Delhi High Court
Durgesh Saini vs Premwati Saini And Ors. on 7 December, 2018
Equivalent citations: AIRONLINE 2018 DEL 2508
Author: Valmiki J. Mehta
Bench: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 48/2017
% 7th December, 2018
DURGESH SAINI ..... Appellant
Through: Ms. Navneet Sharma, Mr. Kapil
Kumar and Mr. Rahul,
Advocates (Mobile No.
9868546432)
versus
PREMWATI SAINI AND ORS. ..... Respondents
Through: Mr. B.S. Chowdhary and Ms.
Snehlata Rana, Advocates
(Mobile No. 9810072300).
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) was called out in the morning for the first time when on behalf of the respondent nos. 1 and 2/defendant nos. 1 and 2, a pass over was sought. Again, on the second call, a pass over was sought by stating that the counsel is just coming. On the third call, again it was stated that counsel is just coming and he is in RFA No. 48/2017 Page 1 of 13 the „parking‟, and therefore, this Court refused to give a further pass over and consequently the Ld. counsel for the appellant/plaintiff started arguing the matter. At this stage, suddenly one counsel appears for respondent nos. 1 and 2/defendant nos. 1 and 2 and she again stated that the main counsel for respondent nos. 1 and 2/defendant nos. 1 and 2 is in the „parking‟ and he would be coming. The matter was argued by the Ld. counsel for the appellant/plaintiff for about 10 to 15 minutes, but in this period the counsel for the respondent nos. 1 and 2/defendant nos. 1 and 2 had not come from „parking‟. This Court is therefore proceeding to pronounce the judgment in the present case. During the course of dictation of the judgment, the Ld. counsel for respondent nos. 1 and 2/defendant nos. 1 and 2 appeared and thus he was heard with respect to the case of the respondent nos. 1 and 2/defendant nos. 1 and 2.
2. The facts of the case are that the appellant/plaintiff filed the subject suit pleading that she was the owner of the suit property along with the respondents/defendants. The suit property is property bearing no. M-30/B-23/2N, Baljeet Nagar, Near West Patel Nagar, Railway Station, New Delhi, admeasuring 85 sq. yards. The suit RFA No. 48/2017 Page 2 of 13 property consists of three rooms, chowk, one shop, two kitchens and two bathrooms. The appellant/plaintiff is pleaded to have purchased the suit property in terms of the Documentation dated 15.10.1986 from the erstwhile owner Sh. Ram Pal. The Documents dated 15.10.1986 are the agreement to sell, affidavit and a receipt which was duly registered before the Sub-Registrar showing payment by the appellant/plaintiff along with respondent no. 3/defendant no. 3 of a sum of Rs. 32,000/- to the erstwhile owner Sh. Ram Pal. There is also a General Power of Attorney executed by Sh. Ram Pal in favour of the appellant/plaintiff and the respondent no. 3/defendant no. 3. In the suit, it was pleaded that defendant nos. 1 and 2 are the Dewar and Dewrani of the plaintiff, i.e. the brother of the plaintiff‟s husband and the wife of the brother of the husband of the plaintiff, and who were permitted to live in the suit property as licensees, but since the respondent nos. 1 and 2/defendant nos. 1 and 2 failed to vacate the suit property, the subject suit for possession and mesne profits was filed after the appellant/plaintiff made a complaint to the police on 16.12.2010 as the respondent nos. 1 and 2/defendant nos. 1 and 2 were illegally demolishing the suit property.
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3. On behalf of the respondent nos. 1 and 2/defendant nos. 1 and 2, by filing written statement, suit was contested and prayed to be dismissed. It was pleaded that the respondent nos. 1 and 2/defendant nos. 1 and 2 were never inducted as licensees in the year 2000. It was also the case of the respondent nos. 1 and 2/defendant nos. 1 and 2 that both of them were the co-owners of the suit property by virtue of a family settlement.
4. After the pleadings were complete, the trial court framed the following issues:-
"Issue no.1: Whether the plaintiff is entitled for decree of possession regarding the suit property as prayed for? OPP Issue no. 2: Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP Issue no. 3: Whether the plaintiff is entitled for mandatory injunction as prayed for? OPP Issue no. 4: Whether the plaintiff is entitled for mesne profits and future interest till recovery of possession? OPP Issue no. 5: Relief."
5. Evidence was led by the parties and the same has been recorded in paras 9-12 of the impugned judgment, and these paras read as under:-
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"9. The plaintiff to prove her case examined herself as PW-1 and filed her evidence by way of affidavit Ex. PW1/A and deposed in terms of the plaint and relied upon the documents Ex. PW1/1 to Ex. PW1/13. The plaintiff also examined PW-2 ASI Virender Singh regarding the complaint dated 16.12.2010.
10. The defendant no.1 examined herself as DW-1 and filed her evidence by way of affidavit Ex. DW1/A and deposed in terms of the written statement and relied upon the documents Ex. DW1/1 to Ex. DW1/10.
