Delhi District Court
Sh. Bhajan Lal vs Sheel Kumar & Ors. 1/15 on 29 May, 2015
IN THE COURT OF SHRI A.K. AGRAWAL CIVIL
JUDGE01 ( WEST), TIS HAZARI COURTS, DELHI..
Unique ID No. : 02401C0244972014
C.S No. : 203/14
Date of Institution : 27.05.2014
Date of reservation of judgment : 23.05.2015
Date of pronouncement of Judgment : 29.05.2015
1. Sh. Bhajan Lal
S/o Late Sh. Thakur Dass
2. Smt. Pushpa Devi
W/o Sh. Bhajan Lal
Both R/o C67A, Extn.I
Nangloi, Delhi41.
................Plaintiffs
v.
1. Sh. Sheel Kumar
S/o Sh. Bhajan Lal
2. Smt. Malti Devi
W/o Sh. Sheel Kumar
Both R/o D315316, First floor
Camp No.2, J.J. Colony
in front of Lokesh Cinema
Nangloi, Delhi41.
..............Defendants
SUIT FOR RECOVERY OF POSSESSION
JUDGMENT
1. The plaintiffs have filed this suit against their own son Suit No. 203/14 Bhajan Lal & ors. vs Sheel Kumar & Ors. 1/15 (defendant no.1) and daughterinlaw (defendant no.2, the wife of defendant no.1), seeking possession of licenced premises among other reliefs. Brief facts of the present case are that the plaintiffs had purchased two joint property no. D315 and D316, Camp No.2, J.J. Colony, Nangloi, Delhi (hereinafter referred to as suit property) vide GPA, Agreement to sell, Receipt and Will all dated 19.05.1997. In the year 2008, the plaintiffs gave two rooms, kitchen with laterine and bathroom on the first floor of the suit property to the defendants on license basis. Plaintiffs allege that the defendants did not perform their duties towards them and also did not pay a single penny towards maintenance and nor paid the electricity and water charges, as consumed by them.
2. It is further stated that the behaviour of defendants towards plaintiffs was not good and they used unparliamentary language against the plaintiffs and also insulted them. Defendant no.2 also threatened the plaintiffs that if she was asked to vacate the suit property, she will implicate plaintiffs and their entire family in a false criminal case. Accordingly, the plaintiffs debarred the defendants from their movable and immovable properties vide public notice issued in newspaper "Rashtriya Sahara" dated 29.08.2012. Plaintiffs further state they had no source of income besides their rental income and have a large family to maintain. Thereafter plaintiffs sent a legal notice to defendants on 01.05.2014, terminating their license and calling upon them to hand over the vacant and physical possession of suit property within fifteen Suit No. 203/14 Bhajan Lal & ors. vs Sheel Kumar & Ors. 2/15 days of the receipt of legal notice. However the defendant did not comply with the said legal notice and have also not vacated the suit property.
3. Plaintiffs further state that after expiry of fifteen days of service of legal notice, the defendants are in unauthorized occupation in the suit property. If the suit premises is let out in the open market, it can easily fetch a rent of Rs.6,000/ p.m. Hence plaintiffs are also claiming damages/mesne profits @ Rs. 200/ per day from 16.05.2014 onwards alongwith interest. Hence, the present suit has been filed by the plaintiffs seeking possession of the portion of the suit property in occupation of defendants. Plaintiffs are also seeking damages, use and occupation charges/mesne profits from 10.05.2014 onwards, till the date of recovery of possession.
4. Written statement was filed by both the defendants. Defendant no.1 has stated in his written statement that defendant no.2 was having illicit relation with other persons and having lost her moral character, she falsely implicated defendant no.1 in several criminal cases. Defendant no.1 also admitted the ownership of plaintiffs over the suit property and also the contents of para no. 10 of the plaint wherein it was stated that defendants were unauthorized occupants of the suit property. He also stated that he will vacate the suit property on 11.06.2014, as he had no concern with the same.
