Delhi District Court
Smt. Santosh Tyagi vs Sh. Tapesh Kumar Tyagi on 25 August, 2018
Santosh Tyagi V. Tarun Kumar Tyagi & Anr.
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
SUIT NO.: 436/2017
UNIQUE CASE ID NO.: 610117/16
IN THE MATTER OF :
Smt. Santosh Tyagi
W/o Sh. S.S. Tyagi
R/o RZ/A34, Mahabir Enclave,
Palam, New Delhi. ...Plaintiff
VERSUS
1. Sh. Tapesh Kumar Tyagi
S/o Sh. S.S. Tyagi
2. Smt. Sunita Tyagi
W/o Sh. Tapesh Kumar Tyagi,
Both R/o RZ/A34, Mahabir Enclave,
Palam, New Delhi. ...Defendants
SUIT FOR POSSESSION, PERMANENT INJUNCTION AND
RECOVERY OF MESNE PROFIT.
Date of institution of the Suit : 01/10/2005
Date on which Judgment was reserved : 28/07/2018
Date of Judgment : 25/08/2018
Suit No. 436/2017 Page 1 of 52
Santosh Tyagi V. Tarun Kumar Tyagi & Anr.
JUDGMENT
By way of present judgment, this court shall adjudicate suit for possession, permanent injunction and for recovery of mesne profit.
CASE OF THE PLAINTIFF AS PER PLAINT Succinctly the necessary facts for just adjudication of the present suit, as stated in the plaint, are as under: A) The Plaintiff is a registered and exclusive, rightful and legal owner of the property bearing no. RZ/A34, Mahabir Enclave, Palam, New Delhi vide Sale Deed dated 05/04/1974 (although year wrongly mentioned as 1976), Regn. No.7727, BookI, Volume No.2285, pages 122 and 123, Jilt No. 2180, registered with SubRegistrar, Delhi. The suit property has been built by the husband of the plaintiff, who is a retired person from Ministry of Defence.
B) Defendant no.1 being a son and defendant no.2 being a daughterinlaw of the plaintiff have been living in the front portion of the abovesaid property, which is half portion of the Suit No. 436/2017 Page 2 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. ground floor, consisted of two rooms, kitchen, attached bathroom, as shown in red colour in the Site Plan, as a licensee without paying a single penny alongwith their two children namely Chitra and Gautam, without any right, interest or claim except the license of the plaintiff.
C) Due to misconduct, adamant nature, noncooperative attitude and threatening atmosphere with greedy eyes upon the properties of the plaintiff and moreover, when all the efforts of persuasion have been failed, forced the plaintiff to disinherit both of the defendants from her movable and immovable properties and break of all kinds of relationships vide public notice dated 10/05/2005, duly published in the daily newspaper Rashtriya Sahara.
D) The plaintiff had also suffered a lot mentally, physically and socially, which forced her to separate the defendants alongwith her family from her joint family status in the month of August 2003 and since second week of August 2003, the defendants had been living separately without any relationship Suit No. 436/2017 Page 3 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. with the plaintiff in the property in dispute, ground floor, but in spite of separating both of the defendants in the ground floor, the plaintiff and her family still receiving threatening from the hands of defendants without any reason, which has snatched the peacefulness and tranquility in the mind of the plaintiff, which become daily routine in the defendant's occupied portion of the property, causing unnecessarily humiliation, harassment, tension to the plaintiff and also damages the goodwill and reputation in the eyes of local residence, hence the plaintiff has decided to revoke the licence of the defendants alongwith their respective family and does not want to keep both of the defendants with their families to occupy plaintiff's occupied portion of the aforesaid property.
E) The plaintiff sent a legal notice dated 10/05/2005 through her counsel thereby revoked the licence to remain in the property in dispute to enjoy the possession of the defendants and sought that defendant shall handover the vacant peaceful possession of the suit within two months of Suit No. 436/2017 Page 4 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. receiving the legal notice which was duly replied by the defendants vide reply dated 03/06/2005. F) The plaintiff has been claiming damages @ minimum Rs.3,000/ per month as the property in dispute could fetch the aforesaid amount as rent to the plaintiff. The plaintiff had tried her best to persuade the defendants with the help of common friends, relatives and even with the help of some respectable and responsible members of the community but failed to change the adamant behaviour.
G) The plaintiff and her husband had went to Ghaziabad to attend certain condolence, due to death of some relatives and friend in the family in the month of June and in the absence of the plaintiff and her husband for the period of 79 days in the last of May and beginning of June, the defendants had constructed/ altered the property in dispute without the knowledge and consent of the plaintiff in most unlawful and arbitrary manner.
Suit No. 436/2017 Page 5 of 52
Santosh Tyagi V. Tarun Kumar Tyagi & Anr. H) Subsequently, the defendant no.1 had filed a suit bearing no. 226/2005 for permanent injunction against the plaintiff and her family members in civil court and obtained an exparte status quo order dated 10/06/2005.
I) The husband of the plaintiff Sh. S.S. Tyagi has lodged the complaint dated 20/07/2005 against the defendants in P.S. Dabri, New Delhi.
CASE OF THE DEFENDANTS AS PER WRITTEN STATEMENT Summons was issued to the defendants and the defendants have filed their written statement in the present case. Succinctly, the case of the defendants is as under:
a) The suit of the plaintiff is liable to be dismissed under Order 7 Rule 11 CPC
b) the property in dispute has already been partitioned among the family members and the entire front portion of the property measuring 100 sq. yds. (out of 200 sq. yds.) fell to the share of defendant No.1 Tapesh Tyagi, who after the partition, has constructed and renovated the same at Suit No. 436/2017 Page 6 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. his own cost and is in actual physical possession, use and occupation of the same.
c) The Plaintiff in deep collusion with her husband is out to dispossess the defendants, with malafide intention and ulterior motive and design.
d) The defendants are and have been most obedient to their parents. The plaintiff has admitted the factum of separation of joint status of the family. ISSUES From the pleadings of the parties, following issues were framed vide order dated 23/02/2007:
1) Whether suit is malafide with ulterior motives as alleged? OPD.
