Delhi District Court
Sh. Raj Kumar vs Mahesh Kumar Verma on 16 April, 2019
IN THE COURT OF SH. NARINDER KUMAR,
ADDITIONAL DISTRICT JUDGE-2 (NORTH-WEST), ROHINI
COURTS, DELHI.
Civil Suit no. 77635/2016.
Date of Institution : 07.02.2011.
Date of decision : 16.04.2019.
Sh. Suresh Kumar Sharma
S/o Late Sh. Jit Ram Sharma,
r/o H-242,Vikas Puri,
New Delhi. .....Plaintif
VERSUS
1. Sh. Raj Kumar
S/o Sh. Ganga Saran
C/o Plot no. 1441-F, Rani Bagh,
Sant Nagar Road, Shakurbasti,
Delhi.
2. Smt. Asha Devi
W/o Sh. Raj Kumar
C/o Plot no. 1441-F, Rani Bagh,
Sant Nagar Road, Shakurbasti,
Delhi. .....Defendants
Suit for Possession, Recovery of amount of Damages &
Mesne Profits, Declaration and Injunction.
JUDGMENT
Plaintiff instituted this suit initially before the Hon'ble High Court of Delhi on 03.02.2011. Ultimately, it came to be transferred to District Courts, vide order dated 23.01.2016.
The plaintiff has sued defendant no. 1 Sh. Raj Ku- mar and defendant No.2, Smt. Asha Devi, wife of defendant No.1, for decree of possession,recovery of amount by way of damages and mesne profits, declaration and injunction on the ground that their licence in respect of the suit property stands terminated, but even then they have not vacated the same.
Relief prayed in the suit reads in the manner as :
(a). Pass a decree of possession in favour of the plaintiff and against the defendants directing the defendants or any person claiming under them to hand over the actual and physical possession of the premises in question i.e. plot bearing no. 1441-F, Rani Bagh, Sant Nagar Road, Shakurbasti, Delhi, measuring 150 sq. yards, as shown in red colour in the site plan.
(b). Pass a decree for declaration that alleged documents i.e.
(i). alleged unregistered General Power of Attorney dated 03.04.1978
(ii). alleged unregistered agreement to sell dated 03.04.1978 ;
(iii). alleged receipt dated 03.04.1978 ;
(iv). alleged unregistered General Power of Attorney dated 21.04.1997
(v). alleged unregistered Will dated 21.04.1997;
(vi). alleged unregistered Gift Deed dated 21.04.1997 submitted before the NDPL by the defendants, and / or, any other documents allegedly executed by the deceased father of the plaintiff or plaintiff in favour of the deceased father of the defendant no. 1 ; Defendant no. 1 or defendant no. 2 or anybody else in respect of the suit property i.e. plot bearing no. 1441-F, Rani Bagh, Sant Nagar Road, Shakurbasti, Delhi, measuring 150 sq. yards as shown in red colour in the site plan are forged, fabricated and illegal ; declare the above said documents as null and void, and, unenforceable and can- celled.
(c). Pass a decree of recovery of amount of Rs.3,04,000/- comprising of Rs.2,70,000/- towards the amount of damages for use and occupation of the premises in question from August 2009 till January 2011 ; the amount of Rs.23,000/- towards the interest on the said amount and the amount of Rs.11,000/- towards the cost of the legal notice sent to the defendant by the plaintiff, in favour of the plaintiff and against the defendants as mentioned in para 56 of the plaint alongwith the interest @ 15 % per annum from the date of present suit till the realization of the same.
(d). Pass a decree for mesne profits as damages for il- legal use and occupation of the premises in question by the defendants from the month of February 2011 till the date of recovery of the possession of the property in question as shown in red in the site plan attached to the plaint at the rate of Rs.15,000/- per month or any other amount as deem fit by this court along with interest @ 15% per annum from the month of February 2011 till the realization of the same in favour of plaintiff and against the defendants.
(e). Pass a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining the defendants from dealing in any manner, transferring or creating any third party rights and handing over the posses- sion and raising construction on the property i.e. plot measur- ing 150 sq. yards, bearing no. 1441-F, Rani Bagh, Sant Nagar Road, Shakurbasti, Delhi, as shown in red colour in the site plan attached to the plaint against the interest of the plaintiff.
(f). Pass a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining the defendants from objecting and creating obstructions for the plaintiff from entering in the property i.e. plot bearing no. 1441-F, Rani Bagh, Sant Nagar Road, Shakurbasti, Delhi, as shown in red colour in the site plan attached to the plaint against the interest of the plaintiff.
