Delhi District Court
Smt. Anila Sharma vs Ms. Shiksha Rathore on 24 December, 2024
IN THE COURT OF SH. SOMITRA KUMAR,
DISTRICT JUDGE - 06 (EAST DISTRICT),
KARKARDOOMA COURTS, DELHI
CNR NO.:- DLET010021642018
SUIT NO.:- 278/2018
IN THE MATTER OF :-
1. Smt. Anila Sharma
W/o Sh. S. K. Sharma
R/o D-231, Anand Vihar,
Delhi-110092
2. Smt. Rajni Khaneja
W/o Sh. S. C. Khaneja
R/o A-103, Madhuban,
Delhi-110092 ....Plaintiffs
VERSUS
1. Ms. Shiksha Rathore
W/o Sh. D. P. S. Rathore
R/o B-58, Preet Vihar,
Delhi-110092
2. Sh. Dharampal Singh Rathore
R/o B-58, Preet Vihar,
Delhi-110092 ...Defendants
Date of institution of the suit : 04.04.2018
Date of Reserving judgment : 04.12.2024
Date of pronouncement : 24.12.2024
Decision : Decreed
CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 1 of 52
SUIT FOR MANDATORY INJUNCTION AND FOR RECOV-
ERY OF DAMAGES / MESNE PROFITS
JUDGMENT
1. By way of the present judgment, this court shall adjudicate upon a suit filed by the plaintiffs against the defendants for mandatory injunction and for recovery of damages/mesne profits praying for a decree of mandatory injunction directing defen- dants no. 1 and 2 their agents, assignees, representatives etc. to handover peaceful and vacant possession of the property bearing no. B-58, Preet Vihar, Delhi-1100092 measuring 200 square yards (hereinafter referred to as the "the suit property") and pay mesne profits/damages for unauthorized use and occupation of the suit property as prayed for.
CASE OF PLAINTIFF
2. It is averred by the plaintiffs in the plaint that plaintiffs' spouses i.e. Sh. S. K. Sharma and Sh. S. C. Khaneja were ac- quainted with the husband of defendant No.1 i.e. Sh. Dharampal Singh Rathore i.e. defendant No. 2 and thus defendant No. 2 in- troduced defendant no. 1 to the plaintiffs and both defendants showed interest in selling one of their properties to the plaintiffs; that after negotiations, defendant no. 1 sold the suit property bearing No. B-58, Preet Vihar, Delhi-110092, measuring 200 Sq. yards to the plaintiffs vide a Sale Deed dated 02.09.2013 duly registered as document no. 1400, Book No.1, Volume No. 57, Pages 158 to 166, dated 04.09.2013 in the office of Sub Regis-
CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 2 of 52trar-VIIIA, Delhi; that the defendant no. 2 was one of the wit- nesses to the said Sale Deed; that with the execution of the afore- said Sale Deed, the defendant No.1 handed over physical vacant possession of the suit property to the plaintiffs along with entire chain of title documents of the suit property; and that it was specifically mentioned in the Sale Deed in Clause-3 that the property under sale is free from any sort of encumbrances like sale, mortgage, gift, lien, etc. and there is no legal defect in the ti- tle of the defendant No. 1.
3. It is further averred in the plaint that since the defendants were known to the plaintiffs for a long period, hence both of de- fendants requested the plaintiffs to allow them alongwith their family to stay in the suit property for some time, to enable them to look for an alternate residence; that in view of their requests and for the sake of friendly relations with the defendants, the plaintiffs permitted the defendants to use the premises for some time as licensee; that when the defendants did not leave the suit property for quite some time, the plaintiffs asked the defendants to give a timeline for vacating the premises since the plaintiffs wanted to renovate the suit property and use it for earning rental income; that both the defendants represented to the plaintiffs that their elder son is of marriageable age and both the defendants were receiving good proposals only for the reason of their stay in the suit property, hence both of defendants requested for some more time stating that defendants are looking for rental property nearby; that having regard to the friendly relations with their CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 3 of 52 family, the plaintiffs agreed to their request but asked the defen- dants to leave the suit property as soon as they get an alternate accommodation.
4. It is further averred that to the shock and surprise of the plaintiffs, the defendants did not vacate the suit property even af- ter their elder son got married and started living with his wife in the suit property, alongwith the defendants; that eventually the defendants got married their younger son also but did not vacate the suit property of the plaintiffs; that on persistent queries from the plaintiffs from time to time regarding the date of vacating the suit property, the defendants on each of such occasion requested for some more time and the plaintiffs caring for the friendly rela- tions with them kept on acceding to their request for extended stay in the suit property; that till July 2017, both the defendants breached all timelines given by them and did not vacate the suit property and kept on delaying it for one reason or another; in July 2017, the defendants also gave a written undertaking that by 31.12.2017, defendants shall be leaving the suit property but did not comply with their promises and undertaking.
5. It is further averred that on 02.02.2018, the plaintiffs were approached by a Sub Inspector from Police Station, Preet Vihar for inquiries with respect to one criminal complaint filed against the defendants at Karkardooma District Courts, whereby the plaintiffs came to know that the defendants have cheated some person by representing that they are the owners of the suit prop- erty and have accepted huge amounts from him as sale considera- tion; that pursuant to the receipt of the aforesaid information from the police officer, the plaintiffs immediately through their CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 4 of 52 counsel served a legal notice dated 06.02.2018 upon the defen- dants through speed post and demanded them to leave the suit property within one month, however, defendants have not va- cated the suit property till the filing of the present suit.
6. It is further averred that defendants have been acting fraud- ulently and have misled the plaintiffs with malicious intentions and made false representations regarding their stay in the suit property; that the defendants never had any intention of making good their promises of vacating the property though inducted as licensees by the plaintiffs and both defendants along with their other family members have been staying in the said property without paying single penny whereas the plaintiffs acted with pi- ous and bonafide intentions of permitting them to use their prop- erty; that both the defendants through their false representations and promises caused wrongful loss to the plaintiffs and have made wrongful gains themselves; that while their permissive stay in the suit property, defendants represented to the public at large that they are the owners in possession of the suit property, whereas they were only allowed to use the said premises till they find an alternate accommodation; that for deceitful, fraudulent, and unlawful use and stay at plaintiffs' premises from 04.09.2013 till 31.12.2017, the plaintiffs seek damages of Rs.30,00,000/- (Rs. Thirty Lakhs); that the plaintiffs are limiting its relief to 30 months i.e. from 01.07.2015 to 31.12.2017 and with effect from 31.12.2017, the defendants are liable to pay Rs. 2,00,000/- (Ru- pees Two Lakhs only) per month as damages to the plaintiffs for their unlawful stay till the date of vacating the suit property.
CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 5 of 527. It is further averred that the plaintiffs that despite service of the legal notice dated 06.02.2018 upon the Defendants calling upon the defendants to handover the vacant and peaceful posses- sion of the suit property and pay the damages as sought, the de- fendants failed to hand over the vacant and peaceful possession of the suit property. Hence, the present suit is filed by the plain- tiffs against the defendants for mandatory injunction and for re- covery of damages/ mesne profits.