2) Whether plaintiff has locus standi to file the present suit against the defendant? OPP.
3) Whether the plaintiff has not approached the court with clean hands? OPD.
4) Whether suit has been properly valued by the plaintiff? OPP.
5) Whether plaintiff is entitled to possession of the suit property? OPP.
Suit No. 436/2017 Page 7 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr.
6) Whether plaintiff is entitled to decree of permanent injunction as claimed? OPP.
7) Whether plaintiff is entitled to mense profit against the defendant? OPP.
8) Relief?
EVIDENCE OF THE PLAINTIFF AND DOCUMENTS RELIED UPON BY THE PLAINTIFF Plaintiff, in order to prove her case, led plaintiff evidence and got examined herself as PW1 by filing her evidence by way of affidavit wherein she reiterated and reaffirmed the contents of the plaint. PW1 in her testimony has relied upon the documents
a) Sale Deed dated 05/04/1974 Ex.PW1/1,
b) Site Plan Ex.PW1/2,
c) Legal notice dated 18/05/2005 Ex.PW1/3
d) Police complaint dated 20/07/2005 MarkA. The documents which were confronted during the crossexamination of PW1: Suit No. 436/2017 Page 8 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. Exhibit PW1/D1 (Colly.) is the certified copy of complaint alongwith affidavit & Vakalatnama under Section 125 Cr. P.C. The plaintiff has also examined Sh. Surendra Singh Tyagi as PW2.
The defendants have led their evidence and got examined defendant no.1 as DW1. The DW1 has filed his evidence by way of affidavit wherein he has improved certain facts which were not part and parcel of the written statement. DW1 was crossexamined by counsel for the plaintiff.
The defendants also examined the following witnesses by filing evidence by way of affidavits. The said witnesses have been examined without naming them in the written statement and further they have improved the facts which were not part and parcel of the written statement:
a) Smt. Jyoti as DW2.
b) Shri Dayanand Tyagi as DW4 The defendants have also examined the following summoned witnesses: Suit No. 436/2017 Page 9 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr.
(a) Sh. Nagender Pal Singh, Section Officer, BSES, Palam Division, Dabri More, New Delhi as DW3.
(b) Sh. Jasbir Kumar, JJA, Record Room, Family Courts, Dwarka, New Delhi as DW5.
(c) Sh. Rakesh Khirbat, Assistant Zonal Inspector, South Delhi Municipal Corporation, Najafgarh Zone as DW6.
(d) Sh. Ravinder Kumar, Assistant Section Officer, Delhi Jal Board, Kakrola More, New Delhi as DW7.
This Court heard the final arguments as advanced by Ld. counsel for the plaintiff and defendants and perused the material available on record.
ISSUE WISE FINDINGS:
ISSUE NO.4
4) Whether suit has been properly valued by the plaintiff?
OPP The onus of this issue has been wrongly placed upon the Plaintiff. The Plaintiff has valued the property as per the Plaint and it is defence of the defendants that the valuation of the property has not been done properly. Therefore, it is the Suit No. 436/2017 Page 10 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. defendants who were liable to prove that the valuation has not been done properly. However, the Defendant has failed to lead any evidence to show that the suit has not been valued properly. Accordingly, this issue is decided in favour of the Plaintiff and against the defendants. ISSUE NOS.1 TO 3 AND 5 T0 7
1) Whether suit is malafide with ulterior motives as alleged? OPD.
2) Whether plaintiff has locus standi to file the present suit against the defendant? OPP.
3) Whether the plaintiff has not approached the court with clean hands? OPD.
5) Whether plaintiff is entitled to possession of the suit property? OPP.
6) Whether plaintiff is entitled to decree of permanent injunction as claimed? OPP.
7) Whether plaintiff is entitled to mense profit against the defendant? OPP.
Issues Nos.1 to 3 and 5 to 7 are interrelated and in terconnected to each other and accordingly they are decided together.
Suit No. 436/2017 Page 11 of 52
Santosh Tyagi V. Tarun Kumar Tyagi & Anr. ADMITTED CASE OF THE PARTIES BY PLEADING OR EVIDENCE
1. The Plaintiff is a registered and exclusive, rightful and legal owner of the property bearing no. RZ/A34, Mahabir Enclave, Palam, New Delhi vide Sale Deed dated 05/04/1974 (although year wrongly mentioned as 1976), Regn. No.7727, BookI, Volume No.2285, pages 122 and 123, Jilt No. 2180, registered with SubRegistrar, Delhi. This fact is pleaded in para No.2 of the Plaint. In reply to this para the defendants has submitted that it is matter of record. However, it has further been pleaded in the said para that the property in dispute has already been partitioned among the family members and the entire front portion of the property measuring 100 sq. yds. (out of 200 sq. yds.) fell to the share of defendant No.1 Tapesh Tyagi, who after the partition, has constructed and renovated the same at his own cost and is in actual physical possession, use and occupation of the same Suit No. 436/2017 Page 12 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr.
2. The Defendant No.1 is the son of the Plaintiff and Defendant No.2 is the daughter in law of the Plaintiff. Therefore, the relationship between the parties is not disputed.
3. The receipt of the Legal Notice issued by plaintiff for vacation of the suit property has been admitted by defendants and they have also replied the said notice.