Case of the plaintif
2. The plaintiff claims that the suit property was owned by his father. He claims himself to be owner of plot measuring measuring 150 sq. yards bearing no. 1441-F, Rani Bagh, Sant Nagar Road, Shakurbasti Delhi (hereinafter re- ferred as suit property), on the basis of a Will executed in his favour by his father.
From some documents filed by defendants with NDPL, a company which distributes electricity, he came to know that the defendants had played a fraud against his fa- ther to grab the property. With NDPL, an application for is- suance of new electric- connection in the name of defendant no. 2 is said to have been filed on the basis of forged and fab- ricated documents.
Thereupon, the plaintiff and his father went to the property in question on 08.02.2009 to apprise the defendants and other family members about the fraud committed by them. At that time, from the side of the defendants, it was represented that they were owners of the suit property. Thereafter, on 15.02.2009, plaintiff and his father contacted the defendants for further discussion on this point, but the defendants again claimed that suit property belong to them.
On 28.02.2009, plaintiff and his father are alleged to have again visited premises in question and requested the defendants to vacate the same but they and their daughters misbehaved with the father of the plaintiff.
The plaintiff is said to have reported the matter to Crime Branch, Delhi on 30.03.2009.
The case of the plaintiff is that defendant no. 1 was merely permissive user in respect of the portion of the land and that the possession of the defendants is against the will and consent of the plaintiff.
It is also case of the plaintiff that the defendants instituted a suit for decree of declaration and permanent in- junction in respect of suit property on the basis of false and concocted story and aforesaid forged and fabricated docu- ments.
The plaintiff got lodged FIR no. 06/2009, PS Rani Bagh, against the defendants. Thereafter, in their suit, the defendants filed an application for settlement. They sought permission to abandon prayer 'B' in the suit i.e. regarding declaration in respect of the suit property.
On the aforesaid grounds, plaintiff has instituted suit for relief in the manner indicated therein.
The defendants appeared and filed joint written statement contesting the suit .
Version of defendants
3. On merits, the defendants have contested the suit disputing the claim of the plaintiff that he is owner of the suit property or that they (both the defendants) are in unautho- rized occupation thereof.
The defendants claim that they are in possession of whole suit property measuring 160 sq. yards for the last more than 33 years. They have also disputed the claim of the plaintiff that Sh. Jit Ram Sharma, father of the plaintiff, was absolute owner of the property.
As pleaded by the defendants, the suit property forms part of khasra no.292, which belongs to gaon sabha and was acquired by the government at public expenses for public purposes, as per notification dt. 24.10.1961. Award @ Rs.1500/- per bigha for the land forming part of khasra no. 292 is alleged to have been paid to the interested party vide award no. 1775. In this manner, defendants claim that the plaintiff fabricated and manipulated the documents in respect of suit property much after acquisition thereof by govern- ment.
At the same time, defendants claim that Sh. Ganga Ram father of defendant no. 1 has been in possession of the suit property from late 70's when the land in question was Banzer. It is case of defendants that Sh. Ganga Ram was a mason and he raised construction on a part of the land i.e. suit property and started living there.
Defendants deny that Sh. Jit Ram Sharma permit- ted Sh. Ganga Ram and his family member to reside in the portion of the suit property on temporary basis, the reason being that Sh. Jit Ram had no right, title or interest over it.
The defendants admit that Shri Jit Ram father of plaintiff used to avail the services of father of defendant no. 1 in construction work carried out at several places in his own supervision, but, their case is that Sh. Jit Ram with-held wages of Sh. Ganga Saran and with a view to settle wages so held, Sh. Jit Ram Sharma, in the year 1978 entered into an ar- rangement with one Smt. Chander Kanta, who is then alleged to have been executed documents like GPA etc. in favour of Sh. Ganga Ram at the instance of Sh. Jit Ram.
Defendants further claim that Sh. Ganga Ram (fa- ther of the defendant no. 1) left this world and that is how, the present defendants, continued to be in possession of the suit property.
Defendants admit to have instituted suit for decla- ration, permanent injunction against the plaintiff and further that they abandoned the relief of declaration by filing an ap- plication u/o 23 rule 1 CPC and by statement made in this re- gard. During the days, written statement was prepared, the suit was admittedly pending and listed for 24.05.2011.
It has been brought to the notice of the court, by learned counsel for the parties, that suit was got ultimately dismissed as having been withdrawn.
On the aforesaid grounds, defendants have op- posed the claim of the plaintiff that they were in permissive used of the property.
The fact of registration of FIR no. 06/2009 has not been disputed by the defendants.
The averment of the plaintiff that Smt. Asha Devi i.e. defendant no. 2 applied for electricity connection, in the suit property, has been admitted, but at the same time, de- fendants have claimed that it was applied for on the basis of documents executed in favour of Sh. Ganga Ram, father-in- law of defendant no. 2.
