Delhi District Court
Memo Of Parties vs Sh. P.S. Mahajan on 31 March, 2010
IN THE COURT OF SH. SAMAR VISHAL, CJ-02 (North), DELHI
SUIT NO. 386/06
MEMO OF PARTIES.
Sh. Onkar Saroop Mahajan,
S/o Late Sh. Gopal Dass Mahajan,
R/o D-E/73, Tagore Garden, New Delhi. ............
Plaintiff
Versus
1. Sh. P.S. Mahajan, S/o Late Sh. G.D. Mahajan
2. Sh. A.S. Mahajan S/o Late Sh. G.D. Mahajan
Both residents of D-E/73, Tagore Garden, New Delhi.
3. Major B.S. Mahajan, S/o Late Sh. G.D. Mahajan,
R/o 3/5, G.R. (FF),
C/O 56, A.P.O ...........Defendants
SUIT FOR DECLARATION , RECOVERY OF POSSESSION AND RECOVERY OF
DAMAGES
Date of institution of Suit: 22.04.1987
Date on which judgment was reserved: 26.03.2010
Date of announcement of judgment: 31.03.2010
Counsel for plaintiff: Ms. Mala Geol, Advocate.
Counsel for defendants: Sh. B.L. Anand and Ms. Amrit Kaur Oberoi, Advocate.
Judgment
This is a suit for recovery of possession and damages.
This suit has resulted from a family dispute regarding the property bearing No. D-E/73,
Tagore Garden, New Delhi (hereinafter referred to as a "suit property").
O.S. Mahajan Vs. P.S. Mahajan 1 Suit No. 386/06
Plaintiff alleges that he is the lessee of suit property and a perpetual lease deed was
executed in his favour on 1.6.1964 by Delhi Administration. Plaintiff acquired the plot in
question from the Delhi Administration, Land and Housing Department as he was the highest
bidder at the open auction held on 20.10.1963. For the purpose of acquiring the said plot he
has deposited a sum of Rs.2,750/- towards the earnest money with the DDA vide Receipt
No.77614 dated 20.10.1963. The balance sum of Rs.8,260/- was deposited by the plaintiff
towards the payment of the plot with the DDA vide receipt no.79527 dated 11.2.1964.
Thereafter, he was declared as the successful bidder and the premium having been paid, the
plaintiff got possession of the plot by the DDA vide their letter No. F.3(9)/63 L&B dated
1.6.1964. After taking the possession, the plaintiff was permitted by the Zonal Engineer
(Building), West Zone to construct a building on the said plot in accordance with the
sanctioned letter no. 1041-B dated 5.8.1964. In order to construct the plot he raised funds
from the Delhi Administration as loan of Rs.10,000/- and the loan from friends and his own
savings amounting to Rs.7,000/-. The plaintiff pursuant to the sanction for construction of a
building on the plot, constructed ground floor consisting of four rooms, kitchen, store,
lavatory, staircase and passage. The completion certificate for the aforesaid construction
from the Zonal Engineer (building), West Zone was issued vide their letter No. 859/C.C/65
dated 6.10.65. The father of the plaintiff died on 11.11.65 at Delhi leaving behind him his
brothers who are defendants and Kumari Santosh and Kumari Kiran Mahajan as his sisters.
The mother of the parties had already died in the year 54. Plaintiff was the eldest son and
therefore he was obliged to look after the entire family left behind by the father of the plaintiff
and the defendants. Defendant no.1 & 3 were not independently established at that time
and therefore, plaintiff in order to bring them up and educate them inducted them as licensee
in the suit property. When they become major and come to their age, plaintiff requested them
to make an alternative arrangement for themselves. The family of the plaintiff at the time of
O.S. Mahajan Vs. P.S. Mahajan 2 Suit No. 386/06
filing of the suit consisted of himself, his wife, one married daughter and three other
daughters who are of marriageable age and as such the plaintiff was finding it difficult to live
in the existing small accommodation at that time. When the plaintiff requested the
defendants to vacate the house, they requested the plaintiff in the month of October, 1983 to
allow them and their families to live in the suit property for another period of one and a half
th
years upto 20 April, 1985 as the licencee of the plaintiff. The plaintiff heeded to their
request and there was an agreement that they have to gives an interest free loan of
Rs.10,000/- each for the construction of first and Barsati Floor portions of the suit property.
Defendant no.3 refused to give the agreed amount of Rs.10,000/- and thus rendered the said
agreement inoperative. Thereafter, defendants no.1 & 2 threatened to dispose of the suit
property and they even published the advertisement in "The Hindustan Times" on Sunday
15.1.1984.
On 14.2.1984, the defendants no.1 & 2 gave assurance to the plaintiff that they would
not interfere with the property in question of the plaintiff nor they would claim any right, title or
interest over the same and also agreed to surrender the vacant and peaceful possession of
the suit property on or before 20.4.1985. Defendants no.1 & 2 also gave a sum of
Rs.10,000/- each to the plaintiff as interest free loan for the construction of proposed first floor
and Barsati floor on 19.2.1984.
As per the promise, the defendants no.1 & 2 did not surrender the vacant and peaceful
possession of the rooms which were in their possession as licencee. Instead of honouring
their commitment, defendants no.1 & 2 on the night of 10.10.1986 entered in the room in
possession of the plaintiff and forced him to sign on two rupees typed stamps paper on the
point of knife to which the plaintiff resisted. At that time they told the plaintiff that the
documents dated 31.10.1983 has been typed on the stamp paper in question. The
defendants no.1 & 2 further told the plaintiff that they are forcing him to sign the said
O.S. Mahajan Vs. P.S. Mahajan 3 Suit No. 386/06
document in order to get his written consent to stay in the property in question for another
period of one and a half years from the date of signatures. The plaintiff requested the
defendants to allow him to read the contents of the said documents but the defendants did
not conceded to his request. Being afraid of his life the plaintiff submitted to the coercion of
the defendants no.1 & 2 and put his back dated signatures on the said two rupees stamp
paper and the site plan of the proposed construction. Next date the plaintiff lodged a report
with the local police station. In January, 1986, calculating 1½ years from 20.6.1985, plaintiff
requested the defendants no.1 & 2 to surrender the vacant and peaceful possession of the
suit property but instead, the defendants got the plaintiff arrested on the false allegations u/S
107/151 Cr.P.C on 25.1.1987. On 6.2.1987, the plaintiff appeared before the Sub Inspector
of police for inquiry in the matter. To the surprise of the plaintiff the above said documents
which were got forcibly signed on the night of 10.10.1986 with two back dates and the site
plan contained the following words;
"All the parties shall have exclusive right of ownership and possession in their
respective portions". The copy of the said documents was also supplied by the defendants
no.1 & 2 on that day. On the basis of that document, the defendants are now claiming
ownership of the lease-hold rights over the suit property.
