Delhi District Court
Poonam vs Mukesh Sharma on 27 September, 2025
IN THE COURT OF DISTRICT JUDGE -04,
(PRESIDED OVER BY: ANIL CHANDHEL)
WEST DISTRICT, TIS HAZARI COURTS, DELHI
CNR No. DLWT01-002710-2018
Civil DJ No. 349/2018
Mrs. Poonam
W/o Mr. Naveen Kumar
R/o C-141,
Tagore Garden Extension,
New Delhi-110027. ...Plaintiff.
Versus
Mr. Mukesh Sharma,
R/o M-21, Raghubir Nagar,
New Delhi-110027. .....Defendant.
SUIT FOR MANDATORY INJUNCTION
AND CONSEQUENTIAL RELIEF OF
POSSESSION, RECOVERY OF
DAMAGES/MESNE PROFITS AND
PERMANENT INJUNCTION.
DATE OF INSTITUTION : 27.03.2018
JUDGMENT RESERVED ON : 24.09.2025
JUDGMENT PRONOUNCED ON : 27.09.2025
Appearances:
Mr. Rajesh Bhatia, Ld. Counsel for the Plaintiff.
Ms. Lavisha Kamra, Ld. Counsel for the Defendants.
Poonam Vs. Mukesh Sharma Page No. 1 of 49
Civil DJ No. 349/2018
JUDGMENT
1. The Plaintiff has filed the present suit, against the Defendant for mandatory injunction and consequential relief of possession, recovery of damages/mesne profits and permanent injunction.
2. The facts stated in the Plaint:
The facts, as set out in the plaint, are summed up in brief in the paras hereinbelow:
i. The Plaintiff is owner of the entire built-up property bearing no. M-21, Raghbir Nagar Extension, New Delhi-110027 measuring 25 sq. yds., consisting of ground floor and first floor. The present suit has been filed through husband of the Plaintiff, who is also her lawful attorney.
ii. The Plaintiff, along with her husband Mr. Naveen Kumar and brother -in-law Mr. Kasturi Lal Ahuja, are running a sweet shop and the Defendant was employed by the Plaintiff as Driver-cum-Helper in the year, 2005 on a monthly salary of Rs.3,000/- p.m., which was enhanced from time to time and the last paid salary was Rs.7500/- p.m. till January, 2016.Poonam Vs. Mukesh Sharma Page No. 2 of 49 Civil DJ No. 349/2018
iii. Apart from the monthly salary, the Plaintiff during the course of his employment had also provided to the Defendant free accommodation for his residence i.e. entire ground floor of the premises bearing no. M-21, Raghubir Nagar, New Delhi- 110027, comprising of one room, kitchen, bathroom and toilet without any rent and merely as a permissive user/licensee of the Plaintiff.
iv. The Defendant had left the services of the Plaintiff in February, 2016 and started working with some other concern and therefore, the license of the Defendant to use and occupy the above said suit premises automatically stood terminated and the possession of the Defendant in the suit premises has become illegal and unlawful since February, 2016.
v. Since February, 2016, the Plaintiff has been requesting the Defendant to vacate the suit premises, as after leaving services of the Plaintiff, the Defendant has left with no right to reside in the suit premises, but the Defendant has been avoiding to vacate the suit premises on one or the other false pretexts. The intentions of the Defendant have become dishonest and he has started making illegal demands of money from the Plaintiff in lieu of vacating the suit premises.Poonam Vs. Mukesh Sharma Page No. 3 of 49 Civil DJ No. 349/2018
vi. The Plaintiff issued a legal notice dated 06.02.2018 to the Defendant by way of Speed Post and called upon the Defendant to vacate and handover the suit premises to the Plaintiff along with user charges/damages for the entire period, w.e.f. February, 2016 to 31.01.2018 @ Rs.10,000/- p.m. The Defendant has neither responded to the notice nor complied with the same and the Plaintiff has accordingly filed the present suit.
3. The facts stated in the Written Statement:
3.1. The Defendant was duly served with the summons of the present suit and have entered appearance on 02.07.2018.
The Defendant has filed written statement and refuted the contentions of the plaint. The relevant averments, made by the Defendant in his written statement and constituting his defence, are being summed up in brief in the paras hereinbelow:
i. The suit is hopelessly time-barred as the Defendant has been occupying the suit property since 1999.
ii. The Defendant was brought to Delhi from his native place by late Lala Vishambhar Dayal (father-in-law of the Plaintiff) for work, in the year 1985. The Defendant had worked with all his heart and soul in the sweet shop under the name and style 'Ahuja Poonam Vs. Mukesh Sharma Page No. 4 of 49 Civil DJ No. 349/2018 Sweet Corner' located 122, Shivaji Market, Opposite Tagore Garden extension, New Delhi, since 1985. The said sweet shop was owned by the late Lala Vishambhar Dayal (now deceased) and later the same was inherited by his legal heirs including that of the husband of the Plaintiff herein.
iii. The Defendant was not paid anything for his work stating that he was like a family member of the Plaintiff. The Defendant was initially provided food and a place to stay in an accommodation at C-142, Tagore Garden Extension, New Delhi by late Lala Vishambhar Dayal, who used to say that the Defendant was like his son and he and his family members would continue looking after the Defendant and that a house would be given to him in due course for the work that the Defendant was doing for the Plaintiff's family.
iv. In the year 1999, late Lala Vishambhar Dayal during his life time, purchased a build-up properly located at M-21, J.J. Colony, Raghubir Nagar, Tagore Garden, New Delhi (hereinafter referred to as the 'suit property') in the name of his daughter- in-law, i.e. the Plaintiff. The suit property was handed over to the Defendant immediately after its purchase for residential purposes and since then the Defendant has been living in the said property. It Poonam Vs. Mukesh Sharma Page No. 5 of 49 Civil DJ No. 349/2018 was promised by late Lala Vishambhar Dayal and also the members of his family that the suit property would be transferred in the Defendant's name in due course and the same was purchased only for the Defendant. It was made clear by late Lala Vishambhar Dayal and also by other members of his family that the said house was being given to the Defendant towards the salary, he was entitled for and which was not given to him during the course of his employment. Since then, the Defendant is in possession and occupation of the suit property.
v. Late Lala Vishambhar Dayal had orally declared that the Defendant was like his adopted son and would be looked after throughout his life by the family of said Lala Vishambhar Dayal. Late Lala Vishambhar Dayal decided to transfer the suit property exclusively to the Defendant and accordingly he took Defendant and the Plaintiff to District Centre Janakpuri and got prepared the necessary documents. The Plaintiff signed the documents there and it was told to the Defendant that he was the owner of the suit premises since then. The Defendant is an illiterate person and he with difficulty can only read and put his signature in Hindi. After preparing the said property documents whereby the suit property was transferred in the name of Defendant, the same were kept and retained Poonam Vs. Mukesh Sharma Page No. 6 of 49 Civil DJ No. 349/2018 by late Lala Vishambar Dayal and Plaintiff stating that it would remain safe in their custody. The Plaintiff and late Lala Vishambhar Dayal categorically stated that the suit property was being given to the Defendant for all his hard work that he had done and was doing for their business and for which he had not been paid.
vi. Later the late Lala Vishambhar Dayal died, however, the Plaintiff and her family members kept treating the Defendant in the similar manner as he was being treated during the life time of late Lala Vishambhar Dayal and similarly the Defendant kept working in the said sweet shop.
vii. In the year 2004, the Defendant got married and his wife also started residing with him in the said suit premises and since then, they have been living in the suit premises along with their three children, who were born in the suit property. In the year 2008, the Defendant incurred substantial expenses in the suit property to improve the degrading condition of the property by renovating the premises and constructing a roof in place of a tin shed and for the aforesaid purpose, he had to take loan from his relatives and friends. No objection was raised by the Plaintiff, when the renovation and construction was done by the Defendant with his money.Poonam Vs. Mukesh Sharma Page No. 7 of 49 Civil DJ No. 349/2018
viii. The Plaintiff, having developed malafide intentions, filed the present suit and claimed back the suit property which has been in the possession of the Defendant since the year 1999, i.e., for more than 12 years without any objection from the Plaintiff and her family members. Hence, the Plaintiff does not have any right or interest left in the suit property and the suit of the Plaintiff is liable to be dismissed.
4. The facts stated in the Replication:
4.1 The Plaintiff has filed the replication to the written statement of the Defendant, wherein the Plaintiff has traversed the contents of same and has made the necessary denials, reiterating the averments of the plaint.
