Delhi District Court
Mohinder Singh Khurana vs Charanjeet Singh Khurana on 11 May, 2018
In The Court of Charu Aggarwal
Additional District Judge03 (West)
Tis Hazari Courts, Delhi
Suit No.613039/2016
In the matter of :
Mohinder Singh Khurana
s/o late Sardar Mohan Singh
r/o 32/57, Punjabi Bagh West,
New Delhi. .....Plaintiff
Versus
Charanjeet Singh Khurana
s/o Mohender Singh Khurana
r/o 32/57, Punjabi Bagh West,
New Delhi. .....Defendant
Date of institution : 20.07.2016.
Judgment announced on : 11.05.2018
JUDGMENT
1. The plaintiff has filed the present suit for possession, permanent and mandatory injunction against his own son i.e. defendant, in respect of part of the property bearing no. 32/57, Punjabi Bagh West, New Delhi.
2. The case of the plaintiff is that he is owner of the entire property bearing no. 32/57, Punjabi Bagh West, New Delhi, measuring about 555.55 square yards, (hereinafter referred as to the "suit property"). The suit property was purchased by him from the erstwhile owner Shri Chunni Lal Kapoor, vide registered Sale Deed dated 21.10.1970. It is stated that the suit property was purchased by the plaintiff from his own funds and it is his self acquired property. The plaintiff after purchasing the same got the plan sanctioned and raised construction over the plot of the suit property. It is stated that plaintiff has even obtained loan on the suit property, which he repaid with the help of his elder son Amarjeet Singh.
3. The suit property consists of ground floor and the first floor.
Mahinder Singh Vs. Charanjit Singh Page 1 of 19The ground floor is in possession of plaintiff. There is one drawingcum dinning, two bed rooms, garage, common area, lounge on the ground floor and similar is the construction on the first floor. One bedroom alongwith toilet on the ground floor as well as on the first floor, as shown red in colour in the site plan, is in possession of the defendant. The rest of the portion of the first floor of the suit property, is in possession of plaintiff's elder son, who is residing therein, alongwith his family. Both the sons of the plaintiff are residing in the portions of the suit property on license basis.
4. It is further stated in the plaint, that plaintiff besides his wife, has two sons and one daughter. The elder son is Sardar Amarjeet Singh and second son is Sardar Charanjeet Singh (defendant herein). The plaintiff's daughter is married and settled in Hyderabad. Both the sons of the plaintiff are having their independent business. The plaintiff is running a sole proprietorship firm, under the name and style of 'Hindustan Soap Mills'. The defendant has started creating problem to the plaintiff and is not allowing him to live in peace. The defendant and his wife never looked after the plaintiff or his wife. The plaintiff several times had filed complaints in the concerned police station against the defendant. The plaintiff has even disowned the defendant, way back in December2015.
5. Plaintiff has terminated the license of the defendant, by serving legal notices dated 09.09.2014 & 20.04.2016, upon the defendant, calling upon him to handover the possession of the suit property. Despite service of legal notices, the defendant did not vacate the suit property, hence the present suit.
6. In response to the summons of the suit, defendant filed the written statement, stating therein that defendant is in possession of entire ground floor and one room and toilet on the first floor. He has stated that plaintiff is not the exclusive owner of the suit property, but the defendant is also the coowner of the suit property. It is stated that defendant's grand Mahinder Singh Vs. Charanjit Singh Page 2 of 19 father late Sardar Mohan Singh created a Hindu Undivided Family(HUF), in which he was the KARTA and the plaintiff, his brothers and also the defendant and his brother are the members of the HUF. The suit property was purchased by the defendant's grand father in the name of plaintiff. Thus, all the members of the HUF, had equal right in the suit property.
7. The defendant has stated that he is in possession of the property i.e. ground floor and one room with toilet on the first floor of the suit property, being the member/coowner of the HUF. He has denied all the allegations of the plaintiff that he does not look after him. It is stated that defendant has financially contributed in the construction of the suit property. He is paying complete electricity bills of the ground floor and of the portion in his possession on the first floor. He also incurs the expenses in paying the salary of security guard, watchman of the society and other miscellaneous expenses.