WRITTEN STATEMENT OF THE DEFENDANTS
8. Upon service of summons of the suit, the defendants con- tested this suit by filing written statement. In the written state- ment, the defendants denied the claims of the plaintiffs and it is pleaded that the present suit is not maintainable because the de- fendants are the owners of the suit property and had taken a loan of Rs. 1,85,00,000/- (Rupees one crore and eighty five lacs only) from the plaintiffs and in consideration of the said loan amount, the plaintiff got executed the sale deed in respect of the suit prop- erty as a collateral security, subject to the condition that in case the loan amount is repaid, the said sale deed would be treated to be cancelled and because of that reason, the possession of the suit property remained with the defendants and the possession was never given and the defendants are the owners in possession of the suit property in their own rights; that sale deed was executed on 02.09.2013 when the said loan amount was taken and the present suit has been filed for mandatory injunction on 04.04.2018 i.e. after the expiry of more than three years from tak- ing of the said loan and in case the defendants sold the suit prop- erty without delivering the possession for a period of more than CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 6 of 52 three years, the plaintiffs would not have kept silent and would have taken action against the defendants in accordance with law. In view of this, it is averred in the written statement that the present suit is not maintainable because the defendants are not the licensees.
9. It is further averred that the plaintiffs had never permitted the defendants to live there as licensees; that the plaintiffs had not disclosed when the possession in respect of the said premises was taken and when they permitted the defendants to stay in the said premises as licensees because it is a settled that if a person purchases the property on the basis of the sale deed, he would have taken the possession of the same and would not allow the seller to remain in possession of the said premises for a period of more than three years, and that in case the sale deed is executed in favour of a particular person and the possession is not given, then it is not a sale but it is a loan transaction.
10. It is further averred that the suit has not been properly val- ued for the purposes of court fees and jurisdiction because the value of the said property is more than Rs. 5 crores as said prop- erty is situated in the posh area of East Delhi and there the land rate is more than Rs. 2 lacs per sq. yards and the plaintiffs are re- quired to value the relief on the market value of the said property while seeking the relief of possession and therefore, this court has no pecuniary jurisdiction to entertain and try the present suit; that the suit for mandatory injunction is not maintainable as the remedy available to the plaintiff to file a suit for possession on the payment of the Court fees on the market value of the suit property; that the plaintiffs have not approached the Court with CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 7 of 52 clean hands, therefore, they are not entitled to any relief from the Court; and that the present suit is without any cause of action and as such the plaintiff is liable to be rejected under order VII Rule 11 of CPC.
11. It is further averred in the written statement that the plain- tiffs were known to the defendants and the defendants were hav- ing financial problems and consequently, they had approached the plaintiffs for advancing loan and consequently, the plaintiffs agreed to advance the loan, subject to the condition that the de- fendants would execute the sale deed in respect of the suit prop- erty and after the payment of the loan amount, the plaintiffs would transfer the suit property in favour of the defendants and the plaintiffs would not claim the possession in respect of the said property and the possession of the same would remain with the defendants and because of that reason since the alleged trans- action regarding the execution of the sale deed, the possession of the said property remained with the defendants and at no point of time, the possession was ever given, although, it was mentioned in the sale deed that the plaintiffs had taken the possession but in fact, the possession was never taken by the plaintiffs at any point of time which fact was also admitted by the plaintiffs in the plaint and as such, the said sale deed was executed only as a col- lateral security for repayment of the loan amount and the defen- dants have approached the plaintiffs several times for taking back the said loan amount and transfer of the said property but the plaintiffs with oblique motives refused to transfer the same and filed the present suit with malafide motives with the object to CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 8 of 52 blackmail the defendants and to extract money from the defen- dants and as such, the present suit is not maintainable and the de- fendants are in possession of the said property in their own rights.
12. It is further averred in the written statement that the defen- dants never sold the suit property and in fact, the defendants had taken a loan from the plaintiffs and in consideration of the said loan amount, the plaintiffs fraudulently got executed the sale deed and while executing the sale deed, the plaintiffs further as- sured that they would not claim any right over the said property and the possession of the same would remain with the defendants and when the defendants would return back the said amount, they would re-transfer the said property in favour of the defendants and the defendants requested the plaintiffs for taking the said amount and transfer the said property but the plaintiffs instead of transferring the said property in favour of the defendants, filed the present suit with malafide motives.
13. It is further averred in the written statement that the defen- dants never handed over the vacant and peaceful possession in respect of the said property to the plaintiffs at any point in time and the defendants are in possession of the said property in their own rights and the question of creating any license and thereby permitting the defendants to live in the said premises as li- censees, does not arise; that the alleged sale deed is dated 02.09.2013 and more than three years have already passed and at no point of time, the plaintiffs had ever asserted or claimed any CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 9 of 52 right over the said property and filed the present suit after the ex- piry of three years which clearly shows the malafide motive on the part of the plaintiffs in filing the present suit.
14. It is further averred in the written statement that the plain- tiffs have not disclosed as to when for the first time the plaintiffs asked the defendants to vacate the suit property and only vague allegations have been made in this regard; that no time was ever sought by the defendants for the vacation of the suit property and the defendants are in possession of the suit property in their own rights; that the defendants had never sold the suit property to any- one else and had never taken any amount from any one against the said property.
15. It is further averred in the written statement that the fraud- ulent conduct of the plaintiffs is further clear from the fact that when the plaintiffs had clearly mentioned that the plaintiffs and the defendants were having good relations and the defendants sought time for arranging alternative residence, which clearly shows that the possession was never handed over to the plaintiffs. and the fact mentioned in the sale deed that the possession was handed over to the plaintiffs is false.
16. It is denied on behalf of the defendants that any legal no- tice dated 06.20.2008 was served on the defendants on behalf of the plaintiff or any such legal notice was received by the defen- dants from the plaintiffs; that the defendants are not liable to pay any damages to the plaintiffs as claimed in the present suit be- cause they are the owners in possession of the suit property.
CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 10 of 5217. Rest, all the allegations made in the plaint are denied by the defendant.
REPLICATION
18. In replication, the plaintiff reiterated the contents of the plaint and made necessary denials of the defendants' averment in written statement. Additionally, it is averred on behalf of the plaintiffs that the defendants are raising a completely sham and frivolous defense to the suit of the plaintiffs because defendant No. 2 has been an experienced builder for almost 30 years and has constructed/ developed and sold hundreds of flats by execut- ing documents viz. sale- deeds/Loan-Documents/Mortgage Deeds etc. and has also availed loans from banks and various persons by means of mortgage-deeds, therefore, he is aware of the difference between a sale deed and a mortgage deed.
19. It is further averred that the suit property was in fact mort- gaged with the Kotak Mahindra Bank by the defendants and the said loan was paid by the defendants after receiving part sale- consideration from the plaintiffs, and the defendants wrote a let- ter dated 22.08.2013 to Kotak Mahindra Bank, in which they clearly stated that they had sold the property and thus they wish to repay the entire loan and requested for original title deeds. The defendants made re-payment of loan amounts on 30.08.2013 and Kotak Mahindra Bank thereafter issued a letter dated 30.08.2013 confirming the foreclosure of the loan account. Pursuant to this, the sale deed was executed by the defendants in favour of the CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 11 of 52 plaintiffs on 02.09.2013. The TDS was also deducted by the Plaintiffs and paid to the account of Central Government which is applicable only in case of sale transactions and not in mortgage transactions.
