Delhi District Court
S M Anis vs Saira on 31 May, 2023
In the Court of Dr. Rakesh Kumar : Additional District Judge-03
of Central Delhi District at Tis Hazari Courts, Delhi
CS DJ no. 476/19
CNR no.DLCT01-006546-2019
In the matter of :-
S M Anis
S/o Late S.M. Sualahin
R/o Plot no.1, H. No.451,
Third floor, Zakir Nagar West,
New Friends Colony, New Delhi-110025 ......Plaintiff
VERSUS
1. Saira
W/o Late Mohd. Shafiq,
R/o 6947 (Private no.6947A and D)
First floor, Chowk Ahata Kedara,
Bara Hindu Rao, Delhi-110006
2. Mohd. Naseem
S/o Late S.M. Sualahin
R/o 8867, Gali Nizamundin,
Naya Mohalla, Pul Bangash, Delhi-110006.
3. Mohd. Shamim
S/o Late S.M. Sualahin
R/o H. No. B-24, Nizamudin West, New Delhi.
4. Mohd. Aslam Javeed
S/o Late S.M. Sualahin
R/o H. No.C-14, Nizamudin West, New Delhi.
5. Firdous Yaseen
D/o Late S.M. Sualahin
R/o H. No.1062, Kishan Ganj,
Teli Wara, Azad Market, Delhi-110006 ......Defendants
Date of institution : 14.05.2019
Reserved for Judgment : 29.05.2023
Date of decision : 31.05.2023
CS DJ no.476/19 Page No. 1 / 21
Suit for Possession, Mesne profits/Damages and Permanent Injunction
JUDGMENT
1. This is a suit for possession, recovery of mesne profits/damages and perpetual injunction for recovery of possession of two rooms with bath/WC in property bearing no. 6947 (private no.6947c), first floor, situated at Chowk Ahata Kedara, Bara Hindu Rao, Delhi-110006 and for recovery of mesne profits/damages for unauthorized use and occupation and for restraining the defendant no.1 and his associates etc. from creating third party interest in respect of the suit property.
2. Facts are that the plaintiff and the defendants no.2-5 being the sons and daughter of Late Mst. Sardar Begum and claiming themselves to be the owners of entire build up property bearing no. 6947 (old no.7847), situated at Chowk Ahata Kedara, Bara Hindu Rao, Delhi-110006 (hereinafter referred to as 'the property') let out one room and a WC on the first floor of the property (hereinafter referred to as 'the tenanted premises'), more specifically shown in 'blue' colour in the site plan annexed with the plaint, to the husband of the defendant no.1; that the plaintiff and the defendants no.2-5 had filed a suit against husband of defendant no.1 for possession, recovery of arrears of rent and mesne profits/damages which was dismissed; that the husband of the defendant no.1 in the said suit admitted the tenanted premises comprising one room with WC; that the plaintiff and the defendants no.2-5 had filed an appeal and the matter was settled vide a compromise decree wherein the plaintiff and the defendants no.2-5 allowed the husband of the defendant no.1 to use and occupy the tenanted premises uptil 17.05.2015 on payment of user charges @Rs.2500/- per month; that the defendant no.1 CS DJ no.476/19 Page No. 2 / 21 failed to comply with the compromise decree and the plaintiff and the defendants no.2-5 filed execution petition for taking possession of the tenanted premises; that bailiff was appointed for executing warrants of possession on 29.05.2015 but he was not allowed to enter the suit premises and later, police aid was sought to execute the warrant of possession; that the defendant no.1 and her husband trespassed into two rooms with bath/WC on the first floor of the property (hereinafter referred to as 'the suit property'), more specifically shown in 'red' colour and marked 'A' and 'D'; that the plaintiff filed an FIR against the defendant no.1 and her husband under Section448/380/34 IPC and 454 IPC; that the husband of the defendant no.1 had died leaving behind defendant no.1 as wife and his four daughters; that the criminal case registered was decided against the defendant no.1 who was convicted of the charge under Section 454/34 IPC; that the defendant no.1 is still in illegal, unlawful and unauthorized possession of the suit property, hence this suit.
