Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 3, Cited by 0]

Delhi District Court

Mohd. Saleem vs Mohd. Sabir on 23 December, 2014

             IN THE COURT OF MS. KADAMBARI AWASTHI CJ ­02
                  (CENTRAL),TIS HAZARI COURTS, DELHI
        Suit No  :  222/2014
        IN THE MATTER OF:­

        MOHD. SALEEM
        S/o Sh.  Abdul Rahim
        R/o 108 to 12, Chatta Lal Main,
        Darya Ganj,
        New Delhi­110002 
                                                                 ........PLAINTIFF 

                                                VERSUS

        MOHD. SABIR
        S/o Sh. Baddu @ Cheel 
        R/o 3132, Trai Barum Khan
        Sir Sayyed Ahmad Road,
        Masjid Daee Wali,
        Darya Ganj,
        Delhi      
        ALSO AT
        108, Ground floor, Chatta Lal Main,
        Darya Ganj,
        New Delhi­110002                                         .......DEFENDANT

                                      Date of Institution:­          19.03.2012  
                               Date of reserving the judgment:­      17.12.2014
                               Date of Judgment:­                    23.12.2014
                     
          


             SUIT   FOR   RECOVERY   OF   POSSESSION,   MESNE 
             PROFITS, DAMAGES.

               The facts germane as per the plaint is as under:­
   1.

It is submitted the plaintiff is a peace loving and law abiding citizen of India and is the owner/landlord of entire property bearing No. Suit No. 222/14 Page 1 of 25 108 to 112, Chatta Lal, Darya Ganj, New Delhi­110002 as specifically shown in the site attached with the suit. It is also stated that on 01.05.2007, due to acquaintance, the defendant was temporarily entrusted a portion of the property at Ground floor for only six months only on the basis of friendship, mutual confidence as well as mutual trust with out basic amenities, and at the time of handover the possession of the portion of the property for six months to the defendant, no agreement was executed, no surety bond was executed between the plaintiff and the defendant because the defendant had assured the plaintiff that he would keep has promise, would honour the commitment and contract and also would honour his word, voluntary handover the possession of the entrusted portion of the property to the plaintiff like an honest and law abiding person, the plaintiff should not be worried even if the commitment and contract is oral.

2. The defendant also assured the plaintiff that have faith and confidence in the defendant so no document was written/executed in this regard. The entrusted portion handed over to the defendant for only six months by the plaintiff is specifically shown red in the site plan attached with the plaint.

3. It is submitted that the plaintiff never received or demanded any amount from the defendant for using the portion of the property although prevailing rate of rent of similar, portion in around the area is Rs. 5,000/­ per month only because of paying regard to the friendship, mutual trust and confidence and because whatever the plaintiff could have done for a trusted friend he did it for his friend.

Suit No. 222/14 Page 2 of 25

4. It is also stated that on or after the expiry of six months and inspite of repeated request and demand from the plaintiff, the defendant has not handed over the vacant, physical possession of the suit property to the plaintiff by doing, so the defendant has violated the oral promise, contract and agreement of handing over the possession of the entrusted portion of the property, the defendant has not kept his promise and also did not honour his commitment/words and deprived the plaintiff of rightful use of the entrusted portion of the property and so the defendant illegally and forcibly dispossessed, the plaintiff without obtaining the consent of the plaintiff.

5. It is submitted that now the defendant is in possession, occupying, using the entrusted portion of the suit property as trespasser, as an illegal occupant of entrusted portion of the suit property and is not handing over the vacant physical possession of it to the plaintiff in spite of continuous repeated demands for the last four years. It is also stated that for the last four years, the defendant has been putting pressure upon the plaintiff either to accept him as a regular tenant in the entrusted portion of the property or otherwise the plaintiff should get ready to face the dire consequences, on which the plaintiff politely requested and also replied that as he is now in an unlawful possession of the entrusted portion of property and because he has become a trespasser and illegal occupant so he can not be accepted as a regular tenant in the portion of the property, he is to vacate and handover the possession of it to the plaintiff as early as possible.

6. The plaintiff stated that he would not make dishonest person his tenant. On which the defendant threatened that he will not handover Suit No. 222/14 Page 3 of 25 the possession to the plaintiff come what may.

7. It is submitted that many a time the dispute arose to its peak and quarrel took place between the plaintiff and the defendant, the matter reached to the police, however, the police also raised its hand being the matter of civil nature, however, at the honest advise of sympathizers it was decided that the suit for possession against defendant be filed and action should be taken according to law against.