20. It is further submitted that the possession was given to plaintiffs by the defendants simultaneously while executing the sale deed, but since the defendants were family friends they were allowed for extended stay as they pleaded to solemnize the mar- riage of their first and then second son and agreed in writing to give back the possession by 31.12.2017
21. It is further averred that the defendants are not coming be- fore the court with clean hands and suppressed material facts as even after selling the property to the plaintiffs, they have taken a loan against the suit property by way of mortgage and executing another agreement to sell in respect of the suit property with NETSITY SYSTEMS PVT LTD; that thereafter the duped buyer filed a criminal complaint against both the defendants in Eco- nomic Offences Wing (EOW) and later on filed a criminal com- plaint under section 156(3) of the Code of Criminal Procedure, 1973 before the concerned ACMM which led to registration of FIR no. 0081 dated 06.05.2018 under section 420/34 IPC in P.S. Preet Vihar vide orders dated 03.04.2018, passed by Ld. ACMM (EAST).
22. It is further averred that the defendants are guilty of breach of trust and have been illegally occupying the suit property. It is also averred that the plaintiffs have due cause of action to file the CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 12 of 52 present suit and the same have been stated in unequivocal and unambiguous terms in the in the pleadings of the present suit.
FRAMING OF ISSUES
23. On the basis of the pleadings, the following issues were framed on 16.08.2018 by Ld. Predecessor of this Court:
(i) Whether the plaintiffs are entitled for the relief of mandatory injunction as claimed in prayer clause '(a)' of the plaint? OPP
(ii) To what amount of damages and mesne profits, the plaintiffs are entitled and at what rates and also for what periods, respectively, as claimed in prayer clause '(b)' of the plaint? OPP
(iii). Whether the suit is undervalued for the purposes of court fee and jurisdiction and if so, its effects? OPD
(iv). Relief.
24. Thereafter, vide order dated 25.10.2023, an application un- der Order XIV Rule 5 read with Section 151 of CPC filed on be- half of the defendants for framing of additional issues was al- lowed and following additional issues are framed:-
(iv) Whether suit of the plaintiff is liable to be dismissed in view of the fact that the defendant no.1 is the owner of suit property? OPD
(v) Whether defendants are the licencees in respect of the suit premises? OPP CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 13 of 52
(vi) Whether suit of the plaintiffs is liable to be dismissed under Order VII Rule 11 CPC due to non-
filing of proper court fees for the relief of mandatory injunction? OPD
(vii) Whether suit is liable to be dismissed for being without cause of action? OPD PLAINTIFF'S EVIDENCE
25. In support of its claim, the plaintiffs examined three witnesses. Plaintiff no. 2/ Smt. Rajni Khaneja was examined as PW-1. In her examination in chief, PW-1/Smt. Rajni Khaneja deposed in the line of plaint of this suit and tendered affidavit, Ex.PW1/A, in her evidence and relied upon the following documents namely registered Sale deed dated 02.09.2013, Ex.PW1/1; Site plant, Ex. PW1/2; Original of undertaking given by the defendant, Ex.PW1/3 (OSR); Complaint lodged by plaintiffs to SHO, P.S. Preet Vihar, Delhi, Ex. PW1/4 against defendants; legal notice dated 06.02.2018, Ex. PW1/5, etc.
26. PW-1 was cross examined at length by Ld. Counsel for the defendants and discharged after her cross examination on 04.06.2019. However, pursuant to the order dated 03.04.2024, PW-1/Smt. Rajni Khaneja was recalled for cross examination in view of the framing of additional issues. PW-1 was cross- examined at length 08.05.2024 by Ld. Counsel for the defendants and was discharged.
27. Sh. Vipin Kujur, who is a summoned witness, is examined as PW-2 and deposed that record pertaining to speed post articles no. ED432952732IN and ED432952729IN dated 06.02.2018 CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 14 of 52 have been weeded out and copy of weeded out register along with the covering letter is Ex.PW-2/A.
28. Head Constable Vishwanath from P.S. Preet Vihar, Delhi, who is a summoned witness, is examined as PW-3 and brought on record rojnamcha register containing DD no. 66-B dated 05.02.2018, copy of which is Ex.PW3/A (OSR). He has also brought on record a copy of FIR bearing no. 81/18 under Section 420/34 IPC registered against accused Shiksha Rathore and Sh. D.P.S. Rathore, copy of which is Ex.PW3/B. He was cross- examined on behalf of the defendants.
29. Thereafter, vide order dated 08.05.2024, plaintiffs' evidence was closed.
DEFENDANT'S EVIDENCE
30. The defendants, in their defense examined two witnesses. The defendant no. 2 is examined as DW-1. DW-1 is deposed on his behalf as well as Special Power Attorney holder of defendant no. 1. In his examination in chief, DW-1/Sh. Dharampal Singh Rathore tendered his evidence by way of an affidavit, Ex.DW1/1 and relied upon the documents viz. Original SPA executed in his favour by defendant no. 1, Ex.DW1/A; and Copy of gazette noti- fication dated 22.09.2014, Ex.DW1/B (objected to the mode of proof).
31. DW-1 was cross examined at length by Ld. Counsel for the plaintiffs.
32. Sh. Mahesh Babu Record Keeper from the office of Sub- Registrar VIIIA (Preet Vihar) having office at the office of CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 15 of 52 District Magistrate East (L & M Bandh), Shastri Nagar, Delhi-110031, who is a summoned witness, examined as DW-2.
DW-2 has brought on record notification no.
F.1(953)/Regn.Br./Div.Com/HQ/2014/5943 dated 22.09.2014 of GNCT of Delhi with regard to circle rate in Delhi, which is Ex.DW2/B (colly.). DW-2 has also brought on record the list of categories of the properties, which is Ex.DW2/C (colly.), and deposed that as per Ex.DW2/C, Preet Vihar, Delhi falls under the category 'D'.
33. Thereafter, vide order dated 12.09.2024, the defendants' evidence was closed.
FINAL ARGUMENTS:
34. Final arguments were advanced at length by Ld. Counsel for the plaintiffs, Sh. Saurabh Sharma and Ld. Counsel for the defendants, Sh. R. K. Singh. Written arguments were also filed on behalf of the plaintiffs and defendants. Ld. Counsel for the plaintiffs relied upon the judgements of the Hon'ble Supreme Court in Bharat Bhushan Gupta Vs. Pratap Narain Verma and Ors., reported as MANU/SC/0783/2022; Vimal Chand Ghevarchand Jain & Ors. Vs. Ramakant Eknath Jajoo, reported as MANU/SC/0441/2009; and Prakash (Dead) by L.R. Vs. G. Aradhya & Ors., reported as MANU/SC/0896/2023.
FINDINGS:
35. I have considered the submissions and perused the record carefully. The written arguments filed by the plaintiffs have also been perused carefully. The issue wise findings, in this suit, are as follows:
CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 16 of 52ISSUE NO. 1, 4, 5 & 7:-
36. Issues no. 1, 4, 5 and 7 are interconnected, hence, they are being discussed and decided together.
37. The issue no. 1 pertains to the entitlement of the plaintiffs to the relief of mandatory injunction directing the defendants to hand over peaceful and vacant possession of the suit property to the plaintiffs and issue no. 5 pertains to whether the defendants are licensees of the plaintiffs in the suit property. The onus to prove the issues no. 1 and 5 was on the plaintiffs.