3. The defendant no.1 contested the suit by filing written statement of her defence wherein she took the preliminary objections to the effect that the suit is not maintainable in view of the fact that the plaintiff is not the owner of the suit property; that the plaintiff has concealed material facts; that the suit is barred by the provision of Sec.41(h)(j) of the Specific Relief Act; that the site plan is not correct; that there is no certificate of translation of sale deed in Urdu language; that suit is bad for non-joinder and mis-joinder of the parties. In reply on merits, it is contended by the defendant no.1 that the plaintiff has not disclosed the fact of ownership; that the defendant no.1 is in possession of the suit property since long by way of permissible right of possession where she CS DJ no.476/19 Page No. 3 / 21 is residing with her family members; that the defendant no.1 was acquitted from the FIR no.333/2015 u/s 380/454/34 IPC. Other allegations averred in the plaint were denied and disputed by the defendant no.1 and prayed for dismissal of the suit.
4. The defendants no.2, 4, 5 and the defendant no.3 have also filed separate written statements of their defence wherein they commonly stated that the contents of the plaint are a matter of record. In reply on merits, it is stated by the defendants no.2, 4, 5 and the defendant no.3 that the plaintiff and the defendants no.2-5 are joint owners of the property and thus were in joint possession of the property; that the plaintiff and defendants no.2-5 have equal claim of possession, mesne profits/ damages and permanent injunction in respect of the suit property.
5. It may be noted here that during the proceedings of the suit defendant no.5 had died and an application under Order 22 Rule 4 CPC was dismissed as withdrawn and the suit was abated qua LRs of defendant no.5.
6. The plaintiff filed replication to the written statement of the defendant no.1 wherein the contentions of the written statement are traversed and the averments of the plaint are reaffirmed.
7. On pleadings of the parties, following issues were framed on 03.08.2022:-
1. Whether the plaintiff is entitled to a decree of possession against defendant no.1 in respect of suit property consisting of two rooms with bath/WC, fully shown in Red colour and Marked 'A' & 'D' in the site plan attached in the property bearing no.6947 (private no.6947C), First floor, at Chowk CS DJ no.476/19 Page No. 4 / 21 Ahata Kedara, Bara Hindu Rao, Delhi-06 as per site plan? OPP
2. Whether defendant no.1 is unauthorized occupant of the above mentioned property? OPP
3. Whether plaintiff is entitled to a decree of mesne profits/damages from defendant no.1 @10,000/- per month for last 3 years and also for pendent lite and future damages also till actual possession is handed over? OPP
4. Whether plaintiff is entitled to a decree of permanent injunction against defendant no.1 thereby restraining him from creating any third party rights with respect to the above property? OPP
5. Whether plaintiff is entitled to costs of the suit along with interest?OPP
6. Relief.
8. To prove his case, the plaintiff examined 5 witnesses. PW1 is Sevajit from Department of Archives who brought the original record of document Ex.PW1/1. PW2 is Alka Bakshi from Record room, THC who produced the original record pertaining to the documents Ex.PW2/1 i.e. an order dated 17.11.2014, Ex.PW2/2 and Ex.PW2/3 which are statements of Mohd. Shafiq and S.M.Anis. PW3 is Rajpal from Record room, THC who produced the original record pertaining to the document Ex.PW3/1(colly) i.e. Certified copies of execution proceedings along with bailiff report containing 9 pages. PW4 is Mukesh Kumar from Record room, THC who produced the original record pertaining to the documents Ex.PW4/1 i.e. certified copy of plaint and Ex.PW4/2 i.e. certified copy of written statement filed in former suit. PW5 S.M.Anis is the plaintiff himself who filed his affidavit Ex.PW5/A and relied upon the following documents:-
1. Ex.PW5/1- Copy of Sale deed already exhibited as Ex.PW1/1.
2. Ex.PW5/2- Hindi Translation done by the deponent.
3. Ex.PW5/3- Site plan.
4. Ex.PW5/4- Certified copy of plaint filed by husband of defendant CS DJ no.476/19 Page No. 5 / 21 in suit "S.M. Anis & Ors. Vs. Mohd Shafiq already exhibited as Ex.PW4/1.
5. Ex.PW5/5- Certified copy of written statement filed by husband of defendant in suit "S.M. Anis & Ors. Vs. Mohd Shafiq already exhibited as PW4/2.
6. Ex.PW5/6 (colly)- Certified copy of order dated 17.11.2014 passed in RCA no.3/2014 along with decree and the statement of husband of defendant no.1 Mohd Shafiq and statement of the deponent already exhibited as Ex.PW2/1-PW2/3.