8. Replication to the written statement was filed by the plaintiff reiterating and reaffirming the same facts as stated by him in the plaint.
9. From the pleadings of the parties following issues were framed on 05.10.2016:
(i) Whether the defendant is in possession of the entire ground floor as claimed?OPD.
(ii) Whether the plaintiff is not exclusive owner of the suit property, it being owned by HUF and whether the plaintiff is the coowner of the suit property?OPD.
(iii) Whether the plaintiff is entitled to a decree of ejectment in respect of the suit property as prayed?OPP.
(iv) Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for?OPP.
Mahinder Singh Vs. Charanjit Singh Page 3 of 19 (v) Whether plaintiff is entitled to relief of
permanent injunction as prayed for?OPP.
(vi) Relief.
PLAINTIFF'S EVIDENCE:
10. Plaintiff has examined as many as 4 witnesses in his evidence. PW 1 is plaintiff himself, who has filed his affidavit in evidence and has reiterated and reaffirmed the same facts as stated in the plaint. He has relied upon the following documents:
(i) Ex.PW1/1 - Copy of aadhar card of the plaintiff.
(ii) Ex. PW1/2 - copy of site plan of the suit
property;
(iii) Ex. PW1/3 - sale deed in favour of plaintiff;
(iv) Ex. PW1/4 to Ex. PW1/114 - invoices vide which the plaintiff purchased the construction material of the suit property;
(v) Ex. PW1/115 - House tax and income tax record;
(vi) Ex. PW1/116 & Ex. PW1/117 police complaints filed by plaintiff against the defendant;
(vii) Mark A & B - police complaints dated 19.06.2016 and 12.03.2014
(viii) Ex. PW1/120 - Notice of the bank from which the plaintiff took the loan after mortgaging the suit property;
(ix) Ex. PW1/121 to Ex. PW1/124 - Notice dated 09.09.2014 & 20.04.2014 alongwith their proof of delivery - vide which the Mahinder Singh Vs. Charanjit Singh Page 4 of 19 plaintiff terminated the license of the defendant.
(x) Ex. PW1/125 - copies of bills.
11. PW2 is Shri Vikram, JJA, Record Room(Civil), Tis Hazari Courts, who has brought the file of case titled as "Harvinder Singh vs Shyam Sunder Elwadi", Petition No. E35/09, decided vide order dated 26.02.2010.
12. PW3 is Ravi Goel, Superintendent, from Property Tax Department, West Zone, SDMC, 59 Block, Ashok Nagar, Delhi. He has brought the summoned record i.e. Assessment File of the suit property. He has stated that as per the Assessment File, plaintiff is the owner of the suit property and as per their record, the previous owner of the property was Shri Chunni Lal Kapoor, who had sold the same to the plaintiff, vide registered sale deed dated 21.10.1970.
13. PW4 is Shri Satya Prakash Dubey, from Punjab & Sindh Bank, who has brought the summoned record i.e. documents of the loan obtained by the plaintiff from the said bank. He has stated that the loan facility was availed by the plaintiff, proprietor of 'Hindustan Soap Mills'. The said account was declared NPA. On obtaining the said loan, the suit property was mortgaged. However, the original title deeds were returned to the plaintiff after the entire loan was repaid by him.
DEF ENDANTS' EVIDENCE:
14. The defendant has examined as many as 6 witnesses. DW1 is defendant himself, who has filed his affidavit in evidence and reiterated and reaffirmed the same facts as stated in the written statement. He has relied upon only one document i.e. copy of electricity bills and payment of security guard Ex.DW1/1(colly).