38. In order to establish their entitlement to the relief of mandatory injunction as prayed as well as to establish that the defendants are licensees of the plaintiffs in the suit property, it is averred by the plaintiffs that the plaintiffs purchased the suit property from the defendant no. 1 vide sale deed dated 02.09.2018, and the physical vacant possession of the suit property along with the entire chain of title documents of the suit property was handed over to the plaintiffs by the defendants. To prove their averments, the plaintiffs brought on record the registered sale deed dated 02.09.2018, Ex. PW1/1 executed by defendant no. 1 in favour of the plaintiffs in respect of the suit property for sale consideration of Rs. 1,85,00,000/- (Rupees One Crore Eighty Five Lakhs only) received by defendant no. 1. It is further averred on behalf of the plaintiffs that after execution of the sale deed, Ex. PW1/1, the defendants requested the plaintiffs to allow the defendants along with their family to stay in the suit property for some time to enable them to look for an alternative accommodation and the plaintiffs considering friendly relations CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 17 of 52 permitted the defendants to use the suit property for some time as licensees. Thereafter, when the defendants did not leave the suit property for quite some time, the plaintiffs asked the defendants to give a timeline for vacating the suit property, upon which the defendants requested the plaintiffs for some more time on the pretext that they were getting good proposals for the marriage of their elder son on account of their stay in the suit property. The plaintiffs agreed to the request of the defendants, however, asked them to leave the suit property as soon as they got the alternate accommodation. It is further averred that the defendants thereafter got married both their elder and younger son in the suit property but did not vacate the suit property and kept on requesting for some more time and the plaintiffs acceded to the request of the defendants considering friendly relations between them.
39. The defendants in their written statement have not denied the execution of the sale deed, Ex. PW1/1 in favour of the plaintiffs. However, it is contended on behalf of the defendants that said sale deed was executed as collateral security for a loan of Rs. 1,85,00,000/- (Rupees One Crore Eighty Five Lakhs only) which the defendant had taken from the plaintiffs with the condition that in case the loan is repaid the said sale deed would be treated as cancelled. It is further contended by the defendants that for this reason, the possession of the suit property remained with the defendants. It is also contended by the defendants that it was agreed between the plaintiffs and defendants that when the loan is returned, the plaintiffs would re-transfer the suit property in favour of the defendants. It is averred that the defendants CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 18 of 52 requested the plaintiffs to take the said loan amount and transfer the suit property but the plaintiffs instead of transferring the suit property in favour of the plaintiffs filed the present suit. It is also contended by the defendants that the defendants never handed over the peaceful and vacant possession of the suit property to the plaintiffs at any point in time and defendants are in possession of the suit property in their own rights and question of creating any license and thereby permitting the defendants to live in the suit property as licensees does not arise. It is also contended in the written statement that the plaintiffs failed to aver in the plaint as to when the possession of the suit property was allegedly handed over to the plaintiffs and when the plaintiffs permitted the defendants to stay in the suit property.
40. Regarding the aforesaid contentions of the parties, it is seen that as per clause 1 of the sale deed, Ex. PW1/1, the entire sale consideration amount of Rs. 1,85,00,000/- except the TDS amount of Rs. 1,85,000/- was paid by plaintiffs to defendant no. 1 before the execution of the sale deed dated 02.09.2018 through RTGS and a cheque. Further, as per clause 2 of the said Sale Deed, defendant no. 1 conveyed all her rights, title and interests in the suit property in favour of the plaintiffs. The defendants seek to impugn the said sale deed by averring that the said amount of Rs. 1,85,00,000/- (Rupees One Crore Eighty Five Lakhs only) paid by the plaintiffs to defendant no. 1 was a loan transaction and the sale deed Ex. PW1/1 was executed as collateral security in consideration of the loan amount. However, the sale deed, Ex. PW1/1, does not mention anywhere that it is executed as collateral security for any loan transaction between CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 19 of 52 the parties. The defendants also failed to bring on record any document to prove that there was a loan transaction between the parties. The written statement and evidence by way of affidavit of DW1 do not mention any details about the alleged loan transaction such as the interest rate or repayment schedule of the alleged loan transaction.
41. Furthermore, there is absolutely no averment on behalf of the defendants in their pleadings or evidence that they have repaid the loan amount allegedly taken by them from the plaintiffs. However, during cross examination of PW1 conducted on 04.06.2019 by Ld. Counsel for the plaintiffs, the suggestion was put to PW1 about the return of the loan amount by defendant no. 2 but the said the suggestion was denied by PW1. Further, during cross-examination conducted on 08.05.2024, PW1 was asked "Is it correct that the loan taken by defendant no. 1 has been repaid to you?" The PW1 replied "It is incorrect" and voluntarily added that no loan was given by the plaintiffs to defendant no. 1 and the plaintiffs had purchased the suit property by way of the Sale Deed.
42. Further, DW1 in his cross examination conducted on 21.08.2024 deposed that he has not paid any money to plaintiffs or their husbands in respect of the said loan transaction from the date of execution of the sale deed till the filing of the suit. DW1 voluntarily added that it was agreed between him and the husbands of the plaintiffs that the loan amount could be paid at any time. Even, DW1 admitted in his cross examination that he CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 20 of 52 never gave any notice to the plaintiffs to show his intention to repay the loan amount.
43. Therefore, the defendants have taken contradictory stands regarding the alleged loan and repayment thereof. In the written statement, there is no averment about repayment of the alleged loan, whereas, in the cross examination of PW1/plaintiff no. 2, suggestion and questions were put on behalf of the defendants about the repayment of the said loan. However, DW1 in his cross examination specifically denied any repayment of the loan.
44. Further, in cross examination conducted on 21.08.2024, DW1 deposed that the said loan was a friendly loan, but he has not filed any document on record to show that it was a friendly loan. DW1 also deposed that there was no installment decided between him and the plaintiffs and no installment was paid by him.
45. The stand taken by the defendants regarding the alleged loan transaction appears to be highly improbable. It is inconceivable that the plaintiffs would lend a huge amount of Rs. 1,85,00,000/- as a friendly loan to defendants without any repayment schedule or interest against collateral security of the suit property without taking possession of the suit property to secure their interest or rights. It is also a weird proposition that neither the defendants have paid any money in respect of the said alleged loan amount nor given any notice to the plaintiffs of their intention to repay the loan amount nor the plaintiffs have demanded the return of the loan amount. The defendants have nowhere averred that they took any steps for cancellation of the CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 21 of 52 sale deed Ex. PW1/1 as it was only collateral security. If the sale deed, Ex. PW1/1 was never meant to be acted upon and it was meant to be a collateral security for the loan, it is not plausible that a reasonable person would lend the defendants a huge amount of Rs. 1.85 crore without any interest as well as without any repayment schedule. Further, if the said amount was meant to be repaid, the defendant failed to place documentary evidence on record to show their willingness and readiness to pay the said amount. The defendants have not brought any documentary evidence on record to show that they ever even offered to repay the said loan or get the sale deed cancelled by repaying the loan amount.
46. It is also worth noting that the sale deed Ex. PW1/1 does not contain any recital regarding collateral security/mortgage of the suit property. Defendant no. 2/DW1 in his cross-examination, deposed that he is a builder and he does building work in joint ventures and buy and sell properties. DW2 during cross examination also admitted that the suit property was previously mortgaged by the defendants with the Kotak Mahindra Bank and it was only after payment by the plaintiffs of the part sale consideration the suit property was redeemed by defendant no. 2 from Kotak Mahindra Bank and the Bank issued receipt Ex. DW1/X-1 and Ex. DW1/X-2 to him. However, DW1 in the cross examination conducted on 18.07.2024 deposed the does not know the difference between the mortgage deed and sale deed.
47. It is not plausible that a person who is a builder and deals in buying and selling of properties and has previously dealt with the Kotak Mahindra Bank in mortgage transaction in connection CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 22 of 52 with the suit property does not know the difference between a mortgage deed and a sale deed.