7. Ex.PW5/7- Copy of order dated 19.05.2015 passed by Hon'ble Delhi High Court in C.M. no. 471/2015.
8. Ex.PW5/8(colly)- Certified copy of Warrant of Possession along with report of bailiff dated 29.05.2015 and 25.07.2015 already exhibited as Ex. PW3/1 colly.
10. Ex.PW5/10- Copy of order dated 17.12.2018 passed by Hon'ble Delhi High Court in W.P. (CRL) no. 2175/2015 and M.A. no. 14296/2015 titled as 'S.M. Anis V/s Govt. of NCT of Delhi & Ors.
11. Ex.PW5/11(colly) as mentioned in affidavit is now Mark C (colly)- Certified copy of judgment dated 30.03.2019 and Order of sentence.
12. Ex.PW5/12 (colly) as mentioned in affidavit is now Mark D (colly)- Certified copy of order dated 20.07.2020 passed by Ld. ASJ, Delhi.
Also relied upon Order passed by the Hon'ble High Court which is dated 18.10.2022 be exhibited as Ex.PW5/14.
9. The defendant no.1, Saira examined herself as DW1 and tendered her evidence by way of affidavit Ex.DW1/A and relied upon following documents:-
1. Mark A is Order of High Court dated 19.05.2015
2. Ex.DW1/3(colly) is copy of eviction order dated 30.03.2019 and 09.04.2019 and
3. Ex.DW1/5 is Copy of judgment of acquital, already exhibited as Ex.PW4/1.
10. I have heard counsel for the parties and perused the material available on record.
CS DJ no.476/19 Page No. 6 / 2111. My issue wise findings are as follows:-
Issues no.1, 2 and 4
-Whether the plaintiff is entitled to a decree of possession against defendant no.1 in respect of suit property consisting of two rooms with bath/WC, fully shown in Red colour and Marked 'A' & 'D' in the site plan attached in the property bearing no.6947 (private no.6947C), First floor, at Chowk Ahata Kedara, Bara Hindu Rao, Delhi-06 as per site plan?
-Whether defendant no.1 is unauthorized occupant of the above mentioned property?
-Whether plaintiff is entitled to a decree of permanent injunction against defendant no.1 thereby restraining him from creating any third party rights with respect to the above property?
12. Issues no.1,2 and 4 are being taken together being inter-connected. The onus to prove these issues was placed on the plaintiff.
13. To prove his case, PW5 S.M. Anis, the plaintiff, has stated in the affidavit that after the death of his mother Mst. Sardar Begum, who was the registered owner of the property by way of a Sale Deed (Ex.PW5/1), its translation (Ex.PW5/2), the plaintiff and the defendants no.2-5 became the joint owners of the property and the site plan of the property is Ex.PW5/3. It is further stated by PW5 S.M. Anis that the plaintiff and the defendants no.2-5 had filed a suit against the husband of the defendant no.1 which was dismissed and the certified copies of the plaint and the written statement are Ex.PW5/4 and Ex.PW5/5, respectively. It is further stated by PW5 S.M. Anis that against the dismissal of the suit, an appeal was filed wherein a compromise decree was passed and the husband of defendant no.1 was allowed to use and occupy the tenanted premises uptill 17.05.2015, the statement of the husband of defendant no.1 and the plaintiff is Ex.PW5/6. It is further stated by PW5 S.M. Anis that the husband of defendant no.1 filed a C.M. Petition which was CS DJ no.476/19 Page No. 7 / 21 dismissed vide order dated 19.05.2015, the copy of the said order is Ex.PW5/7. It is further stated by PW5 S.M. Anis that the husband of defendant no.1 failed to comply the compromise decree against which an execution petition was filed to execute warrant of possession, certified copy of order and report of the bailiff dated 29.05.2015 and 25.07.2015 are Ex.PW5/8(colly). It is further stated by PW5 S.M. Anis that on 09.06.2015 at about 09:30 pm his friend Mansoor Ahmed who was residing in the vicinity of the suit property had informed him telephonically that the defendant no.1 and her husband Mohd. Shafiq along with some anti-social elements have illegally, unlawfully and unauthorizedly trespassed into two rooms with bath/ WC on the first floor of the property, more specifically shown in 'red' colour and marked 'A' and 'D' in the site plan Ex.PW5/3, which were in possession of the plaintiff. It is further stated by PW5 S.M. Anis that goods of the plaintiff such as files, furniture, law books, VCR, typewriter, TV, an iron box, some copper utensils and some clothes were stolen/removed from the said room by the defendant no.1 and her husband. It is further stated by PW5 S.M. Anis that in the next morning i.e. on 10.06.2015, he had visited