Delhi District Court
Om Parkash Gautam vs ) Sh. Vinod Kumar Sharma on 31 January, 2023
IN THE COURT OF MANOJ JAIN,
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH-WEST, DWARKA COURTS, NEW DELHI
RCA DJ ADJ/120/2019
CRN No. DLSW01-011661-2019
Om Parkash Gautam ....... Appellant
S/o Sh. Ram Niwas,
Presently residing in a Rented
Premises 8-A, Commissioner Lane,
Civil Line, Delhi.
Vs.
1) Sh. Vinod Kumar Sharma .....Respondents
S/o Late Sh. S.C. Sharma
2) Smt. Rajni Sharma
W/o Sh. Vinod Kumar Sharma
Both Presently in Unauthorized
Occupation of R-245, Mohan Garden,
Uttam Nagar, New Delhi - 110 059.
Date of Registration of appeal : 09.10.2019
Date of conclusion of arguments : 04.01.2023
Date of pronouncement of Judgment : 31.01.2023
Memo of Appearance:
Sh. Vishesh Wadhwa, Ms. Swadha Gupta and Ms. Neetu Mishra,
Ld. Counsel for appellant.
Sh. Yudhishter Sharma and Piyush Pahuja, Ld. Counsel for
respondents.
JUDGMENT
1. Appellant had filed a suit seeking mandatory injunction, permanent injunction and recovery of mense profits/damages. His such suit has been dismissed by the Court of Sh. Rajinder Kumar, the then learned JSCC-cum-ASCJ-cum-
RCA DJ ADJ/120/2019 Page 1 of 41GJ (West), Delhi vide judgment dated 06.06.2019. Appellant has challenged the aforesaid dismissal by filing the present appeal under Section 96 read with Order 41 of CPC.
2. For the sake of convenience, I would be referring to the parties as per their nomenclature before the learned trial court.
3. In order to comprehend the case of the plaintiff/appellant, let me see as to what averments he came up with in his plaint.
3.1 Plaintiff claimed that he was absolute and rightful owner of property bearing no. R-245, measuring 167 square yards situated in Khasra No. 63/7 Village Nawada, Colony known as Mohan Garden, Uttam Nagar, Delhi-110059 (hereinafter referred to as suit property). It was purchased by him from previous owner by way of General Power of Attorney, Agreement to Sell, receipt, possession letter, registered Will affidavit dated 25.09.2003 for a consideration of Rs. 40,000/-. After purchase, plaintiff raised construction of a house over said plot with his own funds and expenditure.
3.2 Both the defendants came into his contact through Pandit Daya Nand who was known to both the sides. Pandit Daya Nand asked plaintiff to help them and also requested him to arrange a meeting of the defendants with Pandit Mool Raj Sharma (Guruji) as defendants were under mental agony because RCA DJ ADJ/120/2019 Page 2 of 41 of the demise of their son. Plaintiff accordingly introduced them with said Guruji. According to plaintiff, defendants won over his confidence, trust and faith with the passage of time and he also showed sympathy to them because of their sentimental condition. He also permitted them to live in a room in suit property temporarily as a licensee on humanitarian ground. Defendants promised to vacate the same as and when so desired by the plaintiff. Plaintiff also kept on helping the defendants financially. Such details have been mentioned in Para-7 of his plaint.
3.3 It was also averred in the plaint that defendants did not repay the loan amount taken from the plaintiff and when plaintiff insisted for such repayment, they showed their real face and, instead, a false and frivolous suit was filed against the plaintiff making a false claim over the suit property as if it was owned and possessed by them. They claimed in such suit, which was registered as Suit No. 706/2007, that suit property had been purchased by the plaintiff herein with the help of the funds arranged by them. They also claimed that they had adopted the plaintiff as their son and got him married. According to plaintiff herein, all such averments were totally false and shocking. He also averred that the defendants also managed in dispossessing the plaintiff and his family and trespassed over the whole of the property. Despite several requests made by the plaintiff, they did not vacate and handover the possession of the suit property. Legal notice dated 08.01.2008 did not yield any result and it was in those circumstances that the suit was filed seeking following reliefs:-
RCA DJ ADJ/120/2019 Page 3 of 41(a) Pass a decree of Mandatory Injunction in favour of the plaintiff and against the defendants, thereby directing the defendants to remove their unauthorized occupation and to vacate and handover the vacant, physical possession of the suit premises bearing no. R-
245, measuring 167 sq yds. Out of khasra no. 63/7, situated in the area of Village Nawada, colony known Mohan Garden, New Delhi- 110059 more specifically shown in red colour in the site plan annexed, to the plaintiff.
(b) Pass a decree of mesne profits/damages of Rs. 10,000/- (Rupees ten thousand only) per month in favour of the plaintiff and against the defendants, from the date of filing of the suit till vacating and handover the possession of the suit premises bearing no. measuring 167 sq yds. Out of khasra no. 63/7, situated in the area of Village Nawada, colony known Mohan Garden, New Delhi-110059 more specifically shown in red colour in the site plan annexed.
(c) Pass a decree of Permanent injunction in favour of the plaintiff and against the defendants, thereby restraining the defendants from transferring, alienating, disposing off, letting out, altering the existing structure or parting with the possession of the suit premises bearing no. R-246, measuring 167 sq yds. Out of khasra no. 63/7, situated in the area of Village Nawada, colony known Mohan Garden, New Delhi-110059 more specifically shown in red colour in the site plan annexed, to any third person other than the plaintiff.
(d) Costs of the suit be also awarded in favour of the plaintiff and against the defendants.
(e) Such other or further relief which this Hon'ble may deem fit and proper be also granted in favour of the plaintiff.
4. Suit was resisted by the defendants and it was RCA DJ ADJ/120/2019 Page 4 of 41 claimed by defendant no. 1 that he was rightful owner of the suit property. It was also claimed that suit filed by plaintiff Om Prakash Gautam was a counterblast as defendants had already filed a suit for declaration. It was claimed that suit of the plaintiff was not maintainable as he was seeking declaration of the ownership on the basis of forged, bogus and manipulated documents. It was also claimed that suit was barred under Order 2 Rule 2 of the CPC as the plaintiff Om Prakash Gautam could have set up counter-claim in the previously instituted suit.
4.1 According to plaintiff, he had purchased the property from Sh. Manjeet Singh and Manjeet Singh had purchased the said plot from one Sh. Sumit Ghosh vide documents dated 15.07.2003. In such written statement, defendants also claimed that alleged sale documents dated 15.07.2003 were false and forged and did not confer any right, title or interest.