Certain preliminary objections have also been raised by the defendants.
Replication
4. Plaintiff filed replication reiterating the averments put forth in the plaint and controverting pleas put forth in the written statement of defendants.
Plaintiff has denied that suit property was owned by Sh. Ganga Saran or that it was ever acquired by the gov- ernment by any award vide notification referred to by the de- fendants.
Plaintiff claims that defendants have no right, title or interest to occupy the suit property as against interest of the plaintiff.
Points for Consideration:
5. From the pleadings of the parties, following issues were framed on 08.10.2013 :
1. Whether the suit is bad for non-joinder of necessary parties? OPD.
2. Whether the suit has not been properly valued for the purpose of jurisdiction and court fee? OPD.
3. Whether the plaintiff is entitled for the decree of possession in his favour and against the defendants in respect of the suit property ? OPP.
4. Whether the plaintiff is entitled for the decree for declaration declaring the documents relied upon by the defendants, that is, unregistered power of attorney dated 3rd April, 1978, unregistered agreement to sell dated 3rd April, 1978, receipts dated 3rd April, 1978, unregistered General Power of Attorney dated 21st April, 1997, unregistered Will dated 21st April, 1997, unregistered Gift Deed dated 21st April, 1997 submitted before the NDPL by the defendants as forged and fabricated and do not convey any right, title or interest in respect of the suit property in fvour of the defendants?
OPP.
5. Whether the plaintiff is entitled for recovery of the amount as prayed? OPP.
6. Whether the plaintiff is entitled for the mesne profits and damages for illegal use and occupation of the premises in question by the defendants from February, 2011 till the recovery of possession? If so, at what rate? OPP.
7. Whether the plaintiff is entitled for the interest on the amount of recovery from the defendants? If so, at what rate? OPP.
8. Whether the plaintiff is entitled for decree of permanent injunction as prayed in the suit? OPP.
9. Whether the defendants became owners by way of adverse possession? OPD.
10. Relief.
Evidence of the Plaintif:
6. Plaintiff has himself examined as PW-1. He has also examined PW-2 Sh. Jitender Singh S/o Late Sh. Ranbir Singh.
Evidence of the defendants:
7. Defendant no. 1 has examined himself as DW-1.
Defendants have also examined Sh. Balbir Singh as DW-2.
Defendant No.2 has not slipped in witness box.
8. Arguments heard. File perused.
ISSUES NO. 3, 4 & 9. (Whether the plaintiff is entitled for the decree of possession in his favour and against the defendants in respect of the suit property ? OPP., Whether the plaintiff is entitled for the decree for declaration declaring the documents relied upon by the defendants, that is, unregistered power of attorney dated 3 rd April, 1978, unregistered agreement to sell dated 3 rd April, 1978, receipts dated 3 rd April, 1978, unregistered General Power of Attorney dated 21 st April, 1997, unregistered Will dated 21st April, 1997, unregistered Gift Deed dated 21 st April, 1997 submitted before the NDPL by the defendants as forged and fabricated and do not convey any right, title or interest in respect of the suit property in fvour of the defendants? OPP., AND Whether the defendants became owners by way of adverse possession? OPD.)
9. All these three issues are interconnected and such taken up together.
As noticed above, plaintiff has come to the court on the averments that his father Sh. Jit Ram Sharma was the owner of the suit property measuring 150 sq. yards, forming part of plot no. 31, out of khasra no. 292, situated in the area Salem Pur, Mazra Madhipur, abadi known as Rani Bagh, Shakur Basti, Delhi, having purchased the same on 17.07.1974 on payment of consideration of Rs.21,000/- to Smt. Alka Banbah D/o Sh. Ram Prakash Puri W/o Sh. D. P. Banbah, R/o 51, Rani Bagh, Shakur Basti, Delhi-34. At that time, Smt. Alka Banbah executed agreement for sell, duly registered receipt of Rs.21,000/-, Will and affidavit all dated 17.07.1974, in favour of Sh Jit Ram Sharma. She is also said to have executed the General Power of Attorney dated 17.07.1974 in respect of the property in question, and got the same registered with the office of Sub-Registrar, Delhi. On 17.07.1974 she also handed over physical possession of the said property to Sh. Jit Ram Sharma.
To complete the chain, plaintiff has put forth the version that Smt. Alka Banbah had purchased said land i.e. plot no. 31 from Smt. Lalwanti W/o Sh. Giani Bhagwan Singh and Smt. Lovlin Kaur D/o Sh. Giani Bhagwan Singh and Smt. Parmeshwari Devi vide registered sale deed, registered as document number 3021, additional book no. I, Vol. No. 1102, pages 85 to 87, on 16.07.1969 in the office of the Sub-Registrar, Delhi.
