Delhi District Court
Madhu vs Dulari Devi @ Kaushlya Devi on 9 August, 2023
IN THE COURT OF SH. DEV SAROHA, CIVIL JUDGE-06/CENTRAL
TIS HAZARI COURTS, DELHI
Suit No. 601629/2016
CNR No. DLCT03-002310/2014
IN THE MATTER OF:-
Madhu
W/o Sh. Hemant Kumar,
R/o H.No. 10944/4,
3rd Floor, Doriwalan Manakpura,
Karol Bagh,
New Delhi-110005. ..............Plaintiff
Versus
Dulari Devi @ Kaushlya Devi
W/o Sh. Rattan Lal
Illegal Occupant in suit premises situated in
Property No. 10338, Manakpura,
Gali Pathshalawali, Karol Bagh,
New Delhi -110005. ..............Defendant
Date of Institution : 23.04.2014
Date of Reserving for Judgment: 31.07.2023
Date of Judgment: 09.08.2023.
SUIT FOR RECOVERY OF POSSESSION AND FOR RECOVERY OF
DAMAGES/MESNE PROFITS AND FOR THE CONSEQUENTIAL
RELIEF OF INJUNCTION
JUDGMENT
1. Vide this judgment, the court shall dispose off the suit for possession and for recovery of damages/mesne profits and for the consequential relief of injunction filed by the plaintiff.
Suit No. CS SCJ 601629/2016 Madhu Vs. Dulari Devi Page 1/222. The brief facts of the case are as follows:-
Briefly stated, the factual position of the case is that the plaintiff is the rightful and absolute owner of the property bearing no. 10338, Manakpura, Karol Bagh, New Delhi-110005, hereinafter called "the said property" for all intents and purposes having purchased the same from its erstwhile owner Sh. Ram Singh and Sh. Veer Singh, both sons of Late Dal Chand by means of Sale Deed dated 26.10.2013, registered as No. 8370 Book No. 1, Volume No. 15343 on pages 137 to 146 on 26.10.2013 in the office of Sub-registrar concerned at New Delhi.
3. It is further submitted by the plaintiff that the defendant is an unauthorized occupant in respect of one room and kitchen situated in the ground floor of the said property i.e Property no. 10338, Manakpura, Gali Pathshalawali, Karol Bagh, New Delhi-110005 and has also been refusing to pay either the damages or mesne profits for such unauthorised and illegal occupation of the said premises.
4. It is further submitted that a police complaint and FIR no. 416/2007 PS Deshbbandhu Gupta, Road, New Delhi is already pending against the Defendant wherein she is facing trial in the case pending in the court of Ms. Aparna Goswami, Ld. MM, Delhi.
5. It is further averred that plaintiff had repeatedly approached the defendant for vacating and handing over the vacant possession of the said premises but the defendant has failed to comply with such demands of the plaintiff.
Suit No. CS SCJ 601629/2016 Madhu Vs. Dulari Devi Page 2/226. It is further averred that plaintiff had sent a legal notice to the defendant which was served by means of the legal notice dated 03.02.2014 which has since been served on the defendant without any response thereto and wherein the plaintiff had called upon the defendant to vacate and surrender the vacant physical possession of the said premises to the plaintiff without any further delay in the matter.
7. It is further submitted that plaintiff had also notified the defendant that in the event of her failure to comply with the instructions given in the said notice, she will henceforth be liable to pay to the plaintiff the sum of Rs. 5000/- per month being the amount of damages/mesne profits for such continued illegal and unauthorized occupation of the suit premises but despite such service of the notice, the defendant had failed to either respond to such notice or to surrender the vacant and peaceful possession of the suit premises.
8. It is further submitted by the plaintiff that plaintiff has further come to learn that after the service of notice of demand of such amount of damages/mesne profits the defendant has illegally been contemplating to transfer, alienate or otherwise create third party interest over the suit premises by taking the law in his own hands.
9. It is further submitted by the plaintiff that on the last week of February, 2014 the plaintiff had confronted the defendant with the situation and called upon her to vacate the suit premises and deliver possession thereof to the plaintiff but the defendant had flatly refused to do so, thus leaving no alternative or efficacious remedy for the plaintiff but to file the present suit.