The defendants have also applied for their houses and got themselves registered
with the DDA with the particulars given in the plaint and they have also given affidavit that
they do not own any residential property in their name in Delhi nor in the name of their
spouse or any other children dependent on them. The contention of the plaintiff is that the he
has no authority to transfer the suit property without the permission of DDA. Plaintiff has
averred that the document which was forcefully got signed by him was null and illegal
document. Defendants are in possession of two rooms set on the ground floor and two rooms
set on the first floor of the suit property and are the licencee of the plaintiff. Plaintiff has
O.S. Mahajan Vs. P.S. Mahajan 4 Suit No. 386/06
revoked their licence on 25.1.1987 and by registered notice dated 6.3.1987 and called upon
them to hand over the vacant and peaceful possession of the suit property. When the
defendants have not complied with the legal notice and have not vacated the suit property,
this suit has been filed by the plaintiff seeking the relief of possession and damages.
In their written statement, defendants have denied the plaint allegations. Defendants
filed a common written statement and took a preliminary objection that the suit is not
maintainable as defendants are co-owners and that the plaintiff is estopped by the law of
estoppal and cannot re agitate the matters for which he has already made a written
agreement with the defendants. It is also alleged in the preliminary objection that the suit is
barred because the defendants have become the owners of the suit property by adverse
possession and the suit is also barred by the principle of res-judicata as the plaintiff had
already disputed all the points in present dispute in this case regarding possession in the
earlier suit, which he has withdrawn. The plaintiff is precluded from filing the fresh suit on the
same subject matter in view of Order XXIII R 4 CPC and that the present suit is fraud on this
Court as the suit property was already partitioned by the family settlement cum partition deed
dated 19.4.1985.
On merits, the defendant have averred that the suit property was purchased by the
father of the plaintiff as well as defendants in the name of the plaintiff and it was the benami
transaction. This fact has been concealed by the plaintiff in his plaint. The property was
purchased from the funds of Late Sh. Gopal Dass Mahajan, the father of the plaintiff and the
defendants, and thereby a benami transaction was made in favour of the plaintiff as Late Sh.
Gopal Dass Mahajan was retiring from his service and the housing loan was to be raised for
the construction on the suit plot. The plaintiff was employed in a Government Service and
was in the position to raise loan officially, so an illegal and void lease deed was registered as
the whole transaction regarding the purchase of this plot was benami. The amount of
O.S. Mahajan Vs. P.S. Mahajan 5 Suit No. 386/06
Rs.2,750/- deposited as earnest money for this plot was in fact the money of Sh. Gopal Dass
Mahajan and was handed over to the plaintiff for and on behalf of all his sons. This money
was arranged by Sh. Gopal Dass Mahajan by selling the plot No. 14, Punjabi Bagh by
agreeing to sell and receiving the earnest money of Rs.5,700/- for this plot on 8.10.1963 and
out of this money Rs.2,750/- was given by Sh. Gopal Dass Mahajan to the plaintiff for the
purchase of the suit plot and to enter into benami transaction. The defendants have averred
that Rs.8,260/- was deposited with DDA on 11.2.1964 by Sh Gopal Dass Mahajan, father of
plaintiff and defendants and this amount was arranged by selling the plot No.14, Punjabi
Bagh on 11.2.1964 before the Sub-Registrar, Delhi for Rs. 19,444.25/- and on the same day
the balance amount for the plot, in dispute, was paid to DDA by Sh. Gopal Dass Mahajan in
benami name of Sh. Onkar Saroop Mahajan. The physical possession of the plot was taken
by plaintiff and the defendants alongwith their father. Although, the possession on papers
was in the name of the plaintiff. The plaintiff and defendants are joint owners of the suit
property. It is averred that the father of the parties died on 11.11.1965. From the very
beginning all the defendants and plaintiff were living in the suit property as a joint family and
their father was the Karta of the joint family. They have denied that it was on the basis of
permissive possession given by the plaintiff that they were residing in the suit property but on
the ground that they were the equal owners of the suit property and residing in the suit
property in that capacity. They have alleged that one family settlement was entered into on
19.4.1985, thereby plaintiff and defendants re-confirmed their possession and their share in
the suit property. This settlement deed dated 19.4.1985 is actually binding on all the parties.
The plaintiff and defendants agreed to construct the first floor jointly and in that connection,
one joint Saving Bank Account No.5519 was opened in United Commercial Bank, Tagore
Garden, New Delhi in the joint name of plaintiff and defendants. Plaintiff and defendants no.1
& 2 even contributed Rs.10,000/- each in the above noted account which was duly operated
O.S. Mahajan Vs. P.S. Mahajan 6 Suit No. 386/06
thereafter for the construction of first and and Barsati Floor. This construction was made in
order to accommodate all the four brother in a much spacious accommodation and for that
reason all the defendants have contributed towards this construction. Defendant no.3 also
signed the agreement and was always willing and ready to contribute his share of
Rs.10,000/-. Although, the construction of his share was not completed on the date of filing
of the suit. Defendants has also denied giving any threat to the plaintiff or to have got signed
the documents forcefully by him. It is alleged that since the plaintiff and defendants have
jointly contributed for the construction, the plaintiff has no right to ask them to vacate the suit
premises. The document dated 30.10.1983 was signed by plaintiff and the document dated
19.4.1985 and 20.6.1985 i.e. family settlement deed was also signed by plaintiff out of his
own free will and the defendants are staying in the suit property as a matter of right. The
family settlement deed was voluntarily signed by the plaintiff in front of all the defendants.
Defendants have also denied that they have any other property in their name. Although, they
have not denied that they have applied to DDA for the property and they have also not
denied the fact of giving the affidavit to the DDA that they have no other property in Delhi in
their name. According to the defendants, the document dated 19.4.1985 is the legal and
valid document as it had partitioned the property in dispute amongst all the brothers who are
the litigants in the present case. With these averments, defendants have requested that the
suit may be dismissed.
In replication, the plaintiff has stated that the first floor of the suit property was
completed in the Month of December, 1985 and after its completion the plaintiff allowed Sh.
