registered as per the Indian Registration Act. The defendant in the written statement pleaded that the above decree was obtained by playing fraud and misrepresentation, however, when he appeared in the witness box, he has not uttered a word in his entire examination in chief Ex. DW1/X to the effect that Sh. Kasturi Lal had obtained the said decree Ex. PW1/2 fraudulently. Moreover the consent decree was passed by the court on 22.11.79. The defendant has not challenged the validity of the said decree before any forum till date, therefore, the consent decree Ex. PW1/2 has attained finality and same is enforceable in law.
Suit no. 71/04 11/37 18 Pursuant to the consent decree Ex. PW1/2, ground floor of the property was mutated in the record of MCD in the name of Kasturi Lal vide mutation order dated 19.04.1994 Ex. PW1/8 as well as in the record of DDA vide Mutation order Ex. PW1/7A. The defendant during crossexamination has admitted that in DDA record mutation was done in the name of Kasturi Lal as coowner. He further admitted that he received a mutation letter Ex. PW1/8 from MCD. He further stated that he has not challenged the mutation order passed by the DDA & MCD.
19 Plaintiff has also placed on record letter Ex. PW1/4 dated 28.02.1980 addressed to the Deputy Assessor & Collector, Rajpur Road, Delhi. The said letter was written by Sh. Kasturi Lal and the defendant. The defendant during crossexamination has admitted his signatures over the letter Ex. PW1/4. However he volunteered that he signed the letter under pressure of his brother. He admitted that he has not written any letter or served any notice upon his brother or their family members since 1980 till date conveying them that he had been forced to sign the letter Ex. PW1/4. The above testimony of DW1 clearly shows that the defendant put his signatures over the letter Ex. PW1/4 without any pressure and now he is just trying to wriggle out from it by taking a plea that he was pressurized to sign the same. A perusal of the letter Ex. PW1/4 shows that the consent decree Ex. Suit no. 71/04 12/37 PW1/2 was acted upon by the defendant who submitted the same to the MCD for Sub Division of RV. The defendant has also admitted that letter dated 22.12.79 Ex. PW2/3 and affidavit Ex. PW2/8 has been signed by him. He admitted that same was submitted to the Corporation. A perusal of Ex. PW2/3 & PW2/8 clearly shows that defendant admitted and acted upon the consent decree Ex. PW1/2 vide which Kasturi Lal was declared owner of entire ground floor whereas defendant was declared owner of entire first floor. 20 From the perusal of the above, it is amply clear that late Kasturi Lal, husband of plaintiff no. 1 and father of plaintiff no. 2 to 6 became the owner of entire ground floor of property bearing no. H32, Ashok Vihar, PhaseI, Delhi and the said portion is duly mutated in his name in the MCD and the DDA.
21 Shri Kasturi Lal being the owner of ground floor of the property entered into an agreement dated 11.09.1980 Ex. PW1/10 with the defendant. Clause 2 ( 1) of the agreement stipulates as under: " That the additional new construction at the first floor will be made with the joint funds and cost of both the parties. At present, the Ist floor accommodation is somewhat less than the construction on the ground floor and, therefore, further construction Suit no. 71/04 13/37 will be made at the first floor according to the accommodation existing at the ground floor and the cost of such accommodation will be borne by both the parties in equal shares. Till the construction is made on the first floor, the party of the second part shall occupy one room on the ground floor."
22 In the written statement defendant has denied that in terms of the agreement dated 11.9.80, he was allowed to occupy one room as licence. He stated that he is in possession of the room since 197677. However in para 5 & 10 of his examination in chief Ex. DW1/X, DW1 has admitted that he came into possession of the room in question on 11.9.80. DW1 during crossexamination has also admitted that he entered into an agreement Ex. PW1/10 with his brother.
23 Ld. counsel for the defendant would argue that plaintiff violated the essential terms of the agreement Ex. PW1/10, therefore, they are not entitle for possession of the room in question. He further contended that as per the agreement Ex. PW1/10 the construction at the first floor was to be raised with the joint funds of the parties, however, plaintiffs have not contributed any amount for the construction and same was raised by the defendant out of his own funds, therefore, plaintiff cannot claim possession of the room in Suit no. 71/04 14/37 question because they have violated the essential terms of the agreement Ex. PW1/10.