Smt. Lajwanti and Smt. Lovlin Kaur are stated to have purchased the portion of the said plot no. 31 from its previous owner Sh. Khubi S/o Sh. Bihari vide registered sale deed dated 09.09.1965, registered as document 11444, additional book no I, Vol. No. 1397, pages 07 to 08, registered on 16.09.1965 in the office of the Sub- Registrar, Delhi. Smt. Parmeshwari Devi had purchased other portion of the said plot no. 31 from Sh. Khubi S/o Sh. Bihari vide registered sale deed dated 09.09.1965 registered a document no. 11445, additional book no. I, Vol. no. 1397, on pages 9 to 10 registered on 10.09.1965 in the office of Sub-Registrar, Delhi.
In this way, plaintiff has relied on following documents to support his version that Sh. Jit Ram Sharma, his father, was owner of the suit property :
Ex.PW-1/2, certified copy of the sale deed dated 09.09.1965 executed by Sh. Khubi in favour of Smt. Lajwanti & Smt. Lavlin Kaur.
Ex.PW-1/3, certified copy of the sale deed dated 09.09.1965 executed by Sh. Khubi in favour of Smt. Parmeshwari Devi.
Ex.PW-1/4, certified copy of the sale deed dated 09.09.1965 executed by Smt. Lajwanti, Smt. Lovlin Kaur and Smt. Parmeshwari Devi in favour of Mrs. Alka Banbah.
Ex. PW-1/5, certified copy of the General Power of Attorney dated 17.07.1974.
Ex.PW-1/6, certified copy of the receipt dated 17.07.1974 executed by Mrs. Alka Banbah in respect of the suit property in favour of Sh. Jit Ram Sharam.
Ex.PW-1/7, copy of agreementn for sale dated 17.07.1974 executed by Mrs. Alka Banbah in favour of Sh. Jit Ram Sharma in respect of suit property.
Ex.PW-1/8, copy of the Will dated 17.07.1974 executed by Mrs. Alka Banbah in favour of Sh. Jit Ram Sharma, in respect of the suit property.
Ex.PW0-1/9, copy of the affidavit dated 17.07.1974 executed by Mrs. Alka Banbah in respect of the suit property.
Learned counsel for the defendants has referred to decision in Suraj Lamp and Industries Private Limited v. State of Haryana and Another, (2012) 1 Supreme Court Cases 656, to submit that no reliance can be placed on the aforesaid documents relied upon by the plaintiff, in absence of any registered document to show that father of plaintiff was having any title in respect of the suit property.
It is true that the plaintiff has not relied on any sale deed in favour of his father in respect of the suit property, but in view of the evidence available on record that in the earlier suit filed by the present defendants, they admitted that Sh. Ganga Ram, father of the defendant no. 1 was allowed by the father of the present plaintiff to settle in the plot in dispute, non production of any sale deed or other title document, by the plaintiff in the name of his father, does not adversely affect the case of the plaintiff or come to the aid of the defendants.
Version of defendants in the earlier suit
10. At this stage, it is pertinent to refer to the version of the defendant No.2-plaintiff in the suit for declaration. Ex.P- 1 is the copy of the plaint of said suit. In its para nos. 2, 3 & 4 case of the defendant-plaintiff was as under:
"That about 30 years back, the father of the plaintiff no. 2 and Sh. Jeet Ram Sharma (father of the defendant no. 1) was working in the locality as Rajmistri jointly.
That Sh. Jeet Ram Sharma retained the wages of Sh. Ganga Ram (father of the plaintiff no. 2) and in lieu thereof allow him to settle in plot in dispute.
That thereafter, Sh. Ganga Ram raised a hut over the suit property and resided therein alongwith his family. The marriage of the plaintiff no. 2 also took place in the same suit property and after the marriage, the plaintiff no. 1 join her matrimonial home in the abovesaid suit property and residing therein since then peacefully and without any hindrance or obstructions from any person."
But herein, in his cross-examination of DW-1, denied to have come up with the aforesaid claim in the aforesaid suit for declaration that his father Sh. Ganga Saran was permissive user under the father of plaintiff. This denial by DW1 in his cross-examination is an after thought.
Defendants have not led any evidence as to for which period Shri Jit Ram Sharma had withheld wages of Shri Ganga Saran. In absence of any such evidence, it cannot be said that Shri Jit Ram Sharma ever withheld any wages of Shri Ganga Saran. Consequently, the question of transfer of any part of the suit property in favour of Sh.Ganga Saran did not arise. The plea of the defendants that Sh. Jit Ram Sharma got executed some documents in favour of Shri Ganga Ram through Smt. Chander Kanta, is without any basis.