8. It is also stated that the defendant with malafide intention wants to grab the property belonged to the plaintiff, his intention is hostile and malafide towards the plaintiff and towards the property of the plaintiff. The acts and threat of the defendant is illegal, unauthorized and malafide being trespasser and illegal occupant.

9. It is submitted that there is no other efficacious, equitable remedy available to the plaintiff except to file the present suit for possession, mesne profit at the prevailing rate of rent of Rs. 5,000/­ per month at least for the last three years, and damages and cost of the suit.

10. It is submitted that the cause of action arose firstly on 01.05.2007 when the defendant was temporarily entrusted a portion of the property at Ground floor for only six months only and it further arose on 01.11.2007 on completion of six months and the cause of action is still continuing and persists and will continue till the possession of the property is handed over to the plaintiff. It is also stated that the plaintiff and the defendant reside and work for gain at Delhi.

Suit No. 222/14 Page 4 of 25

11. Defendant was served and filed written statement taking preliminary objection to the effect that the suit of plaintiff is not maintainable and the same is liable to be dismissed, in view of the fact that the plaintiff has not approached to the court with clean hands and has suppressed the true and material facts.

12. It is submitted that the suit of plaintiff has been filed without cause of action and therefore, the same is liable to be dismissed with cost. It is also stated that the suit of the plaintiff is time barred as per his own version and therefore, the suit is liable to be dismissed.

13. It is submitted that the suit is liable to be dismissed on the ground that the market value of the suit premises is about Rs. 10,00,000/­ at the time of filing the suit and the requisite court fees has not been affixed by the plaintiff and therefore, the suit of the plaintiff is liable to be dismissed on the ground that the plaintiff is not the owner of the suit premises and of the other joint and connected properties as stated by him because the suit property belongs to the department of Slum and J. J. MCD and the reply under the RTI Act is likely to be received by the defendant on his application under Order 6 Right to Information Act, 2005. t is submitted that the suit has been filed by the plaintiff against the defendant without clean hands and the plaintiff has suppressed the truth and genuine position between him and the defendant suspected that the plaintiff has filed the present suit only with a view to put pressure upon the defendant to keep mum and not to demand his amount of Rs. 10,00,000/­ because the defendant had paid Rs. 5,00,000/­ by cash to the plaintiff in two installments i.e. Rs. 3,40,000/­ in the month of February, 2004 and Rs. 1,60,000/­ in the month of March, 2004 Suit No. 222/14 Page 5 of 25 and it was agreed between the plaintiff and the defendant that the plaintiff shall execute a proper sale deed in the name of the defendant and if the plaintiff does not execute the sale deed in the name of the defendant, then, the plaintiff shall pay the double amount of Rs. 5,00,000/­ which comes to Rs. 10,00,000/­ and there was some hot words exchanging between the plaintiff and the defendant and for non compliance of the sale deed. It is wrong and denied that plaintiff is tolerating the defendant with one way or other to do so and it was revealed and noticed by the defendant that the suit property does not belong to the plaintiff and it is the only cogent reason that the present suit is filed on false and flimsily grounds by the plaintiff against the defendants to drag him to face the litigation. These facts have been concealed by the plaintiff and the present suit is based on false, bogus and flimsy grounds and the same is liable to be dismissed. It is pertinent to mention that the plaintiff is the real brother­in­law of one of the brother of the defendant.

14. It is submitted that the suit is again liable to be dismissed on the ground that even a single piece of paper regarding the ownership of the suit property has been filed by the plaintiff nor any copy is supplied to the defendant of the same. It is also stated that in the present suit the boots are on the other leg and the story of filing the present suit is concocted and the same therefore, is liable to be dismissed because the true and genuine position has been concealed by the plaintiff and have suppressed the material facts from this court.