15. DW2 to DW6 all are neighbours/known to the parties of the suit.
Mahinder Singh Vs. Charanjit Singh Page 5 of 1916. DW2 and DW3 are husband and wife, who have filed the similar affidavit, mentioning the facts in verbatim of each other. They both have stated that they have family relations with the defendant's family since long time. Plaintiff has several times told them that the suit property has been given to him by the defendant's father. They have deposed that the suit property is part of HUF created by defendant's grand father. They have further deposed that defendant is in possession of entire ground floor and one room on the first floor. They deposed that defendant's grand mother has given a factory at Subzi Mandi to the plaintiff, of which she was the absolute owner. The plaintiff has sold the said factory and used the funds at his own.
17. DW4 is Smt Madhu Malik, who has stated that she has family relations with the defendant's family. Earlier defendant was residing at D 62, Kamla Nagar, New Delhi since 1961 to 1982 and at that time she(DW4) was the tenant of plaintiff's father late Mohan Singh Khurana. It is deposed that brother of this DW and plaintiff's brother were good friends. She is still in touch with Mrs Sheel Kaur w/o of plaintiff's brother. She has stated that plaintiff's father Late Shri Mohan Singh Khurana started a company under the name and style of 'Hindustan Soap Mills' and purchased many properties in Delhi. He purchased the suit property in the name of plaintiff, out of love and affection. It is also stated that plaintiff is not the exclusive owner of the suit property and defendant is coowner of the same.
18. DW5 is Sandeep Dhawan has stated that he is neighbour of the plaintiff and have cordial relations with his family. He has stated that plaintiff's father started a company under the name and style of 'Hindustan Soap Mill'. He has stated that the suit property was purchased by the plaintiff's father in his name out of love and affection. As per this witness, defendant is the coowner of the suit property.
19. DW5 is Ms. Rohtash Kumari (wrongly numbered as DW5 instead of DW6), who was the tenant of the plaintiff's father in the property Mahinder Singh Vs. Charanjit Singh Page 6 of 19 bearing no. D62, Kamla Nagar, Delhi. She has also stated that plaintiff's father started a 'Hindustan Soap Mill'. Suit property was purchased by plaintiff's father in his name out of love and affection.
20. Witnesses of both the parties were cross examined by each other counsels.
21. I have heard counsels for the parties and perused the record as well as the written arguments of the defendant.
22. My issuewise findings are as follows: Issue no.2: Whether the plaintiff is not exclusive owner of the suit property, it being owned by HUF and whether the plaintiff is the coowner of the suit property?OPD.
23. The onus to prove this issue was upon the defendant. I am first taking this issue for consideration since the entire controversy between the parties is revolving around this issue and this is the only issue which is going to decide the fate of the suit.
24. The case of the plaintiff is that he is the absolute/exclusive owner of the suit property by virtue of sale deed dated 21.10.1970 (Ex.) Whereas, the defendant has taken the defence that plaintiff is not the exclusive owner of the suit property, but the suit property is a HUF property. As per the defendant, his grandfather late Shri Sardar Mohan Singh, created a Hindu Undivided Family(HUF), in which he(defendant's grandfather) was the KARTA and the plaintiff, his brothers and also the defendant and his brother are the members of the HUF. As per defendant, the suit property was purchased by the defendant's grand father in the name of plaintiff, out of love and affection, hence, he has contended that all the members of HUF have equal right in the suit property.
25. In order to examine the defence of the defendant, I would like to discuss the law of land on the issue, how a plea of joint family property/HUF is examined by the court. In "Sriniwas vs Narain", AIR 1954 Mahinder Singh Vs. Charanjit Singh Page 7 of 19 SC 379, The Supreme Court has held that the ''burden lies upon the person who asserts that the particular property is a joint family property to establish the fact''.