4.2 Defendants claimed that after unfortunate death of their son, they had undergone great shock and depression and they started visiting Guruji who introduced them to the plaintiff. Guruji also asked the defendants to treat the plaintiff as their son. Plaintiff also gave his consent for the same and assured the defendants that he would serve them as their son. Defendants were also happy to have accepted him as their son. Since plaintiff was already 22 years of age at that time, legal adoption was not possible but his name was entered in the Register of Ancestors at Haridwar, which even the plaintiff had RCA DJ ADJ/120/2019 Page 5 of 41 acknowledged by signing the same.
4.3 It was claimed that defendant no. 1 had purchased the suit property on 25.09.2003 and since defendant no. 1 used to remain out of Delhi for most of the time, plaintiff asked them to purchase property in his name so that he could seek permission regarding various amenities from the competent authorities. In good faith, plot was purchased by the defendants in the name of the plaintiff but the sale consideration thereof was paid by defendant no. 1. Funds were arranged by selling one other property owned by defendant no. 1 at Palam Vihar, Gurgaon. Construction was also raised by defendant no. 1 with his own funds and defendants along with their daughter shifted to said house and started residing. Defendants even married plaintiff on 02.07.2006 with great pomp and show out of their own funds and he and his wife was given all the love and affection but after some time, his wife started inflicting cruelties upon the defendants and she started compelling the plaintiff to reside separately and accordingly, plaintiff and his wife removed all their belongings and shifted to Pushpanjali Farms, Kapashera in the second week of November, 2006. Plaintiff, with malafide intention, took away the title documents of suit property with him.
4.4 It was thus claimed that plaintiff had no concern whatsoever with respect to the suit property and he was neither in possession nor was having any right, title or interest and defendants had already filed a suit for declaration against RCA DJ ADJ/120/2019 Page 6 of 41 plaintiff and his wife. It was also claimed that defendants had never occupied suit property as licensee and rather they used and occupied the suit property as its rightful owner as the property had been purchased and construction was raised by defendant no. 1 out of his own funds.
5. It will be important to mention right here that both the suits i.e. present suit filed by Sh. Om Prakash Gautam and the other suit filed by the defendants were taken up together and the issues were framed in common on 18.11.2010 and the instant suit filed by plaintiff Om Prakash Gautam herein was directed to be treated as 'main case' and the evidence recorded in the said suit was directed to be read in both the cases.
6. Following issues were framed by the Court with respect to both the suits:-
i. Whether the plaintiff or the defendant no. 1 is the owner of the property no. R-245, Mohan Garden, Uttam Nagar, New Delhi-59? OPP ii. Whether the suit is not maintainable in the present form? OPD iii. Whether the plaint has not been verified as per rules? OPD iv. Whether the suit has not been valued properly for the purpose of Court Fees? OPD v. Whether the defendants were allowed to live in the suit property as licensee? OPP vi. Whether the defendants have become unauthorized occupants after termination of license vide notice dated 08.01.2008? OPP vii. Whether the plaintiff is entitled to a decree of mandatory injunction in respect of the suit property, as prayed? OPP viii. Whether the plaintiff is entitled to damages @ Rs. 10,000/- per RCA DJ ADJ/120/2019 Page 7 of 41 month from the date of filing of the suit till the delivery of the possession of the suit property? OPP ix. Whether the plaintiff is entitled to a decree of permanent injunction, as prayed? OPP x. Whether the defendant no. 1 is entitled to a decree of declaration, as prayed? OPD xi. Whether the defendant no. 1 is entitled to a decree of permanent injunction, as prayed? OPD-1 xii. Relief.
7. Plaintiff examined following witnesses in support of his case: -
Name of Witness Role
PW1 Sh. Om Prakash Plaintiff
PW2 Sh. R.K. Rathi Property Dealer through whom suit property
was purchased by plaintiff/ Attesting witness PW3 Sh. Krishan Kumar Official from Sub-Registrar-II, Janak Puri, Delhi for proving registered GPA in favour of plaintiff PW4 HC Sukumar Police Official from PS Uttam Nagar for proving the complaint made by plaintiff PW5 Mohd. Murtaza Contractor who raised construction over the suit property at the behest of plaintiff PW6 Sh. Sarju Sharma Carpenter who carried out woodwork in the suit property at the behest of plaintiff PW7 Sh. Vikrama Prasad Fabricator, who carried out work of iron door, windows and grills in the suit property at the behest of plaintiff PW9 Ct. Praveen Yadav Police official for proving PCR Call Record PW10 Sh. Bhure Singh Building Material Supplier NO PW8
8. Defendants examined following thirteen witnesses: -
Name of Witness Role DW1 Sh. Vinod Kr. Sharma Defendant No. 1 himself DW2 Sh. Jitender Kaushik Relative of defendants/ Witness to Agreement to sell RCA DJ ADJ/120/2019 Page 8 of 41 DW3 Sh. Krishan Kumar Official for proving LIC policy of plaintiff.
DW4 Sh. Virender Kr. Owner of M/s Khurana Hardware for Khurana proving supply of hardware.
DW5 Sh. Naresh Kumar Official from BSES for proving record
of electricity connection no.
265007110435 in the name of defendant
No.1.
DW6 Sh. Vinay Kumar Official for proving LIC policy of
plaintiff
DW7 Sh. Kartar Singh Official who proved Electoral Rolls of
defendants
DW8 Sh. Virender Singh For proving agreement relating to
sanitary work in the suit property.
DW9 Sh. Ram Lubhaya For proving agreement regarding
construction over the suit property
between him and defendant no. 1.
DW10 Sh. Durga Prasad For proving agreement regarding
carrying out electrical work in the suit
property.
DW11 Sh. Ranjit Kr. Singh For proving bill dated 06.03.2006 DW12 Sh. Prem Nath Sah MTNL official for proving record of telephone connection no. 25356008 in the name of defendant No.1.
DW13 Sh. Devender Singh Local Commissioner for proving report Pal and photographs.
DW14 Sh. Allah Mehar For proving raising of construction at the behest of defendant No.1.
DW15 Sh. Narender Singh, Junior Assistant, Food & Supply Department, Delhi DW16 Sh. Nathu Ram For proving Potha/Bahi to show Sharma adoption.