15. It is submitted that the contents of Para No. 1 are wrong and emphatically denied. It is stated that the possession of the defendant in Suit No. 222/14 Page 6 of 25 the suit property is right from the month of February, 2004 till this date and the said premises in dispute is being used by the defendant for the business of Halal Meat and its accessories. The date 01.05.2007 is not correct. It is denied that defendant was inducted on 01.05.2007 in the suit premises as alleged. The period of six months for any ground is again wrong and is emphatically denied. The site plan is almost admitted to be correct. There had been an agreement in the Month of February, 2004 between the plaintiff and the defendant that the plaintiff shall execute a proper sale deed in the name of the defendant of the premises under suit. The defendant had paid Rs. 3,40,000/­ by cash to the plaintiff in the month of February, 2004 and Rs. 1,60,000/­ in the month of March 2004 with the assurance made by the plaintiff to the defendants that he will get the proper sale deed in his name. It is stated that the promise was never fulfilled and this is a bone and cogent reason between the parties and the present suit. It is denied that the defendant is being tolerated by the plaintiff with one way or the other, neither the plaintiff is returning Rs. 10,00,000/­ as agreed by him nor he is executing the sale deed of the suit premises. These talks were made by the plaintiff in the presence of witnesses. There had been no assurance or any promise or commitment or friendship or mutual confident effected by the defendant but it was the plaintiff who did so all.

16. It is submitted that the contents of Para No. 3 of the plaint is not admitted and the same is emphatically denied. It is further wrong that the plaintiff never received or demanded any amount from the defendant and the contents of Para No. 4 of the plaint is again wrong and denied specifically.

Suit No. 222/14 Page 7 of 25

17. It is submitted that the contents of Para No. 5 of the plaint is wrong and is emphatically denied. It is stated that the defendant is enjoying the suit premises in his own capacity and the plaintiff is bound to pay Rs. 10,00,000/­ to the defendant as agreed and accepted by him. This amount of Rs. 5,00,000/­ given by the defendant to the plaintiff in two installments i.e. Rs. 3,40,000/­ in the month of February, 2004 and Rs. 1,60,000/­ in the month of March, 2004. There is no question to hand over the vacant, physically possession of the suit premises to the plaintiff.

18. It is stated that content of Para No.6 of the plaint is wrong, false and is emphatically denied. The defendant never put any pressure upon the plaintiff nor he ever requested the plaintiff to admit him as his regular tenant. Since the plaintiff is not the owner of the suit property how can it be possible for the plaintiff to admit the defendant as a regular tenant. There had been no occasion to say the words to face the dire consequences.

19. It is submitted that the contents of Para No. 7 of the plaint is wrong and is emphatically denied. The contents of Para No. 8 of the plaint is wrong, false and is emphatically denied. There is no question of grabbing any property but in the present suit the boots are on the other legs. It is the plaintiff who hatched up and usurped the amount of Rs. 5,00,000/­ given by the defendant to the plaintiff.

20. It is submitted that the Para No. 9 of the plaint is also wrong false and is emphatically denied. The suit is filed by the plaintiff without cause of action. The plaintiff has concealed the true and genuine Suit No. 222/14 Page 8 of 25 position from this court.

21. It is submitted that the contents of Para No. 11 and 12 of the plaint is again wrong and is emphatically denied. It is submitted that as averred that is the period of 6 months has lapsed from 01.05.2007 is incorrect. It is stated that the defendant is in possession of the suit premises since February 2004 till date and the suit of the plaintiff is based on concocted facts.

22. It is denied that with the plaintiff has correctly valued the suit for the purpose of court fee and jurisdiction. It is submitted that the in the walled city of old Delhi The price of property are very high and the present value of property is not less than Rs. 10,00,000/­.

23. A prayer is made to dismissed the suit with cost.

24. No replication has been filed by the plaintiff. From the pleadings of the parties the following Issues were framed by my Ld. Predecessor.

1) Whether suit of the plaintiff is without any cause of action?
OPD.
2) Whether present suit is barred by law of limitation? OPD
3) Whether suit has been properly valued for the purpose of court fees and jurisdiction? OPD
4) Whether plaintiff has no lucus standi to file and institute the present suit? OPD
5) Whether plaintiff is guilty of concealment and suppression of material fact and has not approached to the Court with Suit No. 222/14 Page 9 of 25 clean hand?OPD.
                 6)       Whether plaintiff is entitled for decree of possession and  
                          mesne profits? OPP
                 7)        Relief.
25. In support of their case plaintiff examine PW1 ( Mohd. Saleem) and PW2 ( Mohd. Harun) whereas in defence of defendant examine 3 witnesses. Mohd. Sabir examined as DW1, Kamil Rashid as DW2 and finally Mohd. Ashlam as DW3. An affidavit of a witness called Akbar Mirza has already been filed by the defendants though the witness never turn up for deposing before the court.
26. PW1 in his examination in chief place reliance upon document ex.