24 On the other hand ld. counsel for the plaintiff would argue that plaintiffs have not violated any terms of the agreement rather it is the defendant who violated the essential terms of the agreement by starting construction unilaterally without intimating the said fact to the plaintiffs. He further contended that defendant was under obligation to deliver the possession of the suit premises after completion of the construction at the first floor, but he failed to do so. 25 In order to prove their case plaintiff examined Sh. Vinod Kumar as PW1. During crossexamination PW1 admitted that it was settled that further construction on the first floor would to be made with the joint funds of the parties and after the said construction is made with joint funds, the defendant would hand over the possession of the room in dispute to the plaintiff. He further stated that entire amount for raising new construction in the year 199596 was spent by the defendant. He further admitted that his father had not spent any amount for raising the construction on the second floor during the period of 199596 as no amount was demanded by the defendant at the time of raising the said construction.
Suit no. 71/04 15/37 26 Defendant examined himself as DW1. During his cross examination DW1 stated that he does not remember the date and month when the additional construction on the first floor was started, however, same was started in the year 1995. He has not sent any intimation to his brother Kasturi Lal to show his intention for raising construction on the first floor. He volunteered that he had orally informed Sh. Kasturi Lal about the said construction. He denied that he never made any request to Sh. Kasturi Lal orally to contributed financially in construction. He spent an amount of Rs. 5 lacs as far as he remember in the said construction. He deposed that he is not ready to receive 50% of the amount incurred by him in construction now. 27 An examination of the pleadings and evidence led on record shows that as per agreement Ex. PW1/10, additional construction at the first floor was to be raised out of the joint funds of the parties. The sum and substance of the agreement Ex. PW1/10 is that construction at the first floor was to be carried out by both the parties with their joint fund. It is not the case of the defendant that he called upon the plaintiff to contribute equally for raising construction at the first floor and he refused to contribute. The defendant started raising construction at the first floor without giving any intimation to Sh. Kasturi Lal which was not the intention of the agreement Ex. PW1/10. DW1 during crossexamination admitted that he has not Suit no. 71/04 16/37 sent any intimation for raising construction nor he write any letter to late Sh. Kasturi Lal before starting the construction. 28 During crossexamination DW1 was offered to receive 50% of the amount incurred by him for raising construction at first floor, however, he refused to receive the same. As per the agreement Ex. PW1/10 the additional construction at the first floor was to be raised out of the joint funds of the parties. Therefore it was incumbent upon the defendant to call upon the plaintiff to make equal contribution before starting construction at the first floor. However, he started the construction unilaterally without calling upon Sh. Kasturi Lal to contribute his share as per agreement Ex. PW1/10, which was never the intention of the said agreement. The said act of the defendant was itself against the terms and condition of agreement Ex. PW1/10.
29 As per agreement Ex. PW1/10 defendant could have claimed 50% of the amount incurred by him for raising construction but he cannot retain the possession of the suit premises after completion of the construction as same was allowed to be occupied till the completion of the construction. The status of the defendant in the suit premises was of a licensee. The license so granted to the defendant came to an end on the completion of the construction of the Suit no. 71/04 17/37 first floor and defendant was under an obligation to hand over the possession of the suit premises to the plaintiff which he has failed to do. The plaintiff terminated the license of the defendant vide legal notice Ex. PW1/15 and called upon him to hand over the possession on the expiry of 15 days. The said legal notice has been duly served upon the defendant who admitted the same during crossexamination. However, the defendant neither gave any reply nor vacated the premises in question in compliance of the notice Ex. PW1/15. The Hon'ble Delhi High Court in Kalu Ram Vs Sita Ram reported as 1980 RLR(N) 44 has held" If plaintiff before filing suit makes serious assertion in a notice then defendant should not remain silent by ignoring to reply. If he does so then adverse inference may be raised against him."
In the present case the legal notice Ex. PW1/15 has been duly served upon the defendant. However. he has not replied the same for the reason best known to him thus an adverse inference is required to be drawn against the defendant.