DW17 Sh. Anupam Goel For proving statement of account of bank of defendant no. 1
9. Both the suits were disposed of on 06.06.2019 albeit through separate judgments. I may also point out that the findings of some issues are found recorded in the impugned judgment and some, related to cross suit, in the other connected judgment. Ideally, there should have been a common judgment for better comprehension and appreciation as this court was compelled to call for the records of connected case to see the findings and the reasons which weighed with the court for deciding the issues RCA DJ ADJ/120/2019 Page 9 of 41 framed in such prior suit.
9.1 In context of the present suit, since according to Ld. trial Court, the present suit was merely a suit for mandatory and permanent injunction, besides seeking recovery of mesne profits and damages, there was no requirement of deciding the issue of title and accordingly in the present suit filed by the appellant herein, no decision with respect to title was given. However, in the connected matter, it was held that plaintiffs therein i.e. Vinod Kumar Sharma and Rajni Sharma had failed to prove their ownership over the suit property.
9.2 Issues No. 2 and 3 were decided in favour of the plaintiff and naturally, the plaintiff (appellant herein) is not aggrieved by such findings.
9.3 Issue No. 4 pertained to connected suit and, therefore, there is no requirement of discussing the same.
9.4 Issues No. 5, 6 and 8 were taken up together as these were inter-connected and the Ld. trial Court came to the conclusion that plaintiff had failed to show that the defendants were permitted to live in the suit property as licensee or that the defendants had become unauthorized occupants after the termination of licence. These issues were accordingly decided against the plaintiff.
RCA DJ ADJ/120/2019 Page 10 of 419.5 Issues No. 7 and 9 regarding decree of mandatory injunction and decree of permanent injunction were also, in view of above, decided against the plaintiffs and, resultantly, the suit of the appellant was dismissed by the Ld. trial Court.
9.6 On careful perusal of the impugned judgment, it would become very much evident that the Ld. trial Court felt that the plaint was silent as to when the defendants were permitted to live in a room in the suit premises as a licensee and in the absence of the specific date, the story of the plaintiff seemed doubtful and, therefore, it did not stand proved that the plaintiff had inducted the defendants as licensee. It was also observed that the plaint was silent as to when any request was made by plaintiff to vacate and handover the possession. It also noticed that plaintiff had not bothered to clarify as to on what basis the damages @ Rs.10,000/- per month were claimed by him from the defendants. Testing the case on the scale of preponderance of the probabilities, the Ld. trial Court held that plaintiff had failed to show that the defendants were permitted to live in the suit premises as licensee. Ld. trial Court also held that plaintiff was not having any registered title documents of the suit property in his favour and that he was merely possessing the copy of GPA which did not create any title in his favour. Reliance has been placed upon Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr. 2009 (7) SCC 363.
10. Such findings have been assailed by the appellant, inter alia, on the following grounds:-
RCA DJ ADJ/120/2019 Page 11 of 41a) There was no reason for the Ld. trial Court to have ignored the fact that the documents showing title of the plaintiff i.e. GPA, will, affidavit etc. were registered documents by which the suit property was transferred in his name. Such documents were never challenged or disputed by the respondents and rather they had admitted the execution thereof. Moreover, the plaintiff had submitted the entire chain of the previous ownership of the suit property, which was also not disputed.
b) There was no requirement of filing any declaratory suit as the appellant was having all the genuine documents in his name which were never challenged by his adversary and in such a peculiar backdrop, only a suit for mandatory injunction was maintainable. It is settled principle of law that permissible possession cannot become hostile by long lapse and defendants were merely in the possession as licensee and since they refused to vacate the premises on termination of licence, suit for mandatory injunction was very much maintainable.
c) The documents in favour of plaintiff clearly go on to show his legal / lawful possession and the Ld. trial Court ignored the evidence led by the plaintiff.
d) The defendants have miserably failed to prove their title or possession. They were merely permitted to stay as licensee and such licence was terminated vide legal notice dated 08.01.2008.
e) The evidence on record clearly indicated that the respondents were having mala fide intention and they wanted to grab the suit property and raised flimsy objections in their pleadings. The stand taken by them is concocted and imaginary.RCA DJ ADJ/120/2019 Page 12 of 41
f) The appellant was never adopted by the defendants and they had never made any payment to the appellant for purchasing the suit land.
g) The previous owner made statement during the trial that the suit property was purchased by the appellant and that he had never met the respondents and such crucial aspect was not considered by the Ld. trial Court.
h) The respondents did not bother to place on record any document contrary to the averments made by the appellant in his plaint.
i) The comprehensive reading of the plaint would show that the suit was not for injunction simplicitor and rather it was a suit for possession and, therefore, Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs & Ors. AIR 2008 SC 2033 was applied inappropriately and was misinterpreted.
j) Ld. trial Court should have appreciated that the plaintiff had sought relief of possession and his stand was clear and consistent. He should not have been shown the exit door merely because there was no issue to that effect as rather it was incumbent upon the Ld. trial Court to have framed the issue qua possession.
k) Ld. trial Court should have decided the issue of ownership without which it was not in a position to grant the relief of mandatory and permanent injunction alongwith possession.
l) The observations given by the Ld. trial Court are found to be contradictory, if both the judgments are compared.
m) Ld. trial Court failed to take note of the fact that even otherwise the appellant had good title / better title, vis-à-vis RCA DJ ADJ/120/2019 Page 13 of 41 defendants, over the suit property.
10.1 Appellant has also placed reliance on Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr. (supra), Sant Lal Jain Vs. Avtar Singh AIR 1985 SC 857, Anathula Sudhakar (Supra) and Ajab Singh Vs. Shital Puri AIR 1993 AII 138.
10.2 All such contentions have been refuted by respondents.
10.3 Sh. Yudhishter Sharma, Ld. Counsel for respondents has contended that the Ld. trial Court has appreciated all the facts in the most appropriate manner and the findings given by the learned court are in consonance with the pleadings and as per the settled legal position.