The Plaintiff is entitled to the relief of possession merely on the basis of the aforesaid admitted facts. However, the defendants have pleaded in the written statement regarding partition (it is not pleaded whether oral or written) amongst the family members and falling of the suit property in share of defendant No.1. Therefore, the onus was upon the defendants to prove the Partition (Whether Oral or written) in order to dislodge the claim of the Plaintiff. There is no written partition deed or Family Settlement on record which has been placed on record by the defendants therefore the entire claim of the defendants is based upon the Oral Family Settlement or Partition.
Suit No. 436/2017 Page 13 of 52
Santosh Tyagi V. Tarun Kumar Tyagi & Anr. CLAIM OF ORAL PARTITION BY DEFENDANTS AND CLAIM OF OWNERSHIP OF THE SUIT PROPERTY IN FAVOUR OF DEFENDANT NO.1 ON THE BASIS OF SAID ORAL FAMILY PARTITION: FINDINGS OF THE COURT: The moot question before this Court is whether the defendant No.1 was able to prove Oral Partition between the parties and on account of such Oral Partition the defendant No.1 became the owner of suit property in question.
The defendants in order to prove Oral Partition has examined Defendant No.1 as DW1 and also other witnesses as DW2 to DW7.
The following improvements were made by the defendants in their evidences which were not the part and parcel of the written statement of the defendants:
1) The suit property was being purchased from the income derived from the ancestral property of the defendant No.1 in which defendant No.1 had legal share. This is totally Suit No. 436/2017 Page 14 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. new fact which was not at all the part and parcel of writ ten statement. On the contrary there is categorical admis sion in written statement in reply to para no.2 of the plaint that the Plaintiff is the exclusive owner. However, with the qualification that after partition the defendant no.1 became owner of the suit property.
2) Family Settlement took place amongst the Plaintiff and de fendant No.1 family members in the presence of relatives and friends in August, 2003 with regard to the suit prop erty. The date, month or year of alleged Family Settlement or the Partition is not mentioned by the defendant in the written statement. It is also not mentioned that the said oral partition was done in the presence of friends and rel atives. It is for the first time in the evidence DW1 the fac tum of "Family Settlement was done in presence of the rel atives and friends" was brought on record. However, the DW1 has not mentioned the names of friends and rela tives.
Suit No. 436/2017 Page 15 of 52
Santosh Tyagi V. Tarun Kumar Tyagi & Anr.
3) Slowly and gradually the improvement was done in the ev idence by way of Affidavit of DW2 Jyoti who is alleged to be relative of parties and she has interalia deposed the following facts in her evidence: "..A family settlement took place among the plaintiff and defendant family in the presence of relatives including myself, Dinesh, Babita, Dayanand and friends in August, 2003..." A further new fact stated by DW2 Jyoti in her evi dence regarding partition of House No.70, Sector 12, Raj Nagar, Ghaziabad, UP which was given to Mr. Rakesh Kumar Tyagi. The aforesaid fact was not the part and parcel of the written statement. Even it was not pleaded in the written statement that back portion of 100 sq. yds. of Property RZ/A34, Mahabir Enclave, Palam, New Delhi was fallen to the share of Mr. Dinesh Tyagi.
Thus, the name of the relatives and friends was for the first time reflected in evidence of DW2 Jyoti. However, the name of Jyoti itself was not reflected in either written statement of defendants or evidence of defendant No.1. Even the name of Suit No. 436/2017 Page 16 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. DW4 i.e. Dayanand or Dayanand Tyagi was not reflected in the written statement or evidence of defendant no.1. DW2 has mentioned the name of Dayanand in her evidence but DW4 has deposed that his name is Dayanand Tyagi. The said wit nesses DW2 and DW4 are alleged to have witnessed oral parti tion which they have named with Family Settlement.
4) The DW4 has not stated in the evidence by way of Affi davit that he is father in law of defendant No.1 and father of defendant No.2. It is during the cross examination, he has deposed that he is fatherinlaw of defendant No.1.
5) The defendant No.1 was already prior to alleged partition residing in the share which was fallen to the share of de fendant No.1. This fact is not stated in the written state ment.
6) The defendant No.1 had spent about Rs.4,00,000/ from his own pocket for construction of the property which fell to the share of defendant No.1. There was no mention of the amount in the written statement. However, not a sin Suit No. 436/2017 Page 17 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. gle document has placed on record to show the expenses of construction.
In the case of Kattinokkula Murali Krishna V. Veeramalla Koteswara Rao, reported in (2010) 1 SCC 466, the Hon'ble Supreme Court was pleased to held that it was a settled principle of law that evidence beyond the pleadings can neither be permitted to be adduced nor can such evidence be taken into consideration. The Hon'ble Supreme Court of India in 2008 (2) RCR (Civil) 879, Anathula Sudhakar vs. P. Bushi Reddy (Dead) by LRs & Ors. also held that any amount of evi dence beyond pleadings is not to be considered. In view of this law laid down by the Hon'ble Supreme Court of India, it is clear that any sort of evidence beyond pleadings is not liable to be considered.