30 In view of the above discussion my issuewise findings is as under: Issue no. 1 Whether the plaintiffs are entitled to a decree to possession as prayed for? OPP An examination of pleadings and evidence led on record Suit no. 71/04 18/37 clearly shows that plaintiffs being the legal heir of late Sh. Kasturi Lal are the owner of entire ground floor of the property bearing No. H32, Ashok Vihar, PhaseI, Delhi. The defendant was allowed to occupy the suit premises vide agreement Ex. PW1/10 till the completion of the construction at the first floor as licensee, however, he has failed to vacate the premises despite the completion of the construction. The plaintiff terminated the licence of the defendant vide legal notice Ex. PW1/15 which was duly served upon the defendant but he failed to comply the same, thus made himself liable for decree. The plaintiff has successfully discharge the onus of issue no. 1, same is accordingly decided in favour of plaintiffs.
31 Issue no. 5 Whether the agreement dated 11.09.1980 is admissible in evidence? OPP Defendant has categorically admitted that he entered into an agreement dated 11.09.1980 Ex. PW1/10 with the plaintiff. The said agreement is thus admissible in evidence. Plaintiff has discharged the onus of issue no. 5, same is decided in favour of the plaintiffs. 32 Issue no. 7 Whether the plaintiff committed breach of terms and condition of the agreement dated 11.09.1980? OPD The defendant has failed to prove on record that plaintiffs have committed the breach of the terms and condition of the Suit no. 71/04 19/37 agreement dated 11.09.1980. The defendant has failed to discharge the onus of issue no. 7, same is accordingly decided against the defendant.
33 Issue no. 8: Whether the suit is barred under the provision of Order 2 Rule 2 CPC? OPD Ld. counsel for the defendant contented that present suit is barred under Order 2 Rule 2 CPC because plaintiff had earlier filed a suit for partition being suit no. 12/95 against the defendant. He further contended that relief claimed by the plaintiff by way of present suit was available with them at the time of filing of previous suit for partition but they omitted to sue for the same without the leave of the court, therefore, present suit is barred under Order 2 Rule 2 CPC. 34 On the other hand ld. counsel for the plaintiff contended that in view of the agreement Ex. PW1/10 defendant was under
obligations to deliver the possession of the suit premises to the plaintiff after completion of construction at the open portion of first floor. He further contended that at the time of filing of the previous suit the construction at the first floor was not completed and same was in progress. He further contended that the cause of action for the earlier suit was altogether different from the cause of action of the present suit. Therefore, suit is not barred under Order 2 Rule 2 CPC . Suit no. 71/04 20/37
35 Order 2 Rule 2 of the Code lays down the general principle that the suit must include whole claim which the plaintiff is entitled to make in respect of a cause of action, and if he does not do so then he is visited with the consequences therein.
Order 2 Rule 2 with its subrules reads as follows; "2 Suit to include the whole claim (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2)Relinquishment of part of claim Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3)Omission to sue for one of several reliefs A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
36 A mere look at the provision shows that once the plaintiff comes to the court of law for getting any redress basing his case on his existing cause of action, he must include in his suit the whole claim Suit no. 71/04 21/37 pertaining to that cause of action. But if he gives up the part of the claim based on the same cause of action or omits to sue in connection with the same, then he cannot subsequently resurrect the said claim based on the same cause of action. So far as Sub rule (3) is concerned before the second suit of the plaintiff can be held to be barred by the same, it must be shown that the second suit is based on the same cause of action on which the earlier suit was based and if the cause of action is the same in both the suits and if in the earlier suit plaintiff had not sued for any of the reliefs available to it on the basis of that cause of action, the reliefs which it had failed to press into service in that suit cannot be subsequently prayed for except with the leave of the court. It must, therefore, be shown by the defendants for supporting their plea of bar of Order 11, Rule 2 subrule ( 3) that the second suit of the plaintiff filed is based on the same cause of action on which its earlier suit was based and that because it had not prayed for any relief and it had not obtained leave of the court in that connection, he cannot sue for that relief in the present suit.