Suit No. CS SCJ 601629/2016 Madhu Vs. Dulari Devi Page 3/2210. It is further submitted by the plaintiff that such continued occupation of the suit premises by the defendant is absolutely illegal and unwarranted and such occupation is also that of an illegal occupant, therefore, the defendant is liable to remove her belongings from the suit premises and to hand over the vacant possession thereof to the plaintiff. In the given circumstances, the plaintiff has no alternative or efficacious remedy but to file this suit for the recovery of possession and also for the recovery of damages/mesne profits.
11. It is further submitted by the plaintiff that defendant has threatened to induct some undesirable element in the suit premises thereby creating innumerable problems for the plaintiff apart from exposing her to multiplicity of litigation the plaintiff is also filing the suit premises.
12. It is further averred that the cause of action arose in favour of the plaintiff and against the defendant on all those dates specified hereinabove and also in view of her continued illegal and unauthorized occupation of the suit premises; the cause of action further arose upon service of the legal notice dt. 03.02.2014 on the defendant but despite the service thereof, the defendant had failed to surrender the vacant possession of the suit premises to the plaintiff; it also arose in end of February and beginning of March, 2014 when the plaintiff had called upon the defendant to surrender vacant possession but she had threatened to induct some undesirable element in the suit premises and thus expose the plaintiff to multiplicity of avoidable litigation; it also arose during the second week of March, 2014 when the plaintiff had approached the local police again asking them to eject the defendant from the suit premises but they had refused to help claiming that the dispute between the parties was of civil nature; it also continues to arise with each passing day and is recurring one.
Suit No. CS SCJ 601629/2016 Madhu Vs. Dulari Devi Page 4/2213. It is prayed by the plaintiff that a decree for recovery of possession be passed in favour of the plaintiff and against the defendant directing her to deliver back the possession of the suit premises comprising of one room and kitchen situated in the ground floor of property no. 10338, Manakpura, Gali Pathshalawali, Karol Bagh, New Delhi-110005, more particularly shown and described in the site plan filed with the plaint in distinct colours and markings therein.
14. It is also further prayed that a decree for the recovery of Rs. 5000/- being the damages/mesne profits for the illegal and unauthorized use and occupation of the suit premises compromising of one room and kitchen situated in the ground floor of property No. 10338, Manakpura, Gali Pathshalawali, Karol Bagh, New Delhi-110005, more particularly shown and described in the site plan filed with the plaint in distinct colors and marking therein for the period 01.02.2014 to 28.02.2014; and also directing the defendant to make payment of future damages/mesne profits for such illegal use and occupation of the suit premises at the above described rate of Rs. 5000/- per month till the suit premises are delivered back to the plaintiff.
15. It is further prayed that a decree for the consequential relief of permanent injunction in favour of the plaintiff and against the defendant, restraining her and /or her henchmen, accomplices, employees, agents etc, from illegally subletting, assigning or otherwise parting with the possession of the suit premises situated in the ground floor of property bearing no. 10338, Manakpura, Gali Pathshalawali, Karol Bagh, New Delhi-110005, more particularly shown and described in the site plan filed with the plaint in distinctive colours and markings Suit No. CS SCJ 601629/2016 Madhu Vs. Dulari Devi Page 5/22 therein.
16. The plaintiff has relied upon the following judgments in support of her case:-
(i) MITA India Pvt. Ltd. Vs. Mahendera Jain (Supreme Court decided on 20.02.2023).
(ii) Smt. Samta Sanghi Vs. Shree V.G Sidharth (Madhya Pradesh High Court decided on 29.11.2016).
(iii) Smt. Muni Devi Vs. Smt. Sona Devi & Ors. (AFR decided on 09.09.2004).
(iv). Dr. Jagmittar Sain Bhagat and Anrs. Vs. DIR. Health Services Haryana (Supreme Court decided on 11.07.2013).
17. The defendant was duly served on 13.05.2014 and right to file written statement had not expired and on 03.06.2014, written statement filed by the defendant.
Defendant's Version
18. In the written statement filed by the defendant, it is stated that the plaintiff does not have any legal right, title, interest and locus standi to file and contest the present suit. The entire suit of the plaintiff is resting upon the false, fabricated, manipulated, concocted, vexatious and frivolous allegations and averments and the same is resting upon the vagueness.
19. It is further submitted by the defendant that the averments made in the suit and documentary evidence placed on judicial record does not disclose any Suit No. CS SCJ 601629/2016 Madhu Vs. Dulari Devi Page 6/22 cause of action in favour of the plaintiff and does not give any right to sue.