the suit property to ascertain the fact and thereafter, went to the police station Sadar Bazar after confirming the illegal, unlawful and unauthorized act of the defendant no.1 and her husband. It is further stated by PW5 S.M. Anis that on 15.06.2015, FIR no.333/2015 under Section 448/380/34 and 454(added later) was registered against the defendant no.1 and her husband, the copy of the complaint is Ex.PW5/9. It is further stated by PW5 S.M. Anis that vide judgment dated 30.03.2019, the criminal case filed by the plaintiff against defendant no.1 was decided against the defendant no.1, the certified copy of judgment dated 30.03.2019 is Ex.PW5/11(colly). It is further stated by PW5 S.M. CS DJ no.476/19 Page No. 8 / 21 Anis that defendant no.1 is still is in illegal, unlawful, unauthorized possession of the suit property owned by the plaintiff and the defendants no.2-5. It is further stated by PW5 S.M. Anis that the defendant no.1 has got no right, title or interest in the suit property and her possession is unlawful and unauthorized, therefore, she is liable to pay damages/mesne profits for unauthorized use and occupation of the suit property.
14. In the cross-examination, it is stated by the plaintiff/ PW5 S.M. Anis as follows:
"....the Sale Deed in in the name of my mother Late Smt. Sardar Begum...I have filed the suit as one of the co-owners.....I impleaded my brothers and sisters in the suit as performa defender. My mother had purchased this property from the Late Mohd. Yashin in the year 1943...It is correct that the property has not been partitioned between me and other co-owners of the property...It is wrong to suggest that the defendant no.1 was in possession of three rooms in the property since 2008. It is wrong to suggest that regarding the vacation of one room in the said property, a sum of Rs.4 Lakhs was given to Nasim by the husband of defendant no.1...My mother had not executed any will in respect of this property in my favour."
15. To disprove the case of the plaintiff, it is stated by DW1 Saira in her affidavit that the plaintiff is not the owner in respect of the suit property. It is further stated by DW1 Saira that copy of order of High Court dated 19.05.2015 is Mark-A. Copy of eviction order dated 30.03.2019 and 09.04.2019 are Ex.DW1/3(colly) and Copy of judgment of acquittal is Ex.DW1/5. It is further stated by DW1 Saira that she is in possession of the suit property since long back as permissible right of possession in respect of the suit property and residing in the suit property with her family members.
16. In her cross-examination, it is stated by the defendant no.1/DW1 CS DJ no.476/19 Page No. 9 / 21 Saira as follows:
"I am in possession of two rooms and bathroom in the suit premises. (Vol. My husband paid Rs.4,00,000/- to one Naseem.) I do not know who is Naseem. Again said Naseem is the owner of the property. Naseem has allowed me to occupy the suit property. I am living in the suit property since 2008 from 11th of December... I am not denying that the mother of the plaintiff and defendant no.2 to 5 was the owner of the suit property. I do not know whether Naseem is one of the co- owners of the suit property....It is wrong. The plaintiff has not filed any suit against my husband..My husband has not filed any written statement in the said case. (Vol. My husband has died in December 2015.).. It is correct that the court has passed order of eviction against your husband in appeal.... I do not have any receipt of Rs.4,00,000/- paid to Naseem. It is wrong to suggest that I had paid Rs.4,00,000/- to Naseem...I have not filed any site plan in respect of the suit property alongwith my written statement or thereafter. I do not know whether the site plan filed by the plaintiff with the suit is true and correct site plan...I do not know the sale deed filed by the plaintiff in respect of the suit property in the name of his mother and its true translation is correct.... It is correct that my husband had vacated one room which was under his tenancy through court bailiff on 25.07.2015. The present rent of one room in the suit property is around Rs.4000 per month....
The fact that I had paid Rs.4,00,000/- to Naseem was not stated by me in my written statement. ..It was stated in my written statement that we came into possession of the suit property in the year 2008. I have seen and gone through the written statement. It is correct that it is not so stated in my written statement."