PW1/A. During his cross examination the witness admitted that the property numbered from 108 to 112 is the suit property. He also depose that the defendant is in possession of property No. 110. It is denied that the property in question was given to the defendant in the year 2004. It is also denied that he had received an amount of Rs. 3,4000 from the defendant in February 2004.

27. It is denied by the witness that the property in question was not given without basic amenities. It is also denied that the defendant were under belief that the PW1 would execute a sale deed in their name. It is further denied that the plaintiff has received an amount of Rs. 5,00,000/­ from the defendant at the time of handing over possession of the suit property. It is also denied by the witness that there was an agreement that if the plaintiff would failed to execute a sale deed in favour of the defendant he would be liable to pay that Rs. 10,00,000/­ to Suit No. 222/14 Page 10 of 25 the defendant. It is submitted by the witness that he has filed the paper of ownership of property in question on the record. The witness admitted that the elder brother of the defendant is his brother­in­law of plaintiff and defendant are doing business of Halal Meat from the shop in question. It is denied by the witness that he is not the owner of the property No. 108­112. It is also admitted by the witness that his residence just above the place of business of defendant.

28. It is also admitted by the witness that no agreement has been executed between him and defendant. The witness could not tell whether the property was valued for Rs. 1500000 at the time of giving to defendant or the same has increased to Rs.20,00000 presently. The witness expresses unawareness about the valuation of the suit property or the basis of the same. Though it is depose that the police station Chandni Mahal is located near by his House. The witness claim to have gone to the local police station but no report was lodged by the police. It is also deposed that the some peoples of the area/mohalla mediated between him and the defendant to settle the dispute. It is denied by the witness that the defendant has approximately spend 3 to 4 lac rupees. For the renovation and making the property in habitable condition. It is admitted by the plaintiff that he has not invested any amount on the property since the same is given to it to the defendant. It is denied by the witness that he has no knowledge and had deliberatelytaken 5 lac rupees from defendant and hushed up the matter and never executed sale deed. It is deposed by the witness that the ad­measurement of the place occupied by the defendant would be about 15 ft. x 7 ½ feet . It is claimed the site plan was prepared by the drafts man who visited the property and prepared the same on his instruction. PW­2 Mohd Haroon Suit No. 222/14 Page 11 of 25 during his cross examination admitted that there has been no agreement in writhing between Mohd. Saleem and Mohd. Sabeer. He further depose that he is son of plaintiff and he along with his father trade in the business of Mutan supply. It is also admitted that that plaintiff and defendant are relative. It is denied that in February 2004, the defendant gave to Rs. 3,40000 to the plaintiff and again in March 2004, Rs. 1,60000 to were given by Mohd. Sabeer who is father. It is also denied that his father ever said to execute a sale deed in the name of defendant for Rs. 5,000000 it is also denied that Mohd saleem ever agreed to pay Rs. 10,00,000 as the double the amount of 5 lac to Mohd. Sabeer. PW2 further admitted that the property No. 108 to 112 does not bear municipal No. It is stated that the whole area of Chatta Lal Mian there are no number plate of the Houses. PW2 expresses his unawareness as to the value of suit premises at the time of filing the suit not he is aware of the suit property presently. Since he never thought to sell the same. Witness admitted that there were no witnesses at the time of handing over the suit property by his father to the defendant for use. It is also denied that the defendant incurred many over renovation of the suit property. The witness bring fourth the original of the ownership document of the property. The document were in the name of his grandfather SH. Abdul Rahim Alias Nanhe. He also admitted that defendant Mohd, sabeer is running a Halal Meat Shop from the suit property. There has been no agreement regarding the monthly rent to be paid by Sh. Mohd. Sabeer to the plaintiff.

29. On 16.06.2016 PW2 again recalled for cross­examination. It is admitted that Property no 108 to 112 does not bear municipal no. in Chata Lal Mian. It is denied that the site plan filed by the plaintiff does Suit No. 222/14 Page 12 of 25 no show no. 108. Witness depose that his father is alive. It is denied that the property in question has never been partitioned. It is admitted that the property is originally in the name of his grand father. It is denied that after the death of his grand father the entire property does not devolved upon his father and other LRs have share in it. The witness denied that the suit is motivated with greed. He could not tell whether the police complain was oral or in writing. The witness claim that he never visited the police station.