P.S. Mahajan and Sh. B.S. Mahajan to use one room each situated on the front side of the
said floor. The plaintiff has completely denied the document dated 19.4.1985 on the basis of
which the defendants are claiming partition of the suit property. Plaintiff has also averred in
the plaint ,from where he has arranged the required money to purchase the plot in dispute in
O.S. Mahajan Vs. P.S. Mahajan 7 Suit No. 386/06
this case. He denied in the replication that the plot in question was purchased from the sale
proceeds of Plot No.14, Punjabi Bagh. It is averred that late Sh. Gopal Dass Mahajan, father
of plaintiff and defendants sold the said plot for a sum of Rs.19,444.25/- and received a sum
of Rs.5,700/- by cheques as part payment of the said plot on 18.10.1963 i.e. on the date
when the agreement to sell was executed and not on 8.10.1963. It is also averred by the
plaintiff that out of amount of Rs.5,700/-, the father of plaintiff and defendants purchased the
plot in Kiran Garden for a sum of Rs.1,100/- and incurred another sum of Rs.400/- on the
purchase of stamps and miscellaneous expenses and a sum of Rs.3,000/- was spent on the
construction of room on it and out of balance amount, he entered into an agreement to
purchase a property bearing No. D-73, Moti Nagar, Delhi for a sum of Rs.17,000/-. A sum of
Rs.9,680/- was paid by the father of the plaintiff on 18.11.1964. It is alleged by the plaintiff
that the plot in question is purchased by his own funds. He joined Government Service in the
year 1957. He was a member of committee of 24 employees of his office who used to
contribute Rs.100/- per month from their salary. This committee has given Rs.2,400/- to the
plaintiff in the month of October, 1963. A sum of Rs.500/- was withdrawn by the plaintiff from
the post office on 8.10.1963 and by adding Rs.100/- the plaintiff participated in the auction of
the plot with a sum of Rs.3,000/-. The plaintiff being the highest bidder for the suit plot was
called upon to deposit a sum of Rs.2,750/- which amount was deposited by the plaintiff with
the DDA. The balance amount of Rs.8,260/- was also deposited from his own funds. The
details of which are as follows;
i. Smt. Kanta Mahajan wife of the plaintiff had a sum of Rs.2,500/- with her on account of
Shagun received by her and the plaintiff at the time of their marriage and on account of
her saving with her from the amount which she received as monthly stipend during 2
years diploma course of tailoring. The said amount of Rs.2,500/- was given by her to her
grand mother Late Smt. Dhan Devi who was doing money lending business. A sum of
O.S. Mahajan Vs. P.S. Mahajan 8 Suit No. 386/06
Rs.3,500/- was received back by the wife of the plaintiff from her father including the
principal amount of Rs.2,500/- which was given by her to her grand mother through her
father plus interest and the remaining amount as gift.
ii.The second source of money was the sale proceed of Jewellery amounting to about
Rs.2,500/-. The plaintiff sold the said Jewellery, through M/s. Bhalla Jewellers, Karol
Bagh, Delhi.
iii.The third source of money was the amount of Rs.2,400/- received by the plaintiff from
Mr. Sood who was again the organizer of the second committee of 24 members from the
office of the plaintiff. The second committee was started in the month of January, 1964
after the completion of the first committee in the month of December, 1963. The
contribution for this second committee was also Rs.100/- per month. The collection for
the first month was taken by Sh. Sood himself and the collection for the second month i.e.
for the month of February, 1s964 was given to the plaintiff as the need of the plaintiff was
most pressing one.
In this way the plaintiff had as sum of Rs.8,400/- with him and sent his wife Smt. Kanta
Mahajan with her brother Sh. D.P. Mahajan for the deposit of Rs.8,260/- with the Delhi
Development Authority, Regal Building, Connaught Place, New Delhi, on behalf of the
plaintiff. Smt. Kanta Mahajan left for the deposit of the above said amount with her brother at
about 9.30 am when at that very time the plaintiff alongwith his father went to Kashmere Gate
for the execution of the sale deed and for its registration. The plaintiff and his father became
free at about 1.00 pm or so from where they came back home at about 2.00 pm. Even
otherwise it is highly impossible as well as improbable for the plaintiff and his father to go
from Kashmere Gate to Regal Building, New Delhi for the deposit of the said amount on the
same date and day under the given circumstances. As stated in paras 1,2 and 3 above the
defendants under the law cannot be allowed to take the defence that the plaintiff is the
O.S. Mahajan Vs. P.S. Mahajan 9 Suit No. 386/06
benamidar of the suit property. Facts stated in para 4 of the plaint are correct and the same
are repeated.
It is averred in the replication that the defendants were never in possession of the suit
property. They neither had physical, constructive or animus possession nor their father had
physical possession over the suit property. It is again reiterated in the replication that the
plaintiff constructed ground floor portion of the suit property by taking loan from Delhi
Administration. A sum of Rs.3,500/- was taken as loan from Sh. J.C. Gupta, brother in law of
the plaintiff and defendants and it was paid back to him by cheques on different dates. The
repayment to him was started in the month of June 1965 and was completed in March, 1969.
A sum of Rs.205/- was paid in cash to make the total of Rs.3,500/-. A sum of Rs.1,000/- was
gifted to the plaintiff by his father Late Sh. Gopal Dass Mahajan and the remaining amount of
Rs.2,500/- was arranged from his personal saving. In rest of the replication, there is a denial
of material allegations made in the written statement and repetition of plaint averments.
In this case following issues were framed;
1.Whether the defendants are co-owners of the property in dispute? OPD.
2.Whether the defendant contributed jointly for the construction of first floor and
Barsati Floor of the property in dispute? OPD.
3.Whether the property in dispute was partitioned by the settlement cum partition
deed dated 19.4.1985 and defendants were exclusive owners in their portions?
OPD.
4.Whether the defendants have become owner by adverse possession as alleged?
OPD.
5.Whether the plaintiff is entitled to the damages? If so at what rate and at what
amount? OPP.
6.Relief. OPP.
O.S. Mahajan Vs. P.S. Mahajan 10 Suit No. 386/06
7.Whether the cheque for Rs.5,700/- was recovered by the father of the parties on
8.10.1963? OPD.
8.Whether the suit is not properly valued for the purpose of Court fee and
jurisdiction? OPD.
In order to prove his case plaintiff has examined himself as PW1.
On the other hand defendant has examined Sh. A.S. Mahajan, Sh. J.C. Gupta, Brother
in Law of parties, Sh. R.K. Juneja, Bank Office, Sh. B. Balany, Sh. Chet Ram Mahajan, Sh.
P.S. Mahajan (in rebuttal), Sh. Ani Lal Vedwal, Sh. Q.L. Dua, Sh. S. Sachdeva.
My issuewise findings are;
Issue no.1 Whether the defendants are co-owners of the property in dispute? OPD.
The burden to prove this issue is upon the defendants. There is no dispute that the
plaintiff is the recorded owner of the suit property by virtue of perpetual lease deed exhibited
as Ex.PW1/9 along with its registration Ex.PW1/10. All the original receipts Ex.PW1/1,
Ex.PW1/2 are issued in the name of plaintiff. Possession letter issued to plaintiff which is
Ex.PW1/6, along with letter in the name of plaintiff Ex.PW1/7.
Plaintiff has placed on record various other documents like MCD Sanction letter for
construction of ground floor Ex.PW1/11 and Ex.PW1/12, loan application to DDA by way of
mortgaging the property Ex.PW1/13. Mortgage permission letter loan in three installments
Ex.PW1/14, Registered mortgage deed Ex.PW1/15, Loan installments Ex.PW1/17, DESU
electric connection Ex.PW1/18, completion certificate for ground floor Ex.PW1/19, MCD letter
for house tax Ex.PW1/20, Delhi Administration Letter regarding repayment of loan
Ex.PW1/22, Receipt of repayment of loan Ex.PW1/23, DDA letter regarding ground rent
Ex.PW1/24 and loan clearance certificate issued by Delhi Administration Ex.PW1/25.
