Delhi District Court
Mr. Azad (Now Deceased) vs Pramod on 22 February, 2020
IN THE COURT OF BRIJESH KUMAR GARG,
ADDITIONAL DISTRICT JUDGE-1,
NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI
CS No. 476433/15
CNR No.DLNE01-000097/2010
1. Mr. Azad (now deceased)
S/o Sh. Banare
Through his LRs
a. Smt. Sumitra
W/o Sh. Banare
b. Mr. Nitin Kumar
S/o Late Sh. Azad
2. Nitin Kumar
S/o Late Sh. Azad
All r/o H.No. 60, Gali No.5,
80 Gaj Plot Colony, Mandoli Exntension,
Delhi-110 093.
Also at : H.No.91/1-A, Gali No.8,
Jagatpuri, Delhi-110 051.
..... plaintiffs
Versus
1. Pramod
S/o Sh. Rajpal
2. Mrs. Pooja
W/o Sh. Pramod
Both r/o H.No. 60, 80 Gaj Plot Colony,
Mandoli Extension, Delhi-110 093.
3. Sh. Rajpal
S/o Sh. Kalu Ram
R/o D.D.A. Flats Bhopura,
Ghaziabad, U.P.
Also at : Village Gagan Vihar,
Gali No.2, Ghaziabad, U.P.
.....defendants
CS No.476433/15 Page 1 of 17 ADJ-01(NE), KKD, DELHI
Date of Institution of the present Suit : 09.11.2010
Date when the order was reserved : 10.02.2020
Date of the Judgment : 22.02.2020
Suit for Possession, Permanent Injunction & Recovery of
Damages/Mesne Profits
JUDGMENT
1. The present suit has been filed by the plaintiff for possession, mesne profits and for permanent injunction, wherein, it is stated that the plaintiffs are the owners of the property bearing House No.60, Gali No.5, 80 Gaj Plot Colony, Mandoli Village, Delhi.
2. It is further stated in the plaint that the Smt. Kiran Devi wife of plaintiff No.1 Sh. Azad, and mother of plaintiff No.2 Nitin, was the owner of the aforesaid property, having purchased the same from its erstwhile owner Sh.Rajpal s/o Kalu Ram (defendant No.3), vide general power of attorney, agreement to sell and receipt, all dated 10.01.1989 and vide said documents, defendant No.3 had transferred all his rights, title and interest in the aforesaid property, in favour of Smt. Kiran Devi, after receipt of an amount of Rs.15,000/- on 10.01.1989. It is further stated that after selling the aforesaid property, defendant No.3 shifted to Bhopura, Ghaziabad (U.P.) and was having no occupation or concern with the aforesaid property and since then, the plaintiffs are in possession of the suit property.
3. It is further stated in the plaint that Smt. Kiran Devi had unfortunately expired on 25.12.2009, leaving behind her husband Sh. Azad and son Nitin, as her legal heirs and after the death of Smt. Kiran Devi, plaintiffs have become the rightful and legal owners of the aforesaid property. It is further stated that Smt. Kiran Devi was ill for some time, prior to her death, as she had got a paralytic attack, due to which, she CS No.476433/15 Page 2 of 17 ADJ-01(NE), KKD, DELHI got 50% permanent physical impairment in her body and since her husband Sh. Azad (plaintiff No.1) was working as sanitary guide in Municipal Corporation of Delhi, defendants No.1 & 2 were brought to the aforesaid property by the plaintiff No.1, to take care of his wife Smt. Kiran Devi and to lookafter her house hold chores during the day time.
4. It is further stated in the plaint that in the month of December, 2009, Smt. Kiran Devi in consultation with plaintiff No.1 had given one room in the aforesaid property to the defendants No.1 & 2, so that they could lookafter her and cook and serve food to her, in the absence of plaintiff No.1. It is further stated that the defendants No.1 & 2 had assured and undertaken that they would take care of Smt. Kiran Devi and shall vacate and handover the peaceful possession of the room, as and when demanded by the plaintiff.