In case any wages were due from Sh. Jit Ram Sharma, then Sh. Jit Ram Sharma would have executed documents directly in favour of Sh. Ganga Saran. There was no question of execution of any document by him in favour of Smt. Chander Kanta. It remains unexplained as to why the documents were initially executed in favour of Smt. Chander Kanta. As a result, this plea of the defendants falls to the ground.
Court finds that defendants have not come with clean hands and to defeat the case of the plaintiff they have even disowned the version put forth earlier in the suit for declaration as regards their status in respect of the suit property.
In his cross-examination, plaintiff Sh. Suresh Kumar Sharma, PW1 deposed that his father had purchased this property in the year 1974. At that time, it was bearing plot no.31, forming part of khasra no 292, in Village Madhipur, Delhi. Rotal area of this plot bears no. 31 was 267 sq. yards and out of this total area, only 150 sq. yards, according to PW-1, belong to his father whereas the remaining area 117 sq. yards belonged to another person.
According to plaintiff, suit property bears no.1441-F. He has explained that plot no. 31 was ultimately assigned property no. 1441-F by MCD.
Learned counsel for the defendants submitted that the plaintiff has not got duly proved the site plan Ex. PW-1/1.
As regards, the site plan Ex.PW-1/1, the plaintiff stated in his cross-examination that it was got prepared from Sh. P. P. Verma, draftsman under his instructions. Even defendants have placed on record site plan Ex.DW-1/1 and deposed about the same, without examining any draftsman, who is said to have prepared the same.
Learned counsel for the defendants submitted that the area of the suit property 160 sq. yards and not 150 sq. yards as claimed by the plaintiff.
In all the documents relied upon by the plaintiff, the area of the plot, purchased by father of the plaintiff, find mentioned as 150 sq. yards. Defendants have not placed on record any document worth reliance so as to suggest that the area of the suit property is 160 sq. yards. Therefore, there is no merit in the contention raised by learned counsel for the defendants.
Undisputedly, Sh. Jit Ram Sharma, left his world on 03.03.2009. According to PW-1 his father resided at Pitampura address upto 1986 and thereafter with him in the area of Vikas Puri .
According to PW1, his father executed Will Ex.PW- 1/10 dated 28.12.2002, in his favour, in respect of suit property. In his cross-examination, he stated that this Will was executed in his presence.
The plaintiff has also examined PW-2 Sh. Jitender Singh, one of the attesting witnesses of Will Ex.PW-1/10. PW-2 has duly proved execution of Will Ex.PW-1/10 by Sh. Jit Ram Sharma in his presence.
There is nothing in statement of PW-2 to disbelieve the execution of Will by Sh. Jit Ram Sharma in favour of plaintiff.
Learned counsel for the defendants referred to the Will and pointed out that at one place, the number of the property has been typed as 1551-F, to contend that it cannot be said that father of the plaintiff bequeathed the suit property no. 1441-F in favour of the plaintiff.
It is true that in the Will, at one place the number of the property has been typed as 1551-F, but it appears to be a typographical mistake, which father of the plaintiff could not take notice of while executing the Will. Initially, the father of the plaintiff specifically mentioned number of the property as 1441-F. It is also not case of the defendants or that of the plaintiff that father of the plaintiff owned any property bearing 1551-F. Even otherwise, this typographical mistake does not come to the aid of the defendants when the suit pertains to a particular property about the description or situation of which the parties have no dispute.
At this stage, it would be appropriate to discuss the evidence of the defendants.
Documents relied upon by the defendants.
11. Defendant Sh. Raj Kumar-DW1 has tendered in evidence his affidavit Ex.D-1 and also relied upon the documents Ex.DW-1/1 to Ex.DW-1/12.
Ex. DW-1/12 is copy of demand notice issued by NDPL dated 15.12.2018 to defendant no. 2 i.e. wife of defendant no. 1. With the application for electric connection, copies of some documents were submitted to NDPL. Defendants admit to have applied for electricity connection for supply of electricity at the suit property. In this situation, it was for the defendants to prove that such and such document was executed in favour of defendant No.2 in respect of the suit property. But surprisingly, after having submitted their photocopies to NDPL, they did not produce any such document on record. Had the defendants any independent right, title or interest in the suit property on the basis of any such document, they must have produced and proved the same on record. But, the fact remains that they have not brought on record any such document in favour of defendant No.2. Rather, they have withheld documents on the basis of which the electricity connection was applied for. Due to withholding of documents, adverse inference has to be drawn against the defendants that in case those were produced and proved, same would have gone against the defendants.
Significantly, in his cross-examination, DW-1 clearly has admitted that no document of ownership of the suit property exists in his name or in the name of his father or in the name of defendant no. 2.