20. It is further submitted by the defendant that the suit of the plaintiff is not legally maintainable and sustainable in eyes of law as the Sale Deed dated 26.10.2013 is a collusive and fraudulent document and the plaintiff is having the actual and constructive knowledge of the judicial proceedings/suit for declaration and permanent injunction instituted by the defendant against Bhupinder Rai son of Sh. Veer Singh, (2) Sh. Veer Singh son of Sh. Dal Chand both R/o H. No. 10338, Manakpura, Gali Pathshalawali, Karol Bagh, New Delhi-110005 and (3) Ram Singh son of Sh. Dal Chand R/o C-4A/7B, Janakpuri, New Dehli-110055 and the said suit was pending trial before the court of Sh. Vikrant Vaid, Civil Judge and the same was fixed for 06.08.2014. The copy of the civil suit is annexed herewith. The plaintiff is not a bonafide purchaser against the lawful sale consideration and was having the full knowledge in respect of pendency of the litigation filed by the defendant against the aforesaid persons and the suit of the plaintiff is barred by doctorine of lispendentle i.e Section 52 of Transfer of Property Act.
21. It is further submitted by the defendant that the suit of the plaintiff is not legally maintainable and sustainable in eyes of law as the defendant is true and lawful owner of the property in question so no relief of injunction can be granted against the true and lawful owner of the property.
22. It is further submitted that the conduct of the plaintiff totally dis-entitled her from claiming any relief from this court as the plaintiff has not approached to this court with clean hands and has suppressed the material fact that the plaintiff was very much aware about the civil litigation instituted by the defendant.
Suit No. CS SCJ 601629/2016 Madhu Vs. Dulari Devi Page 7/2223. It is further submitted that the averments made in the suit and the documentary evidence placed on judicial record does not disclose any cause of action in favour of the plaintiff and does not given any right to sue and the plaint of the plaintiff should be liable to be rejected as per the provisions of Order Rule 11(a) CPC.
24. It is further submitted that the entire suit has been instituted by the plaintiff with dishonest and fraudulent intention only to extort the money from the defendant under the garb of the present false suit. The plaintiff has filed the false, fabricated and vexatious suit only to waste the precious time, energy of this court and to cause mental torture, pain, agony, suffering and set back to the answering defendant. It is further submitted by the defendant that the plaintiff has filed the present vexatious suit without any cause and has prayed the relief of injunction on insufficient ground so the plaintiff is liable to pay the compensation as per the provisions of Section 95 of CPC to the answering defendant. It is further submitted that the plaintiff has filed the vexatious suit so the suit of the plaintiff is liable to be dismissed with compensatory and exemplary cost as per the provisions of Section 35A CPC.
25. It is submitted on behalf of the defendant that the allegations and the submissions of the plaintiff are false, fabricated, frivolous and vexatious and hence are denied in toto word by word.
26. It is submitted here that Sh. Ram Singh and Veer Singh have left no legal right, title and interest of ownership and possession in respect of the property in question and they were not having any authority and power to execute the sale deed dt.26.10.2013 in favour of the plaintiff and was not having any Suit No. CS SCJ 601629/2016 Madhu Vs. Dulari Devi Page 8/22 authority and power to transfer ownership and possessory right in respect of the property in question in favour of the plaintiff. It is submitted here that the alleged sale deed is collusive, fraudulent, fabricated, manipulated and concocted document created by the plaintiff, Ram Singh and Veer Singh. It is pertinent to mention here that the alleged sale deed is not having any binding force of law and cannot confer any right of ownership and possession in favour of the plaintiff. It is submitted here that the defendant is true and lawful owner of the property in question and all right of ownership and possession are vesting in the defendant and the present suit is malafide and dishonest design on the part of the plaintiff to grab the property in question. It is submitted here that Bhupender Rai, Veer Singh and Ram Singh were owner of the property bearing No. 10338, situated at Manakpura, Karol Bagh, New Delhi. It is submitted here that Bhupender Rai, Veer Singh and Ram Singh had approached to the defendant to sell the built up one on second floor, having area /size (10' x 12') and open space its sized (5'x8') in front of said room with its roof/terrace right being part of property No. 10338, fitted with water and electric