5. Defendant no.2 filed her written statement stating that the present suit was a collusive suit filed by plaintiffs in collusion with Suit No. 203/14 Bhajan Lal & ors. vs Sheel Kumar & Ors. 3/15 defendant no.1. The suit was not properly valued for the purposes of court fees and jurisdiction. The plaintiffs had filed an incorrect site plan alongwith the plaint. Further no cause of action has arisen in favour of plaintiffs and the plaintiffs were also guilty of suppression of material facts.
6. On merits, it was averred that at the time of solemnization of marriage of defendant no.2 with defendant no.1, the plaintiffs had informed that the joint suit property belonged to defendant no.1 and after marriage, the plaintiffs shall have no concern with the same and it will be the shared household property of defendant no.2. It was denied that defendant no.2 was a licensee in the suit property. It was further stated that defendant no.2 had regularly and continuously been paying the electricity and water bills. Other averments made in the plaint were also denied. Prayer was made for dismissal of the suit.
7. Replication was filed by the plaintiffs to the W.S of defendant no.2 only wherein the averments made in written statement were denied.
8. Thereafter only defendant no.2 contested the suit and defendant no.1 was proceeded exparte. Vide Order dated 26.08.2014, following issues were framed :
1. Whether the plaintiff is entitled to the decree of possession as prayed for ? OPP.
2. Whether the plaintiff is entitled to damages/occupation charges/mesne profits as prayed for ? OPP.
Suit No. 203/14 Bhajan Lal & ors. vs Sheel Kumar & Ors. 4/15
3. Whether the suit property is not the self acquired property of plaintiffs ? OPD2
4. Relief.
9. Vide Order dated 18.09.2014, an additional issue was framed as under :
5. Whether the present suit is not maintainable being a collusive suit between the plaintiffs and defendant no.1 ? OPD2
10. In order to prove their case, the plaintiffs examined themselves as PW1 and PW2. In their testimonies, the following documents were exhibited :
" Affidavits of PW1 and PW2 are Ex.PW 1/A and Ex. PW 2/A wherein the averments of the plaint have been reproduced, the site plan is Ex.PW1/1 (colly), property document pertaining to title/ownership of suit property is Ex.PW1/2 (colly), public notice in Rashtriya Sahara Newspaper is Ex. PW1/3, Legal Notice is Ex. PW1/4, the courier receipt of legal notice is Ex.PW 1/5, electricity bill is Ex. PW1/6, Adhar Cards of both plaintiffs are Ex.PW1/7 & Ex. PW1/8, election card of both plaintiffs are Ex.PW1/9 & Ex. PW1/10. "
Both the witnesses were crossexamined and discharged. Thereafter plaintiffs' evidence was closed.
11. No DE was led by defendant no.2 despite sufficient opportunity and vide order dated 31.03.2015, DE was closed. Suit No. 203/14 Bhajan Lal & ors. vs Sheel Kumar & Ors. 5/15 12 Final arguments were addressed by the Ld. Counsels of both parties. I have now perused the evidence on record and duly considered the submissions made on behalf of parties. My issuewise findings are as under :
13. ISSUE No.1 and 3.
1. Whether the plaintiff is entitled to the decree of possession as prayed for ? OPP.
3. Whether the suit property is not the self acquired property of plaintiffs ? OPD2 Both the issues are based on similar facts and circumstances, hence are decided together. The onus to prove Issue No. 1 was upon the plaintiffs whereas the onus to prove Issue no. 3 was upon defendant no.2.
14. The plaintiffs in their suit have claimed that they are the rightful owners of the suit property wherein defendant no.1 and 2 were licensees at the first floor. In support of above contention, they have filed documents Ex. PW1/2 on record, which are GPA, Agreement to sell, Will, receipt etc. Admittedly, these documents do not confer title upon the plaintiffs as they are not recognized deeds of transfer of title. However in the instant case, as the plaintiffs allege that the defendants are the licensee in the suit property. As per Sec 116 of the Indian Evidence Act, no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when Suit No. 203/14 Bhajan Lal & ors. vs Sheel Kumar & Ors. 6/15 such licence was given. Hence, if the plaintiffs manage to prove that the defendants were licensee in the suit property, then by virtue of Sec 116 of the Evidence Act, defendant is estopped from denying their title.