30. The defendant examine himself as DW1. During the cross examination it is claim by the defendant that the suit property is 1 Km. Away from his residence, and the plaintiff is residing at the first floor just above the suit property. It is also stated that the staircase for going to the first floor is just besides his shop. Defendant claim that that he is been enjoying electricity and water supply. He admitted that he has not placed any electricity and water connection bills on records. With respect to the suit property. It is denied that he has been occupying the suit property as a tenant. Witness DW1 claimed that he is occupying the suit property as a owner but he does not have any documents regarding the ownership of the suit property i.e. shop. He claimed to have taken possession of the suit property from the plaintiff in the year 2004. It is admitted that the defendant had not executed any document of sale deed in his name since 2004 It is also admitted that he had not issued any notice demanding plaintiff to execute the sale deed in his name. It is also admitted that he has not file any suit for specific performance, for getting the sale deed registered in his name. The witness also claimed that in the month of February 2004 an oral agreement took place between him and the plaintiff and he had paid a sum of Rs. 3,40000/­ in Suit No. 222/14 Page 13 of 25 the month of March and again paid Rs 1,60000/­ total amount of Rs. 5,00,000/­ as sale consideration of the suit property. And thereafter no balance payment was left to be made. It is admitted that since March 2004, plaintiff have not executed sale deed in his favour. It is also admitted that at the time of making the payment to the plaintiff no written documents were prepared.

31. It is admitted that there is no electricity connection in the name of any person in the suit property. It is claimed by the defendant that he is still using the electricity by using a illegal electricity connection in his shop. It is deposed that the defendant is not able to get the electric connection since there is no documentary proof of ownership in his name, same is the position with respect to the water connection. It is denied that the defendant has occupy the suit premises as trespasser. It is also denied that the suit property has been occupy by the defendant since 01.05.2007. It is claimed by the defendant that he is in possession of the suit property since February 2004. It is also deposed by the defendant that he has not applied for license from MCD because plaintiff had not given any document as per his promise neither he has got a sale deed registered in his name. It is admitted by the DW­1 that he has not placed on record any Order book, Cash book, Bill Book or challan book or any other document proving that he is in possession of the suit property since 2004. It is admitted by the witness that Mohd. Saleem/ plaintiff is acquainted to him being in his relation and residence of the same area and also belongs to same cast and religion. DW­1 depose that he knows the plaintiff since his child hood and there always been good relationship with him and both of them having confidence and trust on each other. It is denied that on account of the Suit No. 222/14 Page 14 of 25 said trust on 01.05.2007 as acquaintance he was temporarily entrusted with the suit property, only for six months by the plaintiff, without any basic amenities and due to this mutual confidence no agreement was executed, and not surety bound was executed between him and to plaintiff. The witness denied that he promised the plaintiff to vacate the suit property after six months as agreed. It is also denied that on his assurance the plaintiff has not executed any document while handing over the shop in question temporarily to the defendant. It is also denied that the defendant refused to hand over the possession of the suit property to the plaintiff after efflux of period of six months. It is denied that there had been no hot words exchanged between him and the plaintiff regarding taking the possession, it is claimed that the matter never reached the police.

32. It is admitted by the defendant that the possible rate of rent of the suit property would be Rs. 4000/­ per month. It is further admitted that no counter claim or any prayer in his WS about the decree for declaration of ownership has been filed/made. It is also claimed that the present value of the property might be Rs. 20,00000/­ and in the year 2004 it might be 5,000000/­ which he claimed to had paid to the plaintiff. No, sale deed of the same vicinity and similar property has been placed on record. It is claimed that there were two more person at the time of verbal agreement made between him and the plaintiff and their names are Akbar Mirza and Kamil Rashid.

33. Sh. Kamil Rashid has been examined as DW­2, The witness during his cross examination depose that the he resides at Sakarpur which is 5­6 Km. away from Chatta Lal Mian Dariya Ganj. He claim to have Suit No. 222/14 Page 15 of 25 known the party to the suit since 1994 He claimed to be the common friend of brother­in­law of plaintiff Sh. Mohd. Nashir. The Witness further claim that amount of Rs. 360000 and Rs. 140000 were given by the defendant to the plaintiff on acoout of purchasing of the shop in question. It is also depose that sale/ purchase of the premises in dispute was done in his presence by Mohd Shabir and Md Saleem (plaintiff and defendant). It is claimed that the property in question was in dilapidated condition and expenses were incurred by the defendant for its repairs and renovation. The witness is confronted with photograph as mark DW2/1 to which he identified as the suit premises. The witness also admitted the site plan to be correct.