5. It is further stated in the plaint that on 25.12.2009, Smt. Kiran Devi expired at GTB Hospital and thereafter, the plaintiff No.1 took her dead body to his parental house at Jagatpuri, Delhi, for her last rites and when he returned back to the aforesaid property at Mandoli Village, Delhi, he was shocked and astonished to find that the jewellary articles, cash and title documents of the aforesaid property, in favour of Smt.Kiran Devi, were missing from the almirah and thereafter, the plaintiff No.1 made inquiries from the defendants, who instead of handing over the documents to the plaintiff, have started abusing the plaintiff No.1 and thereafter, the plaintiff No.1 lodged a written complaint to the local police, about the theft of the aforesaid articles, on 19.01.2010.
6. It is further stated in the plaint that due to untimely and unfortunate demise of her wife, plaintiff No.1 was in a sad state of mind and his condition become critical and he was in need of help from somebody and CS No.476433/15 Page 3 of 17 ADJ-01(NE), KKD, DELHI therefore, he requested the defendants to vacate the room and to handover the possession of the same to him, on which, the defendants extended threats to him to face the threat of being murdered. It is further stated that the defendant No.1 is now claiming himself to be the owner of the aforesaid property and is extending all kinds of criminal threats to plaintiff No.1, to force him to leave the suit property.
7. It is further stated in the plaint that in the month of October, 2010, the plaintiff No.1, with the help of the respected members of the locality called upon the defendant No.1 and reminded him of his assurances, but, the defendant No.1 clearly retracted from his promise and threatened the plaintiff to leave the property or to face the dire consequences. It is further stated that defendant No.1 had stated openly that after the death of Smt. Kiran Devi, he has become the owner of the entire property and no one can evict him from the same. It is further stated in the plaint that the intentions of the defendants have become malafide and to grab the entire property, they have conspired together to alienate the suit property illegally to third person by illegally claiming the ownership of the suit property.
8. It is further stated in the plaint that the defendant No.3 had also filed a false, frivolous and mischievous suit bearing CS No.613/12, as a counterclaim to the present suit, claiming himself to be the owner of the property. But, he has no right, title or interest in the property, after having transferred/sold the same to late Smt. Kiran Devi, vide documents, dated 10.01.1989. It is further stated that the defendant No.1 & 2 have caused wrongful loss to the plaintiffs by illegally occupying the room and have also deprived the plaintiffs of the rent, which the said property might have fetched by letting the same on rent, as similarly located property in the area would have fetched a rent of Rs.2,000/- per month and therefore, CS No.476433/15 Page 4 of 17 ADJ-01(NE), KKD, DELHI the defendants are also liable to pay mesne profits/damages along with interest @12% per annum, till the possession of the room, in illegal possession of the defendants, is handed over to the plaintiff and hence the present suit.
Case of the defendant
9. In their written statement, the defendants have mentioned that the plaintiffs have concealed the material facts and have not come to the court with clean hands. It is further stated that the aforesaid property is worth about Rs.15,00,000/- and therefore, the plaintiff has not valued the suit, properly, at Rs.4,00,000/-. It is further stated that the father of defendant No.1, i.e. defendant No.3 had neither executed any document in favour of the wife of plaintiff No.1 nor has sold the aforesaid property to her, at any point of time. It is further stated that the defendant No.3 is the owner of the aforesaid property, having purchased the same on 22.05.1987, vide general power of attorney, agreement to sell, affidavit and registered receipt etc.
10. It is further stated in the written statement that the plaintiff No.1 is a is very clever person and there is every possibility that he has taken the signatures of the father of defendant No.1 (defendant No.3) on some forged documents, on the pretext of taking electricity connection in the aforesaid property, in the year 2009. It is further stated that the father of defendant No.1 (defendant No.3) had taken a loan of Rs.15,000/- from Smt. Kiran Devi, wife of plaintiff No.1, for the marriage of their daughter, when she was residing at Jagatpuri, Delhi. It is further stated that Smt. Kiran Devi was the maternal daughter (bhanji) of defendant No.3 and due to dispute between the husband and wife and family of the plaintiff, the defendant No.3 had brought her to the aforesaid property in the year CS No.476433/15 Page 5 of 17 ADJ-01(NE), KKD, DELHI 2005, as the wife of plaintiff No.1 used to remain ill and there was no other person to lookafter her at her matrimonial home.