37 The plaintiff earlier filed a suit for partition of the undivided part of property bearing no. H32, Ashok Vihar, PhaseI, Delhi. A perusal of the plaint of the previous suit Ex. PW1/12 shows that plaintiff claimed that the roof of the first floor was not partitioned between the parties. He further pleaded that he has apprehension that Suit no. 71/04 22/37 the defendant is contemplating to raise construction on the roof of the first floor of the property in dispute. He further pleaded in para 16 of the previous plaint that on 24.08.95 the defendant alongwith some undesirable elements came to the suit premises and further told that they would raise construction on the roof of the first floor of the property in dispute.
During the pendency of the previous suit the ld. court appointed a Local Commissioner in order to inspect the site who submitted his report Ex. PW1/14. The relevant portion of the report qua the status of the construction is reproduced herein below: " At the time of my inspection I found that the defendant had constructed two rooms of 14'x12' at first floor, one W.C and one store and the roof of cooridoor at the first floor was extended. There was no construction existed on the roof of the first floor. The meson was doing the work of plastering of the parafeet wall constructed on the extended portion of the first floor roof with the beldars. The plumber Babu Lal was doing the work of sanitary for fixing watertank on the roof of the first floor of the extended portion." 38 Plaintiff has also placed on record the reply filed by the defendant to the application under Order 39 Rules 1 & 2 CPC in the previous suit Ex. PW1/19. Relevant portion of Para 3 of the reply stipulates as under: Suit no. 71/04 23/37 " However, without prejudice to the rights of the defendant, the defendant presently is not contemplating to raise any construction on the said terrace floor i.e the roof of the first floor which is in actual possession of the defendant, though the defendant is well within his rights to raise construction thereupon. More precisely presently the defendant has completed the construction of the remaining portion of the first floor. On the completion of the additional portion on the first floor, the roof of the said portion in common sense tantamount to the terrace floor, which has already been laid, but is not fully complete in as much as the terrace requires certain special construction/finishing so as to make the same waterproof and more durable etc. besides the plastering of the roof as well as the railing/brick boundary wall alongwith the terrace. The defendant further intends to place Sintex Water Tank on the Platform existing on the terrace floor for the purpose of proper water supply to the portion of the First floor. In case, the defendant is prevented from completing the aforesaid work, all the money and effort of the defendant will be wasted and thus substantial loss and injury shall be caused to the defendant. Moreover, the said plastering/polishing etc. as well as placement of the water tank shall not cause any loss or injury to the plaintiff."
Plaintiff has also placed on record the order dated Suit no. 71/04 24/37 5.12.1995 Ex. PW1/20 by which the interim order provided by the court was modified.
39 The plaintiff has examined Sh. Vinod Kumar as PW1, however, defendant has not given any suggestion to PW1 that the entire construction of the first floor had been completed at the time of filing of the previous suit and the said portion was ready to occupy. Defendant examined himself as DW1. During crossexamination DW1 stated that construction on the first floor was carried out in the year 1995. He does not remember the date and month. He further stated that he does not remember the date, month when the additional construction on the first floor was started, however, same was started in the year 1995. He further stated that when Kasturi Lal filed suit against him the construction was almost complete. 40 A careful examination of the pleadings and other material pertaining to the previous suit and the evidence led in the present suit shows that physical structure of the first floor was complete at the time of filing of previous suit however the finishing work of the said structure was not complete and was in progress. The defendant in his reply Ex. PW1/19 himself mentioned that roof of the first floor was not fully complete and water proofing of the roof was to be done. Similarly sanitary work was also not complete at that time which is Suit no. 71/04 25/37 also clear from the perusal of the report of the Local Commissioner Ex. PW1/14 which stipulates that on his visit he saw plumber Babu Lal was doing work of sanitary for fixing water tank on the roof. The DW1 during crossexamination has also stated that construction was almost complete at the time of filing of previous suit by Sh. Kasturi Lal.
Vide agreement Ex. PW1/10, the defendant was allowed to occupy the room in question till the construction is made on the first floor. The defendant was thus entitle to retain the possession of the room in question till the completion of the construction at the first floor. The construction would be treated as complete, when same is ready to occupy. At the time of filing the previous suit, though the physical structure of the first floor was complete but the premises was not capable to occupy because the finishing work of the structure was not complete and same was completed during the pendency of the previous suit. Vide agreement Ex. PW1/10 the defendant was allowed to retain the possession till the completion of the construction at the open portion of the first floor and the suit for possession against the defendant with respect to the suit premises could have been filed by the plaintiff only after the completion of the construction at the first floor in all respects.