The DW1 during cross examination has admitted one relevant fact that he has filed the Suit for Partition against Plaintiff, Shri S.S. Tyagi, Shri Dinesh Tyagi and Shri Rakesh Tyagi and the said suit was withdrawn by him from Dwarka Suit No. 436/2017 Page 18 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. Courts, Dwarka. The defendant No.1 has not even mentioned the aforesaid fact of filing of the partition suit and withdrawal of the suit in his written statement or evidence by way of Affidavit. The filing of the partition suit by Defendant No.1 would tanta mount that he himself is seeking partition and as per his own admission the partition was not taken place. The said suit for partition was withdrawn but he has not deposed that it was withdrawn with liberty or without liberty thus, it has to be pre sumed that it was withdrawn without liberty. EVIDENCES OF DW3, DW5, DW6 AND DW7 DW3 was summoned from electricity department and he has deposed that defendant No.1 has applied for elec tricity connection in his name at premises bearing No.RZ34, First Floor, Mahavir Enclave, Mandir Marg, Delhi and nondo mestic (commercial) electricity connection bearing CA No.103312765 was installed at the aforesaid address. Smt. Santosh Tyagi W/o Sh. S.S. Tyagi has given no objection dated 24/06/2003 for installation of connection in the aforesaid con nection. In the cross examination he has stated that the afore Suit No. 436/2017 Page 19 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. said NOC was given for separate electric connection to "Institu tion of Accounts". Therefore, the Electricity connection is re lated to nondomestic connection and prior to the month of Au gust, 2003 when alleged Oral Family Settlement stated to have entered into between the parties. Moreover, as per witness, the same was given for first floor of the premises.
DW5 has brought the judicial file bearing M105/08 titled as Santosh Tyagi & Anr. V. Tapesh Tyagi & Ors. whereby Exhibit DW5/1 alleged to be reply filed by Shri Dinesh Tyagi in the contempt filed by Santosh Tyagi against Dinesh Tyagi. The witness categorically stated that he has no personal knowledge. The defendants have not examined Shri Dinesh Tyagi to prove their case. The pleadings of the said case are of no help to the Defendants in the present case. The pleadings are not itself the proof of the case and that too when Sh. Dinesh Tyagi is not the party to this case. In case the defendants want to prove the facts of the said pleadings, then they ought to have examined Sh. Dinesh Tyagi i.e. brother of the defendant no.1 and he Suit No. 436/2017 Page 20 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. ought to have tested at the anvil of cross examination, but they have failed to do so.
DW6 was summoned from SDMC, Najafgarh Zone, New Delhi. He has stated that as per record Smt. Santosh Tyagi has paid the property tax on self assessment 20162017 and other record in respect of house tax of Smt. Santosh Tyagi is not traceable. He has further stated that as per record Defen dant No.1 has paid the property tax on self assessment basis in respect of front portion of the aforesaid property on 28/06/2017 for the years 200405 and 200910 to 20172018. In the cross examination he has deposed that there is no re quirement to produce the ownership document of any property by the property tax payer at the time payment of property tax. This witness was examined on 17.04.2018 and it appears that after self assessment with the new criteria on 28/06/2017 by defendant No.1, the defendants have summoned this witness in order demonstrate that they are paying the House tax as owner of the property. The evidence has been created by the defen Suit No. 436/2017 Page 21 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. dants about 14 years from the alleged Oral Partition/ Family Settlement and that too during the pendency of the present suit. The present suit was instituted on 01.10.2005.
DW7 was summoned from DJB Office from Kakrola More, New Delhi. He has brought the summoned record. The Application form which is part of Exhibit DW7/1(colly.) depicts that water connection was applied for House No.RZ/A34, Ma havir Enclave, Mandir Marg, Delhi (which is shown against the column of the details of premises for which water connection is required). The said application form is signed by defendant No.1. Moreover in the said Application against the Area of Plot, it is mentioned 200 sq. yds. It is not written against the details of the property that it is for front portion of the said property or the area is 100 sq. yds. alleged to be fallen to the share of de fendant No.1. The defendant No.1 has not mentioned in the said Application that as per Oral Family Settlement/Partition the Half portion fallen to the share of defendant No.1. The owner ship documents i.e. copy of Sale Deed of Plaintiff was annexed for applying the water connection. The NOC in the form of Affi Suit No. 436/2017 Page 22 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. davit dated 23.08.2004 executed by Plaintiff for the installation of water connection does not reflect that as per Oral Family Set tlement/Partition the front half portion of the said property be longs to defendant No.1. If the property was segregated and sep arated then defendant No.1 ought to have applied the water connection only for the front portion as per Oral Partition/Fam ily Settlement and declaring himself as owner of the said prop erty and more so when the said water connection was applied after one year of the alleged Family Settlement 2003. There was also no requirement of NOC of the plaintiff after one year of the alleged oral partition. The water connection pertains to the en tire property and not to the portion which is alleged to have fallen in the share of the defendant no.1. RELIANCE OF CROSS EXAMINATION OF PW1 It is admitted case of the parties that Plaintiff is an illiterate old aged lady. She is Senior Citizen and the court can not lose the sight of fact that she might have given evasive an swers to certain questions. However, the Plaintiff has remain consistent as far as her testimony is concerned that no partition Suit No. 436/2017 Page 23 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. was ever took place between the parties. Shri S.S. Tyagi the husband of the Plaintiff was a Government Servant and retired from Ministry of Defence as Assistant Foreman. The husband of the Plaintiff also stood as witness and interestingly not a single question was put by defendants during cross examination re garding alleged oral partition or Family settlement. No doubt the Plaintiff has admitted that construction was carried by de fendant No.1 in the suit property but it was deposed that Rs.30,000/ was given by husband of the Plaintiff to defendant No.1. However, it was categorically denied that there was Family partition of the suit property or the suit property fallen to the share of the defendant No.1. She has also denied that she had filed a false case or she was not aware about the facts of the case. Moreover, in the plaint and evidence, the plaintiff has cat egorically stated the plaintiff and her husband had went to Ghaziabad to attend certain condolence, due to death of some relatives and friend in the family in the month of June and in the absence of the plaintiff and her husband for the period of 7 9 days in the last of May and beginning of June, the defendants Suit No. 436/2017 Page 24 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. had constructed/ altered the property in dispute without the knowledge and consent of the plaintiff in most unlawful and arbitrary manner. The aforesaid fact was also consistently de posed in the crossexamination by PW1. RELIANCE OF HON'BLE HIGH COURT JUDGMENT The defendants have relied upon the Judgment passed by the Hon'ble High Court of Delhi in S. SATINDER SINGH & ORS. Versus S. RAMINDER SARUP SINGH & ANR., 247(2018) DLT 94. The relevant portion of para No.11 (ii) relied upon by the defendants of the said Judgment is reproduced as under: "(ii) In fact, Courts always lean towards up holding of family settlements and not quashing them on technical grounds as so also held by the Supreme Court in the case of Roshan Singh Vs. Zile Singh AIR 1988 SC 881 wherein the Supreme Court in spite of the lan guage of the document which stated that each party will get the shares stated in the agree ment held that such a document is not one creating rights for the first time but that the document is only in the nature of a family set tlement.