11. It is further stated in the written statement that on 23.12.2009, the wife of the plaintiff, Smt. Kiran Devi, had fallen seriously ill and father of defendant No.1 (defendant No.3) had informed the plaintiff No.1 about the seriousness of his wife and thereafter, the plaintiff No.1 started residing in the aforesaid property to take care of his wife and on 25.12.2009, Smt. Kiran Devi had expired.
12. It is further stated in the written statement that after the last rites of Smt. Kiran Devi, the plaintiff No.1 was asked to take away the belongings of his wife. But, instead of taking away the belongings of his wife, the plaintiff No.1 started residing in the aforesaid property and when the defendants objected to the illegal occupation of the suit property, the plaintiff started quarelling with the defendants and therefore, a panchayat was held and in panchayat, the plaintiff No.1 had assured the defendant No.1 and his family that he shall vacate the property, after receiving the loan amount of Rs.15,000/- from the defendant No.3. But, instead of vacating the aforesaid property, the plaintiff No.1, in collusion with the police officials of P.S. Harsh Vihar, made a complaint, in which police officials of P.S. Harsh vihar had called the defendant No.1 to the police station and forcibly obtained his signatures on different blank papers and a false Kalandra under Section 150 Cr.P.C. was registered against him. It is further stated that the plaintiffs have filed a false suit and the same may therefore, be dismissed with heavy costs.
13. Replication to the written statement has been filed, on behalf of the plaintiffs, wherein, the contents of the written statement have been denied and the contents of the plaint have been reiterated and CS No.476433/15 Page 6 of 17 ADJ-01(NE), KKD, DELHI reaffirmed.
14. It is relevant to mention hereby that during the trial, plaintiff No.1 Sh. Azad Singh had also expired on 19.11.2010 and his legal heirs were brought on record, vide orders, dated 01.02.2011.
Issues
15. From the pleadings of the parties, the following issues were framed by the Ld. Predecessor of this court, vide order dated 11.07.2013, as under :-
(1) Whether the plaintiffs are the owners of the suit property?
OPP (2) Whether the plaintiffs are entitled to decree for possession of the suit property ? OPP (3) Whether the plaintiffs are entitled for damages/mesne profits @ of Rs.2,000/- per month from the date of filing of the suit till the date of gaining possession of the suit property ? OPP (4) Whether the plaintiff is entitled to decree for permanent injunction as prayed for ? OPP (5) Whether suit property is under valued for the purposes of Court fee and pecuniary jurisdiction ? OPD (6) Relief.
Evidence of the parties
16. During the trial, the plaintiffs have examined plaintiff No.2 Nitin as PW-1 and plaintiff No.1(a) Smt. Sumitra as PW-2. They have also examined PW-3 Sh. Avtar Singh, LDC from the office of the Sub- Registrar IV, Seelampur; PW-4 Sh. Sube Singh s/o Sh. Ram Phal; PW-5 Sh. Kalicharan s/o Sh. Bodiya; PW-6 Sh. Bahadur Singh from LBS CS No.476433/15 Page 7 of 17 ADJ-01(NE), KKD, DELHI Hospital; PW-7 Sh. Shyam Babu and PW-8 Const. Sant Kumar, from SEM Court, Seelampur, to prove their case.
17. On the other hand, the defendants have examined defendant No.1 Sh. Pramod, as DW-1 and defendant No.3 as DW-3. They have also examined DW-2 Sh. Jagwat; DW-4 Sh. Jal Singh and DW-5 Sh. Rajeev Kumar, in support of their contentions.