Plaintiff has examined himself as PW1 and deposed that he purchased the plot in
question in an open auction held by the DDA for which the entire amount was raised by him
O.S. Mahajan Vs. P.S. Mahajan 11 Suit No. 386/06
from his own sources and gave details of money received by him to pay the amount of
consideration of the plot in question.
In this respect, I am of the view that although plaintiff has given the details of the
arrangement of money by him, he is unable to prove such details satisfactorily. But otherwise
also the law favours him in this respect because, being the recorded owner, the burden is not
upon him to prove the source from where he arranged the money for the purchase of suit
property because the holder of the property need not to justify his title or possession.
Now by all the evidence discussed above and undisputed fact that the perpetual lease
deed is in name of plaintiff, it is proved that the, plaintiff, at least is owner according to the
documents of the suit property.
There is a presumption of ownership of immovable property in favour of a person
whose name is recorded in the ownership documents of that property. Although, this
presumption is rebuttable and the real owner can come with a case that the property was
purchased benami in the name of that person and that some other person is the real owner.
The defendants in the present case took the same plea. According to them, although
the property is in the name of plaintiff but he is not the actual owner of the property because
the consideration for the purchase of suit property was provided by their father and in this
way they are co-owners in the suit property with the plaintiff.
The law regarding the benami transaction is well settled. First of all before proceeding
to decide this issue, I must clearly set out a presumption of law that the law presumes the
purchaser to be the owner of the property purchased.
In Valliammal (D) by Lrs. Vs. Subramaniam & Ors. (2007) 7
Supreme Court Cases 233 it was held by the Hon'ble Supreme
Court that "There is a presumption in law that the person who
purchases the property is the owner of the same. This
O.S. Mahajan Vs. P.S. Mahajan 12 Suit No. 386/06
presumption can be displaced by successfully pleading and
proving that the document was taken benami in the name of
another person for some reason, and the person whose name
appears in the document is not the real owner, but only a benami.
Heavy burden lies on the person who pleads that the recorded
owner is a benami holder."
The burden to prove this issue is on the plaintiff that he is entitled to the possession of
the suit property on the ground that the plaintiff has terminated the license given to the
defendants. In this case defendants has disputed the ownership of plaintiff on the ground
that the real consideration for the purchase of the suit property came from their father who
has purchased the property in the name of the plaintiff because the plaintiff was the eldest
son of the family and was in Govt service. As far as the sale deed is concerned, there is no
dispute between the parties that the perpetual lease deed of the suit property is in favour of
the plaintiff. Once the ownership has been established in favour of the plaintiff, the burden
lies upon the defendants to prove that the sale was benami.
In Valliammal (D) by Lrs. Vs. Subramaniam & Ors. (supra) it
was held by the Hon'ble Court that "This Court in a number of
judgments has held that it is well established that burden of
proving that a particular sale is benami lies on the person who
alleges the transaction to be a benami. The essence of a benami
transaction is the intention of the party or parties concerned and
often, such intention is shrouded in a thick veil which cannot be
easily pierced through. But such difficulties do not relieve the
person asserting the transaction to be benami of any part of the
serious onus that rests on him, nor justify the acceptance of mere
O.S. Mahajan Vs. P.S. Mahajan 13 Suit No. 386/06
conjectures or surmises, as a substitute for proof." While referring
to some judgment the Court further held that "After saying so this
Court spelt out the following six circumstances which can be taken
as a guide to determine the nature of the transaction:
1-the source from which the purchase money came;
2-the nature and possession of the property, after the purchase;
3-motive, if any, for giving the transaction a benami colour;
4-the position of the parties and the relationship, if any, between
the claimant and the alleged benamidar;
5-the custody of the title deeds after the sale; and
6-the conduct of the parties concerned in dealing with the property
after the sale.
Similarly in AIR 1985 CALCUTTA 2 in the case of "Raj Ballav
Das v. Haripada Das" CALCUTTA HIGH COURT held that
The above indicia are not exhaustive and their efficacy varies according to the facts of
each case. Nevertheless, the source from where the purchase money came and the motive
why the property was purchased benami are by far the most important tests for determining
whether the sale standing in the name of one person, is in reality for the benefit of another.
Therefore, in the light of above touchstone, the present transaction has to be examined.
Now what is the basis of defendants saying that the suit property was purchased by
father in the name of plaintiff or that the consideration for alleged purchase was given by the
father of parties.
The present case has to be examined in the context of law laid down by Supreme
Court as discussed above. There is not even a single averment or deposition to this effect
that Late Sh. Ghanshyam Das Mahajan used to tell the defendants that he had given the sale
O.S. Mahajan Vs. P.S. Mahajan 14 Suit No. 386/06
consideration for the purchase of suit property.
The only basis for such presumption as alleged by the defendants is that according to
them their father sold his Punjabi Bagh Plot for Rs.19,444/- and in the registered Sale deed
dated 11.2.1964 it was stated that he received Rs.5,700/- as earnest money for such sale
vide account payee cheque on 8.10.1963. Defendants averred that out of this Rs.5,700/-,
plaintiff was given Rs.2,750/- by Sh. G.D. Mahajan, his father to deposit as earnest money for
auction. Rest of the money i.e. Rs.8,260/- was deposited to DDA on 11.2.1964 was the
money paid by Sh. G.D. Mahajan. He arranged this money by selling Punjabi Bagh plot on
11.2.1964 for Rs.19,444/- and on the same day the balance amount for the plot was paid to
DDA by Sh. G.D. Mahajan, their father.
Plaintiff contends that the cheque was given on 18.10.1963 and not on 8.10.1963
because the agreement to sell the Punjabi Bagh plot was of 18.10.1963 and no one will give
a cheque for an advance date. The date on the cheque Is 8.10.1963 according to plaintiff is a
writing mistake.
'' The principle governing the determination of the question
whether a transfer is a benami transaction or not may be summed
up thus : (1) the burden of showing that a transfer is a benami
transaction lies on the person who assert that it is such a
transaction; (2) if it is proved that the purchase money came from
a person other than the person in whose favour the property is
transferred the purchase is prima facie assumed to be for the
benefit of the person who supplies the purchase money, unless
there is evidence to the contrary; (3) the true character of the
transaction is governed by the intention of the person who has
contributed the purchase money and (4) the question as to what
O.S. Mahajan Vs. P.S. Mahajan 15 Suit No. 386/06
his intention was has to be decided on the basis of the
surrounding circumstances, the relationship of the parties, the
motive governing their action in bringing about the transaction and
their subsequent conduct etc.
At this stage it is pertinent to mention here that surmises and conjectures cannot take
the place of proof. The dispute that whether the cheque is of 8.10.1963 or 18.10.1963 is of
no relevance in the absence of its proof of realization. In order to show that the earnest
auction money was paid from the money realized from this cheque, it was incumbent upon
the defendants to have proved, the actual date of realization of cheque. Even for the sake of
assumption, if it is presumed that the cheque was given on 8.10.1963 than also how it is
proved that Rs.2,750/- for the purchase of suit property was given from the money realized
from this cheque. It was incumbent upon the defendant not only to prove that the father of
parties encashed Rs.5,700/- before the date of auction but also that he has actually paid for
the auction of suit property with clear intention of purchasing the property benami for the
benefit of all the brothers litigating under the present dispute.