17. In the light of evidence produced on behalf of the parties the position that emerges is that admittedly, the husband of the defendant no.1 was a tenant in respect of the one room with WC in property bearing no. 6947 (old no.7847), situated at Chowk Ahata Kedara, Bara Hindu Rao, Delhi-110006.
18. The assertions made by the plaintiff in the plaint is that the plaintiff had got possession of the tenanted premises by way of execution of decree through bailiff and the defendant no.1 had trespassed into the suit property which are subject matter of the present suit.
CS DJ no.476/19 Page No. 10 / 2119. On the other hand, the contention raised by the defendant is that she is in possession of the suit property since long with permissive right of possession.
20. The plaintiff has proved certified copy of plaint filed by him in the former suit as Ex.PW4/1. A perusal of Ex.PW4/1 reveals that regarding tenancy of one room and WC, it has been stated by the plaintiff in the plaint of former suit as follows:
"1. That the defendant was a tenant in respect of one room and a WC in property bearing no.6947 (Private no.6947C), First floor situated at Chowk Ahata Kedara, Bara Hindu Rao, Delhi-110006 (hereinafter referred to as the suit property) since 24th day of July 2008 under the plaintiffs who are the owners/landlords thereof at a monthly rent of Rs.3550/- per month besides electricity and water charges at the rate of Rs.300/- and Rs.100/- per month, respectively. At the time of letting out the suit property to the defendant, the defendant executed a rent note. The suit property is more clearly shown in Red Colour in the site plan attached."
21. The plaintiff has also proved certified copy of written statement filed by husband of the defendant in the former suit which is Ex.PW4/2. In corresponding para i.e. para no.1 of the reply on merits of the written statement filed by husband of the defendant in the former suit to reply para no.1 in the plaint of the former suit, husband of the defendant has, inter-alia, stated as follows:
" ....In reply to this para it is submitted that the agree rate of rent of the tenanted premises was Rs.1,800/- excluding of electricity and water charges which was as per consumption and the plaintiffs as well as their representatives used to collect from the Defendant regularly and punctually. The alleged Rent Note/Rent Agreement dated 24.07.2008 is a forged, fabricated, manipulated and false document which was got prepared by the Plaintiffs in collusion with their associates. The Defendant never purchased the stamp paper, nor got executed the any alleged document in presence of any alleged witness, nor get it notarised, rather the fact is that the same was forged, fabricated and manipulated by the Plaintiffs and others on the blank documents which were obtained by the Plaintiffs for police verification purposes. The Plaintiff is an illiterate person and does not CS DJ no.476/19 Page No. 11 / 21 know English and there arose no question of execution of the alleged Rent Note/Rent Agreement by the Defendant. No copy of any alleged Rent Note/ Rent Agreement was even ever supplied by the Plaintiffs to the Defendant, nor the contents of the same was ever disclosed to the Defendant and for the first time alongwith the plaint the same was supplied to the Defendant and the Defendant came to know about the alleged Rent Note/Rent Agreement dated 24.07.2008."
22. The certified copies of the plaint (Ex.PW4/1) and the written statement (Ex.PW4/2) have not been disputed on behalf of the defendant no.1.
23. In view of the reply on merits to the para no.1 of the plaint of the former suit, husband of the defendant no.1 has not specifically denied the fact that he was a tenant in respect of the tenanted premises.
24. However, in para no.4 of preliminary objections of the written statement in former suit, it is specifically admitted by the husband of the defendant no.1 that he had been regularly paying rent and electricity charges as per consumption along with the rent of Rs.1800/- per month which was agreed rate of rent of the tenanted premises provided by the plaintiff in respect of the property in question. In para 9A of the preliminary objections as contained in the written statement in former suit, it is contended that the defendant no.1 is in uninterrupted, undisputed, continuous use, enjoyment and possession of the tenanted premises. In para 9 at page 13 of the preliminary objections of the written statement in former suit, it is also stated that the suit of the plaintiff is not maintainable as the rate of rent of the tenanted premises agreed between the plaintiffs and the defendant no.1 was/is Rs.1,800/- excluding of electricity and water charges which the defendant no.1 was regularly paying/tendering to the plaintiff and their representatives.