Final Arguments
18. After completion of trial, final arguments were addressed by Sh. A. K. Bali, Advocate, for the plaintiffs and Sh. Pawan Sharma, Advocate, for the defendants. During the final arguments, the Ld. counsel for the plaintiff has argued that Smt. Kiran Devi, wife of Sh. Azad (plaintiff No.1) had purchased the suit property from defendant No.3, on 10.01.1989, vide agreement to sell, GPA and receipt and during the trial, the plaintiffs have duly proved the execution of the receipt, Ex.PW3/A and the testimony of the plaintiffs find corroboration from the testimony of the attesting witness of the aforesaid documents of the suit property and therefore, the plaintiffs have succeeded in proving the fact that Smt.Kiran Devi was the owner of the suit property. He has further argued that the defendants have failed to prove on record that the receipt Ex.PW3/A and the agreement to sell, GPA etc., dated 10.01.1989, were forged and fabricated documents. He has further argued that the plaintiffs and their witnesses have succeeded in proving the case of the plaintiffs and therefore, the same may be decreed.
19. On the other hand, the Ld. counsel for the defendants has argued that the defendant No.3 is the owner of the suit property by virtue of the documents, Ex.RW3/1 to Ex.RW3/5 and he has never sold the suit CS No.476433/15 Page 8 of 17 ADJ-01(NE), KKD, DELHI property to Smt. Kiran Devi, at any point of time and therefore, the suit of the plaintiff may be dismissed.
Findings
20. I have carefully perused the case file and I have also given my considered thoughts to the arguments addressed by the Ld. counsels for the parties. My findings on the various issues are as under :
Issue No. 1 & 2(1) Whether the plaintiffs are the owners of the suit property? OPP (2) Whether the plaintiffs are entitled to decree for possession of the suit property ? OPP
21. Since both these issues are interconnected, I deem it appropriate to decide both these issues together. Onus of proof of both these issues lies on the plaintiffs and in support of their contentions, the plaintiffs have examined plaintiff No.2 Nitin s/o Late Sh. Azad, as PW-1. This witness has reproduced the contents of the plaint in his affidavit, Ex.PW1/1 and has also proved the execution of the receipt, dated 10.01.1989, by the defendant No.3 Sh. Rajpal s/o Sh. Kalu Ram, in favour of his mother Smt.Kiran Devi. The said receipt has been proved on record as Ex.PW3/A.
22. PW-3 Sh. Avtar Singh, LDC, from the officer of Sub-Registrar IV, Seelampur, has also produced the record of the registration of receipt, dated 10.01.1989, as the same was registered at the office of the Sub- Registrar IV, on 10.01.1989. This witness has also corroborated the fact of execution of this receipt.
CS No.476433/15 Page 9 of 17 ADJ-01(NE), KKD, DELHI
23. During the trial, the plaintiffs have also examined PW-2 Smt.Sumitra w/o Banare, mother of deceased plaintiff No.1 Azad, who has also filed her affidavit, Ex.PW2/X, wherein, she has also reproduced the contents of the plaint and has corroborated the evidence of PW-1 Nitin and PW-3 Sh. Avtar Singh.
24. During the trial, the plaintiffs have also examined Sh. Sube Singh s/o Ramphal, the witness to the execution of GPA, agreement to sell and receipt, dated 10.01.1989, by defendant No.3 Sh.Rajpal s/o Sh.Kalu Ram, in favour of Smt. Kiran Devi. This witness has also filed his affidavit, Ex.PW4/A and in his affidavit, this witness has also categorically stated that the defendant No.3 Sh. Rajpal s/o Kalu Ram, had sold the suit property to late Smt. Kiran Devi w/o late Sh.Azad (deceased plaintiff No.1), for an amount of Rs.15,000/-, on 10.01.1989 and in his presence, Sh. Rajpal (defendant No.3) had executed the GPA, agreement to sell and receipt. This witness has also identified his signatures on the agreement to sell and the GPA. This witness has also identified his signatures on the receipt, dated 10.01.1989, Ex.PW3/A, at point 'B' and has also proved a copy of the same, again, as Ex.PW4/B-3.