connection and other fittings and fixtures situated at Gali Pathsala Wali, Manakpura, Karol Bagh, New Delhi. It is pertinent to mention here that Veer Singh and Ram Singh had represented to the defendant that they have executed the Special Power of Attorney in favour of Bhupender Rai to enter into the sale transaction in respect of the aforesaid property and to execute the title deed in respect of the aforesaid property. Veer Singh and Ram Singh had shown the special power of attorney executed by them in favour of the Bhupender Rai to the defendant for entering into the sale transaction and to complete the same but they have not provided the copy of the special power of attorney to the defendant. Veer Singh and Ram Singh had assured to the defendant that Bhupender Rai has expressed and implied authority and consent of them to enter into sale transaction in respect of the aforesaid property and to execute the Suit No. CS SCJ 601629/2016 Madhu Vs. Dulari Devi Page 9/22 title deed in respect of the aforesaid property to confer the complete title and the property is free from all defects and they will honour the all acts, deeds, omissions and commissions on behalf of Bhupender Rai. It is submitted here that Bhupender Rai, Veer Singh and Ram Singh had made an offer to sell the aforesaid property to the defendant against the sale consideration of Rs. 1,60,000/- (Rupees one lakh sixty thousand only. The defendant has agreed to purchase the aforesaid property against the sale consideration of Rs. 1,60,000/- from the aforesaid persons. Bhupender Rai on behalf of Veer Singh and Ram Singh in presence of Veer Singh and Ram Singh had received and acknowledged a sum of Rs. 1,60,000/- from the defendant. Bhupender Rai had executed the receipt dated 10.08.2006 in favour of the defendant in presences of the witnesses. Bhupender Rai after accepting the consideration for himself and on behalf of Veer Singh and Ram Singh had executed the Notarized General Power Attorney, Notarized Indemnity Bond, Notarized Agreement to sell and purchase, Notarized General Power Attorney, Notarized affidavit, Notarized receipt all dated 10.08.2006. The copies of the same are annexed herewith. The defendant became the true and lawful owner of the aforesaid property on the basis of the title deed executed by Bhupender Rai in respect of the aforesaid property under the expresses and implied authority of Veer Singh and Ram Singh. The defendant also came in lawful and physical possession of the aforesaid property and since then the defendant is enjoying and using the aforesaid property being the owner thereof. Bhupender Rai for and on behalf of Veer Singh and Ram Singh for himself had executed the affidavit in respect of the possession and the affidavit dated 10.08.2006 given the recitation that Bhupender Rai has put the defendant in vacant possession over the aforesaid property.
27. The defendant has relied upon the following judgments in support of her Suit No. CS SCJ 601629/2016 Madhu Vs. Dulari Devi Page 10/22 case:-
(i) A C Narayanan Vs. State of Maharastra and Anr. (Supreme Court decided on 13.09.2013).
(ii) Mahendra Kumar Vs. Arm Strong and Anr. ( 2005) (2)ALD Cri 21.
(iii) Janki Vashdeo Bhojwani and Anrs. Vs. Indus Bank Ltd. and Anrs. (Supreme Court decided on 06.12.2004).
(vi). Ram Prasad Vs. Hari Narayanan and Ors AIR 1998 Raj. 185.
(v) Dr. Pradeep Mohan Bay Vs. Minguel Carlos Dias 2001 BomCR Cri.
(vi) Shambhu Dutt Shastri Vs. State of Maharastra and Ors. 1986 (2) WLN
713.
28. On 17.07.2014, issues were framed as under:-
1. Whether the plaintiff has no locus standi to file the present suit? OPD.
2. Whether the suit of the plaintiff is not maintainable in view of the preliminary objection no. 4 in the written statement? OPD
3. Whether this court does not have the pecuniary jurisdiction to entertain the present suit? OPD
4. Whether the plaintiff is entitled to a decree of possession as sought in the prayer clause (i) of the plaint? OPP
5. Whether the plaintiff is entitled to a decree of damages/mesne profits? if yes at what rate and for what period? OPP
6. Whether the plaintiff is entitled to a decree of permanent injunction? OPP
7. Relief.
29. PW1 Sh. Hemant Kumar, S/o Sh. Chiranji Lal, R/o H. No. 10944/4, 3rd Floor, Doriwalan Manakpura, Karol Bagh, New Delhi, being the duly constituted Suit No. CS SCJ 601629/2016 Madhu Vs. Dulari Devi Page 11/22 General Power of Attorney holder and husband of the plaintiff in the above said matter PW1 produced evidence by way of affidavit which is Ex. PW1/A. In his affidavit, PW1 has reiterated the facts mentioned in the plaint and put reliance on the following documents:-
Ex.PW1/1 to Ex. PW1/3 (counsel for the defendant objected to the exhibition of Ex. PW1/2 and Ex. PW1/3 on the mode of proof), Mark 'A' (mentioned as Ex.PW1/4 in my affidavit ) and Ex. PW1/5 to Ex. PW1/8.