At this stage, reference to para 14 of the affidavit of DW1 by way of evidence would be appropriate. In this para, DW1 has testified that the defendant no. 2 applied for the electricity connection on the basis of the photocopy of the documents handed over by Sh. Jit Ram Sharma to the deponent.
But in his cross-examination, DW1 clearly stated that Sh. Jit Ram Sharma had never given any document as testified by him in para no. 14 of his affidavit.
When DW-1 was questioned regarding the contents of his affidavit, particularly, in para no. 14, he replied that he had signed whatsoever was dictated by his lawyer. He then displayed ignorance about the contents of his affidavit. However, when he realized as to what would be the consequence of displaying of ignorance about the contents of the affidavit, the witness came up with the version that he had signed the same after his lawyer apprised him of its contents and further that it was prepared by him (his Advocate) under his instructions.
It is pertinent to mention here that earlier both the defendants had filed a suit for declaration claiming ownership in respect of the suit property. The said suit was withdrawn by the defendants.
As DW-1, Sh. Raj Kumar (defendant no. 1) has admitted the factum of filing of suit for declaration in respect of the suit property and further that he withdrew the same on 04.03.2011.
Admittedly, initially the relief of declaration was abadoned in that suit. Had the defendants any truth in the version put forth in the suit for declaration, defendants would not have abadoned the relief for declaration and ultimately also never allowed dismissal of the suit for the relief of injunction. The conduct of the defendants in abandonment of the claim for decree of declaration speaks volumes against the defendants as regards their version put forth in this case.
In his cross-examination, DW-1 Sh. Raj Kumar admitted the water connection for the suit property was in the name of Sh. Jit Ram Sharma father of the plaintiff. According, to DW-1 father of plaintiff for this first time visited the suit property to take possession from them in the year 2009 and never prior thereto. At that time, he is said to have reported the matter to the police, but DW-1 further admitted that no FIR was recorded. Admittedly, he never tried to find out as to who is owner of the suit property. Even his father did not take any step in this regard.
As regards, the documents submitted to NDPL to obtain electricity connection, DW-1 stated in his cross- examination that these documents DW-1/X-1 were provided to him by his father Shri Ganga Ram. But, according to DW-1, original of this documents were taken away by the father of the plaintiff. There is no truth in this explanation put forth by DW1. First of all, it is not believable that defendants would have permitted Jit Ram Sharma to take away their documents in respect of the suit property. Had Jit Ram Sharma taken away any such document, they would not have kept mum. They would have resorted to lawful remedy and even got a criminal case registered against him. No such step was taken by them. This conduct also speaks volumes against the defendants and about the hollowness of their case.
In view of this statement of DW1, court does not find any merit in the contention raised by learned defence counsel that the suit property ever belonged to Ganga Saran, father of defendant No.1 and father in law of defendant No.2, particularly, when no document has been admittedly produced on record by the defendants to suggest that they have any title qua the suit property.
Court also finds that plaintiff has fully established that actually his father had allowed Sh. Ganga Saran to stay in a part of the suit property on temporary basis, while he used to work as a mason and was involved in construction in various properties of Shri Jit Ram Sharma. Conclusion as to status of the defendants
12. In view of the above discussion, court finds that father of defendant No.1 came into possession on permission granted by the father of the plaintiff. He was so permitted as he was a mason and his services were required from time to time. So, the status of the father of defendant No.1 in respect of the suit property was only that of a licencee. Defendant No.1 and 2 cannot be said to have any better status then that of Shri Ganga Saran. They too can simply be termed to be licencees in respect of the suit property until termination of license.
In the course of arguments, learned counsel for defendants argued that father of the plaintiff was not owner of the suit property. At this stage, it is very much relevant to refer to the provisions of Section 116 of the Evidence Act which read as follows:-
"116. Estoppel of tenant; and of license of person in possession. No tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when license was given. In Bansraj Laltaprasad Mishra V. Stanley Parker Jones, AIR 2006 SC 3569, Hon'ble Supreme Court in paragraph14 and 15 held as under:-
"14. The "possession" in the instant case relates to second limb of the Section. It is couched in negative terms and mandates that a person who comes upon any immovable property by the license of the person in possession thereof; shall not be permitted to deny that such person had title to such possession at the time when such license was given.
15. The underlying policy of Section 116 is that where a person has been brought into possession as a tenant by the landlord and if the tenant is permitted to question the title of the landlord at the time of the settlement then that will give rise to extreme confusion in the matter of relationship of the landlord and tenant and so the equitable principle of estoppels has been incorporated by the legislature in the said section.
Similar view was taken by the Hon'ble Supreme Court in the case of Sri S.K.Sarma Vs. Mahesh Kumar Verma, AIR 2002 SC 3294.