5. Issues:
5.1 On the basis of the pleadings of the parties, the following issues were framed on 12.03.2024: -
i. Whether the Defendant has acquired any rights in the suit property, in terms of averments made in para No. 7.1 to 7.6 of the written statement and what is the nature of the aforesaid rights? OPD. ii. Whether the Plaintiff is entitled to decree of mandatory injunction against the defendant in Poonam Vs. Mukesh Sharma Page No. 8 of 49 Civil DJ No. 349/2018 respect of the suit property, as prayed for? OPP.
iii. Whether the Plaintiff is entitled to a decree of permanent injunction, as prayed for? OPP.
iv. Whether the Plaintiff is entitled to mesne profits and damages, if yes, at what rate and for which period? OPP.
v. Relief.
In view of the Issue No.1, the Defendant was directed to lead his evidence first.
6. The Defendant's Evidence:
6.1. The Defendant has led his evidence and has only examined himself as DW-1 in support of his case. The Defendant has reiterated the contentions of the written statement in his examination-in-chief. The Defendant has exhibited and relied upon the following documents in his examination-in-
chief:
i. Exhibit DW-1/1(OSR): Visiting Card.
ii. Exhibit DW-1/2(OSR): Letter
iii. Exhibit DW-1/3(OSR): RC.
iv. Exhibit DW-1/4(OSR): Aadhar Card
v. Exhibit DW-1/5(OSR): Voter I-Card.
vi. Exhibit DW-1/6(OSR)(Colly): Birth Certificate.
Poonam Vs. Mukesh Sharma Page No. 9 of 49
Civil DJ No. 349/2018
vii. Exhibit DW-1/7(OSR)(Colly): Aadhar Card.
viii. Mark-A: Photocopy of bills of renovation of the
suit property.
The DW-1 was cross-examined by Ld. Counsel for the Defendant on 14.10.2024 and the same is being reproduced hereinbelow:
"I have studied upto 8th standard. I cannot read, write & understand English language. I had not gone through the contents of the written statement filed by me in the present suit. I am not aware about the contents of my affidavit of evidence as I do not know English language. I was not even explained the contents of my evidence affidavit before I signed the same. I knew Sh. Vishambhar Dayal as I have worked in his shop. I was brought to Delhi by Mr. Munna Lal. Sh. Vishambhar Dayal was running his tea-shop and sweet shop situated at C- 141, C-142, Tagore Garden, Delhi. I started working in the shop of Sh. Vishambhar Dayal since 1984. I was not paid any salary but I was provided tea, food and basis amenities for day to day requirement. I used to wash glasses in his shop. Sh. Vishambhar Dayal had expired in the year 2000. Q-1. Can you tell in whose name the title documents of the suit property are executed?
A. I do not know.
I am the owner of the suit property. I purchased the suit property in the year 1999 from Sh. Shankar Prasad for Rs.4,00,000/-. I had told my counsel at the time of drafting of the written statement as well as evidence affidavit that I have purchased the suit property from Sh. Shankar Prasad for Rs.4,00,000/- in the year 1999. I am not in possession of the title documents executed by Sh. Shankar Prasad in my favour. (Vol.) The same were kept with Sh. Vishambhar Dayal. I have also deposited the property tax of the suit property once. I have not filed the aforesaid receipt on record. The Plaintiff is the daughter in law of Sh. Vishambhar Dayal.
Q-2. I put it to you that the title documents of the suit property are in the name of the Plaintiff and the same were executed by Sh. Shankar Prasad in favour of the Plaintiff. What do you have to say?Poonam Vs. Mukesh Sharma Page No. 10 of 49 Civil DJ No. 349/2018
A. I am not aware [At this stage, attention of the witness is drawn in para no.7.3 of the written statement Mark-A to Mark-A1, wherein it is mentioned that the suit property was purchased in the name of the Plaintiff].
Q-3. I put it to you that you have admitted in the portion A to A1 of para no.7.3 of the facts that the suit property was purchased in the name of the Plaintiff but in the cross- examination, you are deposing that the suit property purchased in your name in the year 1999 for Rs.4,00,000/- which of your version is correct? A. The statement made today in my cross-examination that the property was purchased by me in the year 1999 for Rs.4,00,000/- in my name is correct.
I was working with Late Sh. Vishambhar Dayal in the year 1999 and I was not paid any salary in that time. I was paid Rs.4,00,000/- by late Sh. Vishambhar Dayal. No written document was executed regarding Rs.4,00,000/- by late Sh. Vishambhar Dayal to me. I am not aware about the nature of document executed in my favour qua the suit property. I have seen the title documents of the suit property in my name in the house of late Sh. Vishambhar Dayal. I asked in writing from late Sh. Vishambhar Dayal for title document of the suit property executed in my name at the time of its purchase by me. I cannot show any such letter written by me to late Sh. Vishambhar Dayal. (Vol.) When I asked for the documents, I was terminated from the services. I was terminated in the year 2016 from the shop. I was terminated by Sh. Kasturi Lal Ahuja."
The DW-1 was further cross-examined on 25.11.2024 and his cross-examination is being reproduced hereinbelow:
"I never asked writing to the Plaintiff or her father regarding title documents of the suit property in my name. It is correct that I never paid any amount to Late Sh. Vishamber Dayal for purchasing the property in my name. I cannot say what was the amount of my salary lying with Sh. Vishamber Dayal which was not paid to me. I do not know what was the market value of the suit property when the same was purchased in the name of the Plaintiff. There Poonam Vs. Mukesh Sharma Page No. 11 of 49 Civil DJ No. 349/2018 is no documents in writing regarding any promise by Late Sh. Vishamber Dayal regarding transferring the suit property in my name as stated in Para No.4 of my evidence affidavit.
Q-1. What was your month salary during time, you were working in the shop?
A. I was not paid anything.
I worked in the shop since 1984 till 2016. I cannot say how much my monthly salary accumulated during his period. I never asked in writing to Late Sh. Vishamber Dayal or after his death, his legal heirs or the Plaintiff regarding non-payment of my salary. I cannot show any document that I was working in the sweet shop since 1984. (Vol.) The same can be verified by conducting enquiry from local people.
I cannot say as to whether any adoption was done by Late Sh. Vishamber Dayal whereby he adopted me as stated in Para No.5 of my evidence affidavit. My father name is Sh. Ram Karan.
I do not know as to whether the suit property was purchased in the name of Plaintiff as stated in Para No.7.3 of preliminary objections of the written statement. I cannot say as to whether my monthly salary was Rs.3,000/- when I was employed in the year 2005. I cannot say as to whether my monthly salary was Rs.7,500/- till I worked in the sweet shops of the Plaintiff and her husband. (Vol.) I was not paid any salary and was given suit property, in lieu of my salary. It is correct that I am not working with the Plaintiff and her husband since February, 2016.
I am working daily wager in parking since last one year. Prior to that I was working as Beldar. I was doing Beldari since February 2016 as and when I used to get the work.
I had also initiated proceedings against M/s Ahuja Sweet regarding termination of my services. The said labour case has beendismissed. (Vol.) The said case was dismissed as I was given suit property in lieu of my working with M/s Ahuja Sweets. I have neither filed on record the said Labour Court order nor I have brought the same today in the Court.Poonam Vs. Mukesh Sharma Page No. 12 of 49 Civil DJ No. 349/2018
Q-2. I put it to you that you were allowed to stay in the suit property as licensee during the course of you working with M/s Ahuja Sweets i.e. shop of the Plaintiff and her husband. What do you have to say?
A. Since my marriage was not taking place, hence I was allowed to reside in the suit property by Late Sh. Vishamber Dass.
My wife had received the legal notice Ex.DW-1/P1. I had not replied to the said legal notice and after filing the suit by the Plaintiff, I filed my written statement. The suit property is admeasuring 25 sq.yds. The suit property is constructed upto ground floor and first floor. (Vol.) I have constructed toilet and bath room at ground floor and temporary shed on the first floor. I have not filed any documents on record to show that I ever spent any amount upon renovation / construction on the suit property. The market rent of the suit property in the year 2016 was Rs.1,000/- to Rs.1500/- per-month. I cannot say that the market rent of the suit property on date. (Vol.) It is dilapidated condition. I have neither filed any document / photograph on record to show that the suit property is not in a habitable condition. It is wrong to suggest that I was allowed to stay in the suit property during the course of my employment with father-in-law of the Plaintiff. It is wrong to suggest that I was regularly paid salary till the period I worked with the shop of the Plaintiff. It is wrong to suggest that the suit property was never assured to be transferred in my name by father-in-law of the Plaintiff. It is wrong to suggest that I did not vacate the suit property even after receipt of legal notice Ex.DW-1/P1. It is wrong to suggest that I was not having any right in the suit property. It is wrong to suggest that since I failed to vacate the suit property after receipt of notice from the Plaintiff, I am liable to pay and use and occupation charge. It is wrong to suggest that I am deposing falsely."