CS DJ no.476/19 Page No. 12 / 2125. In view of the reading of written statement as a whole filed by husband of the defendant no.1 in the former suit, it is quite clear that husband of the defendant no.1 had admitted to be a tenant in respect of the tenanted premises on a monthly rent of Rs.1800/- per month and also admitted that the plaintiff as his landlord. From the reading of the written statement filed in former suit, it is also quite clear that husband of the defendant no.1 had not contended anywhere in the written statement of the former suit that on the date of filing of that written statement he was in possession of any other premises or the suit property in the property bearing no. 6947 (old no.7847), Chowk Ahata Kedara, Bara Hindu Rao, Delhi-110006.
26. As noted above, in the present suit, the contention of the defendant is that she is in possession of the suit property since long as permissive right of possession in respect of the suit property and residing in the suit property with her family in person. If the defendant had been in permissible possession of suit property since long and residing therein with her family, her husband would have contended this fact in the written statement filed by him in the former suit. Once her husband has not done so, a presumption would arise that the plaintiff and her family members were not in possession of any other portion except one room i.e. the tenanted premises.
27. Again, the defendant no.1 has very vaguely contended in the written statement that she is in permissible right of possession in respect of the suit property but in the entire written statement filed in the present suit, she has not disclosed under whom or by whom she was put into the permissible right of possession of the suit property. In her examination-
CS DJ no.476/19 Page No. 13 / 21in-chief by way of affidavit Ex.DW1/1 also, the defendant no.1 has nowhere stated who had put her and her family members into permissible right of possession in respect of two rooms i.e. the suit property. For the first time in her cross-examination, she has come out with the contention that her husband had paid Rs.4,00,000/- to Naseem but she was unable to tell who was Naseem. The defendant had again said in her cross-examination that Naseem was owner of the property and Naseem had allowed her to occupy the suit property. The defendant no.1 has not produced any documents to prove ownership of Naseem qua the suit property. In her cross-examination, the defendant no.1 has further stated the fact that she had paid Rs.4 lakh to Naseem was not stated by her in her written statement. It is well settled law that the parties must first plea in the pleadings and prove those facts in their evidence. It is also well settled law that if the parties have not pleaded any fact in its pleadings then they are not permitted to prove those facts in evidence. When the defendant has not stated anywhere in the written statement that she was put into permissible right of possession in the suit property by Naseem she cannot be allowed to say in her cross- examination that she was put into permissive possession by Naseem.
28. Further, the defence set up by the defendant no.1 in her written statement and her examination-in-chief as well as in the statements made in her cross-examination seems to be not specific but they are evasive. The defendant has not contended in her written statement how she has come into permissible right of possession of the suit property.
29. Furthermore, in the later part of her cross-examination, the defendant no.1 has stated that she was not denying that the mother of the CS DJ no.476/19 Page No. 14 / 21 plaintiff and the defendants no.2-5 was the owner of the property. Once she has admitted that mother of the plaintiff and the defendants no.2-5, who are siblings of the plaintiff, are owners of the suit property how can she deny the ownership of the plaintiff, who is contesting the present suit against the defendant no.1, qua the suit property. The plaintiff has produced the documents in favour of her mother qua the suit property which have not been disputed by the defendant and more particularly, as noted above, the ownership of mother of the plaintiff and the defendants no.2-5 qua the suit property is also not denied by the defendant no.1.
30. One of the contentions raised on behalf of the defendant no.1 during the course of final arguments is that a co-owner cannot maintain a suit for possession without impleading other co-owners.
31. To counter such contention, the learned Counsel for the plaintiff has referred to the judgments in Mahavir Prashad v. Sukhdev Mongia, 1990(40) DLT 82, Smt. Premwati v. Raghubans, 1992(2) RCR(Rent) 565 and Dharam Singh v. Jagdish, AIR2005HP10 to argue that suit for possession against a trespasser filed by one co-owner without impleading other co-owners can be maintained by one co-owner.
32. A division bench of Hon'ble High Court of Delhi has applied the principal laid down in the cases reported in AIR 1980 Calcutta 113; AIR 1970 Patna 1 and AIR 1984 P&H 58 in Mahavir Prashad's case (supra) and has held as follows:-
"Applying the principles laid down in the case reported in AIR 1980 Calcutta 113; AIR 1970 Patna 1 and AIR 1984 Punjab and Haryana 58, we hold that the plaintiffs as co-owners of the property are entitled to file th suit for possession against the defendant who is alleged to be trespasser thereof and thus the suit is maintainable. Hence, our answer CS DJ no.476/19 Page No. 15 / 21 to Issue no.1 is that the plaintiffs are co-owners of the property and it cannot be said that the suit is not maintainable on the ground of absence of the plaintiffs' title to the property."