Therefore, the date of cheque is not material, what is material is the encashment of
cheque and for this purpose neither the bank record nor any passbook or any other cogent
evidence, to show the date of encashment is produced.
And in the absence of proof, the theory of defendants that the source of money for the
purchase of suit property was their father, also do not sustains.
And considering the settled law regarding Benami transactions that it is not the source
of money but the intention of benamidar which is relevant to ascertain the nature of
transaction, I am of the view that the defendants have not given any thought to prove this
intention. The only thrust of the defendants was to show or prove that the source of money
was their father. For the sake of assumption even if it is presumed that the consideration for
O.S. Mahajan Vs. P.S. Mahajan 16 Suit No. 386/06
the purchase of suit plot flowed from Sh. G.D. Mahajan then also it does not make the
property benami and defendants co-owners because a person may given money to some
other person or may purchase property in the name of other person without any intention of
claiming any right over it ( The situation may however have changed after the passing of
Benami Transaction(Prohibition) Act 1988).
On the basis of overall evidence led by both sides I am of the considered opinion that
the defendants have failed to substantiate their case that the sale in favour of plaintiff is
benami. Defendants have failed to prove that the sale in favour of respondent No. 1 was
benami. There is no dispute that the lease deed of the plot in question has been effected in the name of the plaintiff. No documentary evidence has been led to prove by the defendants to show that the payment of the consideration money or the purchase of the plot has been paid by Shri G.D.Mahajan nor have they stated in their testimony that the consideration was paid by their father in their presence. It has further not been proved by documentary evidence or otherwise satisfactorily that after the purchase of plot the construction was raised by Shri G.D.Mahajan. It has also been revealed that father of the parties died in the year 1965 that is before the construction of the plot in question and no attempt whatsoever has been made by the defendants to demonstrate that Shri G.D.Mahajan withdrew the money from the bank for the purchase of the plot or for the construction thereon or the cheque was cleared before the date of deposition of earnest money by the plaintiff. The only fact that some property in Punjabi Bagh was sold by father of the parties on the same date on which the suit property was purchased may raise a doubt in the minds of the defendants that the consideration for the purchase of suit property may be given from the sale proceeds of Punjabi Bagh Plot but it may not take the place of proof. The defendants are unable to prove by cogent evidence that the sale consideration of suit property was given by their father and the property was purchased benami and therefore this issue is decided against them and in favour of the O.S. Mahajan Vs. P.S. Mahajan 17 Suit No. 386/06 plaintiff Issue no.2 Whether the defendants contributed jointly for the construction of first floor and Barsati Floor of the property in dispute? OPD.
Issue no.3 Whether the property in dispute was partitioned by the settlement cum partition deed dated 19.4.1985 and defendants were exclusive owners in their portions? OPD.
For the sake of brevity these two issues are decided together as they are inter-related to each other.
First the issue of contribution. This is not a disputed fact that defendants no.2 & 3 have contributed Rs.10,000/- each for the construction of some portion of suit property. In the plaint, plaintiff averred that he accepted the request of defendants for their extended stay in suit property subject to their paying Rs.10,000/- to him as interest free loan for the construction of first and barsati floor. According to him defendant no.3 refused to sign the draft agreement. In para 16 plaintiff has admitted that defendants no.1 & 2 also gave a sum of Rs.10,000/- each to the plaintiff as interest free loan for the construction of proposed first floor and Barsati floor on 19.2.1984. But the defendants have in their written statement averred that they have not given any interest free loan of Rs.10,000/- to plaintiff but contributed jointly for the construction of first floor and Barsati floor.
DW1 Sh. A.S. Mahajan deposed in his examination in chief that after family settlement a joint account in the name of all the four parties to the suit was opened in United Commercial Bank. The account No. was 5519. Photocopy of passbook was marked as 'A'. He and plaintiff was the authorized signatory of that account. Defendants no.1 & 2 and plaintiff deposited Rs.10,000/- each in the account later on. The account was opened with an initial amount of Rs.1,500/- each contributed Rs.500/-. This account was entered into in pursuance of family settlement.
O.S. Mahajan Vs. P.S. Mahajan 18 Suit No. 386/06 The burden to prove the issue no.2 regarding contribution for construction of first floor and barsati floor is on defendants. Except the above discussed evidence, one more witness from United Commercial Bank Sh. R.K. Taneja who deposed that an account No.5519 was opened in the bank in the name of Sh. O.S. Mahajan, P.S. Mahajan, A.S. Mahajan and B.S. Mahajan. This account was opened on 1.11.1983.
Therefore, from the evidence as discussed above, it is undisputed that Rs.10,000/- each was given by defendants in aforesaid account. This amount, if taken by plaintiff for loan than plaintiff should have made it clear that what was the period of repayment and why he has not paid the loan. A joint account is opened after the agreement D.1 between the parties which shows that the defendants contributed towards construction Rs.10,000/- each except Major B.S. Mahajan, who has not made any contribution. However, it is mentioned in written statement that he was and is always ready and willing to pay his share of Rs.10,000/-. Now regarding the partition of property by the settlement-cum-partition deed dated 19.4.1985 is concerned, not much is required to deliberate upon.
It is proved that the plaintiff is the owner of the suit property. Defendants failed to prove the ownership of suit property benami & even if assuming that the settlement deed Ex.D3 was voluntarily executed by all the parties even than it cannot be said that it has the potential of the transfer of ownership of suit property. Ex. D3 does not talk of transfer of ownership or partition of property. It simply says that the first party will occupy -----------
second party will occupy-------- and so on.
The claim of partition of property by the defendants is not sustainable. The law of land is very clear that a person cannot transfer any immovable property worth 100/- rupees or more without registered instruments. When the defendants were not owners of property prior to settlement deed, how can they become owner after the unregistered settlement deed executed on plain paper.
O.S. Mahajan Vs. P.S. Mahajan 19 Suit No. 386/06 To give effect to their contention that property had been transferred through settlement deed, and the Courts should give due weight to the family settlements in family matters , defence counsel has relied upon Hari Shankar Singhania & Ors Vs. Gaur Hari Singhania & Ors. 2006 (88) DRJ 1 Supreme Court where Hon'ble Supreme Court observed that "The family settlement is treated differently from any other formal commercial settlement as such settlement in the eyes of laws ensures peace and goodwill among the family members. Such settlements are governed by a special equity principle where the terms are fare and bonafide, taking into account the wellbeing of the family. Similarly the defence counsel has also relief upon the judgment of Hon'ble Bombay High Court in Smt. P.N. Wankudre Vs. C.S. Wankudre AIR 2002 Bombay 129 wherein it was observed that "Informal family arrangement arrived at whereby various members of the family are put in possession and enjoyment of different property was given effect to irrespective of the fact that the partition deed was unregistered on the ground of estoppel. The defence counsel has also relied upon Kale & Ors Vs. Deputy Director of Consolidation wherein it was held that "a family settlement may be oral and does not requires a compulsory registration.