The DW-1 was discharged upon conclusion of his cross- examination. Thereafter the Defendant did not examine any other witness and closed his evidence and matter was posted Poonam Vs. Mukesh Sharma Page No. 13 of 49 Civil DJ No. 349/2018 for the Plaintiff's evidence.
7. The Plaintiff's Evidence:
7.1 The Plaintiff has led her evidence and has examined her husband as PW-1, being the sole witness in the case. The husband of the Plaintiff was also her attorney, who has instituted the present suit. The PW-1 has reiterated the contentions of the plaint in his examination-in-chief. The PW-1 has exhibited and relied upon the following documents in his examination-in-chief:
i. Exhibit PW-1/1: Special Power of Attorney.
ii. Exhibit PW-1/2: Site Plan.
iii. Exhibit PW-1/3: General Power of Attorney dated
18.10.1999.
iv. Exhibit PW-1/4: Will dated 18.10.1999.
v. Exhibit PW-1/5: Agreement to Sell dated 18.10.1999.
vi. Exhibit PW-1/6:Affidavit dated 18.10.1999.
vii. Exhibit PW-1/7: Receipt dated 18.10.1999.
viii. Exhibit PW-1/8: Possession Letter dated 18.10.1999.
ix. Exhibit PW-1/9:Postal Receipt (mentioned as Ex.PW-
1/10 in the affidavit of evidence).
x. Exhibit PW-1/10:Returned Envelop (mentioned as
Ex.PW-1/11 in the affidavit of evidence).
The PW-1 was cross-examined by the Ld. Counsel for the Defendant on 03.03.2025 and his cross-examination is being Poonam Vs. Mukesh Sharma Page No. 14 of 49 Civil DJ No. 349/2018 reproduced hereinbelow:
"My date of birth is 15.08.1968. I am the youngest son of Late Lala Bishambar Das. My mother of second wife of Lala Bishambar Das. Mr. Kasturi Lal is also the son of Late Lala Bishambar Das and his mother was the first wife of Late Lala Bishambar Das. I am running the business from the shop no. 122, Shivaji Market, Raghubir Nagar, Delhi, under the business name Ahuja Sweets. I have been running the aforesaid business for the last 30 years, I do not remember exactly the year when I started the same. The business of Ahuja Sweets also started about 30 years ago. I am the proprietor of Ahuja Sweets.
It is correct that my father also used to run a sweet shop under the name & style of Khairati Sweets. The Khairati Sweets is in the business for the last 50 years. The aforesaid Khairati Sweets is being operated from C-142, Tagore Garden Extension, New Delhi-110027. I do not have any bank statement or receipts to show that I used to make payment of salary to the Defendant. (Vol.) I used to mention the same in the diary/note book.
Q-1. Can you produce the original of the aforementioned diary/note book referred to by you in the last question? A. I have filed the photocopy of the same on record and I can produce the original of the same."
The PW-1 was further cross-examined by the Ld. Counsel for the Defendant on 01.04.2025 and his cross-examination is being reproduced hereinbelow:
"I did not bring the required record i.e. diary/note book pertaining to the salary record of the Defendant. It is wrong to suggest that the said record cannot be produced today as there is no such record to show that I used to give the salary to the Defendant. It is correct that before commencing of Ahuja Sweets, I used to work at Khairati Sweets. It is correct that the business of Ahuja Sweets was bifurcated out of Khairati Sweets. I cannot tell the exact year when my father expired, however, it was 30th December. It is correct that my wife Mrs. Poonam did not have any independent income Poonam Vs. Mukesh Sharma Page No. 15 of 49 Civil DJ No. 349/2018 from the business of Ahuja Sweets. The suit property was purchased out of the joint funds of the business. The property was purchased by my father in the name of my wife in the year 1997-98. The property was built up to two floors. Two rooms were build on the ground floor and one room on the first floor. I have not mentioned anywhere in my affidavit of evidence that the suit property was built up to two floors. It is wrong to suggest that at the time of purchase of the property, the suit property was build up to two floors. The Defendant had constructed a toilet in the suit property. I cannot tell the exact time, month & year as to when the said toilet was made in the suit property.
It is wrong to suggest that only one room was built up on the ground of the suit property. I never raised any objection after I got to know a toilet has been build up in the suit property by the Defendant. It is wrong to suggest that I never raised any objection with regard to the construction as I have given the suit property to the Defendant. It is wrong to suggest that the construction on the ground floor and on the first floor had been carried out by the Defendant. Q-1. Can you produce any site plan with respect to the built up structure of the suit property at the time of purchase of the suit property?
A. I have already filed a site plan i.e. Ex.PW-1/2. The site plan Ex.PW-1/2 was prepared through my lawyer at the time when the case was filed.
The Defendant had worked at my shop approximately 15-20 years. The Defendant worked at both of our shops i.e. Khairati Sweets and Ahuja Sweets. The Defendant used to do the work of the Driver, as well as overall labour work for the shops. The Defendant used to do the driving work of the elder brother namely Sh. Katuri Lal Ahuja.
I had employed nine people in total with regard to the business of two shops, during the time, when the Defendant was also associated with shop. We have provided the residence to all the employees working with us. However, the aforesaid employees were staying individually and not with their families. I do not remember the name of the aforesaid employees, to whom the residence facility was provided by us as the employees remain associated for short duration. The aforesaid employees used to stay collectively at the floor above the shop.Poonam Vs. Mukesh Sharma Page No. 16 of 49 Civil DJ No. 349/2018
I have not given any house any independent house to the aforesaid employees in the manner similar to that of the Defendant. It is wrong to suggest that few labours used to stay inside the shop. The first floor of the suit property was given to the Defendant since he got married during the course of his employment since the labours used to sleep on the ground floor. I do not remember whether I have mentioned the aforesaid facts stated in the last question in either in the plaint or in my examination-in-chief.
The PW-1 was further cross-examined by the Ld. Counsel for the Defendant on 26.05.2025 and his cross-examination is being reproduced hereinbelow:
"It is correct that the Defendant has been working in our shops while my father was alive. I cannot tell exact time since when the Defendant is employed before the death of my father. (Vol. He was employed by my elder brother namely Sh. Kasturi Lal Ahuja 4-5 years prior to the death of my father.). I cannot tell as to whether some of my employees got married during the tenure of their employment. It is correct that Sh. Ram Khiladi and Sh. Om Pal were my employees.
Q-1. I put it to you that your employees namely Sh. Ram Khiladi and Sh. Om Pal got married during the tenure of their employment. What do you have to say? A. I do not have any knowledge.
It is wrong to suggest that Sh. Ram Khiladi and Sh. Om Pal were got married in the year 2002 & 2000 respectively.
The Defendant started to reside in the suit property after 1 to 2 years of its purchase. I cannot say whether I have mentioned about the said facts in my affidavit of evidence or plaint. Prior to that the Defendant resided in M- 35, Raghubir Nagar which is my sister-in-law (Bhabhi)'s property.
[At this stage, the witness is confronted with certain photographs and the witness admits 7 photographs which are Ex. PW-1/D1 (Colly).].
It is correct that the Defendant is seeing in above said Poonam Vs. Mukesh Sharma Page No. 17 of 49 Civil DJ No. 349/2018 photographs in my shop. It is correct that the Defendant appears to be young age in the above said photographs but I cannot say the exact age. It is wrong to suggest that the Defendant visited Vaishno Devi Temple along with other family members in the year 1990. It is correct that I never got prepared ID Cards/address proofs of my labours staying in my property during the course of their employment. I am aware that the Defendant and his family members have their ID Card/s/address proofs pertaining to the suit property. I did not raise any objection with respect to the same or never filed any complaint with the concerned Department. It is wrong to suggest that I never filed any complaint with the concerned Department as I have already handed over the entire suit property to the Defendant being in the capacity of owner.
Q-2. Why was the Defendant terminated from his service? A. We required funds for niece marriage hence we wanted to get suit property vacated in order to sale it. When the Defendant refused to vacate the suit property, we terminated him.
I cannot say as to whether I have mentioned the said fact in my affidavit of evidence or in my plaint.