In view of the aforesaid facts and circumstances, I am of the considered view that the relief sought by the plaintiffs by way of Suit no. 71/04 26/37 present suit was not available at the time of filing of previous suit because the construction of the first floor was not fully completed at the time of filing of the previous suit and same was completed during the pendency of that suit with the permission of the court. Therefore, the present suit is not barred under Order 2 Rule 2 CPC. The defendant has failed to discharge the onus of issue no. 8, same is accordingly decided against the defendant.
41 Issue no. 2 Whether the plaintiff are entitled to a decree of damages/mesne profits with interest, if so, at what rate and for what period? OPP Issue no. 4 Whether the plaintiff are entitled to pendentelite and future damages/mesne profits, if so at what rate and for what period? OPP Issue no. 2 & 4 are taken together as they are interconnected. The onus to prove these issues is upon the plaintiffs.
An examination of the material placed on record shows that Sh. Kastuir Lal, husband of plaintiff no. 1 and father of plaintiff no. 2 to 6 had allowed the defendant vide agreement Ex. PW1/10 to retain the possession of the suit premises till the completion of the construction at the first floor. However, after completion of the construction defendant did not hand over the possession of the suit premises to the plaintiffs. Therefore, plaintiffs terminated the licence of the defendant vide legal notice Ex. PW1/15 which was duly served Suit no. 71/04 27/37 upon the defendant. Vide said legal notice defendant was called upon to deliver the possession of the suit premises after the expiry of 15 days. But defendant has not complied the said legal notice despite the service and continue to occupy the room in question. Therefore, the status of the defendant in the suit premises after the expiry of 15 days is of an unauthorised occupant for which defendant is liable to pay damages.
The plaintiff in para 10 of the plaint has claimed mesne profit @ Rs. 10,000/ per month. Defendant, however controverted the said plea in written statement. In order to prove their case plaintiff examined Sh. Vinod Kumar as PW1 who reiterated the said plea in Para 12 of his examination in chief. During crossexamination PW1 denied that rent of the room in dispute is not more than Rs. 500/ per month. He admitted that he himself had not taken any room during the disputed period in the nearby area. The plaintiff has not placed any other material except the oral testimony of PW1 in order to prove that the premises in question could have fetched rent @ Rs. 10,000/ per month at the time of filing of the present suit.
In order to answer the claim of the plaintiff, defendant examined himself as DW1. In para 11 of his examination in chief DW1 has deposed that the prevailing rent of the room in dispute in the said locality was not more than Rs. 500/ per month. The plaintiff has carried out comprehensive crossexamined of DW1, however no Suit no. 71/04 28/37 crossexamination has been carried out with respect to the above plea taken by defendant in Para 11 of his examination in chief. The plaintiff has also not confronted DW1 qua the fact that the suit premises could have fetched Rs. 10,000/ per month nor controverted his testimony that it cannot fetch more than Rs. 500/ per month. The testimony of DW1 qua the fact that the suit premises can fetch rent not more than Rs. 500/ thus remain unrebuted and uncontroverted.
It is well settled law that when a witness depose a fact and no suggestion is given to such witness contrary to that the person against whom such deposition is given deem to have admitted the said fact. In the present case, plaintiff has not disputed the testimony of DW1 that suit premises can not fetch rent more than Rs. 500/ per month. Therefore, plaintiff has deemed to have admitted the testimony of DW1 with regard to the above fact.
In view of the above facts and circumstances, I am of the considered view that plaintiff is entitled to recover mesne profit from the defendant @ Rs. 500/ per month w.e.f 1.05.2004 till the actual delivery of the possession of the suit premises. Plaintiff has also claimed interest @ 24% p.a. It is well settled law that interest on the mesne profit can also be awarded, however, taking into consideration the facts and circumstances, I am of the considered view that the interest of justice would be served if the plaintiff is awarded interest @ 12% p.a w.e.f 1.05.2004 till the actual delivery of the possession of Suit no. 71/04 29/37 the suit premises. Issue no. 2 & 4 are accordingly decided. 42 Issue no . 3 Whether the plaintiffs, are entitled to a decree of permanent injunction as prayed for? OPP The onus to prove this issue is upon the plaintiff. In Para 11 of the plaint, plaintiffs have stated that defendant with malafide intention to create more problem for the plaintiff started negotiating with the third person for delivery of room in question. They further pleaded that yesterday one person came with the defendant and defendant shown the room in question to him. The plaintiff no. 2 requested the defendant not to deliver the possession of the room in question to any third person but he failed to listen the genuine request of the plaintiff and openly threatened that he will deliver the possession of room in question to some third person. The defendant controverted the said plea in para 11 of the written statement and stated that allegations are mere concoction.