34. It is stated by the witness that Rs. 360000/­ were given by the defendant to the plaintiff in presence of 4 to 5 persons at Suewalan. It is also claimed that the transaction entered between the parties amicably, since both the parties related to each other, and no broker or property dealer were present at the time of making the transaction and exchange of money. It is admitted that no document were written in lieu of the earnest money for the premises in dispute. It is claimed that there had been no written agreement or any document of transfer of property having been executed. It is also claimed by the witness that the time of handing over the possession of premises in question Md. Saleem had given one electric wire connection to the defendant for his usage. Though the witness could not tell if the defendant in premises in dispute are using the electricity by means of theft. The witness also could not tell whether the plaintiff had asked the defendant hand over the possession of premises in dispute to him, since was not present on those occasions.

Suit No. 222/14 Page 16 of 25

35. It is claimed by the witness that he came to know the fact that Sh.

Mohd Saleem has not executed that the sale deed, around October November 2013, Witness admitted to have not advice the defendant to lodged a complaint or to give a legal notice and filed the suit against plaintiff keeping in view the closed relationship between the parties. It is also admitted by the DW2 he has no concerned with the suit property. Though he claim that some letter had received at the address of the suit premises in his name. Witness was confronted with Ex. DW2/P2 and DW2/P3 which are letter address to Sh. Mohd Kameel DW2 dated 05.10.2007. It is denied that the witness have procured the letter in order to create false evidence. It is stated that letter are in the name of his wife It is denied by the witness that there is no partner ship between Mohd Sabeer and him and his wife. The witness can not tell whether Mohd Sabeer is holding a license to deal in business of supply of meat though he claim to know him to last 20 ­25 years. He claim that Mohd Sabeer has installed marbal flooring water supply electricity etc. for renovating the property in question and he has spend about Rs. 2,00,000/­.on this.

36. Mohd Aslam Alias Shabban was examine as DW3 in his cross examination the witness depose that the plaintiff is not known to him nor the plaintiff is his relative or friend or acquittance. The witness claim to have seen that property in dispute though he has not mentioned the no, of the suit property in his affidavit.

37. It is claimed by the witness that he knew about the dispute between plaintiff and the defendant it is also claimed that the defendant has paid Rs. 3400000 for the first time in after gap of one and half month Suit No. 222/14 Page 17 of 25 the defendant paid 16000000 to the plaintiff. It is deposed that defendant has paid this amount to the plaintiff in connection with the suit property. It is deposed by the witness that he does not know the date of the payment made by the defendant to the plaintiff but he remember that it happened about 4­5 years back, may be in the year 2009. The witness also could not tell whether the plaintiff and defendant are related to each other. It is claimed by the witness DW­3 that at the time of transaction of the aforesaid money taken place there was none accept him. Witness also could not tell about the duration and period for which the plaintiff which handed over the suit property to defendant the witness also could not tell if any dispute has any reason between plaintiff and defendant relating the suit property. The witness also could not tell as to how many persons are occupying the suit property, however he stated that Mohd. Sabeer/defendant occupying the suit property. The witness was unable to tell the measurement of the construction of the building which is based on the suit property.

38. I have heard the argument the advance by the counsel for the parties earlier and gone through the material available on record carefully. Now, my issues wise finding is as under.

Finding on Issue No. 1, 2 and 3.

39. 1)Whether suit of the plaintiff is without any cause of action?

OPD.

2) Whether present suit is barred by law of limitation? OPD and

3) Whether suit has been properly valued for the purpose of court fees and jurisdiction? OPD Suit No. 222/14 Page 18 of 25

40. Onus to prove these issues is cast upon the defendant. Pleadings of the case clearly reflects cause of action in favour of plaintiff and against defendant. It is the claim of plaintiff that he has given the shop in question to the defendant for 6 months to use the same purely on the license basis, no rent or user charges were taken from the defendant in pursuant to the cordial and friendly relationship between the parties. Furthermore they were also related to each other. On the other hand the defendant claims that he has purchase the shop in question from the plaintiff by valuable consideration of 5 lacs Rs. given to the plaintiff in presence of certain witnesses. Though no document have been executed of his transaction neither any sale deed is executed by the plaintiff in favour of defendant. This present facts and circumstances gives cause of action in favour of plaintiff and against defendant and the plaintiff has filed the present suit seeking possession and damages from the defendant, who failed to vacate the premises after efflux of 6 months since 01.05.2007.