10.4 His further arguments are as under:-
a) Appellant cannot claim himself to be the lawful owner of the suit property on the basis of GPA, agreement to sell and affidavit in view of law laid down by Apex Court in Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr. (supra).
b) The appellant did not examine the previous owner of the suit property which clearly shows that his ownership did not stand proved.
c) The respondents had adopted the appellant in Haridwar and the relevant entry has been duly proved by the respondents RCA DJ ADJ/120/2019 Page 14 of 41 before the Ld. trial Court. Respondents always treated the appellant as their son and they had even performed his marriage, as if they were his real parents.
d) The documents, qua the suit property, were executed in his favour subject to the conditions as undertaken in the 'affidavit' executed by the appellant on the same day. However, the intention of the appellant became malafide and in order to grab the suit property, he filed the instant suit which has been, eventually, dismissed by the Ld. trial Court.
e) The appellant did not issue any legal notice. Moreover, the respondent used to deposit certain amount in the bank account of the appellant as they were treating him as their son.
f) The suit property was purchased by the respondents from their own funds and there is no question of their vacating the same. Not even a single penny was contributed from the side of the appellant. The appellant failed to prove that the consideration for purchase of the suit property was paid by him rather it becomes evident that such consideration was paid by the respondents.
g) The respondents have led categoric evidence to show that the construction / ancillary work was got done by them from their own funds.
h) The respondents were in uninterrupted possession of the suit property right from the beginning.
i) The appellant has failed to prove his title over the suit property and he was required to stand on his own legs.
10.5 The respondents have placed reliance on Suraj RCA DJ ADJ/120/2019 Page 15 of 41 Lamp & Industries Pvt. Ltd. (supra) and Anathula Sudhakar. (supra)
11. I have given my thoughtful consideration to the rival contentions. As already noticed, the suit filed by Sh. Vinod Kumar Sharma and his wife Smt Rajni Sharma was also dismissed. Fact, however, remains that they have not challenged such dismissal order.
11.1 However, before adverting to the rival contentions, it is important to recapitulate the stand of the defendants taken by them in their suit, which is prior in time.
11.2 They both had sought declaration and permanent injunction. According to defendants No. 1, he had purchased the suit property from his own funds, albeit, it was purchased in the name of Sh. Om Prakash Gautam. He has supplied reason as well. As they used to remain out of Delhi and the appellant used to be in Delhi, it was easy for him to apply for the necessary permission etc. from the competent authorities. According to them, the entire sale consideration was paid by them. They claimed that the appellant had, himself, left the property and shifted to Pushpanjali Farms, Kapashera. According to them, the intention of the appellant had become malafide and he wanted to grab the suit property and, therefore, such suit was filed by them seeking decree of declaration, thereby declaring Sh. Vinod Kumar Sharma (defendant no. 1 herein) as the rightful and actual owner of the suit property and also a declaration to the effect that RCA DJ ADJ/120/2019 Page 16 of 41 appellant had no right, title or interest in the same. Such suit was instituted on 05.12.2007.
11.3 The appellant filed written statement in that case on 09.01.2008. However, besides defending the aforesaid suit, the appellant Sh. Om Prakash Gautam filed separate suit on 12.02.2008. In such suit, as already noticed above, the appellant claimed himself to be the absolute and legal owner of the suit property and according to him, he himself had rather paid the entire sale consideration. He also claimed that on the basis of request made by the defendants, he permitted them to live in the suit premises temporarily as licensee and they had promised and assured that they would vacate and hand over the possession as and when so desired and since they did not vacate the same despite legal notice, he filed such suit against them. I have already extracted above the prayer clause of his such suit and at the cost of repetition, I would reiterate that he sought decree of mandatory injunction directing that the defendants may be removed from such unauthorized occupation. He also sought decree of mesne profits, damages/permanent injunction.
11.4 Interestingly, when the issues were framed, the Ld. Trial court had framed issue no. 1 to the effect whether the plaintiff or defendant was the owner of the suit property and the onus was put on the respective parties.
11.5 The issues seem to have been framed, in consolidated manner, keeping in mind the various reliefs sought RCA DJ ADJ/120/2019 Page 17 of 41 by the parties. In the first suit filed by the respondents, they had specifically sought a declaration and they prayed that they may be declared rightful and actual owner of the suit property and that the appellant herein had no right, title or interest in the same and, therefore, based on such averment and prayer made by them, issue to that effect was framed. Admittedly, they could not prove their ownership as the Ld. Trial court had noted that they were not having any registered documents in their favour and rather they had also admitted that the suit property was in the name of Sh. Om Prakash Gautam. Thus, as far as the aspect related to the ownership of respondents over the suit property is concerned, they failed to prove the same in the other suit.
11.6 However, as regards appellant, the Ld. Trial court held that it was merely a suit for mandatory injunction, permanent injunction besides recovery of mesne profits/damages and, therefore, there was no need to decide the issue or title in the said case instituted by the appellant.
12. Such finding has been assailed by the appellant.
12.1 It is claimed that the Ld. Trial court has applied different yardsticks and in one case, it chose to decide the ownership of the plaintiff but in the suit filed by appellant, it did not touch the same, despite the fact that there were title documents in his favour.
12.2 I, however, do not find anything wrong in such RCA DJ ADJ/120/2019 Page 18 of 41 approach of the Ld. Trial court.
12.3 The issues need to be answered in consonance with the case set up by the parties. The appellant is the master of his case. Being dominus litis, it was his prerogative, as to what relief he wants to have from the court. He was not taken by surprise by his adversary. As already noted above, the suit filed by the respondents herein was prior in time in which the appellant had even participated and filed his written statement. He very well knew that they were seeking declaration regarding the ownership over the suit property. However, he, for his own fanciful reasons, was of the view that he was lawful and legitimate owner and that his title was totally unblemished one and therefore, there was no requirement of seeking any declaration of any kind whatsoever. In such a situation, when he had not sought any declaration, the court was naturally not required to adjudicate the same.
12.4 The ownership and possession can be derived on account of multiple reasons.
12.5 One can claim ownership on the basis of the title documents. However, if any such plaintiff inducts someone as a lessee or licensee, the aspect of ownership does not, strictly speaking, comes into picture. Any such plaintiff is merely required to show that he was landlord/lessor and that there was creation of lease or licence. In any such suit, the plaintiff is required to prove such relationship and termination of lease or licence. The question of ownership, more than often, does not RCA DJ ADJ/120/2019 Page 19 of 41 come into picture at all. In the case in hand also, the appellant has not sought any declaration that he be declared owner of the suit property. His case is very simple and straightforward. According to him, the respondents were his licensee and since he had revoked the licence, he had become entitled to seek possession from them.