What all these cases distinguishes from the present case is that not only the plaintiff has assailed the family partition but the defendants in this case were not having any antecedent title in their favour because the plaintiff is the sole owner of the suit property and as discussed above that the parties were living together, there may be a family settlement in respect of possession but such settlement cannot result into a division of property resulting into the transfer of ownership.
In all the judgments referred to by defence counsel, it is true that Courts do lean in favour of family settlement but for any family settlement, there must be an antecedent rights of the parties prior to the alleged settlement. The family settlement in question in the present suit is regarding possession & occupation. The present suit is for recovery of possession O.S. Mahajan Vs. P.S. Mahajan 20 Suit No. 386/06 which the plaintiff is competent to file as an owner even if there is prior family settlement as to the way the members of the family in dispute was to occupy the property jointly.
The document Ex.D3 is silent about the fact of ownership and that the father of parties was the owner.
On the other hand the plaintiff has alleged the document Ex.D3 as forged on the ground that defendants no. 1 & 2 forced the plaintiff to put back date signatures on 2/- rupees stamp paper on knife point to which plaintiff resisted but ultimately out of fear signed on it. Later on it is revealed to him that the defendants has created a backdated agreement dated 31.10.1983 by obtaining his signatures. The document Ex.D3 is the same document. The plaintiff has also proved this fact in his evidence. Therefore, the execution of this document by the plaintiff with his free will is also disputed and as discussed above this document has no relevance in the eye of law to transfer the ownership because property in question cannot be partitioned without transfer of ownership. This issue is therefore decided against the defendants.
Issue no.4 Whether the defendants have become owner by adverse possession as alleged? OPD.
At the time of final arguments, the defence counsel has given up this plea of adverse possession.
Otherwise also the plea of ownership by adverse possession is contradictory to the claim of the defendant that they are owners by way of inheritance because defendant's case is that the suit property was purchased by their father in the name of plaintiff and it was their father Sh. G.D. Mahajan who was the actual owner of the property and after his death, the plaintiff's and defendants are co-owners of the suit property.
It has been observed by Hon'ble High Court of Delhi in Rama Kanta Jain v. M.S. Jain, (Delhi) , 1999 AIR (Delhi) 281 , O.S. Mahajan Vs. P.S. Mahajan 21 Suit No. 386/06 ''The defendants claim themselves to be the owners in possession over the disputed property on the ground of their having purchased the same from the plaintiff for a consideration of Rs. 15,500/- (vide their reply notice dated October 12, 1984, Ex. P22 to the notice from the plaintiff). How the defendants can now be allowed to plead to the contrary that they have become owners of the disputed property by adverse possession. It has already been observed above that a person who traces his possession to a lawful title can never become an owner by adverse possession. How a person, who claims himself to be the true owner of a particular property, can claim to be the owner of the same by adverse possession.
Admittedly, 'adverse possession' means a hostile assertion which is expressly and impliedly in denial of the title of the true owner. Thus the defendants cannot be permitted to blow hot and cold in the same breath.
18. There is another aspect of the matter. The mere fact that the defendants have come forward with a plea of adverse possession, means that they admit the plaintiff to be the true owner. For a plea of ownership on the basis of adverse possession, the first and the foremost condition is, that the property must belong to someone else other than the person pleading his title on the basis of adverse possession. In the instant case the defendants have put forward defenses which are irreconcilable and mutually destructive and inconsistent with one another.'' This observation in different facts also applies to the facts of this case that once the O.S. Mahajan Vs. P.S. Mahajan 22 Suit No. 386/06 plea of adverse possession is taken by the defendants , they are deemed to have admitted the ownership of plaintiff.
Therefore, these two grounds of claiming ownership are mutually contrary and destructive of each other.
Now since this plea of adverse possession is given up, this issue is decided against the defendants.
Issue no.5 Whether the plaintiff is entitled to the damages? If so at what rate and at what amount? OPP.
Considering the relationship of parties that they are real brothers, the property was purchased at the time they were minors and at the same time father of the parties also sold his property of Punjabi Bagh which may have created a bonafide impression that the real source of consideration may have come from their father. Considering that two defendants had spent certain amount in the construction of first and barsati floor although they are enjoying its possession as well and of the fact that the genesis of their possession was not wrongful and that they are not licencees but in permissive possession of the property, I am not inclined to award any damages for their stay in that property. However, now they have occupied this property for a long time and the time has come for them to vacate the suit property. This issue of damages is decided against the plaintiff. Issue no.7 Whether the cheque for Rs.5,700/- was received by the father of the parties on 8.10.1963? OPD.
While deciding issue no.1 it is observed that the date on the cheque whether 8.10.1963 or 18.10.1963 is not material because for getting any benefit from the amount of money given through cheque, it is necessary that the cheque would have been encashed.
O.S. Mahajan Vs. P.S. Mahajan 23 Suit No. 386/06 Defence witness Sh. J.C. Sharma has in cross examination deposed that the cheque was dated 18.10.1963. No other evidence except Ex.PW1/30 i.e. sale deed of Punjabi Bagh Plot which mentions that an earnest money of Rs.5,700/- was previously paid vide cheque no.199271 dated 8.10.1963 drawn on Mercantile Bank, Delhi, is there to show that the cheque was of 18.10.1963 or 8.10.1963. A cheque remains valid for a period of 6 months and there is no bar in law to give a back dated or post dated cheques. A cheque dated 08.10.1963 may or may not have been encashed till 18 or 21. 10 1963 or till any future date. As I have hold that the encashment of cheque and not the date of cheque is material, I do not want to further deliberate upon this issue. Although, the burden to prove this issue was on the defendants but the defendants have failed to show that the cheque in question was of 8.10.1963.
Issue no.8 Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD.
At the time of filing of suit in the year 1987, the plaintiff had valued the present suit on the basis of 12 months damages claimed by him from the defendants ie. at Rs 9600 @800 per month. In a suit for recovery of possession, the plaintiff has to pay the advoleram Court fees on the market value of the property. The defendants moved an application for amendment of para 29 of the written statement so as to plead that the plaintiff has not valued the suit properly and he was bound to pay the court fees according to the market value. This contention of the defendant was accepted by the Court and the said amendment was allowed in the year 2000. The plaintiff valued the suit property according to his estimated market value at Rs.72,000/-. The allegation of defendants is that this is not the correct valuation of suit property and the value of the suit property is more than 6 lakhs and consequently considering the market value of suit property.
O.S. Mahajan Vs. P.S. Mahajan 24 Suit No. 386/06 The burden to prove that the valuation done by plaintiff at Rs.72,000/- is not correct is upon the defendants.
In order to discharge the burden and to prove that the value of the suit property is much more than Rs.72,000/- defendants have examined DW9 Sh. Q.L. Dua Registered Valuer, Sh. Ani lal Vedwal from DDA .