48. The defendant no. 2/DW2 has taken contrary stands and from his testimony, it is inconceivable that defendant no. 2 does not know the difference between a sale deed and a mortgage deed. The deposition DW2 does not inspire confidence and reflects that he is not being truthful before the Court.
49. On the other hand, Plaintiff no. 2/PW1 in her cross examination conducted on 08.05.2019 categorically deposed about defendant no. 2 approaching plaintiffs for seeking help in clearing loan liabilities of defendants with Kotak Mahindra Bank where the suit property was mortgaged and the plaintiffs arranging approximately Rs. 2 crores for release of the suit property from the Bank. PW1 also deposed about the negotiation for the sale of the suit property commencing in the month of July 2013 and the deal being finalized in the month of August 2013 and thereafter the sale deed in respect of the suit property being executed in September 2013. PW1 denied the suggestion that the suit property was kept as a security. PW1 also denied the suggestion that the suit property was mortgaged in favour of the plaintiffs by defendant no. 1 against the loan amount.
50. Thus, the plaintiffs have established that the defendant no. 1 executed the Sale Deed, Ex. PW1/1 in favour of the plaintiffs transferring the ownership in the suit property in favour of the plaintiffs rather than the said sale deed being merely collateral security for the alleged loan transaction or mortgage deed.
CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 23 of 5251. Further, on the contention of the defendants that the sale deed dated 02.09.2013, Ex. PW1/1 was a sham document and was executed as collateral security in consideration of the alleged loan transaction and the plaintiffs were to retransfer the suit property in favour of the defendant after payment of the alleged loan, it is pertinent to refer to section 58(c) of the Transfer of the Property Act, 1882 (as amended), which deals with "mortgage by conditional sale". The said provision is extracted below as under:
58. "Mortgage", "mortgagor", "mortgagee", "mortgage-
money" and "mortgage deed" defined.
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) Mortgage by conditional sale. - Where, the mortgagor ostensibly sells the mortgaged property-
On condition that on default of payment of the mortgage- money on a certain date the sale shall become absolute, or On condition that on such payment being made the sale shall become void, or On condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called mortgage by conditional sale and the mortgagee a mortgagee by conditional sale:
Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.
52. In this connection, it also pertinent to refer to the judgement of the Hon'ble Supreme Court of India in Prakash (Dead) by L.R. Vs. G. Aradhya & Ors., reported as CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 24 of 52 MANU/SC/0896/2023 relied upon by the plaintiffs. The relevant paragraphs of the said judgement are extracted hereinbelow:
24. A perusal of the aforesaid proviso to Sub-section (c) of Section 58 of the 1882 Act provides that no transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale. It is the undisputed case in hand that it was not a single document, the conditions contained wherein have to be considered by this Court to opine that the transaction was not a sale, but a mortgage. Admittedly, there are two separate documents.
25. Similar argument, where two separate documents were executed, came up for consideration before this Court in Bishwanath Prasad Singh's case (supra). One was the Sale Deed and the second was the agreement for sale. Both were executed on the same date. It was opined therein that to appreciate a document its contents are to be read in entirety and the intention of the parties is to be gathered from the language used therein. Para 16 of the aforesaid judgment is referred to for ready reference:
16. A deed as is well known must be construed having regard to the language used therein. We have noticed hereinbefore that by reason of the said deed of sale, the right, title and interest of the Respondents herein was conveyed absolutely in favour of the Appellant. The sale deed does not recite any other transaction of advance of any sum by the Appellant to the Respondents which was entered into by and between the parties. In fact, the recitals made in the sale deed categorically show that the Respondents expressed their intention to convey the property to the Appellant herein as they had incurred debts by taking loans from various other creditors.
25.1. Further, in the aforesaid judgment, this Court while interpreting the terms of the agreement executed along with the Sale Deed and opined that the same cannot be treated to be a mortgage as the expression used therein were 'vendor', CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 25 of 52 'vendee', 'sold' and 'consideration'. Fixed period was granted for execution of the Sale Deed.
25.3. A perusal of the aforesaid paras of the judgment shows that the proviso was added in Section 58(c) of the Act vide Act No. 20 of 1929, so as to put at rest the conflicting decisions on the issue. A deeming fiction was added in the negative that a transaction shall not be deemed to be a mortgage unless the condition for reconveyance is contained in the document which purports to effect the sale.
53. In view of the proviso to section 58(c) of the Transfer of the Property Act, 1882, a transaction shall be deemed to be mortgage by conditional sale only when the terms for conditional sale are embodied in the document which effects or purports to effect the sale. In the present case, sale deed dated 02.09.2013, Ex. PW1/1, does not contain any stipulation to the effect that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or on such payment being made the sale shall become void, or on such payment being made the buyer shall transfer the property to the seller.
54. In this connection, it also pertinent to refer to the judgement of the Hon'ble Supreme Court of India in Vimal Chand Ghevarchand Jain & Ors. Vs. Ramakant Eknath Jajoo, reported as MANU/SC/0441/2009 relied upon by the plaintiffs, the Hon'ble Supreme Court observed that in the case of the deed of sale being a registered one and apparently containing stipulations of transfer of right, title and interest by the vendor in favour of the vendee, the onus of proof was upon the defendant to show that the said deed was, in fact, not executed or otherwise does not reflect the true nature of transaction. In this judgement, the Hon'ble Supreme Court further observed as under:
CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 26 of 52"21...................
.....................
..................
A heavy burden of proof lay upon the defendant to show that the transaction was a sham one. It was not a case where the parties did not intend to enter into any transaction at all. Admittedly, a transaction had taken place. Only the nature of transaction was in issue. A distinction must be borne in mind in regard to the nominal nature of a transaction which is no transaction in the eye of law at all and the nature and character of a transaction as reflected in a deed of conveyance. The construction of the deed clearly shows that it was a deed of sale. The stipulation with regard to payment of compensation in the event appellants are dispossessed was by way of an indemnity and did not affect the real nature of transaction."
55. The defendants failed to adduce any cogent evidence to show that sale deed was a sham transaction or the same was executed by way of security. A perusal of the sale deed, Ex. PW1/1 shows that it is clearly mentioned that it was an absolute sale for a total consideration of Rs. 1,85,00,000/- (Rupees Once Crore Eighty Five Lakhs). The sale deed recites that the said sale consideration was paid by the plaintiffs to defendant no. 1 before the execution of the said sale deed by way of RTGS and a cheque. The payment of said amount has not been disputed by the defendants. The expressions used in the said sale deed are 'vendor', 'vendee', 'sold' and 'sale consideration'. Further, the sale deed recites that the suit property is free from all sorts of encumbrances like sale, gift, lien, etc. and there is no legal defect in the title of the vendor i.e defendant no. 1. Furthermore, it is also to be noted that as per stipulations in the said sale deed, the "Vendor (i.e. defendant no. 1) conveys, transfers, alienate and CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 27 of 52 assign the aforesaid property (i.e. the suit property) with all her rights, titles and interest whatsoever unto the Vendees (i.e. plaintiffs) who shall hereafter the registration of this Sale Deed will become the sole and absolute joint owners of the said property and shall enjoy the rights of the possession, ownership etc. forever whatsoever without any claim or lien or hindrance from the VENDOR or from any legal heirs of the VENDOR ". Thus, the rights, title and interest of defendant no. 1 in the suit property were conveyed and transferred absolutely in favour of the plaintiffs vide the sale deed Ex. PW1/1. The sale deed does not recite any other transaction of loan by the plaintiffs to defendant no. 1. In fact, the recitals made in the sale deed categorically show that defendant no. 1 expressed her intention to convey the property to the plaintiffs.