12.6 I do agree with the Ld. Counsel for the appellant that the relief of possession can be sought by a licensor seeking relief of mandatory injunction. Sh. Wadhwa is, therefore, fully justified in placing reliance upon Sant Lal Jain Vs. Avtar Singh AIR 1985 SC 857 and Ajab Singh Vs. Sheetal Puri AIR 1993 Allahabad 138. Thus, as far as relief of possession is concerned, it is found to be implicit in the relief seeking mandatory injunction. However, it cannot be said that the appellant had set up the case in such a manner as if he was also seeking declaration about his title and ownership. If, at all, he wanted any such declaration, it was expected that he would have made necessary averment and prayer in his plaint. His such averment or prayer cannot be left for imagination.
12.7 Undoubtedly, the documents on which he seeks to rely upon have not been controverted by his adversary. On the contrary, the respondents have also relied upon the same very documents. The only difference is that according to them, the sale consideration was paid by them and the property was purchased in the name of appellant as they used to be out of Delhi for a considerable period. They also claimed that the RCA DJ ADJ/120/2019 Page 20 of 41 construction was also raised by them with their own funds. Thus, by inference, it is quite evident and apparent that even the respondents do not dispute these documents. Of course, they had sought declaration from the court which they failed to seek. They have not challenged the dismissal of their suit but that does not mean that the appellant should be assumed owner, automatically, being having better title. I have carefully gone through the averments made in the plaint and also his affidavit and it is quite evident that he never sought any relief regarding any such declaration.
12.8 Moreover, the appellant is also not very fair in his approach.
12.9 On one hand, he relies on all such title documents and on the other, he has shown the guts to blatantly disown one affidavit executed by him on 25.09.2003 i.e. same date when the suit property was purchased from the previous owner Sh. Manjeet Singh. In such affidavit, which has been proved as Ex. PW1/D3, he categorically claimed therein that the documents of Plot no. R-245, Mohan Garden, Uttam Nagar, New Delhi had been executed in his name because Sh. Vinod Kumar Sharma, who considered him as his son used to remain out. He also specifically mentioned therein that the entire consideration was given by Sh. Vinod Kumar Sharma and whenever he would so desire, the plot would be transferred in his name or in the name of Mrs. Rajni Sharma. Thus, the approach of the appellant is selective and he has very conveniently disowned and avoided the RCA DJ ADJ/120/2019 Page 21 of 41 aforesaid affidavit, admittedly, signed by him.
12.10 Coming back to the case of the appellant, if he is to be believed, he had inducted the respondents as his licensee and terminated such licence also. I have seen the averments made by him in para 6. He vaguely claimed that he had permitted them to live in a room in the suit premises temporarily, as licensee. No date, month or year about such induction has been specified in the entire plaint. I have also seen his affidavit Ex. PW1/A, which he tendered in evidence. In such affidavit also, he reiterated the same averments in para 6 of his affidavit and claimed that he had permitted the defendants to live in a room in the suit premises temporarily as licensee on humanitarian grounds. It is also not very clear whether he actually knew about the contents of affidavit Ex. PW1/A as in his cross-examination, he claimed that such affidavit was prepared by his counsel and he was merely asked to put his signatures. So much so, he is not aware as to whether such affidavit Ex. PW1/A was got attested. Again, no date of induction has been specified. According to him, the alleged creation of licence was verbal in nature. In his cross- examination, he also claimed that he was residing at C-18, Pushpanjali Farms, Bijwasan till 2004 and he used to visit the house of defendants. If he is to be believed, then he remained in such house from 2005 to 2007 but he did not supply any particulars as to when the respondents were inducted as licensee. Interestingly, when Vinod Kumar Sharma (DW1) entered into witness box, the appellant did not put his essential case to him. The affidavit submitted by DW1 Vinod Kumar Sharma has been RCA DJ ADJ/120/2019 Page 22 of 41 proved as Ex. DW1/A and it was categorically claimed therein that they were in peaceful and vacant possession of the entire suit property since the date of its purchase and they had been enjoying the same peacefully without any interference from anyone. It was specifically averred that they were rightful and specific owner in actual physical and peaceful possession of the suit property and no one else had any right, title or interest in the same. He also claimed that the plaintiff had no right or authority to dispossess them. I have seen his entire cross-examination and for the reasons best known to the appellant, it was not even suggested to him that the respondents had been inducted as licensee in the aforesaid property. It was expected from appellant that at least his essential case had been put to the respondents and the lapse on this aspect is not a small one.
12.11 Thus, it is very much apparent that plaintiff Sh. Om Prakash Gautam came up with a very specific case before the civil court. He claimed that the defendants were merely his licensees and that they had not vacated the suit premises despite service of legal notice in this regard. I have, at the cost of repetition, minutely seen the averments made by him in his plaint and it is quite obvious that he had sought their eviction and sought the possession of the suit property based on the fact that they had become unauthorized occupants after the termination of the licence. A careful perusal of the evidence led by him would clearly indicate that he has not been able to establish the fact that the defendants were inducted as licensee. There is no document to said effect. Mere verbal assertion made by him, keeping in RCA DJ ADJ/120/2019 Page 23 of 41 mind the peculiar factual matrix of the present case and competing claims, does not inspire much confidence. Since the possession was being sought only on the ground that the defendants had become unauthorized occupants, after termination of the licence, the plaintiff cannot expect this court to decide his suit with respect to title documents. If, at all, he wanted to set up the relief of title and ownership based on such documents, there was no one to prevent him and he should have rather filed a suit of declaration and title. This would have been even otherwise imperative because the present suit was more in the nature of counter-claim. He, very well, knew that he was defending the suit filed by the alleged licensees. In such other suit, as already noticed above, the defendant Sh. Vinod Kumar Sharma and Rajni Sharma had rather sought declaration that they be declared owners and they also sought declaration that it be declared that the opposite side i.e Sh. Om Prakash Gautam had no right, title or interest over the suit property. Undoubtedly, in the connected case, Sh. Vinod Kumar Sharma and Mrs. Rajni Sharma failed to prove their ownership but since the appellant herein was already in the thick of things and knew about the case set up by his adversary, he should have also filed a suit for declaration and possession based on title. Nothing of that sort was ever contemplated by him and, therefore, it is too late in the day to make any assertion of such fact at this juncture.