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"(iii) I would also at this stage seek to refer to the observations of the Supreme Court in the oft cited case of Kale and Others Vs. Deputy Director of Consolidation and Others, (1976) 3 SCC 119, and which judgment be sides providing that even an assumed right can be a subject matter of family settlement, the Supreme Court further observed that Courts will try to ensure that family settle ments are upheld and not questioned. The rel evant paras of the judgment of the Supreme Court in the case of Kale and Others (supra) are paras 9 to 19 and these paras read as un der: "9. Before dealing with the respective con tentions put forward by the parties, we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all. By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete har mony and goodwill in the family. The family ar rangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection, Kerr in his valuable treatise Kerr on Fraud at p. 364 makes the following pertinent observations re garding the nature of the family arrangement which may be extracted thus: Suit No. 436/2017 Page 26 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr.
"The principles which apply to the case of ordi nary compromise between strangers do not equally apply to the case of compromises in the nature of family arrangements. Family ar rangements are governed by a special equity peculiar to themselves, and will be enforced if honestly made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mis take or ignorance of fact as to what their rights actually are, or of the points on which their rights actually depend."
"The object of the arrangement is to pro tect the family from longdrawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain .and uphold the unity and homo geneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the vari ous contenders so as to achieve an equal dis tribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social jus tice. That is why the term "family" has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance Suit No. 436/2017 Page 27 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr.
of a claim or even if they have a spes succes sionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family ar rangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some ma terial benefits. The law in England on this point is almost the same. In Halsbury's Laws of England, Vol. 17, Third Edition, at pp. 215 216, the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made:
"A family arrangement is an agreement be tween members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the fam ily by avoiding litigation or by saving its hon our. The agreement may be implied from a long course of dealing, but it is more usual to em body or to effectuate the agreement in a deed Suit No. 436/2017 Page 28 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr.
to which the term "family arrangement" is ap plied. Family arrangements are governed by principles which are not applicable to dealings between strangers. The court, when deciding the rights of parties under family arrange ments or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families, and has regard to considerations which, in dealing with transactions between persons not mem bers of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding ef fect of family arrangements."
"10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
"(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the vari ous members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which case no registration is necessary;
(4) It is well settled that registration would be necessary only if the terms of the family ar Suit No. 436/2017 Page 29 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr.
rangement are reduced into writing. Here also, a distinction should be made between a docu ment containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made ei ther for the purpose of the record or for infor mation of the court for making necessary mu tation. In such a case the memorandum itself does not create or extinguish any rights in im movable properties and therefore does not fall within the mischief of Section 17(2) of the Reg istration Act and is, therefore, not compulso rily registrable;
(5) The members who may be parties to the family arrangement must have some an tecedent title, claim or interest even a pos sible claim in the property which is ac knowledged by the parties to the settle ment. Even if one of the parties to the set tlement has no title but under the arrange ment the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giv ing assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family ar rangement which is fair and equitable the Suit No. 436/2017 Page 30 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. family arrangement is final and binding on the parties to the settlement."
11. The principles indicated above have been clearly enunciated and adroitly adumbrated in a long course of decisions of this Court as also those of the Privy Council and other High Courts, which we shall discuss presently.
12. In Lala Khunni Lal v. Kunwar Gobind Krishna Narain the statement of law regarding the essentials of a valid settlement was fully approved of by their Lordships of the Privy Council. In this connection the High Court made the following observations which were adopted by the Privy Council:
The learned Judges say as follows: "The true character of the transaction appears to us to have been a settlement between the several members of the family of their dis putes, each one relinquishing all claim in re spect of all property in dispute other than that falling to his share, and recognizing the right of the others as they had previously asserted it to the portion allotted to them respectively. It was in this light, rather than as conferring a new distinct title on each other, that the parties themselves seem to have regarded the arrange ment, and we think that it is the duty of the courts to uphold and give full effect to such an arrangement. Their Lordships have no hesita tion in adopting that view."Suit No. 436/2017 Page 31 of 52
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13. In Sahu Madho Das v. Pandit Mukand Ram this Court appears to have amplified the doc trine of validity of the family arrangement to the farthest possible extent, where Bose, J., speaking for the Court, observed as follows: "It is well settled that a compromise or family arrangement is based on the assump tion that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to prop erty other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is as sumed that the title claimed by the person receiving the property under the arrange ment had always resided in him or her so far as the property falling to his or her share is concerned and therefore no con veyance is necessary. But, in our opinion, the principle can be carried further and so strongly do the courts lean in favour of fam ily arrangements that bring about harmony in a family and do justice to its various members and avoid in anticipation, future disputes which might ruin them all, and we have no hesitation in taking the next step (fraud apart) and upholding an arrangement Suit No. 436/2017 Page 32 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. under which one set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title to all the proper ties resides in only one of their number (provided he or she had claimed the whole and made such an assertion of title) and are content to take such properties as are as signed to their shares as gifts pure and sim ple from him or her, or as a conveyance for consideration when consideration is present."