26. Now, it is not resintegra that post passing of Hindu Succession Act, 1956, the ancestral property can become an HUF only if its inheritance is prior to 1956 and such HUF property came into existence before 1956. Post 1956, the position is different regarding creation of HUF since after passing of Hindu Succession Act, 1956, any person who acquires any ancestral property then the said property has the character of self acquired property of the said person and not an HUF property and it attains the character of HUF property only when the said property is thrown into a common hotchpotch by the person who acquires the joint family property and in the later circumstance the party who asserts the said property to be the HUF property has to specifically plead as per Order 6 Rule 4 CPC, the necessary details like date, month and year of creation of an HUF and when the said property was thrown into a common hotchpotch. For this, reference can be made to the following judgments "Yudhishter vs Ashok Kumar" (1987) 1 SCC 204, "Commissioner of Wealth Tax, Kanpur and Ors. V. Chander Sen and Ors. MANU/SC/0265/1986MANU/SC/0265/ 1986: [1986] 161ITR370 (SC) and "Sunny(minor) & Anr. Vs Sh. Raj Singh and Ors" CS(OS) No.431/2006, decided by the Hon'ble Delhi High Court on 17.11.2015.
27. Relevant portions of the above judgments are reproduced as under: In "Yudhishter vs Ashok Kumar" (1987) 1 SCC 204, the Supreme Court has made the necessary observation that how the HUF properties can be set to exist before or after passing of Hindu Successions Act 1956.
'10. This question has been considered by this Court in where one of us (Sabyasachi Mukharji, J) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and Mahinder Singh Vs. Charanjit Singh Page 8 of 19 become part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him.
This court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Kar of his own undivided family but takes it in his individual capacity. At pages 577 to 578 of the report, this Court dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th Edn. Pages 924926 as well as Mayne's on Hindu Law 12th Edition page 918919. Shri Banerji relied on the said observations of Mayne on 'Hindu Law', 12th Edn. At pages 918919. This court observed in the aforesaid decision that the views expressed by the Allahabad High Court, the Madras High Court the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and was unable to accept the views of the Gujrat High Court. To the similar effect is the Mahinder Singh Vs. Charanjit Singh Page 9 of 19 observation of learned author of Mayne's Hindu Law, 12th Edn. Page 919. In that view of the matter, it would be difficult to hold that property which developed on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his band visavis his own sons. If that be the position then the property which developed upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house."
28. The judgment of "Yudhishter"(Supra) and "Commissioner of Wealth Tax" (Supra) are followed by the Hon'ble Delhi High Court in number of its judgment like "Surender Kumar Vs. Dhani Ram and Ors.", CS (OS) No. 1737/17, decided on 18.01.2016 & "Lalsa Prasad Singh Vs. Chanderwala & Ors." RFA No. 852/17, decided on 10.10.2017 and "Sunny(minor) & Anr. Vs Sh. Raj Singh and ors" CS(OS) No.431/2006, decided on 17.11.2015.
29. In "Sunny(minor) & Anr. Vs Sh. Raj Singh and ors" CS(OS) No.431/2006, decided on 17.11.2015, the Hon'ble High Court has held as follows: "7 (i). As per the ration of the Supreme court in the case of "Yudhister" (Supra) after passing of the Hindu Succession Act, 1956 the position which traditionally existed with respect to an automatic right of a person in properties inherited by his Mahinder Singh Vs. Charanjit Singh Page 10 of 19 parental predecessorsininterest from the latter's paternal ancestors upto three degrees above, has come to an end. Under the traditional Hindu Law whenever a male ancestor inherited any property from any of his paternal ancestors upto three decrees above him, then his male legal heirs upto three degrees below him had a right in that property equal to that of the person who inherited the same. Putting it in other words when a person 'A' inherited property from his father or grandfather or great grandfather then the property in his hand was not to be treated as a selfacquired property but was to be treated as an HUF property in which his son, grandfather and great grandson had a right equal to 'A'. After passing of the Hindu Succession Act, 1956, this position has undergone a change and if a person after 1956 inherits a property from his paternal ancestors, the said property is not an HUF property in his hands and the property is to be taken as a selfacquired property of the person who inherits the same. There are two exceptions to a property inherited by such a person being and remaining selfacquired in hand hands, and which will be either an HUF and its properties was existing even prior to the passing of the Hindu Succession Act, 1956 and which Hindu Undivided Family continued even after passing of the Hindu Succession Act, 1956, and in which case since HUF existed and continued before and after 1956, the Mahinder Singh Vs. Charanjit Singh Page 11 of 19 property inherited by a member of an HUF even after 1956 would be HUF property in his hands to which his paternal successorsininterest upto the three degrees would have a right. The second exception to the property in the hands of a person being not selfacquired property but an HUF property is if after 1956 a person who owns a self acquired property throws the selfacquired property into a common hotchpotch whereby such Hindu Family properties/HUF properties. In order to claim the properties in this second exception position as being HUF/Joint Hindu Family properties/properties, a plaintiff has to establish to the satisfaction of the court that when(i.e. Date and year) was a particular property or properties thrown in common hotchpotch and hence HUF/Joint Hindu Family created.