30. PW1 Sh. Hemant Kumar S/o Sh. Chiranji Lal was examined and cross examined by Ld. Counsel for the defendant and counsel for plaintiff submits he does not wish to examine any other witness. Plaintiff evidence was closed on 05.04.2018.
31. In her defence the defendant examined DW1 Sh. Satish Kumar, JA, Record Room Civil, Tis Hazari Court, Delhi. DW2 Sh. Sameer Bhatarah, Assistant Ahlmad in the court of Sh. Abhilash Malhotra, Ld. MM-03, Central, herself as DW3 and DW4 Sh. Deepak s/o Sh. Rattan Lal.
32. DW1, DW2 and DW4 were summoned witness. DW1 brought original case file bearing civil suit no. 715/2013 tilted 'Raj Rani Vs. Bhupender Rai & Ors'. DW2 was also as summoned witness and brought original criminal case file bearing FIR No. 416/07, PS DBG Road, Delhi. DW4 was an attesting witness in the documents already exhibited as DW2 which are SPA dt. 15.07.2005 which is Ex. DW2/3 which bears his signature at point A and receipt dt. 15.07.2005 which is Ex. DW2/4 which bears his signature at point B.
33. The defendant examined herself as DW3 and produced evidence by Suit No. CS SCJ 601629/2016 Madhu Vs. Dulari Devi Page 12/22 way of affidavit which is Ex. DW3/A. In her affidavit, DW3 has reiterated the facts mentioned in the WS and put reliance upon the documents already exbhited by D2 i.e Ex. DW2/1 to Ex. DW2/5 and exhibited by D1 i.e. Ex.DW1/1.
DW3 Smt. Raj Rani was examined and discharged and closed her defence evidence vide order dt. 12.07.2022.
34. My findings on the issues are as follows:-
Issue no. 1:
Whether the plaintiff has no locus standi to file the present suit? OPD.
35. The onus to prove this issue was upon the defendant. No evidence has been led by the defendant to prove the same. Only bare averments have been made. The plaintiff is claiming herself to be owner of the property vide sale deed dated 26.10.2013, registered as No. 8370 Book No. 1, Volume No. 15343 on pages 137 to 146 on 26.10.2013 in the office of Sub-registrar concerned at New Delhi executed by erstwhile owner Sh. Ram Singh and Sh. Veer Singh, both sons of Late Dal Chand. In these circumstances, this court is of the opinion the plaintiff has a locus standi to file the present suit. Thus, this issue is decided against the defendant and in favour of the plaintiff as the defendant has failed to discharge the onus placed upon him.
Issue no. 2.
Whether the suit of the plaintiff is not maintainable in view of the preliminary objection no. 4 in the written statement? OPD
36. The onus to prove this issue was upon the defendant. It is submitted by Suit No. CS SCJ 601629/2016 Madhu Vs. Dulari Devi Page 13/22 the defendant in objection no. 4 of the written statement that the suit of the plaintiff is not legally maintainable and sustainable in eyes of law as the Sale Deed dated 26.10.2013 is a collusive and fraudulent document and the plaintiff is having the actual and constructive knowledge of the judicial proceedings/suit for declaration and permanent injunction instituted by the defendant against Bhupinder Rai son of Sh. Veer Singh, (2) Sh. Veer Singh son of Sh. Dal Chand both R/o H. No. 10338, Manakpura, Gali Pathshalawali, Karol Bagh, New Delhi- 110005 and (3) Ram Singh son of Sh. Dal Chand R/o C-4A/7B, Janakpuri, New Dehli-110055 and the said suit was pending trial before the court of Sh. Vikrant Vaid, Civil Judge and the same was fixed for 06.08.2014. The copy of the civil suit is annexed herewith. The plaintiff is not a bonafide purchaser against the lawful sale consideration and was having the full knowledge in respect of pendency of the litigation filed by the defendant against the aforesaid persons and the suit of the plaintiff is barred by doctorine of lispendentle i.e Section 52 of Transfer of Property Act.