14. In Ram Charan Das v. Girjanandini Devi this Court observed as follows: "Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. The word „family‟ in the context is not to be under stood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute .... The considera tion for such a settlement, if one may put it that way, is the expectation that such a settle ment will result in establishing or ensuring amity and goodwill amongst persons bearing relationship with one another. That considera tion having been passed by each of the dis putants the settlement consisting of recogni tion of the right asserted by each other cannot be permitted to be impeached thereafter." Suit No. 436/2017 Page 33 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr.
15. In Tek Bahadur Bhujil v. Debi Singh Bhujil it was pointed out by this Court that a family arrangement could be arrived at even orally and registration would be required only if it was reduced into writing. It was also held that a document which was no more than a memo randum of what had been agreed to did not re quire registration. This Court had observed thus: 9 .;
"Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the par ties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family ar rangement in writing with the purpose of using that writing as proof of what they had ar ranged and, where the arrangement is brought about by the document as such, that the docu ment would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess."
"16. Similarly in Maturi Pullaiah v. Maturi Narasimham it was held that even if there was no conflict of legal claims but the settlement was a bona fide one it could be sustained by the Court. Similarly it was also held that even the disputes based upon ignorance of the par ties as to their rights were sufficient to sustain Suit No. 436/2017 Page 34 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. the family arrangement. In this connection this Court observed as follows: "It will be seen from the said passage that a family arrangement resolves family disputes, and that even disputes based upon ignorance of parties as to their rights may afford a suffi cient ground to sustain it.
xxxxx "Briefly stated, though conflict of legal claims in praesenti or in future is generally a condi tion for the validity of a family arrangement, it is not necessarily so. Even bona fide disputes, present or possible, which may not involve le gal claims will suffice Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an ar rangement is entered into bona fide and the terms thereof are fair in the circumstances of a particular case, Courts will more readily give assent to such an arrangement than to avoid it.
"17. In Krishna Beharilal v. Gulabchand it was pointed out that the word "family" had a very wide connotation and could not be confined only to a group of persons who were recognised by law as having a right of succession or claiming to have a share. The Court then ob served: [SCC p. 843, paras 78] "To consider a settlement as a family arrange ment, it is not necessary that the parties to the compromise should all belong to one family. As Suit No. 436/2017 Page 35 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. observed by this Court in Ram Charan Das v. Girjanandini Devi the word "family" in the con text of a family arrangement is not to be un derstood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute. If the dispute which is settled is one between near relations then the settlement of such a dispute can be con sidered as a family arrangement -- see Ram Charan Das case.
"The courts lean strongly in favour of family arrangements to bring about harmony in a family and do justice to its various members and avoid in anticipation future disputes which might ruin them all."
"18. In the recent decision of this Court in S. Shanmugam Pillai v. K. Shanmugam Pillai the entire case law was discussed and this Court observed as follows: [pp. 319, 321322, paras 12, 2425] "If in the interest of the family properties or family peace the close relations had settled their disputes amicably, this Court will be re luctant to disturb the same. The courts gener ally lean in favour of family arrangements. xxxxx "Now turning to the plea of family arrange ment, as observed by this Court in Sahu Madho Das v. Mukand Ram the Courts lean strongly in favour of family arrangements that Suit No. 436/2017 Page 36 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. bring about harmony in a family and do justice to its various members and avoid, in anticipa tion, future disputes which might ruin them all. As observed in that case the family ar rangement can as a matter of law be inferred from long course of dealings between the par ties.
"In Maturi Pullaiah v. Maturi Narasimham this Court held that although conflict of legal claims in praesenti or in future is generally a condition for the validity of family arrange ments, it is not necessarily so. Even bona fide disputes present or possible, which may not involve legal claims would be sufficient. Mem bers of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an agreement is entered into bona fide and the terms thereto are fair in the circumstances of a particular case, the Courts would more readily give assent to such an agreement than to avoid it."
"19. Thus it would appear from a review of the decisions analysed above that the courts have taken a very liberal and broad view of the va lidity of the family settlement and have always tried to uphold it and maintain it. The central idea in the approach made by the courts is that if by consent of parties a matter has been settled, it should not be allowed to be reopened by the parties to the agreement on frivolous or untenable grounds." (emphasis added)"
(Certain portions are bolded in order to highlight) Suit No. 436/2017 Page 37 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr.
The principles, as enunciated above, are not at all in dispute but the defendants have to first of all prove the oral family partition and it has to prove that the family settlement must be a bona fide one so as to resolve family disputes and ri val claims by a fair and equitable division or allotment of prop erties between the various members of the family. The defen dant No.1 by way of evidence of DW2 and DW4 deposed that entire front portion of property No.RZA/34, Mahabir Enclave, Palam, New Delhi measuring 100 sq. yds. was fallen to Defen dant No.1 and for the first time deposed that back portion (100 sq. yds.) was fallen to Mr. Dinesh Tyagi and further in said par tition the House No.70, Sector 12, Raj Nagar, Ghaziabad, U.P. was fallen to Mr. Rakesh Kumar Tyagi.
Thus, from the alleged Oral Partition or Family Set tlement nothing falls to the share of Old aged parents and it is admitted case the property bearing No.RZA/34, Mahabir En clave, Palam, New Delhi belongs to Plaintiff vide Exhibit PW 1/1. The said alleged Family Settlement or Oral Partition can not by any stretch of imagination be termed as equitable distri Suit No. 436/2017 Page 38 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr.
bution. The Old aged parents cannot be left at the mercy of their sons and the alleged Oral Partition or Family Settlement cannot be termed as equitable distribution in the eyes of law. It is also admitted by DW2 and DW4 that at the time of alleged Oral Partition/ Family Settlement Shri Rakesh Kumar Tyagi and his wife were not present and did not participated in such Family Settlement. The PW1 has also categorically denied the Oral Partition and the defendants have not put even a single question to PW2 i.e. Shri S.S. Tyagi regarding Oral Partition or Family Settlement.