33. The judgment in Mahavir Prashad's case (supra) has been followed by Hon'ble Delhi High Court in another case entitled Smt. Premwati's case (supra).
34. The Hon'ble Himachal Pradesh High Court has also took similar view in Dharam Singh's case (supra) and has held as follows:-
"4. In the present appeal, the only question agitated was that a suit filed by a co-sharer without impleading the other co-sharers for possession against trespasser was bad in law and the learned Additional District Judge has erred in granting the decree in favour of the plaintiff.
5. The question whether a co-sharer can institute and maintain a suit for possession against a trespasser in respect of the entire property irrespective of his share therein without impleading the other co- sharers, is maintainable or not, came up before a Full Bench of the Patna High Court in other co-sharers, is maintainable or not, came up before a Full Bench of the Patna High Court in Ram Niranjan Das v. Loknath Mandal, AIR 1970 Patna 1, and it was held that such a suit be a co-sharer without impleading the other co-sharers was maintainable and that a co-sharer can recover the possession of the entire land from a trespasser irrespective of his share therein.
6. A similar question also arose before the Full Bench of the Punjab and Haryana High Court in Ajmer Singh(deceased by L.Rs) v. Shamsher Singh, AIR 1984 Punjab and Haryana 58. Following the ratio laid down by the Full Bench of the Patna High Court, it was held that suit by a co-sharer for possession against a trespasser without impleading the other co-sharers is maintainable and a decree for possession can be passed. I am in full agreement with the ratio, learned Additional District Judge rightly held the suit to be maintainable and granted a decree for possession in favour of the plaintiff."
35. In the light of law laid down in Mahavir Prashad's case (supra), Smt. Premwati's case (supra) and Dharam Singh's case (supra), a suit by a co-owner against a trespasser without impleading the other co- owners is maintainable and a co-owner can recover the possession of the entire property from a trespasser and the contention raised by counsel for CS DJ no.476/19 Page No. 16 / 21 the defendant no.1 is not sustainable. But, for the above discussion the defence set up by the defendant no.1 also seems to be contradictory. On the one hand, the defendant no.1 is denying right of the title of the plaintiff to recover possession from the plaintiff and on the other hand after admitting the title of mother and other siblings of the plaintiff the defendant no.1 is contending that the plaintiff being a co-owner only cannot maintain a suit to recover possession from the defendant no.1 without impleading others.
36. The subject matter of the suit is an immovable property. Rule 3 of Order 7 of CPC reads as follows:
"Where the subject-matter of the suit is immovable property- Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers."
37. As per the provisions of Order 7 Rule 3 CPC what the law requires is that the description of the property in suit given in the plaint must be sufficient to identify the property.
38. As regards description of the suit property sufficient to identify it, it is stated by PW5 S.M. Anis, the plaintiff that Mohd. Shafiq, husband of the defendant no.1 was a tenant in respect of a room and WC/bath on the first floor of the property no. 6947 (private no.6947C), situated at Chowk Ahata Kedara, Bara Hindu Rao, Delhi-110006, which is shown in 'blue' colour in the site plan attached and the site plan is correct as per the site which is Ex.PW5/3. During the cross-examination of PW5, he has denied the suggestion put to him that the site plan Ex.PW5/3 was not as per site. However, PW5 S.M.Anis has specifically CS DJ no.476/19 Page No. 17 / 21 stated in his cross-examination that the rooms in unauthorized occupation of the defendant no.1 have been duly shown in 'red' colour and the room which was in occupation of the husband of the defendant no.1 has been shown in the 'blue' colour. On the other hand, the defendant no.1 has not filed any counter site plan. In her cross- examination she has admitted that she had not filed any site plan in respect of the suit property along with her written statement or thereafter. The defendant no.1 has not disputed the site plan filed by the plaintiff in her cross-examination and she has very vaguely stated that she did not know whether the site plan filed by the plaintiff with the suit was true and correct site plan. Further, in her cross-examination, the defendant no.1 has admitted that her husband had vacated one room which was under his tenancy through Court bailiff on 25.07.2015. The defendant no.1 has stated to be in possession of one room as a tenant in her cross-examination but she has not stated specifically in what capacity she is in possession of the suit property. In the site plan Ex.PW5/3, the plaintiff has specifically shown one room in 'blue' colour which was under tenancy of the husband of the defendant no.1 and he has also shown two rooms in 'red' colour and stated in the site plan "defendant unauthorized occupant portion shown in red colour".