It is wrong to suggest that since the Defendant has been serving us since the year 1984 without any salary hence the suit property was given by my father to live for life time. It is wrong to suggest that the suit property was purchased solely for the purpose of giving it to the Defendant. I do not remember exactly since which year the Defendant is in possession of the suit property. It is correct that the Defendant has constructed one toilet in the suit property. It is wrong to suggest that the Defendant is living in the suit property since the year 1999 and has also raised the construction in the suit property as his requirements. It is correct that we also had catering business. It is correct that the Defendant also used to supervise the catering business. It is correct that I have not placed on record any documents showing the current rent of the property equivalent to suit property. The rent of similar property is about Rs.10,000/- to Rs.12,000/- per-month. It is wrong to suggest that we terminated the Defendant from his services as a dispute broke out between the brothers since the Defendant was Poonam Vs. Mukesh Sharma Page No. 18 of 49 Civil DJ No. 349/2018 driving only for elder brother namely Sh. Kasturi Lal Ahuja. I cannot tell right now the exact total amount, the Defendant was entitled to or paid to the Defendant. It is wrong to suggest that we never cleared the dues of the Defendant. It is wrong to suggest that I am deposing falsely."
The PW-1 was discharged upon conclusion of his cross- examination and the matter was posted for final arguments.
8. Submissions of the Parties.
8.1. Ld. Counsel for the Plaintiff has submitted that the Defendant has failed to prove the onus of the principal Issue No.1 and his capacity in the suit property was only that of a licensee. It is submitted that the license of the Defendant was terminated and thereafter the Defendant did not have any right to remain in the possession. It is submitted that the Defendant has contradicted his principal case in the cross- examination by raising completely different and contradictory plea and has failed to establish any right to remain in the possession of the suit property and therefore, the suit should be decreed for its prayers.
8.2. Ld. Counsel for the Defendant has submitted that the suit was barred by limitation as the Defendant had been in settled possession of the suit property since 1999. It is submitted that the reasons for termination of employment in the plaint and the cross-examination of the PW-1 are different. It is submitted that the PW-1 did now know as to how much Poonam Vs. Mukesh Sharma Page No. 19 of 49 Civil DJ No. 349/2018 amount was paid to the Defendant, which proved the contentions of the Defendant that he was unpaid servant. It is submitted that the date of induction of the Defendant in the employment was 1984 and the Defendant was not inducted in the employment in the year 2005. It is submitted that the Plaintiff is not the owner of the suit property and has not proved the title in terms of the documents relied upon by her. It is submitted that the Defendant has set up the ownership of the suit property and the Plaintiff has not sought declaration of title and therefore the suit is not maintainable. It is submitted that the Defendant has raised the construction in the suit property and the PW-1 has admitted the factum of a toilet being constructed by the Defendant in the suit property. It is submitted that no record of employment or salary was produced by the Plaintiff, which proved that the Defendant was never paid. It is submitted that the Plaintiff is not even the licensor as it is evident from the cross-examination and the licensor was her father in law if at all, the Defendant was to be presumed a licensee.
9. Conclusions on Issues and reasons for such conclusions:
9.1 Issue No. 1: Whether the Defendant has acquired any rights in the suit property, in terms of averments made in para no. 7.1 to 7.6 of the written statement and what is the nature of the aforesaid rights? OPD.Poonam Vs. Mukesh Sharma Page No. 20 of 49 Civil DJ No. 349/2018
9.1.1. The onus to prove the Issue No.1 is upon the Defendant. The said issue is based upon the contentions of the Defendant mentioned in para 7.1 to 7.7 of the written statement. It is case of the Defendant that he was brought from his native place by late Lala Vishambhar Dayal to work in his sweet shop in the year 1985. Admittedly late Lala Vishambhar Dayal was father in law of the Plaintiff. It is stated that late father-in-law of the Plaintiff treated the Defendant as his adopted son and no salary was paid to the Defendant. It is stated that suit property was purchased by late father-in-law of the Plaintiff in the Plaintiff's name, however the same was promised to be given to the Defendant in consideration of his past unpaid service rendered to Plaintiff and her family and the possession of the same was given to the Defendant immediately after its purchase. It is stated that during the lifetime of Lala Vishmbhar Dayal, he took the the Plaintiff and Defendant to the District Centre Janakpuri, where the documents pertaining to the suit property were got prepared in favour of the Defendant, however the same were kept in the custody of late Lala Vishambhar Dayal and the Plaintiff.
It is submitted that the rights of the Defendant in the suit property have been assured and acknowledged by the Plaintiff and her family. It is stated that the Defendant has incurred considerable expenses and raised construction in the suit property, which was never objected to by the Plaintiff & her family and the same was an admission of the ownership of the Defendant.
Poonam Vs. Mukesh Sharma Page No. 21 of 49 Civil DJ No. 349/20189.1.2. Thus, in sum and substance, the case of the Defendant is that the suit property, though purchased in the name of Plaintiff, was promised to be given to the Defendant in consideration of his unpaid service. In terms of the aforementioned promise, the Defendant was placed in possession of the suit property, immediately after its purchase. Subsequently, the documents of suit property were prepared in the name of the Defendant, however the same were kept in custody of Plaintiff and her father in law.
9.1.3. The Defendant has appeared himself as the sole witness to prove the aforementioned contentions. The Defendant has reiterated the averments of his written statement in his examination in chief. The Defendant was cross-examined by Ld. Counsel for the Plaintiff, however in the cross- examination the Defendant has set up a plea, which is completely different and contradictory to the facts pleaded in the written statement. The relevant part of the cross- examination dated 14.10.2024 of DW-1 is being reproduced (at the cost of repetition) hereinbelow:
"I have studied upto 8th standard. I cannot read, write & understand English language. I had not gone through the contents of the written statement filed by me in the present suit. I am not aware about the contents of my affidavit of evidence as I do not know English language. I was not even explained the contents of my evidence affidavit before I signed the same.
I knew Sh. Vishambhar Dayal as I have worked in his Poonam Vs. Mukesh Sharma Page No. 22 of 49 Civil DJ No. 349/2018 shop. I was brought to Delhi by Mr. Munna Lal. Sh. Vishambhar Dayal was running his tea-shop and sweet shop situated at C-141, C-142, Tagore Garden, Delhi. I started working in the shop of Sh. Vishambhar Dayal since 1984. I was not paid any salary but I was provided tea, food and basis amenities for day to day requirement. I used to wash glasses in his shop. Sh. Vishambhar Dayal had expired in the year 2000.
Q-1. Can you tell in whose name the title documents of the suit property are executed?
A. I do not know.
I am the owner of the suit property. I purchased the suit property in the year 1999 from Sh. Shankar Prasad for Rs.4,00,000/-. I had told my counsel at the time of drafting of the written statement as well as evidence affidavit that I have purchased the suit property from Sh. Shankar Prasad for Rs.4,00,000/- in the year 1999. I am not in possession of the title documents executed by Sh. Shankar Prasad in my favour. (Vol.) The same were kept with Sh. Vishambhar Dayal. I have also deposited the property tax of the suit property once. I have not filed the aforesaid receipt on record.
The Plaintiff is the daughter in law of Sh. Vishambhar Dayal.
Q-2. I put it to you that the title documents of the suit property are in the name of the Plaintiff and the same were executed by Sh. Shankar Prasad in favour of the Plaintiff. What do you have to say?
A. I am not aware [At this stage, attention of the witness is drawn in para no.7.3 of the written statement Mark-A to Mark-A1, wherein it is mentioned that the suit property was purchased in the name of the Plaintiff]. Q-3. I put it to you that you have admitted in the portion A to A1 of para no. 7.3 of the facts that the suit property was purchased in the name of the Plaintiff but in the cross-examination, you are deposing that the suit property purchased in your name in the year 1999 for Rs.4,00,000/- which of your version is correct?Poonam Vs. Mukesh Sharma Page No. 23 of 49 Civil DJ No. 349/2018
A. The statement made today in my cross-
examination that the property was purchased by me in the year 1999 for Rs.4,00,000/- in my name is correct.
I was working with Late Sh. Vishambhar Dayal in the year 1999 and I was not paid any salary in that time. I was paid Rs.4,00,000/- by late Sh. Vishambhar Dayal. No written document was executed regarding Rs.4,00,000/- by late Sh. Vishambhar Dayal to me. I am not aware about the nature of document executed in my favour qua the suit property. I have seen the title documents of the suit property in my name in the house of late Sh. Vishambhar Dayal. I asked in writing from late Sh. Vishambhar Dayal for title document of the suit property executed in my name at the time of its purchase by me. I cannot show any such letter written by me to late Sh. Vishambhar Dayal. (Vol.) When I asked for the documents, I was terminated from the services. I was terminated in the year 2016 from the shop. I was terminated by Sh. Kasturi Lal Ahuja."