In Vishal Builders Pvt. Ltd. Vs. Delhi Development Authority & Ors. 2006(130) DLT 667, our own Hon'ble High Court has held that no person who comes into possession of an immovable property on the basis of license or permission of the person in possession thereof can be permitted to deny that such person had a title to such property when such license was given.
Similar is the view of the judgment by own Hon'ble court in the case of Desh Raj Singh Vs. Triveni Engineering & Industries Ltd. & Anr., 2006 (130) DLT 120 The rights or a licensee to stay in possession of the property have been dealt by the Division Bench of this High Court in the case of Chandu Lal Vs. Municipal Corporation of Delhi AIR 1978 Del
174. Relevant portion of paragraph 26 of which is reproduced as under:-
"26...........A mere licensee has only a right to use the property. Such a right does not amount to an easement or an interest in the property but is only a personal privilege to the licensee. After the termination of the license, the licensor is entitled to deal with the property as he likes. The right he gets as an owner in possession of his property. He need not secure a decree of the Court to obtain the right. He is entitled to resist in defence of his property the attempts of a trespasser to come upon his property by exerting the necessary and reasonable force to expel a trespasser.............
In view of the above discussion, the plea of adverse possession putforth by the defendants does not stand established. The statement of DW-2 Sh. Balbir Singh is also of no avail to the defendants on the plea of adverse possession. Consequently, decision in Raju and another v.
Muthuammal and others, AIR 2004 Madras 134 cited by learned counsel for the defendants on the point of adverse possession is no avail to the defendants.
Legal notice was served upon the defendants, but they did not reply the same. Adverse inference has to be drawn against the defendants from their conduct in not even having replied the legal notice.
In view of the above legal position, it would follow that when status of the defendants in respect of the suit property was that of licencees and their license came to be terminated vide notice dt.23.07.2009, they were liable to vacate the suit property and deliver its peaceful possession to the plaintiff.
Declaration as to documents of the defendants submitted to NDPL for electricity connection.
13. So far as the documents relied upon by the defendants at the time electricity connection was applied for by defendant no. 2, in view of the above discussion, court finds that unregistered General Power of Attorney dated 03.04.1978, unregistered agreement to sell dated 03.04.1978, receipt dated 03.04.1978, unregistered General Power of Attorney dated 21.04.1997, unregistered Will dated 21.04.1997, unregistered Gift Deed dated 21.04.1997, those documents have not been produced by the defendants for the reason best known to them. Same can safely be said to have been withheld by the defendants. FIR has already been got registered by the plaintiff in respect of all those documents. Defendants have not examined Smt. Chander Kanta, to prove execution in favour of Sh. Ganga Saran. All these documents therefore deserve to be declared null and void.
As a result, issue no. 9 is decided against the defendants whereas issue no. 3 and 4 are decided in favour of the plaintiff.
ISSUE NO. 5, 6 & 7. (Whether the plaintiff is entitled for recovery of the amount as prayed? OPP, Whether the plaintiff is entitled for the mesne profits and damages for illegal use and occupation of the premises in question by the defendants from February, 2011 till the recovery of possession? If so, at what rate? OPP, AND Whether the plaintiff is entitled for the interest on the amount of recovery from the defendants? If so, at what rate? OPP.)
14. Plaintiff has claimed a sum of Rs. 3,04,000/- to- wards damages for use and occupation of the suit property from August 2009 to January 2011 and Rs.23,000/- towards interest with Rs.11,000/- towards cost of legal notice, with in- terest.
In his affidavit by way of evidence, plaintiff has claimed damages at rate of Rs.15,000/- per month with inter- est @ 15% per annum from the date of amount of damages and Rs.11,000/- towards cost of legal notice, with interest. No documentary evidence has been led by the plaintiff in this regard.
In the course of arguments, when court has pointed out about the evidence on this point i.e. only by way of affidavit of the plaintiff, learned counsel for the plaintiff has referred to decision in Vinod Khanna & Ors. v. Bakshi Sachdev (deceased) though L. R.s & Ors., AIR 1996 Delhi 32 and submitted that Court can have judicial notice about the rate of mesne profits in deciding this issue.