The only way in which a Hindu Undivided Family/joint Hindu Family can come into existence after 1956(and when a joint Hindu family did not exist prior to 1956) is if an individual's property is thrown into a common hotchpotch. Also, once a property is thrown into a common hotchpotch, it is necessary that the exact details of the specific date/month/year etc of creation of an HUF for the first time by throwing a property into a common hotchpotch have to be clearly pleaded and mentioned and which requirement is a legal requirement because of Order VI Rule 4 CPC which Mahinder Singh Vs. Charanjit Singh Page 12 of 19 provides that all necessary factual details of the cause of action must be clearly stated. Thus, if an HUF property exists because of its such creation by throwing of selfacquired property by a person in the common hotchpotch, consequently there is entitlement in coparceners etc to a share in such HUF property.
In the judgment of "Surender Kumar" (Supra), the Hon'ble High Court has also held that in the plaint the detailed facts as required by Order VI rule 4 CPC as to when and how the suit property has become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be an HUF property as to how the same is an HUF property. There is no such presumption that inheritance of ancestral property creates an HUF, and therefore, in such a post 1956 scenario a mere ipse dixit statement in the plaint that an HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF properties inasmuch as it is necessary for existence of an HUF and its properties that it must be specifically stated that as to whether the HUF came into existence before 1956 or after 1956 and if so how and in what manner giving all requisite factual details. It is only in such circumstances where specific facts are mentioned to clearly plead a cause of action of existence of an HUF and its Mahinder Singh Vs. Charanjit Singh Page 13 of 19 properties, can a suit then be filed and maintained by a person claiming to be a coparcener for partition of the HUF properties".
30. Now, reverting back to the facts of this, it is the defendant who has asserted that the suit property was the HUF property, therefore, burden was upon the defendant to prove that it was a HUF property. The defendant has averred that he is the coowner of the suit property, being member of the HUF, created by his grandfather late Sardar Mohan Singh. He has also stated that the suit property was purchased by his grandfather late Sardar Mohan Singh in the name of plaintiff, out of love and affection, but the entire sale consideration amount for purchasing the property was paid by late Sardar Mohan Singh. If, this defence of the defendant is accepted by the court as it is, then, this plea of the defendant would be hit by Section 4 of Benami Transaction Act,1988, which envisage that ''property in the name of an individual has to be taken as owned by that individual and no claim to such property is maintainable as per Section 4(1) of The Benami Act on the ground that the money for purchasing the property has come from some other person though the title deeds of the property are in the name of the former. An exception to the Section 4(1) has been carved out in Clause 3 of Section 4 which allows existence of concept of HUF. In that scenario, it has to be specifically pleaded as to how and in what manner an HUF property has come into existence. If it is not so pleaded, the court will follow the mandate of Section 4(1) and (2) of Benami Act''.