37. No evidence has been led by the defendant to prove the contentions raised in objection no. 4 of the WS only bare averments have been made. No evidence of any collusion and fraud has been brought before the court. The defendant herself in her cross examination has admitted that suit filed by her against Bhupender Rai and Ors. was dismissed and that suit was filed on the basis of the same documents which have been used by the defendant in her defence in her present case. In the cross examination conducted on 04.06.2019, the witness i.e the defendant was shown certified copy of order dt. 13.01.2016, exhibited as Ex.DW3/P1, in the suit titled as Raj Rani Vs. Bhupender and Ors. and she admitted that vide order dt. 13.01.2016, the plaint in the abovestated suit had been rejected and that she had not filed any appeal against the order dt.
Suit No. CS SCJ 601629/2016 Madhu Vs. Dulari Devi Page 14/2213.01.2016.
38. In her cross examination it was further admitted by the defendant that Ram Singh and Veer Singh were previous owners of the suit property.
39. Thus the contentions of the defendant made in objection 4 of the WS cannot be accepted in view of the abovestated admission of the defendant in her cross examination and in view of order dt. 13.01.2016 in which the suit of the plaintiff (defendant herein) was rejected by well reasoned order.
Thus this issue is decided against the defendant and in favour of the plaintiff.
Issue no. 3.
Whether this court does not have the pecuniary jurisdiction to entertain the present suit? OPD
40. The onus to prove this issue was upon the defendant. No evidence has been led by the defendant to prove the same. Only bare averments have been made. Further, no objections were raised as per Section 21 CPC.
Thus, this issue is decided against the defendant and in favour of the plaintiff.
Issue no. 4 Whether the plaintiff is entitled to a decree of possession as sought in the prayer clause (i) of the plaint? OPP Issue no. 6.
Whether the plaintiff is entitled to a decree of permanent injunction? OPP Suit No. CS SCJ 601629/2016 Madhu Vs. Dulari Devi Page 15/22 Both this issues are being decided together as decision thereon is based upon the same facts and the evidences.
41. The onus to prove these issues was upon the plaintiff. It is submitted on behalf of the plaintiff that a decree for recovery of possession be passed in favour of the plaintiff and against the defendant directing her to deliver back the possession of the suit premises comprising of one room and kitchen situated in the ground floor of property no. 10338, Manakpura, Gali Pathshalawali, Karol Bagh, New Delhi-110005, more particularly shown and described in the site plan filed with the plaint in distinct colours and markings therein;
42. The plaintiff has submitted before the court that she is rightful and absolute owner of the property bearing no. 10338, Manakpura, Karol Bagh, New Delhi-110005, hereinafter called "the said property" for all intents and purposes having purchased the same from its erstwhile owner Sh. Ram Singh and Sh. Veer Singh, both sons of Late Dal Chand by means of Sale Deed dated 26.10.2013, registered as No. 8370 Book No. 1, Volume No. 15343 on pages 137 to 146 on 26.10.2013 in the office of Sub-registrar concerned at New Delhi.
43. It is further submitted by the plaintiff that the defendant is an unauthorized occupant in respect of one room and kitchen situated in the ground floor of the said property i.e Property no. 10338, Manakpura, Gali Pathshalawali, Karol Bagh, New Delhi-110005 and has also been refusing to pay either the damages or mesne profits for such unauthorised and illegal occupation of the said premises.
44. It is further submitted on behalf of the plaintiff that a decree for Suit No. CS SCJ 601629/2016 Madhu Vs. Dulari Devi Page 16/22 consequential relief of permanent injunction be also granted against the defendant, restraining her and /or her accomplices, employees, agents etc. from illegally subletting, assigning or otherwise parting with possession of the suit property. It is submitted on behalf of the plaintiff that the defendant has illegally been contemplating to transfer, alienate or otherwise create third party interest over the suit premises by taking the law in his own hands.