25. All these witnesses were also subjected to lengthy cross- examinations, on behalf of the defendants, but, no material discrepancy has come on record, in their cross-examinations, to discard their testimonies. From the testimonies of all the witnesses, it is clear that Smt. Kiran Devi w/o late Sh. Azad (deceased plaintiff) had purchased the suit property from defendant No.3 Sh.Rajpal s/o Kalu, on 10.01.1989, for a sale consideration of Rs.15,000/- and in respect of which, a registered receipt, dated 10.01.1989, Ex.PW3/A, was also executed. However, the originals of GPA and the agreement to sell, dated 10.01.1989, could be produced on record, by any of the parties, during the trial.
CS No.476433/15 Page 10 of 17 ADJ-01(NE), KKD, DELHI
26. During the course of trial, the main contention of the defendants has remained that the defendant No. 3 Sh.Rajpal s/o Kalu Ram, was the owner of the suit property, by virtue of the documents, Ex.RW3/1 to RW3/5. During the trial, the defendants have also examined defendant No.3 Sh.Rajpal, as DW-3 and he has also filed his affidavit Ex.DW3/A, in which, he has reiterated the aforesaid facts.
27. During his evidence, the defendant No.3 has filed the original title documents, Ex.RW3/1 to RW3/5. Perusal of these documents indicate that the defendant No.3 Rajpal s/o Kalu Ram had purchased the suit property, on 22.05.1987, from its erstwhile owner Smt. Parmeshwari w/o Sh. Kanshi Ram, vide GPA, agreement for sale and receipt, for a sale consideration of Rs.12,000/-. All these documents are not denied by the plaintiffs and the plaintiffs have also not denied that the defendant No.3 Rajpal s/o Kalu Ram was the owner of the suit property, by virtue of these documents.
28. During the cross-examination, the receipt Ex.PW3/A, was shown to the defendant No.3 Sh. Rajpal and he has identified his thumb impression and signatures on it. Defendant No.3 has failed to disclose the circumstances, under which he executed this receipt, dated 10.01.1989, Ex.PW3/A, in favour of Smt. Kiran Devi w/o Sh. Azad.
29. During his cross-examination, the defendant No.3 has also stated that he had taken a loan of Rs.15,000/- from Smt.Kiran Devi, but, no document regarding the loan amount was executed by him when the loan of Rs.15,000/- was taken by him. Therefore, a safe inference can be drawn from his testimony that he had executed the receipt, Ex.PW3/A, for a sum of Rs.15,000/- , in favour of Smt. Kiran Devi w/o Sh.Azad, only CS No.476433/15 Page 11 of 17 ADJ-01(NE), KKD, DELHI as a sale consideration of the suit property, in her favour, on 10.01.1989.
30. It is also relevant to note that the defendant No.3 Sh.Rajpal has also failed to produce any evidence on record to show that the receipt, Ex.PW3/A or the agreement to sell and GPA, dated 10.01.1989, were forged and fabricated documents.
31. It has been held by the Hon'ble High Court of Delhi, in case titled as, 'Ramesh Chand vs. Suresh Chand & Ors.', reported as, 'MANU/DE/1690/2012, as under : -
"2. A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance (para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872 (para 13) and devolution of interest pursuant to a Will (para 14). Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of Property Act, 1882, Section 202 of the Contract Act, 1872. There also takes place devolution of interest after the death of the testator in terms of a Will.
xxxxx xxxxx xxxxx
9. Learned counsel for the appellant finally laid great stress on paras 18 and 19 of the judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. (supra) and which read as under:-
18. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/WILL transactions are not "transfers" or "sales" and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said "SA/GPA/WILL transactions" may also be used to obtain specific performance or to defend possession under Section 53A of TP Act. If they CS No.476433/15 Page 12 of 17 ADJ-01(NE), KKD, DELHI are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities. We make it clear that if the documents relating to "SA/GPA/WILL transactions" has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision.
19. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister, or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a Power of Attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers.