Plaintiff examined Sh. Vinod Kumar as PW1 who reiterated the said fact in para 18 of his examination in chief. During crossexamination PW1 deposed that he does not know the name of the said broker who was called by the defendant for the negotiation of the said disputed room. Defendant examined himself as DW1 and deposed that he did not start any negotiations with third person for delivery of possession of the room in dispute. He denied that before Suit no. 71/04 30/37 filing the suit one person came with him and he showed the room in question to him to deliver its possession. During crossexamination DW1 denied that he threaten the plaintiffs to hand over the possession of the suit premises to third person. Besides the above suggestion, plaintiff has not carried out any further crossexamination with regard to the threat extended by the defendant for creating third party interest in the suit premises. An examination of the pleadings and evidence led by both the parties on record shows that plaintiff has not placed any material on record on the basis of which it can be ascertain that defendant ever extended any threat to the plaintiff for creating third party interest in the suit premises. The defendant on the other hand pleaded that he never tried to create any third party interest in the suit premises at any point of time.
In view of the above facts and circumstances, I am of the considered view that plaintiff has failed to prove on record that they have cause of action for filing the suit for permanent injunction against the defendant. Plaintiff have thus failed to discharge the onus of issue no. 3, same is accordingly decided against the plaintiff. 43 Issue no. 9 :Whether the suit is barred by law of limitation? OPD The onus to prove this issue is upon the defendant. The defendant in the written statement has taken a plea that he is in exclusive occupation of the room in dispute since 1980. The plaintiff Suit no. 71/04 31/37 cannot seek a decree for possession of the room in dispute after more than 20 years. He further pleaded that suit is barred by limitation. The plaintiff controverted the said plea in their replication.
Ld. counsel for the defendant contended that defendant is in possession of the suit premises since the year 1980. He further contended that even the construction at the first floor was completed in the year 199596 and present suit could have been filed within three years from the date of completion of construction, however, same has not been filed within that period therefore, present suit is barred by limitation.
On the other hand ld. counsel for the plaintiff contended that defendant was in permissive possession of the suit premises and he was under an obligation to deliver the possession to the plaintiff after completion of the construction, however, he has not done so. He further contended that the licence so granted to defendant was thus terminated by the plaintiff vide legal notice Ex. PW1/15 and 15 days time was granted him to deliver the possession but he failed to deliver the same. He further contended that the present suit could have been filed within 12 years from the expiry of 15 days after the service of the legal notice therefore same is within the period of limitation. 44 In the present suit plaintiffs have claimed possession of the suit premises on the basis of their title and not on the plea that the Suit no. 71/04 32/37 defendant dispossessed the plaintiffs. The plaintiffs have filed the present suit on the basis that they are the owner of the suit premises. The present suit, therefore, would be governed under Article 65 of the Limitation Act, which reads as under: Description of suit Period of limitation Time from which period begins to run For possession of Twelve years When the possession of immovable property or the defendant becomes any interest therein based adverse to the plaintiff. on title 45 The plaintiffs being the owner of the ground floor of the property allowed the defendant to occupy one room at the ground i.e suit premises till completion of the construction at the open portion of the first floor which according to the defendant himself completed in the year 199596. The nature of the possession of the defendant in the suit premises was permissive and not adverse. The defendant was under obligation to deliver back the possession soon after the completion of the construction but he failed to do so and remained in possession. However, nature of his possession had not changed and same remained permissive only. The plaintiff terminated the licence so granted to the defendant vide legal notice dated 13.4.2004 Ex. PW1/15 and he was called upon to deliver the possession of the suit premises within 15 days but he failed to do so, therefore, plaintiff got cause of action to file the suit against the defendant on the expiry of 15 Suit no. 71/04 33/37 days. At best, it can be said that the cause of action for filing the present suit has accrued in favour of the plaintiff and against the defendant in the year 199596, when the construction at first floor was completed and defendant failed to deliver the possession of the room in question. The suit for possession thus could have been filed within 12 years from the said period and not within 3 years as contended by ld. counsel for the defendant. The present suit has been filed on 4.6.2004 i.e within 12 years from the completion of the construction, therefore, same is within the period of limitation.