39. As noted above, the defendant no.1 has not filed any site plan to counter the site plan filed by the plaintiff which is Ex.PW5/3. During the cross-examination of PW5 nothing has come out which can destruct the veracity of site plan filed by the plaintiff. During the cross- examination of defendant no.1 also, she has not disputed the correctness of the site plan Ex.PW5/3. It is well settled law that if the defendant does not file his site plan to dispute the site plan of the plaintiff then the CS DJ no.476/19 Page No. 18 / 21 site plan filed by the plaintiff is deemed to be admitted to be correct and the defendant cannot be permitted to challenge the site plan of the plaintiff. In view of the above, the plaintiff has successfully proved the site plan (Ex.PW5/3) filed by him to be correct as per the site or that it is sufficient to identify it and in that site plan he has sufficiently shown the portion to the unauthorized occupation of the defendant no.1.
40. In the light of above discussion, the plaintiff has proved the description of the suit property sufficient to identify it.
41. As regards the perpetual injunction prayed for by the plaintiff, he has proved his right qua the suit property. The defendant no.1 is not only unauthorized occupant/trespasser in the suit property but she is also denying the title of the plaintiff qua the suit property, more particularly, in the light of facts that admittedly, her husband was a tenant in one room on the same floor of the same property under the plaintiff, therefore, I am of the clear view that this is a fit case to issue perpetual injunction for restraining the defendant no.1 and her associates etc. from creating third party interest in respect of the suit property.
42. For the discussion above stated, these issues are decided in favour of the plaintiff and against the defendant.
Issues no.3 and 5
-Whether plaintiff is entitled to a decree of mesne profits/damages from defendant no.1 @10,000/- per month for last 3 years and also for pendent lite and future damages also till actual possession is handed over?
-Whether plaintiff is entitled to costs of the suit along with interest?
CS DJ no.476/19 Page No. 19 / 2143. Issues no.3 and 5 are being taken together being inter-connected. The onus to prove these issues was placed on the plaintiff.
44. While deciding issues no.1, 2 and 4, this Court has already observed that the defendant no.1 along with her family are in unauthorized occupation of the suit property. It is not the case of the defendant no.1 that she is paying any user charges to the plaintiff for use and occupation of the suit property. In her cross-examination, the defendant no.1 has admitted that the present rent of one room in the suit property is around Rs.4000/- per month. In view of the admission on behalf of the defendant no.1, I restrict the user charges/damages/mesne profits to Rs.4000/- per month per room only for the period of 3 years immediately preceding the institution of the present suit till the date of handing over vacant possession of the suit property to the plaintiff.
45. As regards relief regarding payment of costs for suit, obviously, as per the provisions of Section 35 of CPC, the costs shall follow the event and this Court finds no reasons to disallow the costs and interest.
Relief
46. In view of the discussion above-stated, this suit is decreed. The defendant no.1 shall hand over the possession of the suit property, consisting of two rooms with bath/WC in property bearing no.6947 (Private no.6947C), First floor, Chowk Ahata Kedara, Bara Hindu Roa, Delhi-110006, more specifically shown in 'red' colour and marked 'A' and 'D' in the site plan Ex.PW5/3 and put the plaintiff into vacant possession of the suit property. The defendant no.1 shall pay to the plaintiff mesne profits/damages @Rs.8,000/- per month for both rooms CS DJ no.476/19 Page No. 20 / 21 for the period of 3 years immediately preceding the institution of the present suit till the date of handing over vacant possession of the suit property to the plaintiff. The defendant no.1 and her associates etc. are restrained from creating third party interest in respect of the suit property. The defendant shall also pay interest on the said sum @6% per annum from the date of accrual till its payment. The defendant shall also pay the costs of the suit to the plaintiff. Decree sheet be prepared accordingly.
DR Digitally signed
by DR RAKESH
Announced in the Open Court RAKESH KUMAR
Date: 2023.06.03
KUMAR 17:34:18 +0530
on 31st May, 2023
(Dr. Rakesh Kumar)
Additional District Judge
Central, Tis Hazari Courts, Delhi
CS DJ no.476/19 Page No. 21 / 21