Sh. Q.L. Dua on the basis of his report DW9/1, stated that , he has valued the suit property for Rs.10,09,055/- and also given the value of the property in possession of each brothers separately. Upon of the valuation according to apportionment of valued amount, the value of property in possession of Sh. O.S. Mahajan is Rs.3,45,895/-. The valuation of rest is 10,09,055 - 3,45,895/-. Another witness examined by defendants is Sh. Ani Lal Vedwal who brought the summoned record pertaining to FD-12, Najafgarh Road, Residential Scheme. As per record, the said plot was sanctioned on 6.6.1988 for Rs.6,85,000/- in favour of Sh. V.P. Balra and Kamlesh Balra.
As far as the testimony of Ani Lal Vedwal is concerned it may be true that FD-12 may have auctioned for Rs.6,85,000/-, but what was the nature or size of the plot was not proved by him. The copy of lease deed was also not placed on record. In fact the defence counsel requested for its production, but it was declined by the Court. Therefore, his testimony cannot be relied upon to arrive at any conclusion that the valuation of suit property was equal to or more than Rs.6,80,000/-/ The second witness served in Delhi Lal Board till 1991 and later become expert valuer. He has filed his report in the year 2000. He has himself admitted that he has retired from Delhi Jal Board in the year 1991 and he had not valued any property prior to the year 1991. It means that he has no experience of the valuation of properties prior to the year 1991 but in the instant case he has given the valuation for the year 1987. His report may be correct but cannot be treated as Gospel truth. A valuation report filed by him in respect of a period 13 O.S. Mahajan Vs. P.S. Mahajan 25 Suit No. 386/06 years old may or may not be accurate. There is no supportive evidence or the basis of making this report.
Admittedly the plot in dispute was purchased in the year 1964 for a sum of Rs.11,010/-. An amount of Rs.17,000/- was spent on construction. The plaintiff has valued the suit property at Rs.72,000/-. The value of plot increased but the value of construction always deprecates with the age of building. In the year plaintiff and defendant shared Rs. 10000 each for the construction of first and second floor. The plaintiff is seeking recovery of possession of two room each on ground and first floor. He need not value the whole property but only the valuation of that portion whose recovery is sought is sufficient. Plaintiff alleges the value of property to be 72,000/- and defendants around 6 lacs but the real value may be between these two. No two persons can give the exactly same valuation of property if they arrive at its valuation by their own independent methods. The report submitted by Sh. Dua does not seems to be much reliable not only because he was appointed by defendants and may tend to favour them but also he do not have any experience of the valuation of property in 1987 as expert. Long time had passed between the time he prepared his report and for the period for which that report was prepared. He does not visited the portion of plaintiff area. He was doing recommendation valuation works w.e.f. 1991 for the purpose of house tax only. Under section 45 of Indian Evidence Act the opinion of the experts are relevant when such persons are specially skilled in respect of a thing in which his opinion is to be sought. The law requirs that there should at least be professional of special qualifications on the part of a person, who come to the Court to depose as an expert. In order to bring an evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject. The credibility of such a witness depends upon the reason in support of his conclusions and the data and materials furnished which formed the O.S. Mahajan Vs. P.S. Mahajan 26 Suit No. 386/06 basis of his conclusions. In the present case, the report of Sh. Q.L. Dua although he is a registered valuer does not contains the basis on which he has valued the suit property.
In such circumstances the evidence produced by the defendants doesnt seems to be much reliable. Therefore in such circumstances I deem it correct the valuation of suit property done by the plaintiff. Therefore the contention of the defendant that this Court has no jurisdiction to try the present suit is also not acceptable for two reasons. Firstly the suit when filed was valued at Rs.9600 and therefore it was well within the competence of the court in which it was filed to try it. Later on in the year 2000 the valuation was raised to Rs. 72000. At that time also the Court has the pecuniary jurisdiction to try the present suit. And at the date of deciding this suit this Court has the pecuniary jurisdiction to try the present case.
Secondly there is another aspect of the matter which was not argued by the side of plaintiff but is nevertheless relevant that the objections to jurisdiction has to be taken in the first instance at the earliest possible opportunity. The earliest possible opportunity for the defendants was at the time when they first filed their written statement. But even in the amended written statement defendants have taken the objection to the valuation of the suit but has not specifically averred that this Court do not have pecuniary jurisdiction to try the present suit. The relevant para of the written statement is reproduced as "Para 29 of the plaint is wrong and denied. The suit has not been properly valued. The plaintiff is bound to pay advalorem Court fees on the market value of the property which is about Rs.6 lakhs for the relief of possession. The plaint is thus liable to be rejected for want of proper Court fees".
This is replied in the replication dated 20.11.2000 as "In so far as the market value of the portion of the property for the relief of possession as on the date of filing of the suit is concerned, it is Rs.72,000/- only and in terms of section 7 (v) (e) of the Court Fees Act, 1870, the plaintiff is ready to pay the amount deficient in the Court fee within the time allowed by O.S. Mahajan Vs. P.S. Mahajan 27 Suit No. 386/06 this Hon'ble Court".
The Supreme Court in Kiran Singh Vs Chaman Paswan ,AIR 1954 SUPREME COURT 340 ,while deciding the effect of raising the issue of jurisdiction for the first time in Appellate Court referred to decision of the Privy Council in the case of Rachappa Subrao Jadhav v. Shidappa Venkatrao Jadhav, (4) LR 46IA 24, wherein the Privy Council held that the objection to the pecuniary jurisdiction of the court to be "the most technical of technicalities" and observed as follows:
"The Court Fees Act was passed not to harm a litigant with a weapon of technicality against his opponent but to secure for the benefit of the State... The defendant in this suit seeks to utilize the provisions of the Act not to safeguard the interest of the State, but to obstruct the plaintiff he does not contend that the Court wrongly decided to the detriment of the revenue but that it dealt with the case without jurisdiction in the circumstances this plea, advanced for the first time at the hearing of the appeal in District Court is misconceived, and was rightly rejected by the High Court."
Although in the case discussed above, the issue of jurisdiction was taken at appellate stage but in the present case it is argued by the defence Counsel that this court does not have the pecuniary jurisdiction to try the present case however there is no such specific plea in the written statement as referred above. Even if it is presumed that by averring that'' the suit is not properly valued for the purpose of court fees and jurisdiction '', the defendant is challenging the jurisdiction of this Court , then also I am not convinced by by the defence argument because the defendant has not taken the objection of raising the issue of court fees and jurisdiction in the first instance and this objection was for the first time added in written statement in the year 200 o when already 13 years had passed in the trial of this case. At O.S. Mahajan Vs. P.S. Mahajan 28 Suit No. 386/06 the date of filing of the suit the, Court had the jurisdiction to try the case and at the date of decision also this court has the jurisdiction to try the case. It dos'nt seems to be justified to dismiss the present suit after 23 years of protracted trial to dismiss this suit only on the ground of jurisdiction which otherwisw this Court has..