41. The defendant has also taken a plea that suit of plaintiff is barred by Law of Limitation however, not a single suggestion has been put forth to the plaintiff witness during the course of cross­examination. As per Article 65 of Limitation Act the period of limitation has been stipulated as 12 years when the possession of the defendant became adverse of the plaintiff. In this sense the possession of defendant became adverse to the right of plaintiff on 01.1.2007 i.e. on completion of 6 months and the cause of action is still in continuation. Hence, the argument of defendant that suit of plaintiff is barred by limitation has no forced.

Suit No. 222/14 Page 19 of 25

42. It has been also disputed by the defendant that the suit has not been properly valued for the purpose of court fee and jurisdiction. The PW denied that the value of shop in question might be Rs. 20 lac presently and in the year 2004 it might have been Rs. 5,00,000/­. However, no sale deed of the same vicinity and same property has been placed on record. The onus cost on the defendant to prove that the suit was not property value for purpose of court fee jurisdiction has not been prove, further there is no documentary evidence on record to rebut the stands of plaintiff. In absense of same it can be presumed that the valuation assess by the plaintiff with respect the suit property is correct.

43. For the reason stated above issue no 1, 2 and 3 are decided in favour plaintiff against defendant.

Finding on issue no. 4 and 5.

4) Whether plaintiff has no lucus standi to file and institute the present suit? OPD

5) Whether plaintiff is guilty of concealment and suppression of material fact and has not approached to the Court with clean hand? OPD.

44. The plaintiff has claim himself to be owner of property in dispute and he has placed on record the document of ownership of the property in question, the same has not been challenged by the defendant in any manner. The defendant tried to create the case showing that the property has not been devolved upon the plaintiff exclusively and there are other co­sharer of the property. Though this plea of mis­joinder of necessary parties has not been taken in the entire written statement.

Suit No. 222/14 Page 20 of 25

And hence the question put up the witness disputing the exclusively owner ship of plaintiff are beyond pleadings.

45. Furthermore it has been the stand of the defendant that he has paid amount of Rs. 5 lac to the plaintiff towards the sale consideration of the shop in question this averment is contrary to the plea that plaintiff, has not been the exclusive owner of the disputed property and there are other co­owner of the property. The defendant is blowing hot and cold the same breath thereby claiming to pay the sale consideration to the plaintiff and disputing his title over the property. The defendant are estopped from taking from taking contrary pleas, once he claimed to pay the sale consideration to the plaintiff as the owner of the suit property he can not later on dispute the locus of plaintiff to bring a suit in the capacity of the owner of the suit property.

46. As far as the averment with respect to the concealment and suppression of material facts by the plaintiff is concern, there is no specific instances pleaded by the defendant . Neither any specific questions in this regard has been put to the plaintiff. The objection taken by the defendant that the plaintiff has not served him with in eviction notice nor any permission has been sought form the competent authority to sue the defendant hence the suit suffer not only technical defect but motivated, malafide. The plaintiff as not come to the court with clean hands.

47. It is to be noted that it is denied by the defendant himself that he is not the tenant in respect to the suit property and neither has any document of the sale/ownership of the same which render him nothing Suit No. 222/14 Page 21 of 25 more but a trespasser in the suit property and in order to get possession from the trespasser no prior permission of competent authority is required. It is an admitted fact the defendant has no document in his favour which would transfer the title of the property in question in his favour. Further more it is also been admitted that no suit seeking specific performance has been instituted against plaintiff by the defendant. Hence, in absense of any ocular and documentary evidence to the effect the averment of the defendant are nothing but bald assertion.

48. The material available on record suggest otherwise, the testimony of the witnesses of the defendant are not only contrary to each other but also contrary to the pleadings of the case. It almost demolish the entire defence of defendant. The defendant failed to discharged the onus cast on him by the law prove the above said issues.