12.12 Sh. Wadhwa, Ld. Counsel for the appellant has vehemently contended that the title documents were already on record and, therefore, it was obligatory for the learned trial Court RCA DJ ADJ/120/2019 Page 24 of 41 to decide the issue of ownership in context of the plaintiff as well. He has also gone to the extent of submitting that without deciding the same, the court could not have granted other relief sought by the court. I, however, do not find any merit in the aforesaid contention. Possession can always be sought in variety of situations. A suit can be filed by the title-holder for recovery of possession or it can be one for ejectment of an ex-lessee or for mandatory injunction requiring a person to remove himself or it can be a suit under Section 6 of the Specific Relief Act to recover possession. A title suit for possession has two part - first, adjudication of title, and second, adjudication of possession. If the title dispute is removed and the title is established in one or the other, then, in effect, it becomes a suit for ejectment where the defendant must plead and prove why he must not be ejected. In the case in hand, it had been sought on the ground that licence had been terminated. As noted already, the plaintiff should have been watchful and circumspect enough in seeking necessary relief. He himself does not seek any such declaration and rather in apparent disdainful manner has questioned the wisdom of the learned Trial Court. His such tongue in the cheek approach is not acceptable. In Maria Margadia Sequeria Fernandes vs. Erasmo Jack De Sequeria (2012) 5 SCC 370, Hon'ble Apex Court has observed that in civil cases, pleadings are extremely important for ascertaining the title and possession of the property in question. The plaintiff filed his suit in a casual manner without caring about the importance attached to the specific averments appearing in pleadings.
RCA DJ ADJ/120/2019 Page 25 of 4112.13 Sh. Wadhwa has submitted that the Ld. Trial court has applied Suraj Lamps and Industries Private Ltd (supra) in inappropriate manner. According to him, the directions contained in the aforesaid judgment were to operate prospectively and would not affect the transfer, title, ownership with respect to the documents executed before the date of judgment i.e. 11.10.2011 and since the documents in the present case had been executed way back on 25.09.2003, there was no prohibition or embargo in relying upon these documents and to declare the appellant as owner.
12.14 Such argument also deserves to be rejected. Reason is two-fold.
12.15 Firstly, as already elaborated earlier, no such case was ever set up by the plaintiff herein. Secondly, it cannot be said that the directions contained in Suraj Lamps (supra) were to be applied in prospective manner. In the aforesaid celebrated case, the Hon'ble Supreme court had held that immovable property can be legally and lawfully transferred only by registered deed of conveyance and the transactions in the nature of GPA sales or Will do not convey title and do not amount to transfer and nor can these be recognized as a valid mode of transfer. It also observed that the courts will not treat such transactions as complete or complete transfer as these neither convey title nor create any interest in the immovable property and, therefore, these cannot be recognized as Deeds of Title except to the limited extent of Section 53 A of Transfer of Property Act. The conclusion in this RCA DJ ADJ/120/2019 Page 26 of 41 regard has been given in paras 23-29, which read as under:-
"Conclusion
23. Therefore, an SA/GPA/will transaction does not convey any title nor creates any interest in an immovable property. The observations by the Delhi High Court in Asha M. Jain v. Canara Bank [(2001) 94 DLT 841], that the "concept of power-of-attorney sales has been recognised as a mode of transaction" when dealing with transactions by way of SA/GPA/will are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/will transactions are some kind of a recognised or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognise or accept SA/GPA/will transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
24. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of "GPA sales" or "SA/GPA/will transfers" do not convey title and do not amount to transfer, nor can they be recognised or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognised as deeds of title, except to the limited extent of Section 53-A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in municipal or revenue records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered assignment of lease. It is time that an end is put to the pernicious practice of SA/GPA/will transactions known as GPA sales.
25. It has been submitted that making declaration that GPA sales and SA/GPA/will transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they RCA DJ ADJ/120/2019 Page 27 of 41 should be given sufficient time to regularise the transactions by obtaining deeds of conveyance. It is also submitted that this decision should be made applicable prospectively to avoid hardship.
26. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/will transactions are not "transfers" or "sales" and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreements of sale. Nothing prevents the affected parties from getting registered deeds of conveyance to complete their title. The said "SA/GPA/will transactions" may also be used to obtain specific performance or to defend possession under Section 53-A of the TP Act. If they are entered before this day, they may be relied upon to apply for regularisation of allotments/leases by development authorities. We make it clear that if the documents relating to "SA/GPA/will transactions" have been accepted/acted upon by DDA or other developmental authorities or by the municipal or Revenue Authorities to effect mutation, they need not be disturbed, merely on account of this decision.
27. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a power of attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding "SA/GPA/will transactions" are not intended to apply to such bona fide/genuine transactions.RCA DJ ADJ/120/2019 Page 28 of 41
28. We place on record our appreciation for the assistance rendered by Mr Gopal Subramanium, Senior Counsel, initially as Solicitor General and later as amicus curiae.
29. As the issue relating to validity of SA/GPA/will has been dealt with by this order, what remains is the consideration of the special leave petition on its merits. List the special leave petition for final disposal."
12.16 I do not find anything in the aforesaid observations which may go on to show that the law laid down was held as prospective in nature. Hon'ble Apex Court had rather observed that the concept of Power of Attorney could not be said to be the recognized mode of transaction. It went on to observe that it was reiterating a well settled legal position and therefore, it cannot be said by any stretch of imagination that the judgment had laid down any specific law, making the same prospective in nature. Reference be also made to Shiv Kumar Vs. Union of India (2019) 10 SCC 229. Said matter though pertained to Land Acquisition Act, the Hon'ble Apex Court reiterated that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. Respondents have also relied upon Balram Singh Vs. Kelo Devi 2022 SCC Online SC 1283. It has been contended that by virtue of said recent judgment, Hon'ble Apex Court has reiterated that such unregistered document cannot be used even for collateral purpose, observing further that the plaintiff cannot RCA DJ ADJ/120/2019 Page 29 of 41 get the relief indirectly which otherwise he cannot get in a suit seeking substantive relief. It is argued that the Hon'ble Apex Court has gone to the extent of observing that the plaintiff cannot even file a suit for permanent injunction, based on such unregistered document / agreement to sell.
12.17 Sh. Wadhwa has relied upon Urmila Devi & Ors. Vs. Laxman Singh 2015 SCC OnLine Del 8487 and based on the aforesaid judgment, it is contended that the directions contained in aforesaid judgment of Suraj Lamps (supra) are prospective in nature and cannot affect the prior transactions. I may also point out, right here, that in various subsequent judgments, the Hon'ble High Court of Delhi has itself observed that no such inference could be drawn from the aforesaid judgment of Suraj Lamps (supra) that it was prospective in nature. It was observed that the directions contained in Suraj Lamps (supra), nowhere held that such type of documents, Power of Attorney, Will, Agreement to Sell etc. executed before the pronouncement of such judgment would constitute documents of title. Reference in this regard be made to Hemant Verma Vs. Mithilesh Rani 2021 SCC OnLine Del 1523, Chanchal Devi Vs. DDA (2018) SCC Online Delhi 11068; Bishan Chand Vs. Ved Prakash (LR) (2018) 172 DRJ 420; Saroj Aggarwal Vs. Mehar Singh & Ors., (2018) SCC Online Delhi 12022.