Therefore on the basis of aforesaid discussion this issue is decided in favour of the plaintiff. The valuation done by the plaintiff is accepted as true and therefore this Court has the pecuniary jurisdiction to try the present case because the pecuniary jurisdiction of this Court is Rs. 3,00,000.
Issue no.6 Relief. OPP Beside the relief of declaration and damages for the use and occupation of the property , the plaintiff has also claimed the relief of possession on the ground that the defendants were his licencies and he has terminated their licence and asked them to vacate the suit property which they have refused.
To this plea ,the defendants have contended that they have contributed for the construction of first and barsati floor.
Defendant in their written statement stated and that they are in possession of the property as a member of joint family and hence have a right to reside in the suit property as one of the members of coparceners. According to them since they contributed in the construction of first and barsati floor the license in their favour has become irrevocable.
Learned counsel for the defendants very vehemently urged that since the defendants has made some construction in the suit premises within the knowledge of the plaintiff and under a written agreement , the license in their favour has become irrevocable. He also urged that the plaintiff has not raised any objection at the time of construction, hence he is now estopped from revoking the license. in support of his arguments that the license in favour of O.S. Mahajan Vs. P.S. Mahajan 29 Suit No. 386/06 defendant is irrevocable defendants have relied on Section 60 of the Easement Act. Said section reads as under :
"License when revocable. - A license may be revoked by the grantor, unless
(a) it is coupled with a transfer of property and such transfer is in force;(b) the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution."
By bare reading of Section 60 of the Easement Act it is clear that by getting a irrevocable license it is necessary to plead and prove that the construction was carried out by the defendants in pursuance of the agreement. The words 'construction relying on the license' means that there must be a condition in the license itself that the licensee is permitted to raise permanent construction. In absence of any such condition in the license, the license does not become irrevocable.
Learned counsel for the defendants has relied on the judgments Jagat Singh vs District Board Amritsar , AIR 1949 Lahore 509, wherein while relying on English Law in this respect it was held that " A license is also irrevocable if the licensee acting upon the permission granted, has executed a work of permanent character and has incurred expenses in its execution. This rule of law seems to be based upon the injustice which would be inflicted upon the licensee if, after he had laid out money and executed a permanent work, the licensor were permitted to revoke his license and make him waste the money expended, or he ever allowed to treat him as wrongdoer and recover damages for the very act for which he O.S. Mahajan Vs. P.S. Mahajan 30 Suit No. 386/06 gave permission".
Similarly reliance has also been placed by defence counsel on the case of Dominion of India Petitioner Vs. R.B. Sohan Lal AIR (37) 1950 East Punjab 40 wherein the law regarding the irrevocability of license is described as "Further a bare license become irrevocable when the licensee acting upon the license, executes a work of permanent character and incurs expenses in doing so. The Indian Easement Act incorporated these principles in a somewhat restricted form. In order to be irrevocable under Section 60 of that Act, the license bas to be couples with a transfer of property, whereas under the English cases it is enough if it is couples with a grant or interest in the nature of profit. The two tests or irrevocability established by the English cases or by the Indian Easements Act will, however, give way to the special agreement,l if any, of the parties. Thus although a license is prima facie irrevocable either because it is coupled with a grant of interest or because there is nothing to prevent the parties from agreeing expressly or by necessary implication that the licensee shall be revocable.
After perusing the said judgments it is clear that in absence of any condition in the license that the licensee is permitted to raise permanent construction the licence does not become irrevocable. For getting the benefit of Section 60 it is for the licensee to plead and prove that there was a condition in the license to the effect that the land is given to the licensee to raise permanent construction. In the present case there is an oral license and the defendant has not laid any evidence to prove that there is any condition in the license relying O.S. Mahajan Vs. P.S. Mahajan 31 Suit No. 386/06 on which he has made a construction.
The contribution for the construction was in pursuance of the agreement as alleged by the defendants and it was not a condition of lincence as alleged by the plaintiff . The defendants were already residing in the suit property and when the existing accommodation fall short for their convenient living , it is agreed by all that by contributing jointly all the parties will construct some construction on first and barsati floor of the suit property .Therefore the conditions of irrevocable licence are not satisfied as the liberty to raise the permanent construction was not the part of grant of licence.
Interestingly the issue of irrevocability of licence has been argued but has not been pleaded in amended written statement which has been amended so many times where the defendants have not raised a plea of irrevocable license, he has nowhere stated that in the license there was condition that the licensee will raise a permanent construction in the suit premises. In absence of these pleadings the defendant in this case is not entitled to get benefit of Section 60 and in such circumstances it cannot be held that the license was given to the defendant for raising a permanent construction.
As regards question of estoppel, the defendants were knowing the fact that the suit premises was given to him only for a temporary period till he constructs his own house. Thus, he was knowing that he is not the owner of the property and is permitted to reside in the suit property for a temporary period till he can manage to acquire any other suitable house for his residence. After knowing all these facts if he contributes for the construction of some portion in suit property owned by the plaintiff then he has to thank himself for it. The principle of estoppel will not help the defendants in the present case who was fully aware of the fact that permissive possession was given to him to reside in the suit premises till he manages to acquire other suitable house for him.
O.S. Mahajan Vs. P.S. Mahajan 32 Suit No. 386/06
Moreover, in the present case parties are litigating the matter since long.
Injunction suit filed by he plaintiff was dismissed as withdrawn. Secondly the plea of irrevocability of licence is also inconsistent with the claim of the defendants of ownership of the property. On one hand defendants are denying that they are the licensees but on the other hand contending in view of permanent structures raised by them, that the licence is irrevocable.
Therefore the contention of irrevocable licence and of estoppel is not acceptable in the present case and the plaintiff deserves the reliefs claimed by him.
This issue is decided in favour of the plaintiff and the plaintiff is entitled for the relief of possession in respect of the suit property bearing no.D-E/73 Tagore Garden, New Delhi i.e. two room set on the ground floor and two room set on the first floor shown as Red in the site plan as he is the owner of the suit property. The defendants are directed to hand over the suit property within three months from today. As far as relief of damages is concerned, the suit is dismissed. Cost of the suit is also awarded to the plaintiff.
Announced in the open Court (SAMAR VISHAL)
On 31.03.2010 CJ-02 (North)/Delhi
31.03.2010
O.S. Mahajan Vs. P.S. Mahajan 33 Suit No. 386/06
31.03.2010 Suit No.386/06
Vide separate judgment, suit of the plaintiff is partially decreed in respect of possession. The plaintiff is entitled for the relief of possession in respect of the suit property bearing no. D-E/73 Tagore Garden, New Delhi i.e. two room set on the ground floor and two room set on the first floor shown as Red in the site plan as he was the owner of the suit property. The defendants are directed to hand over the suit property within three months from today. As far as relief of damages is concerned, the suit is dismissed. Cost of the suit is also awarded to the plaintiff. Decree sheet be prepared accordingly.
File be consigned to the record room.
(Samar Vishal) CJ-02/North/Delhi.
O.S. Mahajan Vs. P.S. Mahajan 34 Suit No. 386/06