49. For the reason stated above the issue no. 4 and 5 are decided in favour of plaintiff and against the defendant.

Finding on issue no. 6

6) Whether plaintiff is entitled for decree of possession and mesne profits? OPP

50. The onus to prove the issue was on the plaintiff. It is an admitted position that no written agreement has been executed by the plaintiff. There is nothing on regard to show that the defendant has paid the consideration amount of Rs. 5 lacs on two occasion as alleged with respect to the shop in question. It is a matter of great wonder that the Suit No. 222/14 Page 22 of 25 amount of Rs. 3,40000/­ in cash has been given to the plaintiff and even no receipt of the same has been obtained by the defendant and this happened not only on one occasion but twice. The cordial and family relation between the parties are admitted fact though as per the law of the land no title of an immovable property can be transferred without executing a register sale deed for same. The parties to the suit can not side line the procedure laid by law. In fact no title of shop in question has been ever transferred to the defendant by the plaintiff. It is also an admitted fact that the defendant is not a tenant with respect to the suit property. As per his own claim no receipt/bayana or even agreement to sale is in existence which could show that he has purchase the shop in question from the plaintiff.

51. The testimony of DW­2 and DW­3 are contradicting in the sense that both the witnesses depose different facts. The DW­2 claimed that the defendant has given Rs. 340000/­ to plaintiff at Sui Walan in his presense at there were 4­5 other peoples present on the spot. Though the name and addresses of the persons present at the spot were not known to the witness. Similarly it was again claim that by the witness that further amount of Rs. 1,40,000/­ was given to the plaintiff after, one and half month after the first payment. The witness also depose that the time of handing over the possession the plaintiff has given a live wire to the defendant to have electricity connection in the suit premises. It is an admitted position that plaintiff has handed over the suit property to the defendant without any basic amenities but the defendant claim to enjoyed the electricity by illegal means of theft candidly. Whereas the defendant No.3 Md. Aslam Alias Sabban claim that he was present at the moment when the defendant made payment to the plaintiff on both the Suit No. 222/14 Page 23 of 25 occasion. The witness claim that at the time of transaction as stated above there was none except plaintiff, defendant and him and the even the incident happened in year 2009. It is clear that the witness is completely a tutored witness who is just making a face saving attempt for defendant. The testimony of both the witness DW­2 and DW­3 are materially contradict each other, and in fact there is no similarity between the testimony of DW­1 another witnesses the DW­3. It has been claimed that certain letter use to come at the suit premises in his name though he admitted that he has no concerned with shop in question. It shows that it is desperate attempt on the part of defendant to show that he is possession of the property before 2007, though the letter is half year 2007 itself.

52. It is clear that the witnesses are not trust worthy and there deposing in correct. It is also pertinent to mention that affidavit of another defendant witness was placed on record. But the said witness name Sh. Akbar Mirza never turn up before the court to depose.

53. In my opinion there are series of admission of the defendant which include that he has no ownership document of the suit property and he also admitted to have been inducted in the possession to the suit property by the plaintiff though the nature of the possession was disputed by the defendant. Since no ocular/document evidence on record which can establish the factum of sale of the shop in question. The possession of the defendant accordingly reduced to mere trespasser with respect to the shop in question after efflux of 6 months from 01.05.2007. During the course of cross­examination the defendant has also admitted that the suit property would fetch Rs 4000/­ per Suit No. 222/14 Page 24 of 25 month as rent.

54. From the above deliberation it is settled that is defendant has been entrusted with the possession of the suit property on the basis of license by the plaintiff for 6 months in 01.05.2007. After the lapse of the 6 months period the defendant when failed to vacate the suit premises the plaintiff became in title for the damages of the unlawful holding of the suit premises by the defendant.

55. For the reason stated above issue no.6 is decide in favour of plaintiff against the defendant.

Relief :­

56. The suit of plaintiff is decreed against defendant. A decree of recovery of possession of the entrusted portion of the suit property i.e. No. 108, ground Floor, Chata Lal Mian, Dariya Ganj as shown in red colour in the site plan Ex. As PW­1/A. Is granted to the plaintiff against defendant. The plaintiff is also awarded mesne profit @ Rs. 4000/­ per month from the date of the filing of the suit till handing over the peaceful possession of the suit property. The defendant is also liable to pay an amount of Rs. 40000/­ as damages an misuser of the suit property.

57. On filing of deficient court fee. Let the decree sheet be drawn.

Parties are left to bear their own costs.

58. File be consigned to record room after due to compliance. 

Announced in open court                            (KADAMBARI AWASTHI)
Today: 23.12.2014.                                 Civil Judge­02 (Central)
                                                   Tis Hazari Courts, Delhi.


Suit No. 222/14                                                               Page 25 of 25