In view of the above fact and circumstances, i am of the considered view that the present suit has been filed within the period limited and same is not barred by times. The defendant has failed to discharge the onus of issue no. 9, same is accordingly decided against the defendant.
46 Issue no. 10 Whether the defendant has acquired the right of ownership by adverse possession qua the room in dispute? OPD The onus to prove this issue is upon the defendant. The defendant in the written statement pleaded that he has acquired ownership of the suit property by way of adverse possession, however, during his crossexamination recorded on 16.09.2002 defendant himself made a statement that he does not want to press issue no. 10. In view of the statement of defendant recorded in the cross Suit no. 71/04 34/37 examination carried out on 16.09.2002, issue no. 10 is decided against the defendant.
47 Issue no. 11 Whether the suit is barred by the principle of law of estopple? OPD Issue no. 12 Whether the plaintiff is entitled to take benefit under the decree dated 27.11.1979? OPD The onus to prove issue no. 11 & 12 is upon the defendant, however, ld. counsel for the defendant on 15.04.2011 has given statement that he does not want to press issue no. 11 & 12 and same may be decided as not pressed. In view of the statement of ld. counsel for the defendant issue no. 11 & 12 are decided against the defendant.
48 Issue no. 13: Whether the suit has not been valued properly for the purpose of court fees and jurisdiction? OPD The onus to prove this issue is upon the defendant. In Para 9 of the written statement, the defendant has stated that suit has not been properly valued for the purpose of court fees and jurisdiction. As per the defendant the market value of the suit property is more than Rs. 7,50,000/at the time of filing the suit. The said plea has been controverted by the plaintiff in para 9 of replication.
In order to prove his case plaintiff has examined Sh. Vinod Kumar as PW1. During crossexamination PW1 denied that Suit no. 71/04 35/37 the valuation of the disputed room is more than RS. 15 lacs. Defendant examined himself as DW1. In Para 18 of the examination in chief, defendant deposed that the market price of the room in dispute at the time of filing the suit was above Rs. 7 lacs. DW1 has been throughly crossexamined, however, the above testimony of DW1 has not been controverted by the plaintiff. No suggestion or crossexamination has been carried out by the plaintiff with respect to the market value of the suit property. In the absence of any cross examination the testimony of DW1 that the market price of the room in question was Rs. 7 lacs is deemed to have been admitted by the plaintiff.
In view of the above, I am of the considered view that defendant has successfully proved on record that market value of the room in question was Rs. 7 lacs at the time of filing of the present suit. The defendant has discharged the onus of issue no. 13, same is accordingly decided in favour of the defendant.
49 Relief In view of the above suit filed by the plaintiff against the defendant is decreed with cost. A decree for possession is passed in favour of the plaintiff and against the defendant with respect of one room situated on ground floor of property bearing no. H32, PhaseI, Ashok Vihar, Delhi as shown red in the site plan.
Suit no. 71/04 36/37
A decree for mesne profit is also passed in favour of the plaintiffs and against the defendants thereby directing the defendants to pay Mesne Profit/damages @ of Rs. 500/ per month alongwith interest @ 12% p.a. w.e.f 1.05.2004 till the actual delivery of the possession of the suit premises. The plaintiff is directed to pay the deficient court fees within one month. After the receipt of the deficient court fees, decree sheet be accordingly prepared. File be consigned to record room.
Announced in the open court ( PITAMBER DUTT)
30th April 2011 Additional District Judge
Delhi
Suit no. 71/04 37/37
Suit No.
Present; None
( PITAMBER DUTT)
ADJ; DELHI
Suit no. 71/04 38/37