In terms of the above-referrerd testimony, the Defendant has disowned his examination in chief by stating that he did not know as to what was stated in his affidavit of evidence and he was not even informed about the contents of his examination in chief before he signed the same.
9.1.4. The Defendant has reiterated that he was not given salary during his employment. He has further stated that he did not know as to in whose name the title documents of suit property were executed. Thereafter, he has stated that he was owner of the suit property and has purchased the same from Shankar Prasad after paying a sum of Rs.4,00,000/- and the aforesaid amount of Rs.4,00,000/- was given to him by late Vishambhar Dayal. The Defendant was further confronted by Poonam Vs. Mukesh Sharma Page No. 24 of 49 Civil DJ No. 349/2018 the Ld. Counsel for the Plaintiff with the averments in para No. 7.1 of the written statement, wherein it is stated that the suit property was purchased by late Vishambhar Dayal in name of the Plaintiff. The Defendant stated in the cross examination that his statement in the cross-examination was correct and he had informed his Counsel about the same at the time of drafting of the written statement. If that be so, then the contentions of the cross-examination are beyond pleadings and the contentions of the written statement are not established in evidence, having been disowned by the Defendant.
9.1.5. The aforesaid contradiction is completely irreconcilable with the case set up in the written statement. The statement in the written statement about the property purchased in the Plaintiff's name, but assured to be transferred to the Defendant is mutually destructive of the plea that the Defendant had purchased the suit property in his name for an amount of Rs.4,00,000/-, which was given to him by late Lala Vishambhar Dayal.
9.1.6. It is further stated by Defendant in the cross-examination that he was not in custody of the documents of the suit property and the same were kept by late Lala Vishambhar Dayal. The Defendant was suggested that the Plaintiff was the owner of the suit property in terms of the documents, however the Defendant neither admitted nor denied the aforesaid suggestion and stated that he was not aware.
Poonam Vs. Mukesh Sharma Page No. 25 of 49 Civil DJ No. 349/20189.1.7. The Defendant has stated in the cross-examination that he had seen the documents of suit property in his name in the house of late Lala Vishambhar Dayal and he had sought the documents from late Lala Vishambhar Dayal in writing, however he was unable to show any notice or letter raising a demand for the documents. The defendant has himself not supported the contentions of the written statement and set up a completely different case in his cross-examination. Therefore, the Defendant does not prove the averments of the written statement that the property was promised to be given to him in consideration of his unpaid salary, in view of a completely contradictory testimony/plea in the cross- examination about the suit property being purchased by him.
9.1.8. In the cross-examination dated 25.11.2024, it is stated by the Defendant that he had never asked from late Lala Vishambhar Dayal or from the Plaintiff regarding non- payment of his salary. He further stated that he did not have any document to show that he was employed in the sweet shop since 1984. He has further stated that he did not know as to whether the suit property was purchased in the name of the Plaintiff. He has further stated that he cannot say as to whether his monthly salary was Rs.3,000/- when he was employed in the year 2005 and he further cannot say as to whether his monthly salary was Rs.7500/- till he was last employed in the shop of Plaintiff and her husband. Thereafter he had stated that he was not paid any salary and Poonam Vs. Mukesh Sharma Page No. 26 of 49 Civil DJ No. 349/2018 was given suit property in lieu of his salary. He has admitted that he was not working with Plaintiff and her husband since 2016.
9.1.9. If the cross-examination of the Defendant is read in totality, the same would lead to an irresistible conclusion that the Defendant has failed to establish the contentions of para 7.1 to 7.7 of the written statement. The case of the defendant in the written statement is that the suit property was promised to be given to him in consideration of his unpaid service and the documents were prepared, however the same were kept in the custody of the Plaintiff and the Plaintiff and her family acknowledged the rights of the Defendant. Even if the aforementioned contentions of the Defendant are to be accepted on mere face value of the averments, the same at best would lead to a promise, on behalf of the Plaintiff and her family, to transfer the suit property in name of the Defendant. The Defendant has not sought specific performance of the aforesaid promise at any point of time. The aforesaid promise or agreement is unwritten and therefore the Defendant is not even entitled to the protection under Section 53A of the Transfer of Property Act, 1882. Further if the documents were executed and kept in the custody of Plaintiff, the same were never sought nor the nature of the same was sought to be established, in order to infer the rights of the Defendant, if any. Thus even if the aforesaid contentions are assumed to be proved, the same do not lead to creation of any right or interest in the immovable Poonam Vs. Mukesh Sharma Page No. 27 of 49 Civil DJ No. 349/2018 property in absence of the documents. Though it is another matter of fact that the Defendant has miserably failed to prove the contentions of the written statement in the affirmative.
9.1.10. Therefore the Defendant has failed to prove that suit property was assured to be given to him in consideration of his unpaid service or that he has any right or interest in the suit property, other than that of a licensee. The Issue No.1 is accordingly decided against the Defendant and in favour of the Plaintiff.
9.2. Issue No. 2: Whether the Plaintiff is entitled to decree of mandatory injunction against the Defendant in respect of the suit property, as prayed for? OPP.
9.2.1. Though the Defendant has failed to prove that he had any right or interest in the suit property, however, Ld. Counsel for the Defendant submits that the Plaintiff will still not be entitled to a decree of mandatory injunction. Ld. Counsel for the Defendant has submitted that the Defendant was not licensee of the Plaintiff but was a licensee of her late father in law. It is further stated that the Plaintiff has set up a false case and the Defendant was granted the possession of the suit property in lifetime of father-in-law of the Plaintiff. It is submitted that the Defendant has spent considerable amount in construction of the suit property and no objection was ever Poonam Vs. Mukesh Sharma Page No. 28 of 49 Civil DJ No. 349/2018 raised by the Plaintiff or her family to the same, which is acknowledgment of rights of the Defendant. It is submitted that the Defendant is in settled possession of the suit property since the year 1999 and therefore, the suit is barred by limitation. It is submitted that the Plaintiff has not sought declaration of ownership and the suit for mandatory injunction alone is not maintainable. It is further submitted that the Plaintiff is not absolute owner of the suit property in terms of the documents produced on record and therefore, the suit is not maintainable.
9.2.2. It is case of the Defendant that the suit property was purchased in the Plaintiff's name by late Vishambhar Dayal, however the possession was given to the Defendant immediately after purchase. There is no documentary evidence as to when the possession was given to the Defendant. It is stated in the plaint that the possession was given to the Defendant in 2005, whereas the PW-1 has stated in the cross-examination that possession was given to the Defendant 2-3 years after its purchase, i.e., 2-3 years after 1999. Though the time for induction of the Defendant in the suit property is not established with precision, however it has been established that the Defendant was placed in possession of the suit property after the same was purchased.
9.2.3. Even the capacity of the Defendant, in terms of his own averments in the written statement, is not more than that of being in the permissive possession with the assurance that Poonam Vs. Mukesh Sharma Page No. 29 of 49 Civil DJ No. 349/2018 the documents would subsequently be transferred in his name. The Defendant has failed to prove, as discussed in the Issue No.1, that the Plaintiff or her family had promised the Defendant to transfer the suit property in his name. The allegations by the Defendant against the Plaintiff and her family are joint, whether it is about the purchase of the suit property or about placing the Defendant in possession or about assuring him about the transfer of suit property in his name or about retaining the custody of the documents. Even in the pleadings and evidence on record, the allegations are made jointly against the Plaintiff and her family and no such case has been set up that the Defendant was licensee only of late Vishambhar Dayal and not of the Plaintiff. The documents of the suit property were admitted in the written statement to be executed in favour of the Plaintiff. It is further stated in the written statement that the Plaintiff has executed the documents in favour of the Defendant in District Centre Janakpuri, however kept the same in her custody and thus, the Defendant himself claims his rights through the Plaintiff. Therefore, in view of the comprehensive reading of the pleadings of the parties and evidence on record, it has been established on account of preponderance of probabilities that the Defendant was a licensee of the Plaintiff.