31. Here, the defendant has stated that the sale consideration amount for purchasing the suit property in the name of plaintiff, was paid by his grandfather late Sardar Shri Mohan Singh. As already mentioned that if it is so, then, the said sale transaction of the suit property is hit by Section 4 of Benami Act, as admittedly the title deed of the suit property is in the name of Mahinder Singh Vs. Charanjit Singh Page 14 of 19 the plaintiff. At this juncture, it would be worthwhile to take note of a fact that defendant nowhere either in his written statement or in his affidavit has ever averred that the suit property was purchased from the joint funds of the alleged joint business of "Hindustan Soap Mills" allegedly run by defendant's grandfather, his father (plaintiff) and his paternal uncles. This plea was first time raised by him in his written arguments. Though, this plea was never taken by the defendant during the entire trial of the suit, but, even if it is so considered, then, also the defendant has failed to prove that the suit property was a joint family property. Firstly, he has not placed on record any document in order to show i.e. the income tax returns, bank statements, any bill of the joint business etc., of the alleged HUF or any other document that any HUF was ever created by his grandfather during his lifetime. Defendant/DW1 during his cross examination admitted that he has no such document to show that his grandfather ever created any HUF. The defendant has only adduced his oral evidence by producing himself and DW2 to DW6 to prove the alleged HUF visavis a documentary evidence i.e. sale deed in favour of the plaintiff. Even, the evidence of DW2 to DW5 is the Hearsay evidence. None of these witnesses have deposed that they were ever directly told by Sardar Mohan Singh that the suit property was purchased by him from the joint funds of the business allegedly run by him. Otherwise also, even if it is assumed that there existed any HUF and suit property was purchased from the joint funds of the business of HUF, then also, as per the defendant the said HUF was created post 1956, hence, in view of the fact that the title deeds of the suit property are admittedly in the name of the plaintiff, therefore, the suit property is the 'selfacquired property of the plaintiff'. The defendant has also nowhere pleaded that the plaintiff ever thrown the suit property into the common hotchpotch for converting his self acquired property into a HUF property, which, as per the judgment of "Sunny", Minor (Supra), is one of the way, post 1956, by which the property attains the Mahinder Singh Vs. Charanjit Singh Page 15 of 19 character of HUF property. The defendant has also not pleaded anywhere any date, month or year as to when the alleged HUF was created by his grand father late Sardar Mohan Singh.
32. The counsel for the defendant has argued that plaintiff during his cross examination has himself admitted that 'Hindustan Soap Mills' was created somewhere in 196263 in which there were three partners i.e. plaintiff himself, his father and brother. It is also stated that he (plaintiff) has also admitted that in 1973, the partnership firm, was reconstituted in which plaintiff, his father and all his brothers became the partners. The defendant has argued that plaintiff also goes to admit in his cross examination that defendant and his elder brother were also partners in the said business till the year 2000. All the admissions of the plaintiff are not of any help to the defendant since in the entire cross examination of the plaintiff he has nowhere admitted that the firm 'Hindustan Soap Mills' was a joint family business of the plaintiff's family. He has only stated that it was a partnership business in which his father, brothers and sons were the partners. To substantiate his this contention, the plaintiff has also placed on record the partnership deed of 1962 as well as of 1973 (Ex. PW1/DX1). During cross examination of defendant as DW1, he has also admitted that the 'Hindustan Soap Mills' was a partnership firm in which he was one of the partner which got dissolved in the year 2000. There is a difference between partnership firm and a joint family business. The partnership arises out of a contract whereas a joint Hindu family business arises by operation of law. In a partnership new partner cannot enter without the consent of all the partners while in case of joint Hindu family firm, a new member is admitted just by birth. In a partnership the maximum limit of partners is 10 in banking business and 20 for any other business but there is no such limit of members in the later. In the partnership business the liability of the partners is unlimited whereas in the joint family business only the Karta is personally liable. A partnership firm Mahinder Singh Vs. Charanjit Singh Page 16 of 19 can be formed even amongst the outsiders but a joint family business is run only amongst the family members. If, the family members forms a partnership business, then, it can never be termed as joint family business. The profit and losses of the partnership firm are shared by the partners as per their respective shares/ratio decided between them, whereas, in the joint family business there is no such right and the only remedy with the members is by way of suit for partition. Hence, all the admissions of the plaintiff during his cross examination does not remotely suggest that there was any HUF created by Sardar late Sh. Mohan Singh during his lifetime.