45. Per contra the defendant has submitted that, the defendant is the owner of the suit property by virtue of documents i.e. Notarized General Power Attorney, Notarized Indemnity Bond, Notarized Agreement to sell and purchase, Notarized General Power Attorney, Notarized affidavit,Notarized receipt all dated 10.08.2006. It is submitted that Bhupender Rai was son of Sh. Veer Singh and that Bhupender Rai, Veer Singh and Ram Singh had approached to the defendant to sell the suit property. It is further submitted that Veer Singh and Ram Singh had represented to the defendant that they have executed the Special Power of Attorney in favour of Bhupender Rai to enter into the sale transaction in respect of the aforesaid property and to execute the title deed in respect of the aforesaid property. Veer Singh and Ram Singh had shown the special power of attorney executed by them in favour of the Bhupender Rai to the defendant for entering into the sale transaction and to complete the same but they had not provided the copy of the special power of attorney to the defendant. It is further stated that Veer Singh and Ram Singh had assured to the defendant that Bhupender Rai has expressed and implied authority and consent of them to enter into sale transaction in respect of the aforesaid property and to execute the title deed in respect of the aforesaid property to confer the complete title and the property is free from all defects and they will honour the all acts, deeds, omissions and commissions on behalf of Bhupender Rai. It is submitted here that Bhupender Rai, Veer Singh and Suit No. CS SCJ 601629/2016 Madhu Vs. Dulari Devi Page 17/22 Ram Singh had made an offer to sell the aforesaid property to the defendant against the sale consideration of Rs. 1,60,000/- (Rupees one lakh sixty thousand only. The defendant has agreed to purchase the aforesaid property against the sale consideration of Rs. 1,60,000/- from the aforesaid persons. Bhupender Rai on behalf of Veer Singh and Ram Singh in presence of Veer Singh and Ram Singh had received and acknowledged a sum of Rs. 1,60,000/- from the defendant. Bhupender Rai had executed the receipt dated 10.08.2006 in favour of the defendant in presences of the witnesses. Bhupender Rai after accepting the consideration for himself and on behalf of Veer Singh and Ram Singh had executed the Notarized General Power Attorney, Notarized Indemnity Bond, Notarized Agreement to sell and purchase, Notarized General Power Attorney, Notarized affidavit, Notarized receipt all dated 10.08.2006.
46. The plaintiff had relied upon the sale deed dt. 26.10.2013 in support of her claim of the rightful owner of the suit property. On perusal of the sale deed dt. 26.10.2013 which is Ex. PW1/2 it is clear that the first party Ram Singh and Ors. which includes Veer Singh sold house no. 10338, Manakpura, Karol Bagh, New Delhi-110005 to the plaintiff Madhu for a lawful consideration. Ex. PW1/2 is registered and attested as per law.
47. On the other hand, the defendant is claiming ownership on the basis of documents i.e Notarized General Power Attorney, Notarized Indemnity Bond, Notarized Agreement to sell and purchase, Notarized General Power Attorney, Notarized affidavit, Notarized receipt all dated 10.08.2006 which are Ex. DW2/1, Ex. DW2/2, Ex. DW2/3, Ex. DW2/4, Ex. DW2/5 and Ex. DW2/6 executed by Sh. Bhupender Rai who was son of Sh. Veer Singh.
Suit No. CS SCJ 601629/2016 Madhu Vs. Dulari Devi Page 18/2248. It is pertinent to note that Bhupender Rai was not the owner of the suit property at the time when the abovestated documents were executed. Further, no Special Power of Attorney as stated by the defendant in her WS purportedly executed by Sh. Ram Singh and Sh. Veer Singh giving power to Sh. Bhupender Rai to sell property by virtue of the abovestated documents dt. 10.08.2006 has been filed on record. Further, in her cross examination dt. 04.06.2019, it is admitted by the defendant that no copy of the title documents which Bhupender Rai was carrying was taken by her. No title documents which purportedly gave any right to Sh. Bhupender Singh to sell the suit property have been filed on record.
49. Furthermore, the documents Ex. DW2/1, Ex. DW2/2, Ex. DW2/3, Ex. DW2/4, Ex. DW2/5 and Ex. DW2/6 executed by Sh. Bhupender Rai who was son of Sh. Veer Singh, no where stipulated that any authority was given to Sh. Bhupender Rai by virtue of any Special Power of Attorney.
50. In view of above discussions, it is clear to this court that there is no document which has been pleaded or furnished on record regarding any transfer of title to the defendant. The documents i.e. Ex. DW2/1, Ex. DW2/2, Ex. DW2/3, Ex. DW2/4, Ex. DW2/5 and Ex. DW2/6 executed by Sh. Bhupender Rai who was son of Sh. Veer Singh, are not the documents upon which the title can be transferred as per the settled law as enunciated by the Hon'ble Supreme Court of India in the case titled as Anathula Sudhakar Vs. P Buchi Reddy (dead) by LRs and Ors.