56. In view of the aforesaid discussion, it is clearly established that the sale deed dated 02.09.2013, Ex. PW1/1 was validly executed by defendant no. 1 in favour of the plaintiffs and the said sale deed still subsists. It was informed by the Ld. Counsel for the plaintiffs at the stage of final arguments that a civil suit bearing no. CS no. 1257/2018 titled "Shiksha Rathore vs. Anila Sharma" was filed by defendant no. 1 herein seeking a declaration of her ownership of the suit property and re-transfer of the suit property in her favour and the said suit has been dismissed for non-prosecution vide order dated 16.08.2022 passed by Ld. ACJ-cum-CCJ-cum-ARC (East), KKD Courts, Delhi. The defendants have not argued anything to the contrary or that any other proceedings are pending with respect to the suit property.
CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 28 of 5257. Thus, it is held that there is a valid and subsisting sale deed dated 02.09.2013, Ex. PW1/1 which has been executed by defendant no. 1 in favour of the plaintiffs in respect of the suit property. In view of the said valid and subsisting sale deed, the plaintiffs became the owners of the suit property from the day of the execution of the sale deed.
58. On the aspect of whether the defendants were licensees of the plaintiffs in the suit property, the plaintiffs brought on record a written Undertaking, Ex. PW1/3 (OSR) executed by defendant no. 2 in the month of July 2017, whereby defendant no. 2 undertook to vacate the suit property by 31.12.2017. However, it is averred by the plaintiffs that the defendants did not comply with the said Undertaking as well. Thereafter, it is averred by the plaintiffs that the plaintiffs came to know about a criminal complaint against the defendants in connection with the suit property wherein the defendants had accepted sale consideration from some person representing themselves as the owners of the suit property. In view of this, the plaintiffs sent a legal notice dated 06.02.2018, Ex. PW1/5 through their Advocate to the defendants calling upon the defendants to vacate the suit property and pay damages/mesne profit for their unlawful stay in the suit property.
59. As regards the written undertaking, Ex. PW1/3, it is contended on behalf of the defendants that Defendant no. 1 is the owner of the suit property and admittedly she has never given any such undertaking either orally or in writing at any point of CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 29 of 52 time, therefore, Ex. PW1/3 has no evidentiary value and the same cannot be read against defendant no. 1.
60. It is seen that the written undertaking Ex. PW1/3(OSR) was not objected to by the defendants at the time of its exhibition during the examination in chief of the PW1. The issuance of the said undertaking, Ex. PW1/3 has not been denied by the defendants in their written statement. There is nothing in the evidence by way of affidavit of defendant no. 2/DW1 who also deposed as special power attorney of defendant no. 1 impugning the said undertaking Ex. PW1/3 and defendant no. 1 did not step into the witness box to dispel/disprove the undertaking. Further, defendant no. 2/DW1 in his cross examination admitted his signature on the said undertaking at point X. Defendant no. 2 is also in occupation of the suit property along with defendant no.
1. Therefore, the undertaking executed by defendant no. 2, Ex. PW1/3 is a relevant and admissible document to show that the plaintiffs allowed the defendant to reside in the suit property temporarily and later on the specific request of defendant no. 2 extended time permitting the defendants to continue to reside in the suit property for the marriage of both their sons and also for giving time to defendants to arrange for alternate accommodation and finally defendant no. 2 undertook to vacate the suit property by 31.12.2017. Thereafter, when the defendants failed to vacate the suit premises even as per the undertaking Ex. PW1/3 and the plaintiffs came to know about the criminal complaint against the defendant in respect of the suit property, the plaintiffs sent a legal notice dated 06.02.2018, Ex. PW1/5 calling upon the defendants to vacate the suit property within 30 days of receipt of the notice.
CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 30 of 52Though, the defendants denied the receipt of the legal notice dated 06.02.2018 in their written statement as well as in evidence by way of affidavit of defendant no.2, Defendant no. 2/DW1 in his cross examination conducted on 21.08.2024 admitted the receipt of the said legal notice.
61. DW1 in his cross examination deposed about knowing the husbands of the plaintiffs. Plaintiff no. 2/PW1 in his cross examination conducted on 08.05.2019 also deposed about knowing defendants for the last 12-13 years and having family relations with the defendants. It is also pertinent to mention that during cross examination conducted on 08.05.2024, PW1 categorically deposed that after the execution of the sale deed, permission was given to Ms. Shiksha Rathore to remain in the suit property for some time as licensee as she had been residing in the suit property before the sale deed was registered. In the said cross examination, the PW1 deposed that on account of good family relations, she did not ask defendant no. 1 to pay licensee fees. In response to question of defendants regarding the termination of the license, PW1 deposed that in 2017 when they came to know that the defendants had sold the suit property to someone else, they asked them to vacate the suit property.
62. Further, it is averred by the plaintiffs that in February 2018 they also came to know about a criminal complaint filed by third persons against the defendants in Karkardooma Court regarding alleged cheating committed in respect of the suit property by the defendants. The plaintiffs examined PW3/Head Constable Vishwanath from Police Station Preet Vihar to prove their CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 31 of 52 contentions in this regard. PW3 brought on record a copy of FIR No. 81/2018 dated 06.05.2018, Ex. PW3/B registered against the defendants under section 420/34 of IPC P.S. Preet Vihar. A perusal of the said FIR No. 81/2018, Ex. PW3/B shows that the said FIR was registered in respect of a transaction related to the suit property and on the complaint filed under section 156(3) of Cr. PC. in the CC No. 4142/17 P.S. Preet Vihar titled "Netsity System Pvt. Ltd. Vs. Shiksha Rathore".
63. In view of the testimony of the PW1, it is clear that after execution of the sale deed, Ex. PW1/1, the defendants were in permissive occupation of the suit property as licensees but without paying any license fees on account of family relations with the plaintiffs. Thus, the defendants were gratuitous licensees of plaintiffs in the suit property. The defendants sought extension for their stay in the suit property for one reason or other including for the marriage of their sons which as per the deposition of DW1 took place on 04.11.2014 and 14.04.2016. Thereafter, defendant no. 2 executed written undertaking, Ex. PW1/3 promising to vacate the suit property by 31.12.2017. However, when the defendants did not comply with the said written undertaking and the plaintiff came to know of criminal complaint at Karkardooma Courts against the defendants in respect of the suit property, the plaintiffs issued the legal notice dated 06.02.2018 calling upon the defendants to vacate the suit property and lodged a separate police complaint, Ex. PW1/4 on 05.02.2018 against the defendants.
64. As regards the contention of the defendants that there is no whisper either in pleadings or documents filed along with the CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 32 of 52 plaint about the termination of the license of the defendants qua the suit property, it is seen that legal notice dated 06.02.2018, Ex. PW1/5 was served on the defendants. The said legal notice, Ex. PW1/5 recites that the defendants have been permitted to reside in the suit property as licensees and on the failure of the plaintiffs to vacate the suit property despite several extensions, the plaintiffs specifically called upon the defendants to vacate the suit property within 30 days of receipt of the notice. The receipt of the said notice was admitted by the defendant witness DW1 during his cross-examination. The contents of said legal notice read in its entirety lead to unambiguous and unequivocal termination of the license of the defendants qua the suit property. Hence, this contention of the defendants does not hold any water and is liable to be rejected.