9.2.4. Ld. Counsel for the Plaintiff has stated that the suit was barred by limitation and the Plaintiff has not sought declaration of ownership and therefore, the suit for Poonam Vs. Mukesh Sharma Page No. 30 of 49 Civil DJ No. 349/2018 mandatory injunction is not maintainable. The Plaintiff has filed civil suit against the Defendant for the principal prayer of mandatory injunction for his removal from the suit property. The Limitation Act, 1963 does not prescribe the period of limitation for institution of suit for mandatory injunction and therefore such a suit has to fall under Article 113 of Limitation Act 1963, which is being reproduced hereinbelow:
Description of suit Period of Time from which limitation period begins to run Any suit for which no Three years. When the right to sue period of limitation is accrues.
provided elsewhere in this Schedule.
In terms of the Article 113 of the Act, as mentioned hereinabove, the suit for mandatory injunction can be filed within a period of 3 years from the date, when the right to sue accrues. So, the relevant point from which the limitation is to be reckoned for instituting a suit for mandatory injunction is when the right to sue accrues.
9.2.5. It has been held by the Hon'ble Supreme Court of India in, "Sant Lal Jain Vs. Avtar Singh (12.03.1985): 1985 INSC 53: MANU/SC/0295/1985", that a licensor can institute and maintain suit for mandatory injunction against a licensee for obtaining the possession. The relevant observations of Hon'ble Court are being reproduced hereinbelow:Poonam Vs. Mukesh Sharma Page No. 31 of 49 Civil DJ No. 349/2018
"6. Now the parties are bound by the following factual findings recorded by the learned Additional District Judge in the first appeal namely: (1) that the appellant who had become the sole proprietor of M/s. Jain Motors in 1967 through at the time of the lease of the property by the original owner Lt. Col. Sadan Singh to M/s. Jain Motors in 1963 he was only one of its partners, was the lessee of the property; (2) that the respondent had become a licensee of the suit shed under the appellant when the appellant was in possession of the whole of the demised premises including the suit shed as tenant under the original owner; (3) that the licence in favour of the respondent has been revoked before the institution of the present suit and (4) that subsequent to the decision in the first appeal on 7.12.1978, the respondent had purchased the entire property from the original owner by a sale-deed dated 27.8.1979. In these circumstances, there is no merger of the lease of the whole property by its original owner in favour of the appellant by reason of the sale of the entire property by the original owner in favour of the respondent or of the licence given by the appellant to the respondent which had been revoked prior to the date of the suit. The lease in favour of the appellant continues, and it is not disputed that under the Act of 1949 referred to above, even the tenant of a vacant land in Patiala town cannot be evicted therefrom except in accordance with the provisions of that Act. In K.K. Verma and Anr. v. Union of India and Anr.
MANU/MH/0102/1954 : AIR1954Bom358 Chagla, C.J. presiding over a Division Bench has observed that in India a landlord can only eject his erstwhile tenant by recourse to law and by obtaining a decree for ejectment. In Milkha Singh v. Dvna and Ors. MANU/JK/0044/1964 : AIR 1964 J & K 99 it has been observed that the principle once a licensee always a licensee would apply to all kinds of licences and that it cannot be said that the moment the licence it terminated, the licensee's possession Poonam Vs. Mukesh Sharma Page No. 32 of 49 Civil DJ No. 349/2018 becomes that of a trespasser. In that case, one of us (Murtaza Fazal Ali, J.) as he then was speaking for the Division Bench has observed:
After the termination of licence, the licensee is under clear obligation to surrender his possession to the owner and if he fails to do so, we do not see any reason why the licensee cannot be compelled to discharge this obligation by way of a mandatory injunction under Section 55 of the Specific Relief Act. We might further mention that even under English law a suit for injunction to evict a licensee has always been held to be maintainable.
Where a licensor approaches the court for an injunction within a reasonable time after the licence is terminated, he is entitled to the injunction. On the other hand, if the licensor causes huge delay the court may refuse the discretion to grant an injunction on the ground that the licensor had not been diligent and is that case the licensor will have to bring a suit for possession which will be governed by Section 7(v) of the Court Fees Act.
7. In the present case it has not been shown to us that the appellant had come to the court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief. Even if there was some delay, we think that in a case of this kind attempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. The suit is in effect one for possession though couched in the form of a suit for Poonam Vs. Mukesh Sharma Page No. 33 of 49 Civil DJ No. 349/2018 mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. therefore, we are of the opinion that the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction."
(highlighting added) The above-mentioned mentioned proposition of law has been reaffirmed and followed in the subsequent judgment of the Hon'ble Supreme Court of India in, "Joseph Severance and Ors. Vs. Benny Mathew and Ors.:
(2005)7SCC667: MANU/SC/0664/2005", and the relevant observations of the Hon'ble Court are being reproduced hereinbelow:
"7. There was no specific plea taken by the defendants that the suit should be one for recovery of possession and the suit for injunction is not maintainable. In fact, before the trial court and the first appellate Court the stress was on something else i.e. the effect of Section 60 of the Indian Easements Act, 1882 (in short the 'Easements Act') and the alleged non-maintainability of the suit on the ground of non-joinder of necessary parties. Before the High Court the plea was taken for the first time that the suit was not maintainable being one for mandatory injunction and for prohibitory injunction and not one for recovery. Strictly speaking the question is not a substantial question of law, but one whose adjudication would depend upon factual adjudication of the issue relating to reasonableness of time. The correct position in law is that the licensee may be the actual occupant but the licensor is the person having control or possession of the property through his licensee even after the termination of the licence.Poonam Vs. Mukesh Sharma Page No. 34 of 49 Civil DJ No. 349/2018
Licensee may have to continue to be in occupation of the premises for sometime to wind up the business, if any. In such a case licensee cannot be treated as a trespasser. It would depend upon the facts of the particular case. But there may be cases where after termination or revocation of the licence the licensor does not take prompt action to evict licensee from the premises. In such an event the ex-licensee may be treated as a trespasser and the licensee will have to sue for recovery of possession. There can be no doubt that there is a need for the licensor to be vigilant. A licensee's occupation does not become hostile possession or the possession of a trespasser the moment the licence comes to an end. The licensor has to file the suit with promptitude and if it is shown that within reasonable time a suit for mandatory injunction has been filed with a prayer to direct the licensee to vacate the premises the suit will be maintainable.
8. It is to be noted that in the instant case the High Court has nowhere held that the explanation, as offered by the plaintiffs, was not acceptable. Without so holding, the High Court only took note of the period after which the suit was filed. The basic issue is whether the suit was filed within a "reasonable time".
(highlighting & underlining added) 9.2.6. Therefore, it can be concluded from the above referred judgments that a licensor can maintain a suit for mandatory injunction, instead of filing the suit for possession, against the licensee, however the same should be filed with promptitude after termination of such license and without any unreasonable delay. If the aforesaid proposition is read Poonam Vs. Mukesh Sharma Page No. 35 of 49 Civil DJ No. 349/2018 alongwith Article 113 of the Limitation Act, 1963, the delay in any case should not be more than 3 years from the date of accrual of cause of action, i.e., from the date of termination of license or from the date, when the possession of the licensee became hostile to the licensor.
9.2.7. In the present case, the employment of the Defendant was terminated in 2016 and the right to remain in the suit property came to an end. The Plaintiff terminated the license expressly by issuing a legal notice dated 06.02.2018, i.e., Exhibit DW-1/P-1. The Defendant in his cross-examination dated 26.05.2025 has admitted that the legal notice dated 06.02.2018, i.e., Exhibit DW-1/P-1 was served upon him. The Defendant has not pointed out any other point of time, when he had challenged the right of the Plaintiff or asserted any hostile right against the Plaintiff, whereby the license could have been terminated. The license was terminated, when the notice for termination of license was served upon the Defendant. The suit has been filed soon after the termination of the license and no unnecessary delay has been pointed out by the Defendant. Therefore, the suit has been filed within the period of limitation.
9.2.8. Ld. Counsel for the Defendant has further submitted that the Plaintiff has failed to prove her absolute ownership in terms of the documents on record and therefore, the suit for possession is not maintainable. The Plaintiff has herself not Poonam Vs. Mukesh Sharma Page No. 36 of 49 Civil DJ No. 349/2018 appeared in the witness box and her husband has been examined as the PW-1. The husband of the Plaintiff is also her attorney and he has deposed that he had personal knowledge about the facts of the case. The factum of the husband of the Plaintiff, being a competent witness, has not been challenged. The documents relied upon by the PW-1 are the registered GPA dated 18.10.1999 (Ex.PW-1/3), registered Will dated 18.10.1999 (Ex.PW-1/4), unregistered agreement to sell dated 18.10.1999 (Ex.PW-1/5), affidavit, receipt of payment and possession letter dated 18.10.1999 ((Ex.PW-1/6 to Ex.PW-1/8). The aforesaid documents were exhibited in the examination in chief without any objection on behalf of the Defendant with regard to mode of proof. The execution of the aforesaid documents in favour of the Plaintiff has not been challenged in the cross-examination of PW-1 or otherwise in the written statement. In fact, the case of the Defendant is that the documents were executed in the name of the Plaintiff, however the suit property was promised to be subsequently transferred to the Defendant.