12.18 I am also conscious of the several judgments of our own High Court, wherein it has also been also laid down that RCA DJ ADJ/120/2019 Page 30 of 41 though the person may not have complete ownership rights, he surely would still have better right/entitlement of suit property. I may make mention of Ramesh Chand Vs. Suresh Chand & Ors. 2012 SCC Online Delhi 1985. Therein, Hon'ble Delhi High Court dealt with the aforesaid observations given by Hon'ble Supreme Court in Suraj Lamps case (supra) and clarified that a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882 and Section 202 of the Contract Act, 1872. It also observed that there is devolution of interest after the death of testator in terms of Will and observed that even if there was no benefit available under Section 53A of Transfer of Property Act, the plaintiff would still be entitled to benefit of Section 202 of Contract Act and also the fact that the ownership which devolved upon him in terms of Will. It was thus observed that though any such plaintiff would not be called a classical owner of the suit property as would an owner be under a duly registered sale deed, but surely he would still have better rights/entitlements of possession of suit property. It held that right of possession arises not only from the complete ownership right but by having a better title or a better entitlement/right of possession than qua the person who is in actual physical possession.
12.19 It is argued by Sh. Wadhwa that these types of documents are generally executed and these cannot be held invalid and according to him since the consideration had passed RCA DJ ADJ/120/2019 Page 31 of 41 and since the opposite side did not dispute about the execution of these documents, the plaintiff should have been declared owner based on such documents and based on his having better title vis- a-vis his adversary. Though such argument may look quite attractive but fact remains that such fact was never averred or pleaded. The plaintiff never bothered to set up his case seeking declaration, ownership and possession based on the title documents. So much so, he has not even bothered to examine the previous owner Sh. Manjeet Singh and, therefore, it cannot expect that the court, on its own, would declare him owner, without there being any prayer to that effect.
12.20 Sh. Wadhwa has further contended that since there was no doubt with respect to the title of the plaintiff as the execution of such documents had even been admitted by the defence, there was, in essence, no cloud or dispute over his title over the suit property and, therefore, the Ld. Trial court should not have misapplied Anathula Sudhakar (supra). It has been argued that such judgment has been applied by the Ld. Trial court in a selective manner and the Ld. Trial court did not notice that the bar of Anathula's case did not apply to the present case.
12.21 The preposition laid down in the aforesaid case of Anathula Sudhakar (supra) reads as under:-
"(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for RCA DJ ADJ/120/2019 Page 32 of 41 an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction.
But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
12.22 I have carefully perused the aforesaid observations given by Hon'ble Supreme Court. I am of the view that the Ld. Trial court was never selective in its approach. The necessary averments in the plaint were conspicuously missing and it cannot be, by any stretch of imagination, said to be a simple and straight-forward case. There was obviously cloud raised over the title of the plaintiff. The defendants though admitted the RCA DJ ADJ/120/2019 Page 33 of 41 execution of documents, they were categoric in their assertion and according to them, they had purchased property from their own funds and it was merely purchased in the name of plaintiff. Moreover, the plaintiff was not in the possession of the suit property and the title was apparently in cloud as before the plaintiff herein could have knocked the doors of the civil court, the defendants had already filed a civil suit seeking declaration and ownership and therefore, the Ld. Trial court could not have suo-moto decided the title and ownership of the plaintiff, without there being any averment to that effect and, therefore, the Ld. Trial court was justified in not venturing into the aspect of the title of the plaintiff. I am of the view that the Ld. Trial court used its discretion very carefully after noticing the case set up by the plaintiff and, therefore, I do not find any merit in the arguments made in this regard from the side of the appellant.
12.23 I have also carefully perused the evidence led by the parties and both the sides have spent their energy on proving that they had carried out the construction and not their adversary. Various witnesses were examined in this regard by both the sides.
12.24 If plaintiff Om Prakash Gautam is to be believed, then perhaps, he had been dispossessed from the remaining portion of the suit property on 14.11.2007. In order to bring home the aforesaid fact, he examined PW4 HC Sukhman. HC Sukhman did bring copy of complaint register and the relevant entry dated 14.11.2007 was proved by him as Ex. PW4/1. Fact, RCA DJ ADJ/120/2019 Page 34 of 41 however, remains that examination of this witness was deferred as he had not brought the copy of complaint which the plaintiff might have given to the police. This witness never entered into witness box again and no such copy of complaint has seen light of the day. Plaintiff himself never placed on record any such copy. His oral assertion does not inspire any credibility. Thus, he has failed to substantiate the factum of alleged trespass committed by the defendants. I would also like to mention that there is no witness who might have been examined as PW-8.
12.25 Plaintiff also admitted that his marriage was got performed by the respondents herein. Their stand is also that they had adopted plaintiff Sh. Om Prakash Gautam as their son. He was already major at the time of alleged adoption and according to them, they had gone to Haridwar for said purpose so that his name is entered in the register of ancestors maintained there. In order to substantiate the same, they also examined DW- 16 Sh. Nathu Ram Sharma. He brought the relevant potha/bahi and copy thereof was exhibited as DW16/1. I have seen the cross-examination of this witness and it is manifest that there is no challenge to the aforesaid entry as there is no suggestion to that effect.
12.26 As already noticed above, the earlier suit filed by Sh. Vinod Kumar Sharma and Ms. Rajni Sharma was dismissed by the learned trial court and they had not challenged the dismissal thereof. In the present suit also, the plaintiff and defendants, both, have examined various witnesses in order to establish that they RCA DJ ADJ/120/2019 Page 35 of 41 had raised the construction. I, however, do not find any compelling reason to minutely evaluate their testimony as the plaintiff had never come up before the court with any specific assertion seeking title and possession based on title. He, nowhere claimed possession or declaration of title with respect to the suit property based on title documents or based on the fact that he had carried out the construction. His case was very simple and straight-forward. He claimed that defendants were his licensees and since they had not vacated property despite termination of licence, their possession had become unlawful. Since he failed to prove the relationship of licensor and licensee, the examination of all such other witnesses, related to construction activity, seemed to be an exercise in futility and, therefore, no significance can be attached to such aspect.