65. During arguments, the Ld. Counsel for the defendants pointed out certain contradictions in the testimony of PW1 Smt. Rajni Khaneja. It is pointed out on behalf of the defendants that PW1 in her cross examination deposed that it is correct that no negotiation was carried out with respect to the present sale of the suit property; that they have not received the possession of the suit property; that she does not remember the dates, months and time when we asked the defendants to vacate the suit property; that she does not know whether the suit property was given on license or not as her husband used to do all the things; that she does not know whether she had requested defendant no. 1 to vacate the suit property in writing as her husband used to all the things; and that she does not know the amount settled for the license fees as her husband used to take care everything.
CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 33 of 5266. In this connection, it is pertinent to quote the observation of the Hon'ble High Court of Delhi in the case of Ramesh Chand vs. Suresh Chand & Anr. (RFA 358/2000, Date of Decision 09.04.2012) as under:
"8. I do not find any substance whatsoever in the arguments of the learned counsel for the defendants. A civil case is decided on balance of probabilities. In every case, there may appear inconsistencies in the depositions of witnesses however, the depositions have to be taken as a whole. Minor inconsistencies which do not affect the main substance of the case, are to be taken in correct perspective along with the other evidences, including documentary evidence which is led in the case. Assuming that a witness is not stating correctly in some places does not mean that he is to be held lying generally and hence an unreliable witness. This is so because it has been repeatedly said by the Supreme Court that the doctrine Falsus in Uno, Falsus in Omnibus does not apply in India. ..............."
67. As regards the contention of the defendants regarding certain contradictions and inconsistencies in the testimony of PW1, the court does not find any force in the said argument. As regards the deposition of PW1 during her cross examination, no negotiations were carried out in respect of the sale of the suit property, it is worth noting that in her cross examination conducted on 08.05.2019, PW1 deposed in detail about the negotiation being carried out about the sale of the suit property as "In the month of July 2013 the talks for sale of suit property started, in the month of August 2013 deal was finalized and in the month of September 2013 sale deed was executed."
CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 34 of 5268. As regards the deposition of PW1 during her cross- examination that the possession of the suit property was not received by them and about whether the defendants being licensees or not, it is pertinent to note that PW1 in her cross- examination categorically deposed that after the execution of the Sale Deed, permission was given to Ms. Shiksha Rathore/defendant no. 1 to remain in the suit property for some time as licensee.
69. As regards the license fees, it is not the case of the plaintiff that any license fees was charged from the defendants when they were permitted to reside in the suit property as licensees. PW1 in her cross examination also deposed that on account of good family relations, she did not ask to pay any license fees.
70. Therefore, the inconsistencies which are pointed out by learned counsel for the defendants do not in any manner whittle down the effect of the sale deed dated 02.09.2013, Ex. PW1/1 and undertaking Ex. PW1/3 and the entire testimony of PW1. There is no shred of evidence on record to show that the said sale deed was executed as a collateral security for the alleged loan transaction. The defendant witness DW1 who is defendant no. 2 in the matter and who also deposed as special power of attorney of defendant no. 1 admitted his signature on the undertaking Ex. PW1/3. The said undertaking clearly narrates the entire facts about the execution of the sale deed by defendant no. 1 and permission being given to the defendants to reside in the suit property on a temporary basis and extension of the said permission from time to time by the plaintiffs at the request of defendants. In any case, it has come in the deposition of PW1 CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 35 of 52 that after the execution of the Sale Deed, permission was given to Ms. Shiksha Rathore to remain in the suit property for some time as licensees.
71. In view of the aforesaid discussion and preponderance of probabilities, it is established that the plaintiffs are the owners of the suit property and the defendants were in permissive occupation of the suit property in the capacity of licensees of the plaintiffs having no other right, title, and interest in the suit property. The said license was terminated by way of legal notice dated 06.02.2018, Ex. PW1/5.
72. It is contended on behalf of the defendants that the present suit has been filed after a considerable delay after the expiry of more than three years from the date of execution of the sale deed dated 02.09.2013. Another connected contention that was raised on behalf of the defendant during arguments is that the present suit is hopelessly time barred. It is contended on behalf of the defendants that as per averment in the plaint, the cause of action first arose on 02.09.2013 when the plaintiff purchased the suit property from defendant no. 1 vide the sale deed, Ex. PW1/1 and once a cause of action commences it cannot be stopped. Therefore, the present suit having been filed on 04.04.2018 is beyond the prescribed period of limitation. On the contrary, it is argued on behalf of the plaintiffs that the right to sue accrued in favour of the plaintiffs when it became clear to the plaintiffs that the defendants were acting fraudulently by seeking extension of the time to vacate the suit property and had no intention to vacate the suit property as promised by them from time to time.
CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 36 of 5273. In this connection, it is seen that as per Article 113 of the Limitation Act, 1963, the period of limitation for filing a suit for mandatory injunction is three years from the date of when the right to sue accrues. In the present case, it is averred on behalf of the plaintiff that after execution of the sale deed, Ex. PW1/1, the defendants requested the plaintiffs to allow the defendants along with their family to stay in the suit property for some time to enable them to look for an alternative accommodation and later on defendants requested the plaintiffs some more time on account of the marriage of their elder son. Defendant no. 2 in the month of July 2017 also executed an undertaking dated Ex. PW1/3 (OSR) to vacate the suit property by 31.12.2017. When the defendants did not vacate the suit property, the plaintiffs sent a legal notice dated 06.02.2018, Ex. PW1/5 through their Advocate calling upon the defendants to vacate the suit property and pay damages/mesne profit for their unlawful stay in the suit property. When the defendants did not vacate the suit property, the present suit has been preferred by the plaintiffs.
74. In view of the aforesaid discussion, it is established that the defendants were in permissive occupation of the suit property as licensees of the plaintiffs. It is worth noting that the defendants by way of their misrepresentation continued to seek an extension of time to vacate the suit property on one ground and other. Therefore, the right to sue in favour of the plaintiffs accrued when the plaintiffs realized in February 2018 that the defendants were fraudulently seeking repeated extension of time on one pretext or the other and they have no intention of vacating the suit property as promised by them from time to time. In view CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 37 of 52 of this, the present suit as filed on 04.04.2018 is well within the prescribed period of limitation as per Article 113 of the Limitation Act, 1963. Thus, the objection as to the present suit having been filed beyond the period of limitation is without merit and hence is rejected.
75. Further, the plaintiffs filed the present case after they became aware of the fraudulent intention of the defendants of not vacating the suit property. Therefore, there is no delay on the part of the plaintiffs in approaching the court of law once they became aware of the real intention of the defendants. Thus, the argument raised by the defendants that the present suit is filed after considerable delay is also without any merit and hence rejected.