11. The defendants examined DW-2 Sh. Rohtas Saini who filed his evidence by way of affidavit Ex. DW2/A and deposed in terms of the written statement.
12. The defendants also examined DW3 Sh. Ravinder Kumar Diwedi."
6. The relevant issue to be decided was Issue no. 1 as to whether the appellant/plaintiff was entitled to possession of the suit property. This issue will include the issue as to whether the appellant/plaintiff has proved her title to the suit property thereby entitling her to possession of the suit property and mesne profits. In this issue, the defence of the respondent nos. 1 and 2/defendant nos. 1 and 2 will also be included that they had become owners of the suit property by virtue of a family settlement. Evidence of the respondent nos. 1 and 2/defendant nos. 1 and 2 has also been led as to them being in possession of the suit property much prior to the alleged year of creating license in the year 2000, as was the case of the appellant/plaintiff in the plaint.
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7. The Documentation dated 15.10.1986 have be proved and exhibited by the appellant/plaintiff as Ex. PW1/1 to Ex.PW1/4. The receipt of making payment of Rs. 32,000/- to the erstwhile owner Sh. Ram Pal has been proved and exhibited as Ex.PW1/4. Since this receipt/document is a document which is duly registered before the Sub-Registrar, obviously, this document cannot be forged and fabricated with respect to its creation on any other date. In my opinion, therefore, in terms of the documentation/Ex.PW1/1 to PW1/4, the appellant/plaintiff along with respondent no. 3/defendant no. 3 had become co-owners of the suit property.
8. Trial court has wrongly and illegally discarded the documents/Ex.PW1/1 to Ex.PW1/4 by observing that appellant/ plaintiff has only filed photocopies of the documents, as this conclusion of the trial court is erroneous for two reasons. Firstly, counsel for the appellant/plaintiff has rightly pointed out that after filing the original documents, the appellant/plaintiff moved an application for taking back the original documents by filing certified copies, vide Application dated 19.03.2013, and this application was allowed vide Order dated 05.09.2013 passed in the suit allowing RFA No. 48/2017 Page 6 of 13 original documents to be returned on the filing of certified copies of the same. It is these certified copies which were filed and proved and exhibited as Ex.PW1/1 to Ex.PW1/4. The second reason for rejecting the conclusion of the trial court that the documents Ex.PW1/1 to Ex.PW1/4 cannot be held to be proved as they are only photocopies, is for the reason that before a document is argued for not having been proved in evidence on account of the same being only a photocopy, this objection has to be raised before the commencement of the cross- examination of the witness who has proved the photocopies of the documents because if this objection is taken, then the examination-in- chief will not be concluded and the requisite original documents will be filed to overcome the objection of non-filing of the original documents. Once no objection is raised to the exhibition of the documents before commencement of cross-examination of the witness, then in such a case any objection to the exhibition of documents is waived in view of the judgment of the Hon'ble Supreme Court in the case of R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC 752. Since the respondent nos. 1 and 2/defendant nos. 1 and 2 never RFA No. 48/2017 Page 7 of 13 objected before commencement of cross-examination of appellant/plaintiff/PW1 of exhibition of the photocopies of the documents/Ex.PW1/1 to Ex.PW1/4, the respondent nos. 1 and 2/defendant nos. 1 and 2 are held to have waived their rights for exhibition of the documents, and in any case, as already stated above, originals were filed and were taken back with certified copies being filed, and which were proved as Ex.PW1/1 to Ex.PW1/4.
9. On behalf of respondent nos. 1 and 2/defendant nos. 1 and 2, evidence has been led to show that they were in possession of the suit property much earlier than the alleged year of creation of license in their favour in the year 2000 by the appellant/plaintiff, and the respondent nos. 1 and 2/defendant nos. 1 and 2 had also filed documents to show existence of electricity and water connections in their names. They have also filed on record the rent agreement of the year 2008 by which they had let out the property to a tenant in order to show that they had acted as the owners of the suit property. The documents which have been exhibited and proved on behalf of the respondents/defendants are as under:-
"1. Copy of the Election I-Card is Ex.DW1/1 in affidavit is Mark A. RFA No. 48/2017 Page 8 of 13