12.27 It is also quite surprising and intriguing as to why the plaintiff kept on extending financial help to the defendants by depositing money in their account. If he is to be believed, then he deposited approximately Rs. 1,82,300/- in the account of defendant no. 1. He has not explained as to why the licence was verbal and why instead of charging any licence fee, he himself kept on making substantial payment to them. It is also baffling as to why, if the licence pertained to one room only, the plaintiff left the possession of remaining portion of the property without any murmur. As noted already, his story of trespass is nothing but fanciful. Thus, there is definitely, something more than what meets the eyes. The plaintiff has not properly enlightened and specified as to when he for the first time came in contact of the RCA DJ ADJ/120/2019 Page 36 of 41 defendants. He has not clarified as to when the construction was over. He has also not supplied date, month or year when he inducted them as licensee. He has not explained as to why he had made payment of Rs. 1 lac to defendant No.1 prior to purchase of property. All these crucial aspects have been left for imagination.
12.28 Similarly, if defendant no. 1 is also to be believed, even he had withdrawn cash amount from his bank account and used to deposit the same in the bank account of plaintiff Sh. Om Prakash Gautam. Such amount is also approximately to the tune of Rs. One lac. The purpose of such deposit has not been explained or elucidated properly by them either. Since the plaintiff is in appeal in the present case, he should have cared to explain as to why he was extending financial help to the defendants and if at all such amount was not repaid, why he did not file any suit seeking any recovery.
13. Be that as it may, I do not find any reason to come to a different conclusion and, therefore, the relevant findings given by the Ld. Trial court are affirmed. For the sake of complete clarity, the conclusion with respect to such findings, issue wise, is as under:-
Issue No. 1Whether the plaintiff or the defendant no. 1 is the owner of the property no. R-245, Mohan Garden, Uttam Nagar, New Delhi-59? OPP 13.1 The findings given by the Ld. Trial court are affirmed. Plaintiff himself is to be blamed as he had merely filed RCA DJ ADJ/120/2019 Page 37 of 41 a suit for mandatory injunction. The possession had been sought as according to him, the defendants were his licensees, which he failed to show. Thus he has not been able to prove the aforesaid important facet of the case. Nobody knows as to when such licence was created and since the plaintiff had never sought any declaration that he be declared owner and since he never sought possession of the suit property on the basis of title, the Ld. Trial court rightly held that there was no requirement to decide the issue of title in context of suit filed by the plaintiff Sh. Om Prakash Gautam.Issues Nos. 5, 6 and 8
v. Whether the defendants were allowed to live in the suit property as licensee? OPP vi. Whether the defendants have become unauthorized occupants after termination of license vide notice dated 08.01.2008? OPP viii Whether the plaintiff is entitled to damages @ Rs. 10,000/- per month from the date of filing of the suit till the delivery of the possession of the suit property? OPP 13.2 I affirm the findings given by Ld. Trial court and it is held that these issues were also rightly decided against the plaintiff and in favour of the defendants. Plaintiff failed to substantiate that the defendants were inducted as licensee and were permitted to live in one room as licensee. There is nothing which may suggest that they had committed any trespass on 14.11.2007 or for that matter on 22.12.2007. There is nothing which may indicate that after alleged creation of licence, the RCA DJ ADJ/120/2019 Page 38 of 41 plaintiff had ever made any request to them to vacate and hand over the possession. Surprisingly, the alleged licence was with respect to one room only but the plaintiff has not been able to throw light as to how come that the entire suit property was in possession of the defendants. Thus, there is utter confusion and lack of clarity with respect to creation of licence and the extent of the area, allegedly the defendants as licensee. It is thus discernible that the story of the plaintiff does not enthuse much confidence. He failed to prove his case even on the scale of preponderance of probabilities.
Issues Nos. 7 and 9vii. Whether the plaintiff is entitled to a decree of mandatory injunction in respect of the suit property, as prayed? OPP ix. Whether the plaintiff is entitled to a decree of permanent injunction, as prayed? OPP 13.3 These issues were decided against the plaintiff and in favour of defendants by the Ld. Trial court and I affirm such findings as well. Plaintiff is merely relying on GPA/Will/Agreement to Sell and these documents cannot, in themselves, confer any title upon him. He is also not in possession of the suit property. He did not file any suit for specific performance against the person from whom he had allegedly purchased the property. He has not bothered to examine the alleged previous owner Sh. Manjeet Singh.
13.4 Undoubtedly, the defendants did not seem to RCA DJ ADJ/120/2019 Page 39 of 41 question the execution of documents but according to them the consideration was not paid by the plaintiff. Again, the plaintiff is to be blamed as he did not seek any declaration on the basis of title. He should have specifically pleaded that he be declared owner but for the reasons best known to him, he simply prayed for injunction. Of course, the suit filed by the defendants was also dismissed but that, in itself, would not mean that the plaintiff becomes entitled to any automatic declaration or for that matter any injunction. I am conscious and mindful of the fact that the possession of licensee is permissive in nature, and cannot be adverse. However, in the present complex factual matrix, the possession is admittedly with defendants but the plaintiff has not been able to project the same to be permissive, even. Since, they are claiming themselves to be owners, in their own rights, the plaintiff should have set up his claim and ownership, based on title.
14. There is no requirement of taking up issues no. 2 and 3 which have already been decided in favour of plaintiff. Issues no. 4, 10 and 11 pertain to suit filed by Sh. Vinod Kumar Sharma and his wife Smt Rajni Sharma and, therefore, these are not required to be adjudicated in the present appeal.
15. As an upshot of my foregoing discussion, plaintiff was rightfully held not entitled to any relief.
15.1 The appeal is, therefore, dismissed and as a consequence thereof, the suit filed by the plaintiff Sh. Om RCA DJ ADJ/120/2019 Page 40 of 41 Prakash Gautam is also held dismissed.
15.2 Decree be drawn accordingly. No order as to costs.
15.3 Trial court record be sent back along with a copy of this judgment.
15.4. Appeal file be consigned to Record Room.
Digitally signedAnnounced in Open Court MANOJ by MANOJ JAIN Date: On 31st day of January, 2023 JAIN 2023.01.31 17:28:49 +0530 (Manoj Jain) Principal District & Sessions Judge South-West/Dwarka New Delhi RCA DJ ADJ/120/2019 Page 41 of 41