51. Whereas, it is the plaintiff who has furnished before the court a registered and attested sale deed dt. 26.10.2013. Thus, in the considered opinion of this Suit No. CS SCJ 601629/2016 Madhu Vs. Dulari Devi Page 19/22 court on the basis of balance of probabilities, it is the plaintiff who has been able to discharge the onus placed upon her and thus, has been able to establish herself as the rightful and absolute owner of the suit property. A owner has the right to claim the possession of the suit property from an unauthorized occupant. In this suit the defendant has utterly failed to prove not only her right as an owner but also her right to be in possession of the suit property, when it is claimed against the true owner on the basis of alleged ownership.
52. During the course of final arguments, Ld. Counsel for defendant strongly submitted that in this case it is the husband of the plaintiff who being GPA holder/husband of the plaintiff had given his evidence in place of the plaintiff herein. It was submitted on behalf of the defendant that this is not as per law. I have perused the judgments filed on behalf of both the parties. In the considered opinion of this court, as per Section 120 of Indian Evidence Act, husband is a competent witness for his wife. Furthermore, neither any issue has been framed in this regard nor the objections were taken by the defendant at an earlier stage. Thus, the objections raised at the stage of final arguments are of no value.
53. On the balance of probabilities, in view of above discussions, these issues are decided in favour the plaintiff and against the defendant.
Issue no. 5.
Whether the plaintiff is entitled to a decree of damages/mesne profits? if yes at what rate and for what period? OPP
54. The onus to prove this issue was upon the plaintiff.
The plaintiff has sought Rs. 5000/- per month damages/mesne profit for Suit No. CS SCJ 601629/2016 Madhu Vs. Dulari Devi Page 20/22 the illegal and an unauthorised use and occupation of the suit property against the defendant for the period 01.02.2014 to 28.02.2014 and from the period of the filing of the suit till the delivery of the possession by the defendant to the plaintiff.
55. On the basis of the decision in issue no. 4 & 6, as the plaintiff has been held to be absolute and rightful owner of the suit property, thus making the defendant an unauthorized occupant, and as such this issue is also decided against the defendant and in favour of the plaintiff, however, the damages /mesne profits are only granted @ of Rs. 2000/- per month looking at the condition and the location of the property for the period claimed by the plaintiff as the damages /mesne profits @ Rs. 5000/- per month have been found to be excessive.
Issue no. 7.
56. Relief.
(i) Plaintiff is held entitled to a decree for recovery of possession and the defendant is hereby directed to deliver back the possession of the suit premises comprising of one room and kitchen situated in the ground floor of property no. 10338, Manakpura, Gali Pathshalawali, Karol Bagh, New Delhi-110005, more particularly shown and described in the site plan filed with the plaint in distinct colours and markings therein;
(ii) Plaintiff is also held entitled to a decree of consequential relief of permanent injunction and the defendant, her accomplices, employees, agents etc., are hereby permanently restrained from illegally subletting, assigning or otherwise parting with the possession of the suit premises i.e one room and kitchen situated in the ground floor of property no. 10338, Manakpura, Gali Pathshalawali, Karol Suit No. CS SCJ 601629/2016 Madhu Vs. Dulari Devi Page 21/22 Bagh, New Delhi-110005, more particularly shown and described in the site plan filed with the plaint in distinct colours and markings therein;
(iii) Plaintiff is also held entitled to a decree for recovery of damages/mesne profits @ Rs. 2000/- per month for the period w.e.f 01.02.2014 to 28.02.2014 and also for the period from the date of the filing of the suit till the possession of the suit premises is handed over by the defendant to the plaintiff.
57. Cost of the suit be also awarded to the plaintiff.
58. Decree sheet be prepared accordingly.
59. File be consigned to record room.
Announced & signed in the (DEV SAROHA)
open court on 09.08.2023 Civil Judge-6/Central/ Delhi
09.08.2023
Note :- This Judgment contains 22 pages and all the pages have been checked and signed by me.
(DEV SAROHA) Civil Judge-6/Central/ Delhi 09.08.2023 Suit No. CS SCJ 601629/2016 Madhu Vs. Dulari Devi Page 22/22