In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding "SA/GPA/WILL transactions" are not intended to apply to such bona fide/genuine transactions.
These paragraphs were relied upon in support of the proposition that by these paras the Supreme Court in fact explained its earlier observations made in paras 12, 13, 14 and 16 of its judgment and that the Supreme Court did not intend to give any rights in immovable property. In other words, the argument was that in spite of paras 12 to 16 of the judgment in the case of Suraj Lamps & Industries Pvt. Ltd. (supra) the documents being an agreement to sell under Section 53A or a power of attorney coupled with interest or a Will cannot create rights in an immovable property. In my opinion, this argument urged on behalf of the appellant really does not convey any meaning to me inasmuch as the argument, if accepted, would mean that I am ignoring the binding observation/ratio of the Supreme Court given in paras 12 to 16 of the judgment in the case of Suraj Lamps & Industries Pvt. Ltd. (supra).
xxxxx xxxxx xxxxx
11. In view of the aforesaid facts and the validity of the documents, being the power of attorney and the Will dated 16.5.1996, the respondent No. 1/plaintiff would though not be the classical owner of the suit property as would an owner be under a duly registered sale deed, but surely he would have better rights/entitlement of possession of the suit property than CS No.476433/15 Page 13 of 17 ADJ-01(NE), KKD, DELHI the appellant/defendant No. 1. In fact, I would go to the extent saying that by virtue of para 14 of the judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. (supra) taken with the fact that Sh. Kundan Lal has already died, the respondent No. 1/plaintiff becomes an owner of the property by virtue of the registered Will dated 16.5.1996. A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement/right to the possession of the property than qua the person who is in actual physical possession thereof. The facts of the present case show that the respondent No. 1/plaintiff has undoubtedly better entitlement/title/rights in the suit property so as to claim possession from the appellant/defendant No. 1/brother. I have already held above that the appellant/defendant No. 1 miserably failed to prove that there was any partition as alleged of the year 1973 whereby the suit property allegedly fell to the share of the appellant/defendant No. 1. In fact, the second reason for holding the appellant to be unsuccessful in establishing his plea of partition is that the appellant failed to lead any evidence as to the other two properties being the property No. 290, Ambedkar Basti, Delhi and the second property being the property adjoining the property No. 290, Ambedkar Basti, Delhi as having belonged to the father Sh. Kundan Lal. In view of the above, I do not find any merit in the appeal, which is accordingly dismissed subject to the observations made above that the respondent No. 1/plaintiff will only be entitled to possession of 50% of the suit property which is in possession of the appellant/defendant No. 1, and the rights of respondent No. 2 would remain secure with respect to the 50% share of the suit property which was purchased by the respondent No. 2/defendant No. 2 from the appellant/defendant No. 1. Parties are left to bear their own costs. Trial Court record be sent back.
(emphasis supplied by me)
32. In view of the material evidence on record, as discussed above and in view of the above pronouncement, this court is of the considered opinion that the plaintiffs may not be the owners of the suit property, in its strict sense, but, they are still entitled to recover the possession of the suit property from the defendants.
33. Perusal of the record further shows that during the trial, the CS No.476433/15 Page 14 of 17 ADJ-01(NE), KKD, DELHI plaintiffs have also examined Ct.Sant Kumar, from SEM Court, Seelampur, Delhi, as PW-8 and this witness has brought the summoned record, regarding DD No.28A, dated 27.04.2010, of P.S. Harsh Vihar, pertaining to the proceedings under Section 107/150 Cr.P.C. and the Kalandra No. 59/205/2010. Copies of the proceedings of the Kalandra, vide DD No.28A, dated 27.04.2010, has been proved on record as Ex.PW8/A. Copies of the orders have been proved on record as Ex.PW8/B. Copy of the Kalandra has been proved on record as Ex.PW8/C. Copy of the DD No.28A has been proved on record as Ex.PW8/D. Copies of the statements of the parties, recorded during the proceedings in the said Kalandra, have been proved on record as Ex.PW8/E. Copies of the complaints, dated 19.01.2010 and 12.04.2010, have been proved on record, as Ex.PW8/F & Ex.PW8/G, respectively.