The defendants do not have any independent title in the suit property and their entire claim is based upon Oral Par tition. The defendant No.1 is also not having any antecedent ti tle in the suit property but at the most the defendant No.1 might be considered as "Spes Successionis". The defendant No.1 was not having any vested interest, but only an interest expectant on the death of the Plaintiff. The defendants have neither pleaded nor proved that defendant No.1 was having an Suit No. 436/2017 Page 39 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr.
tecedent interest in the suit property at or about the time of al leged Oral Partition.
Considered from any view point and from the dis cussion as adumbrated hereinabove, the defendants have failed to prove the Oral Partition by defendant No.1 and the defendant No.1 is not the owner of suit property.
DEFENDANT PERMISSIVE USER IN THE SUIT PROPERTY The Plaintiff is a registered and exclusive, rightful and legal owner of the property bearing no. RZ/A34, Mahabir Enclave, Palam, New Delhi vide Sale Deed dated 05/04/1974.
This fact is pleaded in para No.2 of the Plaint. In reply to this para the defendants has submitted that it is matter of record. In this manner the Defendants have admitted the ownership of the Plaintiff. The Defendant No.1 is the son of the Plaintiff and Defendant No.2 is the daughter in law of the Plaintiff. Therefore, the relationship between the parties is not disputed. The legal notice dated 18/05/2005 for vacation of the property was categorically admitted by the defendants. Therefore, at best the defendants can be termed as Permissive users or Licencee Suit No. 436/2017 Page 40 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr.
without any fee. The law of permissive user is discussed herein below.
PRINCIPLES OF PERMISSIVE USER It is apposite to mention here the dictums of the Hon'ble Apex Court reported as "A.Shanmugam Vs. Ariya Kshatriya Rajakula Vasathu Mudalaya Nandhavana Paripalanai Sangam AIR 2012 SC 2010" & "Maria Margarida Sequeria Fernandes and Ors. Vs. Erasmo Jack De Sequeria AIR 2012 SC 1727". The Three Judge Bench Judgment of "Maria Margarida Sequeria Fernandes" of the Hon'ble Apex Court has held to the following effect in paras no.70 and 101: "70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive.
(a) who is or are the owner or owners of the property;
(b) title of the property;
(c) who is in possession of the title documents;Suit No. 436/2017 Page 41 of 52
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(d) identity of the claimant or claimants to possession;
(e) the date of entry into possession;
(f) how he came into possession whether he purchased the property or inherited or got the same in gift or by any other method;
(g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount;
(h) If taken on rent, license fee or lease - then insist on rent deed, license deed or lease deed;
(i) who are the persons in possession/ occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.;
(j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and
(k) basis of his claim that not to deliver possession but continue in possession.
"101. Principles of law which emerge in this case are crystallized as under: No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.Suit No. 436/2017 Page 42 of 52
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1. Caretaker, watchman or servant can never acquire interest in the property irrespec tive of his long possession. The caretaker or servant has to give possession forthwith on de mand.
2. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, care taker or as a servant.
3. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agree ment or license agreement in his favour.
4. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession."
The Hon'ble Apex Court has followed the aforesaid Judgments in CIVIL APPEAL NO. 150 OF 2017 Behram Tejani & Ors. Versus Azeem Jagani dated January 6, 2017 by the para nos.9, 13 and 14 of the said Judgment are reproduced as under: "9. Appearing for the defendantsappellants Mr.Dushyant Dave, learned Senior Advocate submitted that the High Court had erred in Suit No. 436/2017 Page 43 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. granting interim relief in favour of the respondent. He submitted that the reliance on Rame Gowda (Dead) by LRS. v. M. Varadappa Naidu (Dead) by LRs. And Anrs.1 was completely erroneous; that the respondent, at best, was a relative staying with a gratuitous licensee; and that the case was covered by the decision of this Court in Maria Margarida Sequeira Fernandes and others v. Erasmo Jack De Sequeira (Dead) through LRS.2.Ms. Indu Malhotra, learned Senior Advocate appearing for the plaintiffrespondent submitted that the respondent had been in settled possession and as such was entitled to protection. In her submission, the matter was fully covered by the decision of this Court in Rame Gowda (supra)."
"13. The matter was further elaborated in subsequent decision of this Court in Maria Margarida (Supra) as under: "97. Principles of law which emerge in this case are crystallized as under: No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
(1) Caretaker, watchman or servant can never acquire interest in the property irrespec tive of his long possession. The caretaker or servant has to give possession forthwith on de mand.Suit No. 436/2017 Page 44 of 52
Santosh Tyagi V. Tarun Kumar Tyagi & Anr. (2) The courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, care taker or as a servant.
(3) The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agree ment or license agreement in his favour. (4) The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession."
"14. Thus, a person holding the premises gra tuitously or in the capacity as a caretaker or a servant would not acquire any right or interest in the property and even long possession in that capacity would be of no legal conse quences. In the circumstances City Civil Court was right and justified in rejecting the prayer for interim injunction and that decision ought not to have been set aside by the High Court. We therefore, allow the appeal, set aside the judgment under appeal and restore the Order dated 29.04.2013 passed by the Bombay City Civil Court in Notice of Motion No.344 of 2013 in Suit No.408 of 2013."