15. Admittedly, the defendants are son and daughter in law of plaintiffs. As per the plaintiffs, they were permitted to reside in the suit property as the plaintiffs were expecting that the defendants would perform their duties towards them, being their son and daughter in law. However the defendants neither performed their duties towards the plaintiffs nor paid any single penny towards maintenance or towards electricity and water bills as consumed by them. The behaviour of defendants was also bad towards plaintiffs. Hence, the plaintiffs terminated their license to reside in the suit property and asked them to vacate it.
16. Though defendant no.2 denies the fact that she is a licensee as it is stated in her W.S that after solemnization of marriage between her and defendant no.1, it was informed and declared by the plaintiffs that the joint suit property belongs to defendant no.1 and the same was in his name. The plaintiffs also stated that they have no concern with the suit property after the marriage. However no document has been filed by the defendant no.2 to show or to prove that defendant no.1 had any share in the suit property or that any such declaration was made by the plaintiffs. Even otherwise this alleged declaration has to be in writing and duly registered or else it has no significance.
17. However from the above contention of WS, it is clear that Suit No. 203/14 Bhajan Lal & ors. vs Sheel Kumar & Ors. 7/15 the plaintiffs were in possession of the suit property before defendant no.2 started residing in the same. Further it also proves that defendant no.2 had been brought in the suit property by plaintiffs and defendant no.1. Furthermore, defendant no.1 though he is proceeded exparte, has clearly averred in his W.S that the suit property belongs to plaintiffs. The claim of defendant no.2 over the suit property, if any, flows through the right, title or interest of defendant no.1, who is husband of defendant no.2. If defendant no.1 himself does not have any right in the suit property, defendant no.2 cannot claim any right whatsoever. From the above facts it is clear that status of defendant no.2 in the suit property was only that of a permissive user/licensee. Being a licensee/ permissive user, the defendant no.2 cannot question the title of plaintiffs over the suit property by virtue of Sec 116 of the Evidence Act.
18. In Vishal Builders Pvt. Ltd. vs. Delhi Development Authority & Ors., 2006(130) DLT 667, the Hon'ble Delhi High Court has held that no person who comes into possession of an immovable property on the basis of license or permission of the person in possession thereof, can be permitted to deny that such person had a title to such property when such license was given. Same was the view in Desh Raj Singh vs. Triveni Engineering & Industries Ltd & Anr., 2006 (130) DLT 120 and catenas of other cases. The Hon'ble Supreme Court in State of Punjab v. Brig. Sukhjit Singh 1993 3 SCR 944 has observed that the term licence also covers a "gratuitous licensee", that is, a person who is permitted, although not invited, to enter another's Suit No. 203/14 Bhajan Lal & ors. vs Sheel Kumar & Ors. 8/15 property and who provides no consideration in exchange for such permission.
19. The rights of a licencee to stay in possession of the property have been dealt by the Division Bench of Hon'ble Delhi High Court in the case of Chandu Lal vs. Municipal Corporation of Delhi AIR 1978 Del 174 where it was held that "A mere licensee has only a right to use the property. Such a right does not amount to an easement or an interest in the property but is only a personal privilege to the licensee. After the termination of the license, the licensor is entitled to deal with the property as he likes. This right he gets as an owner in possession of his property."
20. As far as termination of licence through service of legal notice Ex.PW1/4 is concerned, it has been sent on the correct address of the defendants which is apparent from the address mentioned in the legal notice and postal receipt Ex.PW1/5. Infact defendant no.2 has not specifically denied that legal notice was sent to the defendants but has stated that she was not aware of the same for want of knowledge. In these circumstances, the legal notice shall have to be deemed to be duly served as per General Clauses Act. Even otherwise, the filing of this suit itself is a sufficient notice to defendant to vacate the suit property.