9.2.9. The Hon'ble Supreme Court has held in, "Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana (11.10.2011) :
2011 INSC 739", that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance and the 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. The Hon'ble High Poonam Vs. Mukesh Sharma Page No. 37 of 49 Civil DJ No. 349/2018 Court of Delhi has held in "Lalchand vs. Ram Ujagar:
2024-DHC-2128: Manu/DE/1983/2024" that the bar of unregistered documents is not attracted to the registered documents, though the same may be in the form of registered GPA/Agreement to Sell.
9.2.10. The ownership of the Plaintiff, in the strict sense of the term, as discussed hereinabove, does not create a bar to maintain the present suit against the Defendant. A suit for possession of immovable property can be filed in multiple capacities such as:
i. On the basis of ownership.
ii. On the basis of landlord-tenant relationship;
iii. On the basis of licensor-licensee relationship;
iv. On the basis of prior possession alone under Section 6
of the Specific Relief Act, 1963, within a period of 6 months from the date of dispossession;
v. On the basis of prior possession alone under Article 64 of the Limitation Act, 1963, within a period of 12 years from the date of dispossession.
In the suit for possession on the basis of landlord-tenant relationship or licensor-licensee relationship, the ownership is not needed to be proved, in case the relationship of landlord-tenant or licensor-licensee is established. Section 116 of the Indian Evidence Act, 1872 creates a bar against a tenant or licensee to challenge the ownership or title of the Poonam Vs. Mukesh Sharma Page No. 38 of 49 Civil DJ No. 349/2018 landlord or licensor. In a suit for possession under Section 6 of the Specific Relief Act, 1963, the ownership is not required to be proved. Even in a suit under Article 64 of Limitation Act, 1963, a suit for possession of immovable property, on the basis of prior possession alone, can be filed within a period of 12 years from the date of dispossession. It has been held by the Hon'ble full bench of the Hon'ble Supreme Court of India in "Nair Service Society Ltd. vs. Rev. Fr. K.C. Alexander (12.02.1968 - SC):
MANU/SC/0144/1968: 1968 INSC 39", that in a suit on the basis of possession, filed by the Plaintiff, within a period of 12 years from the date of his dispossession, as per Article 64 of the Limitation Act, the Plaintiff is not required to prove his title, unless and until the Defendant challenges the same and prove the title in the suit property and in that eventuality, the Plaintiff has to show a better title than the Defendant.
9.2.11. It has been established on record that the Defendant came into possession of the suit property as a licensee of the Plaintiff. Once the factum of the Defendant, being a licensee of the Plaintiff, is established, the Defendant is estopped from challenging the ownership or title of the Plaintiff, in terms of Section 116 of the Indian Evidence Act, 1872, which is being reproduced hereinbelow:
"116. Estoppel of tenant and of licensee of person in possession.
No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of Poonam Vs. Mukesh Sharma Page No. 39 of 49 Civil DJ No. 349/2018 the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given."
9.2.12. The bar under Section 116 of Act of 1872 against the tenant or licensee has been explained and affirmed by the Hon'ble Supreme Court of India in "Bansraj Laltaprasad Mishra Vs. Stanley Parker Jones: AIR2006SC3569", and the relevant observations of the Hon'ble Court are being reproduced hereinbelow:
"11. The "possession" in the instant case relates to second limb of the Section. It is couched in negative terms and mandates that a person who cones upon any Immovable property by the license of the person in possession thereof, shall not be permitted to deny that such person had title to such possession at the tine when such license was given.
12. The underlying policy of Section 116 is that where a person has been brought into possession as a tenant by the landlord and if that tenant is permitted to question the title of the landlord at the tine of the settlement then that will give rise to extreme confusion in the matter of relationship of the landlord and tenant and so the equitable principle of estoppel has been incorporated by the legislature in the said section.
13. The principle of estoppel arising from the Contract of tenancy is baaed upon a healthy and salutary principle of law and justice that a tenant who could not have got possession but for his contract of Poonam Vs. Mukesh Sharma Page No. 40 of 49 Civil DJ No. 349/2018 tenancy admitting the right of the landlord should not be allowed to launch his landlord in some inequitable situation taking undue advantage of the possession that he got and any probable defect in the title of his landlord. It is on account of such a contract of tenancy and as a result of the tenant's entry into possession on the admission of the landlord's title that the principle of estoppel is attracted.
14. Section 116 enumerates the principle of estoppel which is merely an extension of the principle that no person is allowed to approbate and reprobate at the same time. 15. As laid down by the Privy Council in Krishna Prasad Lal v. Barabani Coal Concern Ltd. MANU/PR/0072/1937, "It (Section 116) deals with one cardinal and simple estoppel and states it first as applicable between landlord and tenant and then as between licensor and licensee, a distinction which corresponds to that between the parties to an action for rent and the parties to an action for use and occupation".
Thus, a licensee cannot challenge the right or title of the Licensor in an action by the Licensor for his eviction. A licensee cannot be heard to say that the Licensor's right was good and valid to place him in the possession, and was not good enough to receive the possession back from him, when there was no change in the status and circumstances of the parties. Therefore, the Defendant cannot challenge the right of the Plaintiff to recover possession on the basis of challenge to her title.
9.2.13. Ld. Counsel for the Defendant has submitted that the Defendant has raised construction in the suit property and Poonam Vs. Mukesh Sharma Page No. 41 of 49 Civil DJ No. 349/2018 the Plaintiff did not object to the same, which amounts to admission of the rights of the Defendant. The nature and manner of construction has not been specifically spelled out in the pleadings. No documents have been proved on record to show the nature and extent of construction. It has also not been stated as to how much amount has been spent upon the aforesaid construction. It has not been established on record that any permission of the Plaintiff has been sought for any such construction. Though the Defendant has not produced any evidence about the averments of construction, however the PW-1 has admitted in his cross-examination that the Defendant has constructed a toilet in the suit property. However the nature of set up/construction of the aforesaid toilet is not clear on record.
9.2.14. Further, the contentions of construction are generic and it has not been pleaded that the Defendant, acting upon the license, has executed the work of permanent character and incurred expenses in the execution. No reference has been made to Section 60(b) of the Indian Easement Act, 1882. The contentions of construction are only relevant, if the same are pleaded in reference to the Section 60(b) of the Indian Easement Act, 1882. Any construction, without the permission of the Licensor, will not entitle the licensee the protection of Section 60(b) of the Indian Easement Act, 1882. In order to seek the application of the aforesaid provision, the specific ingredients of the same are required to be pleaded and proved, which has not been done in the Poonam Vs. Mukesh Sharma Page No. 42 of 49 Civil DJ No. 349/2018 present case. The aforesaid requirement has also been approved by the Hon'ble High Court of Delhi in "Neera Chopra and Ors. Vs. Deepa Bhardwaj and Ors.:
2019:DHC:1830", and the relevant observations of the Hon'ble Court are being reproduced hereinbelow:
"27. A Coordinate Bench of this Court in Sirajul Hoque Choudhury v. On the Death of Harish Ali (Defendant) his heirs Farij Ali and Ors., (1991) 1 Gau LR 315 has held that in order to avail the benefit of Section 60(b) of the Act, 1882, there must be a specific pleading that the licensee had acted upon the license and executed work of a permanent nature. The relevant portion of the said judgment is reproduced herein below:
"8. I have perused the plaint and the written statement.
Evidently no such plea had been taken by the defendant in the written statement. His only case was denial of the licence. No plea of irrevocability of licence was raised in the pleadings. No such issue was also framed. The relevant issue framed was issue No. 2: whether the defendant was a licensee under the plaintiff or not. There was no issue regarding irrevocability of licence under Section 60(b) of the Act. The trial court, therefore, did not give any decision on that issue. It is the first appellate court which observed for the first that the defendant was entitled to protection from eviction in view of the provision contained in clause (b) of section 60 of the Indian Easements Act and allowed the appeal of the defendant and reversed the judgment of the trial court. The plaintiff appellant has challenged this action as most illegal. Clause (b) of section 60 of the Easements Act provides:
"60. A licence may be revoked by the grantor, unless:
(a) ..............