The principles, as deduced above, vividly depict that no one acquires title to the property if he or she was allowed to Suit No. 436/2017 Page 45 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or in terest in the said property. Therefore, even if the defendants have shown their long possession from the documents, yet they would not acquire any right, title and interest in the property. It is also held that the courts are not justified in protecting the possession of a caretaker, servant or any person who was al lowed to live in the premises as a friend, relative, caretaker or as a servant and has to give possession forthwith on demand.
The defendants being in permissive user were/are li able to give the possession forthwith on demand. The plaintiff has admittedly served the Legal Notice dated 18.05.2005 on the defendants but they have failed to give the possession to the plaintiff on demand. Accordingly, the plaintiff was constrained to file the present suit.
QUESTION OF INJUNCTION The defendants are claiming the ownership in re spect of the suit property in favour of defendant No.1 and in this manner, there is definitely threat to the plaintiff that the Suit No. 436/2017 Page 46 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. defendants may not create any third party right or part with the possession of the suit property to some third party. Considering overall facts and circumstances of the present case and on the discussion made hereinabove, the plaintiff has also able to prove this issue by cogent and convincing evidence. QUESTION OF MESNE PROFITS: The Plaintiff has claimed a sum of Rs.3,000/ per month as pendentlite and future mesne profits but the Plaintiff has not led any independent evidence that the suit property can fetch an amount of Rs.3,000/ per month as rent. The onus to prove this issue was on the plaintiff. The Plaintiff in her evi dence of affidavit has deposed that she can fetch an amount of Rs.3,000/ per month from the said property. The defendants have not cross examined on this aspect.
In Surinder Singh v. Dr. Davinder Mohan, 2006 (4) R.C.R (Civil) 781, it was held that "mesne profits or compen sation for the use and occupation of the premises has to be as sessed at the same rate at which the landlord would have been Suit No. 436/2017 Page 47 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. able to let out the premises on being vacated by the tenant. While determining the quantum of the amount so receivable by the landlord, the landlord is not bound by the contractual rate of rent which was prevalent prior to the date of the decree."
In this case, the Plaintiff has led her own evidence regarding the rate of mesne profits and she was not cross exam ined on this aspect. It has been proved by the Plaintiff that the defendants are in unauthorized possession of the suit premises so the plaintiff is entitled to claim mesne profits. The perusal of the plaint it appears that the Plaintiff has not sought the relief of Mesne Profits but the in pleadings and evidence it has been specifically submitted that Plaintiff is entitled to Rs.3,000/ per month as Mesne Profits. The issue of Mesne Profits was also specifically framed vide Issue No.7. Although specific prayer is not made by the Plaintiff but the Court can exercise the discre tion in granting the relief considering the overall facts and cir cumstances of the case. Further, the amount so claimed by her seems reasonable and justified in the facts and circumstances of the case. Considering the nature of the size of the property Suit No. 436/2017 Page 48 of 52 Santosh Tyagi V. Tarun Kumar Tyagi & Anr. the Plaintiff is entitled to a sum of Rs.3,000/ per month as Mesne Profits from filing of the suit till the vacation of the suit property by defendants.
From the discussion, as adumbrated hereinabove, the aforesaid issue Nos. 1to 3 and 5 to 7 are decided in favour of the Plaintiff and against the defendants. RELIEF From the discussions, as adumbrated hereinabove, I hereby pass the following FINAL ORDER
(a) A decree of possession is passed in favour of the plaintiff and against the defendants thereby directing them to handover the peaceful physical possession of the property in dispute i.e. half portion of the ground floor consisting of two rooms, kitchen, attached bath room in the property bearing no. RZ/A34, Mahabir Enclave, Palam, New Delhi, more specifically shown in red colour in the Site Plan Ex.PW1/2.
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(b) A decree of permanent injunction is also passed in favour of the plaintiff and against the defendants thereby restraining the defendants, their legal heirs, representatives, agents, nominees, associates etc. from demolition, alienating, occupation and creating third party interest in the suit property i.e. half portion of the ground floor consisting of two rooms, kitchen, attached bath room in the property bearing no. RZ/A34, Mahabir Enclave, Palam, New Delhi, more specifically shown in red colour in the Site Plan Ex.PW1/2.
(c) a decree of recovery of damages/ mesne profits is also passed in favour of the plaintiff and against the defendants for unlawful and unauthorized use and occupation of the suit property @ Rs.3,000/ per month from filing of the suit till recovery of the possession of the suit property by the Plaintiff from the defendants. (The Court fee till the passing of decree is required to be calculated by the Reader and be shown as deficient Court fee recoverable in the decree sheet).
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(d) The cost of the suit is also passed in favour of Plaintiff and against the defendants.
(e) The Plaintiff has filed the present case as pauper under Order 33 CPC, therefore in terms of Order 33 Rule 10 CPC, the deficit Court fees whether on account of relief of possession or mesne profits, if any, be recovered from the defendants in the first instance and be deposited in the Treasury in the account of Government of NCT of Delhi.
The Reader of this Court must specify in the decree sheet the deficient court fee so that the same can be recovered at first instance as and when the occasion for the same arises by the State Government from the defendants. The Copy of this Judgment be also sent to The Chief Secretary, Govt. Of NCT of Delhi, Delhi Secretariat, I.P. Estate, New Delhi for information as the State Government to be deemed to be party under Rule 13 of Order 33 CPC for the purpose of recovery of deficient Court fees.
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Santosh Tyagi V. Tarun Kumar Tyagi & Anr. Decreesheet be prepared in terms of this Judgment. File be consigned to Record Room after due compliance.
Announced in the open court (ARUN SUKHIJA)
on 25/08/2018 ADJ07 (Central)
Tis Hazari Courts, Delhi
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