33. It was also pleaded and argued on behalf of the defendant that defendant has spent amount in the construction of the suit property and also in its renovation time to time and also regularly making the payments of electricity of his portion and the salaries of Watchman and security guard, therefore, he has right in the suit property. This contention of the defendant is totally misplaced since even if defendant has spent any amount on the construction/renovation of the suit property, the same will not give him any right or title in the land beneath the superstructure.
34. In view of aforesaid discussion, the defendant has failed to prove that the suit property was HUF or joint family property. Accordingly, this issue is also decided in favour of the plaintiff and against the defendant. Issue no.1: Whether the defendant is in possession of the entire ground floor as claimed?OPD.
35. The onus to prove this issue was on the defendant. The plaintiff has stated that the suit property is measuring 555.55 square yards, consisting of ground floor and the first floor. The plaintiff has stated in the plaint as well as in the affidavit that defendant is in possession of one room and toilet on the ground floor and one room and toilet on the first floor. The plaintiff has also filed the site plan of the suit property, showing the portion red in the site plan in possession of the defendant. The defendant has stated that site plan Mahinder Singh Vs. Charanjit Singh Page 17 of 19 Ex.PW1/2 is incorrect, since defendant is in possession of the entire ground floor. Defendant has failed to discharge the onus that the site plan filed by the plaintiff is incorrect and he is in possession of the entire ground floor. The plaintiff in para no.3 of his affidavit has specifically deposed that defendant is in possession of one room and toilet on the ground floor, but there is no cross examination of plaintiff on this point. Not even a single suggestion has been given to the plaintiff/PW1 regarding the same. Whereas, the defendant during his cross examination has specifically admitted that plaintiff is in possession of one bed room on the ground floor. There is no dispute to the fact that apart from other areas on the ground floor, there are only two bed rooms on the said floor. As per the admission of the defendant in his cross examination, one of the bed room on the ground floor is in possession of the plaintiff. This admission of the defendant clearly proves that defendant himself is not in possession of the entire ground floor, but he is in possession of some of the portion of the ground floor. Hence,this issue is decided against the defendant and in favour of the plaintiff. Issue no.3:Whether the plaintiff is entitled to a decree of ejectment in respect of the suit property as prayed?OPP.
36. The plaintiff has stated that he is owner of the suit property by virtue of registered sale deed dated 21.10.1970 Ex. PW1/3. The plaintiff has also taken a loan on the suit property by mortgaging the same. During cross examination, the defendant has admitted that the entire loan was paid by the plaintiff. The plaintiff has succeeded in proving his ownership in the suit property by virtue of registered sale deed. Hence, the possession of the defendant in the suit property is nothing more than licensee. The plaintiff has validly terminated the license of the defendant vide legal notice dated 20.04.2016. Hence, plaintiff is entitled for the possession of the suit property. Issue no. 4: Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for?OPP.
Mahinder Singh Vs. Charanjit Singh Page 18 of 1937. In view of aforesaid discussion on the abovesaid issues, the defendant is directed to remove his belongings from the suit property. This issue is accordingly decided in favour of the plaintiff and against the defendant.
Issue No. 5: Whether plaintiff is entitled to relief of permanent injunction as prayed for?OPP.
38. In view of the finding on the issue no. 2, defendant is hereby restrained from interfering into the peaceful possession of the plaintiff and also from creating any document or creating third party interest in the suit property.
Relief:
In view of my finding on the aforesaid issues, the plaintiff is held entitled for the decree of possession of part of the suit property bearing no. 32/57, Punjabi Bagh West, New Delhi, as shown in red colour in the site plan Ex. PW1/2. The suit of the plaintiff is hereby decreed.
Decree sheet be prepared accordingly.
File be consigned to the record room.Digitally signed by CHARU
CHARU AGGARWAL
AGGARWAL Date:
2018.05.15
18:01:30 +0530
Announced in the open Court (Charu Aggarwal)
on 11 May, 2018 ADJ03/West Distt./THC/Delhi
th
Mahinder Singh Vs. Charanjit Singh Page 19 of 19