(b) the licensee, acting upon the licence, Poonam Vs. Mukesh Sharma Page No. 43 of 49 Civil DJ No. 349/2018 has executed a work of a permanent character and incurred expenses in the execution."
Clause (b) is thus an exception to the power of the grantor to revoke a licence. Under this clause a licence is irrevocable if, acting upon a licence work of a permanent nature has been executed and expenses incurred in its execution by the licensee. From a plain, reading of this provision, it is clear that to render a licence irrevocable execution of work of permanent nature itself is not enough. What is further required to be proved is that such construction had been raised acting upon the licence, 'Acting upon the licence " means acting upon the right given by the grantor. Whether the licensee acted upon a licence by executing the work of permanent nature and whether he incurred expenses in execution of such work or not are essentially questions of fact. The onus to prove the same lies upon the licensee who relies upon the provision of section 60 of the Easements Act and claims that the licence is irrevocable. It is a defence available to the licensee against revocation of the licence by the grantor. If the licenseewants to take such defence he has to raise it specifically. It has to be specifically pleaded and proved in the absence of any pleading, issue and evidence, defence based on section 60 of the Easements Act will not be available to a licensee. Such a plea cannot be raised for the first time in course of arguments before the first appellate court."
(emphasis supplied)
28. There are observations to the similar effect in Ram Sarup Gupta (Dead) by LRs v. Bishun Narain Inter College and Others (supra) cited by learned senior counsel for the defendants. Further, the Supreme Court in Shankar Gopinath Apte v. Gangabai Hariharrao Patwardhan, MANU/SC/0499/1976 : (1976) 4 SCC 112 Poonam Vs. Mukesh Sharma Page No. 44 of 49 Civil DJ No. 349/2018 and a Coordinate Bench of this Court in Mohm. Jamsed vs. Sk. Altab @ Altaf, MANU/OR/0648/2015 have taken a similar view. The relevant portions of the said judgments are reproduced hereinbelow:
A. Shankar Gopinath Apte v. Gangabai Hariharrao Patwardhan, MANU/SC/0499/1976 : (1976) 4 SCC 112:
"14. Faced with this difficulty, learned counsel for the appellant was driven to raise points on which there is no pleading, no issue and naturally no satisfactory evidence. The first of such contentions raised by Mr. Bal is that the appellant must be deemed to be a licensee of the respondent and since he has executed work of a permanent character on the land involving heavy expenses, the licence would be irrevocable under Section 60(b) of the Easements Act, 1882. This argument was made expressly on the assumption that the power of attorney was a nominal document and therefore inoperative. In view of our finding that the document was intended to be acted upon and was in fact acted upon, the argument of irrevocable licence does not survive for consideration. But having spent some time in chasing the argument, we are constrained to say that such evidence as there is on the record seems inadequate to prove the improvements made or the expenses incurred by the appellant. He has admitted in his evidence that the figures which he gave in his examination-in-chief as regards the amount spent on improvements were stated from memory and that he had not produced his accounts to corroborate the oral word. Only one more thing need be stated: even assuming that the appellant has executed work of a permanent character on the land it cannot be said that he has done so "acting upon the licence", as required by Section 60(b) of the Easements Act... "
B. Mohm Jamsed vs. Sk. Altab @ Altaf, Poonam Vs. Mukesh Sharma Page No. 45 of 49 Civil DJ No. 349/2018 MANU/OR/0648/2015:
"14. For availing the protection by invoking the provision of clause (b) of section 60, it must be shown that the exception of a work of permanent nature had been done by the licensee acting upon the licence. The work must be of a permanent character and the licensee must have incurred expenses in the execution. The expression acting upon the licence is of great significance in deciding the question of irrevocability of a licence under section 60(b) of the Act. This Rule of irrevocability is, in fact, based on the principle of an implied grantarising from the conduct of the licensor which estopps him from claiming his right of revocation. 15. In the present case, there is no such specific pleading that renovation work was made by the defendant acting upon the licence and in pursuance of the licence granted by the plaintiff. The defendant claims to have been gifted with the land and thus is in possession on his own right. So, the present stand as regards the irrevocability of the licence is in conflict with the main plea. He never comes forward in so claiming as a licensee nor has placed in the Courts below that instead of the claim of relationship as landlord and tenant, there was the relationship of licensor and licensee between the plaintiff and the defendant. Moreover two important factual aspects as placed by the defendant being taken for consideration, those prevent with full force, the attractability of the provisions of section 60(b) of Easements Act. The first one is that of leaving of one room at the desire of plaintiff without any demur and the next one is that of demand of the money spent after the renovation. In view of the relationship between the parties as father-in-law and son-in-law, even accepting for a moment that some renovation work was done by the defendant and in view of the very case of the defendant as aforestated, the present submission to thwart the suit of the plaintiff banking upon the provision of section 60(b) of the Easements Act falls flat. Thus, the submission of the learned Counsel for the appellant as regards involvement of the substantial question of law as aforementioned cannot be countenance. Hence, the appeal does not merit admission."Poonam Vs. Mukesh Sharma Page No. 46 of 49 Civil DJ No. 349/2018
In terms of law stated hereinabove, the contentions of construction, as pleaded, do not provide any aid to the case of the Plaintiff.
9.2.15. Therefore, the Plaintiff, on account of preponderance of probabilities, has established her entitlement for the decree of mandatory injunction. The Issue No.2 is accordingly decided in favour of the Plaintiff and against the Defendant.
9.3. Issue No.3: Whether the Plaintiff is entitled to a decree of permanent injunction, as prayed for? OPP.
9.3.1. Since the Plaintiff has proved her entitlement for the decree of mandatory injunction, therefore, the Defendant does not have any right to create any third party rights in the suit property and the decree for permanent injunction is only consequential to the same. Accordingly, the Plaintiff is entitled to a decree of permanent injunction against the Defendant. The Issue No.3 is accordingly decided against the Defendant and in favour of the Plaintiff.
9.4. Issue No.4: Whether the Plaintiff is entitled to mesne profits and damages, if yes, at what rate and for which period? OPP.
Poonam Vs. Mukesh Sharma Page No. 47 of 49 Civil DJ No. 349/20189.4.1. The Plaintiff has sought damages/mesne profit @ Rs.10,000/- per month. No documentary evidence has been led by the Plaintiff to establish the market rent of the suit property for the relevant period. The Defendant has stated in his cross-examination that the rate of rent of the suit property in the year 2016 was Rs.1,000/- to Rs.1500/-. The PW-1 has stated in his cross-examination that rate of similar situated property is about Rs.10,000/- to Rs.12,000/-, however no documents have been placed on record. Both the aforesaid contentions are oral and no basis for the same has been provided. The Plaintiff has not charged any license fees from the Defendant. No material has been produced on record to infer the rate of rent of the similarity situated premises in the vicinity. Since the Plaintiff has not proved that the rate of rent of suit property for the relevant years was Rs.10,000/- and the Defendant has admitted the rate of rent to be Rs.1000/- to Rs.1500/-, in the year 2016, therefore, the same is being treated as the basis for grant of mesne profits. Accordingly, the Plaintiff is awarded mesne profits/damages @ Rs.1500/- per month from the date of institution of the present suit till the suit property is vacated by the Defendant. The Issue No.4 is accordingly decided.
10. Relief/Final Decision:
10.1. The suit of the Plaintiff is decreed for the prayer of mandatory injunction and the Defendant, along with his Poonam Vs. Mukesh Sharma Page No. 48 of 49 Civil DJ No. 349/2018 family members, is directed to vacate the suit property, i.e., entire ground floor of property No.M-21, Raghubir Nagar, New Delhi-110027, comprising of one room, kitchen, bathroom and toilet (as shown in red colour in the site plan, i.e., Ex.PW1/2). A decree of permanent injunction is also passed, whereby the Defendant or his family members are restrained from creating any third party rights in the suit property or parting with the possession of the same in contravention of decree of mandatory injunction, passed hereinabove. The Plaintiff is also awarded mesne profits/damages @ Rs.1500/- per month from the date of institution of the present suit till the suit property is vacated by the Defendant. The decree sheet be drawn up accordingly.
The files be consigned to record room after due compliance.
Digitally signed by ANIL ANIL CHANDHEL
CHANDHEL Date: 2025.09.27
16:01:48 +0530
Announced in the open Court (ANIL CHANDHEL)
today on 27th of September, 2025 District Judge-04
(West District)
THC/DELHI/27.09.2025
Poonam Vs. Mukesh Sharma Page No. 49 of 49
Civil DJ No. 349/2018