34. Perusal of the statements of the parties, Ex.PW8/E, recorded during the aforesaid Kalandra proceedings, indicates that Pramod has disclosed in his statement, on 27.04.2010, that he was residing in the suit property as a tenant.
In these circumstances, both these issues are decided in favour of the plaintiffs and against the defendants.
Issue No.3 Whether the plaintiffs are entitled for damages/mesne profits @ of Rs.2,000/- per month from the date of filing of the suit till the date of gaining possession of the suit property ? OPP
35. Onus of proof of this issue also lies on the plaintiffs and in his affidavit Ex.PW1/1, plaintiff No.2 Nitin, has also mentioned that the suit property, if let out on rent, shall fetch him a monthly rent of Rs.2,000/- and therefore, the defendants are also liable to pay damages / mesne CS No.476433/15 Page 15 of 17 ADJ-01(NE), KKD, DELHI profits @Rs.2,000/- per month along with interest @ 12% per annum, from the date of filing of the present suit, till the possession of the suit property is handed over to them, by the defendants. No evidence has been led by the defendants to rebut this contention of the plaintiffs.
In these circumstances, this issue is also decided in favour of the plaintiffs and against the defendants.
Issue No.4 Whether the plaintiff is entitled to decree for permanent injunction as prayed for ? OPP
36. Onus of proof of this issue also lies on the plaintiffs. In view of my findings on the issues No.1 & 2, as discussed above, this issue is also decided in favour of the plaintiffs and against the defendants.
Issue No.5 Whether suit property is under valued for the purposes of Court fee and pecuniary jurisdiction? OPD
37. Onus of proof of this issue lies on the defendants, but, during the trial, the defendants have failed to lead any evidence in this regard and have failed to establish on record, as to how the suit property is under valued.
38. On the other hand, plaintiffs have mentioned in the plaint that the suit property was worth about Rs.4,00,000/-, on which, an advalorem court fees of Rs.6,248/-, has been affixed. From the record, it is also observed that the suit property is only one room, as shown in red colour in the site plan, Ex.PW1/A, of the entire property bearing House No.60, Gali No.5, 80 Gaj Plots Colony, Mandoli Extn., Delhi-93.
CS No.476433/15 Page 16 of 17 ADJ-01(NE), KKD, DELHI In these circumstances, this issue is also decided against the defendants.
Relief
39. In view of my findings on the various issues, as discussed above, the suit of the plaintiffs is hereby decreed and a decree for possession of the suit property, i.e., one room, forming part of property bearing House No.60, Gali No.5, 80 Gaj Plot Colony, Mandoli Village, Delhi, as shown in red color in the site plan, Ex.PW1/A, is passed in favour of the plaintiffs and against the defendants. A decree for recovery of damages/mesne profits, for unauthorized use and occupation of the suit property by the defendants, is also passed in favour of the plaintiffs and against the defendants, @Rs.2,000/- per month, along with interest @ 6% per annum (as per Section 34 CPC), w.e.f. 08.11.2010, till the vacant physical possession of the suit property is handed over by the defendants to the plaintiffs. A decree for permanent injunction is also passed in favour of the plaintiffs, whereby, the defendants, their agents, employees, servants, representatives, legal heirs etc. are restrained from creating any third party interest in the suit property.
Costs of the suit are also awarded in favour of the plaintiffs and against the defendants.
A decree be drawn accordingly.
File be consigned to record room, after due compliance.
Digitally signed by Brijesh Brijesh Kumar Garg
Location:
Kumar KARKARDOOMA
COURTS, DELHI
Garg Date: 2020.02.22
17:08:44 -0300
Announced in the open court BRIJESH KUMAR GARG
on this 22nd Day of February, 2020 Addl. District Judge(NE)-01
Karkardooma Courts, Delhi.
CS No.476433/15 Page 17 of 17 ADJ-01(NE), KKD, DELHI