2. Copy of Ration Card is Ex.DW1/2 (OSR).
3. Copy of old Ration Card is Ex.DW1/3 in affidavit is now Mark B.
4. Copy of the receipt of Delhi Vidyut Board is Ex.DW1/4 (OSR).
5. Copy of electricity bill is Ex.DW1/5 in affidavit is now Mark C.
6. Copy of acknowledgement receipt dated 30.06.99 is Ex.DW1/6.
7. Copy of the rent agreement is Ex.DW1/7 (OSR).
8. Copy of the tenant verification (2 pages) is Ex.DW1/8. (OSR)
9. Copy of the death certificate is Ex.DW1/9 (OSR)
10. Copy of the cremation slip is Ex.DW1/10 (OSR)."
10. In my opinion, the trial court has wrongly concluded that it cannot be held that the appellant/plaintiff is the owner of the suit property simply because appellant/plaintiff had no idea of the property or its neighborhood. Trial court has in this regard erred because ownership of a property is by documents and this ownership is not lost by not knowing the details of the property. Trial court has also wrongly held that the appellant/plaintiff has filed no documents to prove the relationship of licensor and licensee inasmuch as the concept and the relationship of the licensor and licensee is misunderstood because licensee only means any person who is in permissive possession of a property, without having title thereto, and once an owner files a suit as a plaintiff, the defendant who is pleaded to be a licensee, cannot claim to continue in possession of the suit property, merely because the licensor and licensee relationship is not proved, once it is a proved position on record that the defendant/licensee in the RFA No. 48/2017 Page 9 of 13 suit has not been able to prove any title to continue in possession of the suit property. I, therefore, hold that the trial court has erred in holding that the appellant/plaintiff is not the owner although the appellant/plaintiff proved her ownership of the suit property along with respondent no. 3/defendant no. 3 vide documents Ex.PW1/1 to Ex.PW1/4.
11. The fact that the respondent nos. 1 and 2/defendant nos. 1 and 2 have proved their long possession of the suit property, will not in any manner help the respondent nos. 1 and 2/defendant nos. 1 and 2 in claiming ownership of the property because long possession is not ownership. A person may remain in possession of the property for dozens of years, but unless a person becomes an owner, whether by adverse possession and which is not pleaded in this case, or by becoming owner by virtue of a family settlement, as pleaded in this case but which is also not proved in this case, in such a situation, the respondent nos. 1 and 2/defendant nos. 1 and 2 cannot remain in possession of the suit property. So far as the case of the respondent nos. 1 and 2/defendant nos. 1 and 2 of ownership because of a family settlement is concerned, it is seen that the said claim/defence cannot RFA No. 48/2017 Page 10 of 13 be accepted for various reasons. Firstly, the written statement of respondent nos. 1 and 2/defendant nos. 1 and 2 only makes a bland averment of ownership by a family settlement, without in any manner pleading which month and in which year was the family settlement entered into. Also and admittedly, there is no document showing any existence of or entering into of any alleged oral family settlement, as entered into, whereby respondent nos. 1 and 2/defendant nos. 1 and 2 are said to have become owners of the suit property. By self-serving statements of an oral family settlement, this Court cannot divest the ownership of a valuable immovable property which an owner such as the appellant/plaintiff has of the suit property in terms of the proved documents exhibited as Ex.PW1/1 to Ex.PW1/4. I, therefore, reject the case of the respondent nos. 1 and 2/defendant nos. 1 and 2 that they have become owners by virtue of a family settlement.
12. Though, the counsel for respondent nos. 1 and 2/defendant nos. 1 and 2 argued that since the appellant/plaintiff is only the owner of half share of the property, thus the appellant/plaintiff cannot get possession of the full property, however, this argument is misconceived because it is settled law that any one RFA No. 48/2017 Page 11 of 13 co-owner can seek possession of the entire property and unless it is shown that there is objection of the other co-owner to the plaintiff co- owner who has filed the suit for possession of the entire property, the suit for possession will have to be decreed for the entire suit property.
13. On the aspect of mesne profits, I may note that the appellant/plaintiff has led no evidence of the rate of mesne profits to be awarded at Rs. 8,000/- per month as claimed. The Ld. counsel for appellant/plaintiff is however justified in placing reliance upon the rent agreement Ex. DW1/7, filed by the respondent nos. 1 and 2/defendant nos. 1 and 2 which shows that the respondent no.1/defendant no. 1 had let out the suit property to one Sh. Arun Kumar for rent of Rs. 1400/- per month as on 30.01.2008. Therefore, as on 30.01.2008, we can take the rent of the property at Rs. 1400/- per month for determining the rate of mesne profits. Accordingly, so far as the relief claimed for mesne profits is concerned, the same is decreed at Rs. 1400/- per month from three years prior to filing of the suit, and this rate of mesne profits will also continue pendente lite and future till the respondent nos. 1 and 2/ defendant nos. 1 and 2 hand over the possession of the suit property to the appellant/plaintiff. The RFA No. 48/2017 Page 12 of 13 appellant/plaintiff, in accordance with Section 2(12) CPC, will also be entitled to interest at 6% per annum simple on the amount of mesne profits with the interest being payable from the end of the month from which mense profits are payable by the respondent nos. 1 and 2/defendant nos. 1 and 2 to the appellant/plaintiff under the present judgment and decree.
14. In view of the aforesaid discussion, this appeal is therefore allowed. The suit of the appellant/plaintiff is decreed in her favour for possession and mesne profits as stated in the para above and against the respondent nos. 1 and 2/defendant nos. 1 and 2 with respect to the suit property being M-30/B-23/2N, Baljeet Nagar, Near West Patel Nagar, Railway Station, New Delhi, admeasuring 85 sq. yards.
DECEMBER 07, 2018 VALMIKI J. MEHTA, J
AK
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