21. Though defendant no.2 has not led any evidence in support of her case but before deciding these issues, it is imperative that the defence of defendant is considered. In her W.S, defendant no.2 had raised preliminary objections regarding the valuation of suit. It was Suit No. 203/14 Bhajan Lal & ors. vs Sheel Kumar & Ors. 9/15 stated that the plaintiffs had sought relief of possession but had not valued the suit property as per the market value.
22. As far as valuation of suit and payment of court fees is concerned, In Sathapana Chettiar v. Ramanathan, AIR 1958 SC 245, the Supreme Court laid down that the question of court fees must be considered in the light of the allegations made in the plaint and this decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. A Full Bench of the Circuit Bench of the Punjab High Court at Delhi in Jai Krishna Dass v. Babu Ram, 1967 PLR 52, observed that it was settled law that for deciding the question relating to the amount of court fee payable on a plaint, not only have the averments in the plaint alone to be taken into account but the said allegations are to be assumed to be correct and the decision can neither depend on the maintainability of the suit as framed nor upon the assumption that the court must somehow spell out of the plaint such a claim which is ultimately capable of being decreed and the Court has to take the plaint as it is without omitting anything material and without reading in it by implication what is not stated therein.
23. In another Full Bench decision of Hon'ble Delhi High Court in Jugal Kishore v. Des Raj Seth, 1968 DLT 571, it was observed that the plaint had to be read and construed as a whole and it was the substance which was to be the guiding factor and the court had to look and see in each particular case as to what was the real nature of the relief claimed and it was for that purpose that the allegations Suit No. 203/14 Bhajan Lal & ors. vs Sheel Kumar & Ors. 10/15 contained in the plaint as a whole had to be examined.
24. Hence the guiding factor is the real nature of the relief which is being sought by plaintiff and not the nomenclature used by him in seeking the relief. In the instant case, though the suit is for relief of possession but basically the plaintiffs are seeking eviction of licencees from the suit property. For seeking eviction of a licensee, the law is well settled that even a simple suit for injunction is maintainable. Reliance can be placed on judgments in Joseph Serverence versus Benny Mathew reported in (2005) 7SCC 667 ; Delhi Gate Services Pvt. Ltd versus Caltex (India) Ltd. AIR 1962 P&H ; Milka Singh vs Diana, AIR 1964 J&K 99 ; Sant Lal Jain versus Avtar Singh (1985) 2 SCC 332 ; and Padmavati Mahajan versus Yogender Mahajan and Anr, 152(2008) DLT 363 and many others. Further a suit for mandatory injunction can be valued by the plaintiff as per his discretion but not below Rs.130/. So if a suit of injunction at such a meagre value is maintainable than why not this suit which has been valued at a much higher value by the plaintiffs.
25. Moreover in the instant case, the plaintiffs are seeking recovery of only a part of the suit property. There has been no evidence led by the defendant in support of her contention to prove the market value of the suit property under her possession. In these circumstances, the above contention of the defendant is untenable that the suit has not been properly valued.
With these observations, both the issues are decided in Suit No. 203/14 Bhajan Lal & ors. vs Sheel Kumar & Ors. 11/15 favour of plaintiffs and against the defendants.
26. ISSUE No. 5.
5. Whether the present suit is not maintainable being a collusive suit between the plaintiff and defendant no.1 ? The onus to prove this issue was upon defendant no.2. The contention of defendant no.2 is that the plaintiffs are in collusion with defendant no.1, who is their son, in order to dispossess defendant no.2 from the suit property. No evidence has been led by defendant no.2 to prove any collusion between defendant no.1 and plaintiff. Defendant no. 2 even failed to prove that defendant no.1 was enjoying any patronage from the plaintiffs or residing in the same suit property or doing any other act at the behest of plaintiffs or vice versa. The plaintiffs have already issued a public notice vide Ex. PW1/3 whereby they have debarred both defendants from their entire movable and immovable properties. Further defendant no.1 has stated in his W.S that he has already vacated the suit property on 11.06.2014. In these circumstances, no collusion is apparent from the material on record. Even otherwise for the sake of arguments, if it were to be believed that there was some collusion between plaintiff and defendant no.1, still the same does not affect any right of defendant no.2 in the suit property. The right of residence and maintenance can be claimed by defendant no.2 only against her husband and not against her father in law and mother in law.