Admittedly, no 'substantial evidence has been led by the plaintiffs in respect of the rate of rent in the properties like that of the suit property. In Vinod Khanna's case (supra), in suchlike situation, Hon'ble High Court has observed in the manner as:
"However, it is a well known fact that the amount of rent for various properties in and around Delhi has been rising staggeringly and we cannot seen why such judicial notice could not be taken of the fact about such increase of rents in the premises in and around Delhi which is a city of growing importance being the capital of the country which is matter of public history. At this stage, we may appropriately refer to the Court taking judicial notice of the increase of price of land rapidly in the urban areas in connection with the land acquisition matter. Even the Apex Court has taken judicial notice of the fact of universal escalation of rent and even raised rent of disputed premises by taking such judicial in case of D.C. Oswal V. V.K.Subbiah; reported in AIR 1992 SC 184. Keeping in view all the facts and circumstances of the case, the area in which the suit property is situate, the kind and use of the suit property and the relationship between the parties, which came to an end with termination of license, I deem it fit a case to allow the plaintiff use and occupation charges, @ of Rs.5000/- (Five Thousand) per month w.e.f. August 2009 to January 2011 and damages at the same rate w.e.f. February 2011, till its realization. Both the defendants are held liable to pay use and occupation charges and damages at this rate to the plaintiff.
Under Issue no. 7, plaintiff is held entitled to interest @ Rs.6% per annum on the amount to be calculated for the aforesaid period at the aforesaid rate.
All the three issues are decided accordingly. ISSUE NO. 8. (Whether the plaintiff is entitled for decree of permanent injunction as prayed in the suit? OPP.)
15. In view of findings under issues no. 3, 4 & 9, and the plaintiff having established his case in respect of entitlement to vacant and peaceful possession of suit property, balance of convenience lies in his favour and in order to save the plaintiff from any irreparable loss, plaintiff is held entitled to decree for permanent injunction as prayed for and consequently defendants have to be restrained from dealing in any manner, transferring or creating any third party rights or handing over the possession of the suit property to any third person.
ISSUE No. 1 (Whether the suit is bad for non-joinder of necessary parties? OPD.)
16. Onus to prove this issue was upon the defendants. The issue appears to have been framed in view of the preliminary objection raised by the defendants in the written statement.
This is suit for possession on the averments that defendants, who were permissive users in the suit property, have not vacated the same despite repeated requests and notice. Decree for declaration in respect of 6 documents, said to have been submitted by defendants before NDPL to seek electricity connection, has also been sought.
Defendants do not dispute that suit property bears No. 1441-F, Rani Bagh, Sant Nagar Road, Shakurbasti, Delhi. They have not led any cogent and convincing evidence that the suit property was ever acquired by government for some public purpose or that any award was passed or anyone was compensated by the government.
In view of the relief prayed by the plaintiff and the controversy between the parties, Court finds that Gaon Sabha was not a necessary party for decision of present suit. Therefore, the suit cannot be said to be bad for non joinder of any necessary party. This issue is therefore, decided against the defendants and in favour of the plaintiff. ISSUE NO. 2 (Whether the suit has not been properly valued for the purpose of jurisdiction and court fee? OPD.)
17. This issue is based on the objection raised by the defendants in para 59A of the written statement. According to the defendants, market value of the suit property is about Rs. 1 Crore. Plaintiff has claimed the value of the suit property to be Rs. 35 lakhs for the purpose of decree of possession.
Defendants have not specified in para 59 (A) of the written statement as to in respect of which relief, the suit has not been properly valued for the purpose of court fees and jurisdiction.
Even otherwise, in a case of termination of licence by suchlike plaintiff, he could pray for decree of mandatory injunction as well, but he has prayed for decree for possession of the suit property.
Onus to prove this issue was on the defendants. Since they have not led any evidence on this issue, same is hereby decided against them.
ISSUE No.10 (Relief)
18. In view of the above findings, suit of the plaintiff is decreed, with costs, in his favour and against the defendants. Decree for possession is passed in favour of the plaintiff and against the defendants and they are directed to vacate the suit property and deliver its possession to the plaintiff within 30 days from today.
Decree for declaration is also passed in favour of the plaintiff and against the defendants and all the following documents are hereby declared null and void:
(i) unregistered General Power of Attorney dated 03.04.1978.
(ii). unregistered agreement to sell dated 03.04.1978.
(iii). receipt dated 03.04.1978.
(iv). unregistered General Power of Attorney dated 21.04.1997.
(v). unregistered Will dated 21.04.1997.
(vi) unregistered Gift Deed dated 21.04.1997.
Decree for recovery of use and occupation charges, damages and mesne profits @ of Rs.5000/- per month w.e.f. August 2009 to January 2011 and damages at the same rate w.e.f. February 2011, till its realization, is also passed in favour of the plaintiff and against the defendants.
Decree for permanent injunction is also passed in favour of the plaintiff and against the defendants and as such defendants are hereby restrained from dealing in any manner, transferring or creating any third party rights or handing over the possession of the suit property to any third person.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the Open Court Digitally signed by NARINDER on 16.04.2019. NARINDER KUMAR KUMAR Date:
2019.04.20 17:27:33 +0530 (Narinder Kumar) Additional District Judge02 (NorthWest), Rohini, Delhi.