Suit No. 203/14 Bhajan Lal & ors. vs Sheel Kumar & Ors. 12/15 In Barun Kumar Nahar versus Parul Nahar 2013 (199) DLT 1, it was held as follows:
"With the transient course it has been observed that with the advent of various women friendly laws, empowering the women with equal rights as that of a man/husband, the remedy of women to ask for maintenance or to claim her right in the residence in a commensurate property is only restricted to her husband and not against her parents in law. A woman is only entitled to claim a right to residence in a shared household, and a shared household would only mean the house belonging to taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. This means that she can assert her rights, if any, only against the property of her husband and cannot claim a right to live in the house of her husband's parents without their wishes and caprice.
So defendant no.2 is not even otherwise entitled to claim any right in the suit property. Accordingly, this issue is also decided in favour of the plaintiffs and against the defendants.
27. ISSUE No.2
2. Whether the plaintiff is entitled to damages/occupation charges/mesne profits as prayed for ? OPP.
The onus to prove this issue was upon the plaintiffs. The plaintiffs have terminated the license of defendants through legal notice Suit No. 203/14 Bhajan Lal & ors. vs Sheel Kumar & Ors. 13/15 Ex. PW 1/4, w.e.f 16.05.2014 i.e fifteen days from the date of legal notice. There is no contention on behalf of defendant no.2 that the said legal notice has not been served upon her and defendant no.1. Moreover, the plaintiffs have also not been crossexamined on these aspects whether legal notice was not served upon the defendants nor any suggestion has been given in this regard, so the above fact does not appear to be in dispute. Defendant no.2 has only made a bald denial in her W.S. stating that she was not aware about the service of notice which is sufficient. In these circumstances, the legal notice Ex. PW 1/ 4 will be deemed to be duly served as per law. Hence, w.e.f 16.05.2014, both the defendants are in unauthorized occupation of the suit property.
28. As far as defendant no.1 is concerned, he has already vacated the suit property. Moreover, no evidence has been led by plaintiffs against defendant no.1 in view of his vacating the suit property. In these circumstances, only defendant no. 2 is liable to pay damages/mesne profits to the plaintiffs for her unauthorized occupation over the suit property.
29. As far as the quantum of damages is concerned, no evidence has been led by the plaintiffs except the statement made in their respective affidavits that if suit property is let out in the open market, it can fetch rent of Rs.6,000/ p.m. The same is totally insufficient to prove the market rent. However at the same time, the plaintiffs are entitled to some damages/mesne profits for the unauthorized occupation of defendant no.2. Considering the Suit No. 203/14 Bhajan Lal & ors. vs Sheel Kumar & Ors. 14/15 relationship between the parties and also the fact that suit premises was being used for residential purposes, I deem it fit that damages/mesne profits @ Rs. 1,500/ p.m be awarded to the plaintiffs w.e.f 16.05.2014, towards maintenance and other charges incurred by them.
This issue is also decided in favour of plaintiffs and against the defendants.
30. Relief.
In view of above observations and findings, the suit stands decreed in favour of plaintiffs. Defendant no.2 is hereby directed to vacate and hand over the vacant and peaceful possession of suit property i.e. first floor of D315 and D316, Camp No.2, J.J. Colony, Nangloi, Delhi, as shown in red colour in the site plan, to the plaintiffs within one month of the passing of this judgment. The plaintiffs are also awarded damages/mesne profits @ Rs.1,500/ p.m w.e.f 16.05.2014 till the date the suit property is vacated by defendant no.2. Parties to bear their own costs.
The plaintiffs are however directed to pay the additional court fees which now becomes payable on the amount decreed in their favour as above, within one month from today. The decree sheet shall be prepared only after payment of remaining court fees.
File be consigned to record room after due compliance.
Announced in the open court ( A.K. Agrawal) today on 29.05.2015 Civil Judge 01 ( West)/Delhi Suit No. 203/14 Bhajan Lal & ors. vs Sheel Kumar & Ors. 15/15