76. Although the plaintiffs in the present approached the court without any delay when they realized that the defendants are acting fraudulently by seeking extension of time for vacating the suit property, it is pertinent to refer to the judgement of the Hon'ble Supreme in in the case of Sant Lal Jain vs. Avtar Singh, reported in AIR 1985 SC 857. In the said case, the Hon'ble Supreme Court held that even if there is some delay in approaching the Court for a suit for mandatory injunction, the licensor should not be driven to file another round of the suit will all attendant delay, trouble and expenses. It has been further held that the appellant should not denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction whereas the suit is in effect one of possession. In the aforesaid judgement, the Hon'ble Supreme Court referred to a decision of CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 38 of 52 the Hon'ble Jammu & Kashmir High Court with approval and held as under:
...In Milka Singh v. Diana MANU/JK/0044/1964 : AIR 1964 J & K 99, it has been observed that the principle that once a licencee always a licensee would apply to all kinds of licenses and that it cannot be said that the moment the licence is terminated, the licensee's possession becomes that of a trespasser. In that case, one of us (Murtaza Fazal Ali, J. as he then was) speaking for the Division Bench has observed:
After the termination of the licence, the licensee is under a clear obligation to surrender his possession to the owner and if he fails to do so, we do not see any reason why the licensee cannot compelled to discharge this obligation by way of a mandatory injunction under Section 55 of the Specific Relief Act. We might further mention that even under the English Law a suit for injunction to evict a licensee has always been held to be maintainable.
...where a licenser approaches the court for an injunction within a reasonable time after the licence is terminated, he is entitled to an injunction. On the other hand, if the licenser causes huge delay, the court may refuse the discretion to grant an injunction on the ground that the licenser had not been diligent and in that case, the licenser will have to bring a suit for possession which will be governed by Section 7(v) of the Court-Fees Act.
7. In the present case it has not been shown to us that the Appellant had come to the Court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief. Even if there was some delay, we think that in a case of this kind attempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the Plaintiff in case he succeeds is possession of the property to which he may be found to be entitled.CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 39 of 52
Therefore, we are of the opinion that the Appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction. (emphasis added)
77. Ld. Counsel for defendants further argued that in the present matter, the plaintiffs posed themselves to be lessors in respect of the suit property, but the plaintiffs have failed to comply with the mandatory provision of section 106 of the Transfer of Property Act, 1882, therefore, the present suit is without cause of action and hence liable to be dismissed. The said contention of the defendants deserves to be outrightly dismissed as nowhere in their pleadings or in the plaintiffs' evidence, is there any mention that the defendants are the lessees of the plaintiffs, therefore, section 106 of the Transfer of Property Act, 1882 has no application to the present suit.
78. During final arguments, it is also contended on behalf of the defendants that defendant no. 2 is not a necessary party to the present suit, therefore, the present suit is not maintainable on account of the misjoinder of defendant no. 2 in the present suit.
79. In this connection, it is pertinent to note that the present suit is a suit for mandatory injunction for direction to the defendants to vacate the suit property and handover the possession of the same to the plaintiffs. It is not disputed that defendants including defendant no. 2 reside in the suit property. Therefore, defendant no. 2 is a necessary party to the present suit and the plaintiffs have a cause of action for filing of the suit against defendant no. 2 as well. Hence, the said contention of the defendants is rejected being devoid of any merit.
CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 40 of 5280. As an upshot of the aforesaid discussion, it is established that defendant no. 1 executed the Sale Deed Ex. PW1/1 in favour of the plaintiffs for a sale consideration of Rs. 1,85,00,000/- (Rupees One Crore Eighty Five Thousand only). After the execution of the sale deed in favour of the plaintiffs, defendant no. 1 conveyed all right, title and interest in the suit property in favour of the plaintiffs. It is also established that after execution of the said Sale Deed at the request of Defendants, plaintiffs permitted defendants and their family members to be in permissive occupation of the suit property as licensees. The said permissive occupation of the suit property by the defendants was extended by the plaintiffs from time to time at the request of the defendants as is evident from the undertaking Ex. PW1/3 through which defendant no. 2 promised to vacate the suit property by 31.12.2017. However, when it became clear to the plaintiffs that the defendants were acting fraudulently and were not inclined to vacate the suit property as promised, the plaintiffs filed a police complaint, Ex. PW1/4 and issued the legal notice dated 06.02.2018, Ex. PW1/5 calling upon the defendants to vacate the suit property and pay damages within a period of 30 days, thereby the plaintiffs terminated the license of the defendants for permissive occupation of the suit property. There is no evidence on record to prove that there was any loan transaction between the plaintiffs and defendants as contended by the defendants.
81. Thereafter, as the defendants failed to vacate the suit property even after the service of the legal notice Ex. PW1/5, the present suit was filed on 04.04.2018. Thus, the plaintiffs approached the Court for the relief of mandatory injunction CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 41 of 52 within a reasonable time after termination of the license. Hence, the present suit for mandatory injunction has been appropriately instituted. For the foregoing reasons, the plaintiff is entitled to the relief of mandatory injunction for eviction of licensees from the suit property. Accordingly, the issue no. 1 and 5 are decided in favour of the plaintiffs and against the defendants.
82. As regards the issue of whether the present suit is liable to be dismissed as defendant no. 1 is the owner of the suit property. The onus to prove the said issue was on the defendant.
83. In view of the aforesaid discussion, it is established that defendant no. 1 executed the sale deed dated 02.09.2013, Ex. PW1/1 in favour of the plaintiffs. It is also proved by the plaintiffs that there was no loan transaction between the plaintiffs and the defendants. Further, the defendants failed to bring on record any evidence to show that the sale deed Ex. PW1/1 was executed as a security for the alleged loan transaction. After the execution of the sale deed, defendant no. 1 was left with no title to the suit property. Therefore, defendant no. 1 was no longer the owner of the suit property as alleged. Thus, the defendants failed to prove on record that defendant no. 1 is the owner of the suit property after execution of the sale deed, Ex. PW1/1 in 2013. In view of this, issue no. 4 is decided against the defendants and in favour of the plaintiffs.
84. As regards the issue of whether the present suit is liable to be dismissed being without cause of action, the onus to prove the said issue was on the defendants. The defendants failed to prove that the plaintiffs do not have a cause of action for filing the CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 42 of 52 present suit. In view of the aforesaid discussion on issue no. 1, it is established that the plaintiffs are entitled to relief of the mandatory injunction as prayed for. Therefore, plaintiffs have a valid cause of action for filing the present suit. In view of this, issue no. 7 is decided against the defendants and in favour of the plaintiffs.
ISSUE NO. 2:-
85. The issue no. 2 pertains to the entitlement of the plaintiffs to damages and mesne profit as prayed and the period for which the plaintiffs are entitled to said damages and mesne profits. The onus to prove the said issue was on the plaintiffs. The plaintiffs have sought from the defendants damages of Rs. 30,00,000/- (Rs. Thirty Lakhs) for 30 months from 01.07.2015 to 31.12.2017 and damages at the rate of Rs. 2,00,000/- (Rupees Two Lakhs only) per month with effect from 31.12.2017 till the date of defendants' vacating the suit property. However, the plaintiffs have not led any evidence to prove their entitlement to the said damages. The Ld. Counsel for the plaintiffs only made oral submissions that considering the locality in which the suit property is located, the plaintiffs are entitled to the damages/mesne profit and occupation charges as claimed in the plaint.
86. Although the plaintiffs have not led any evidence to prove their claim for damages, however, defendants in the written statement and evidence by way of affidavit stated that the suit property is located in a posh area of Preet Vihar, Delhi. It is also stated by the defendants that the land rate of the suit property is CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 43 of 52 more than Rs. 2 lakhs per sq. yds. and the market value of the suit property is more than Rs. 5 crores. Further, it is seen that the suit property is a built-up property situated on land measuring 200 square yards with a covered plinth area of 110 square meters. Therefore, considering the area, location, and market value of the suit property as averred by the defendants, the suit property can reasonably fetch a rent of Rs. 50,000/- per month. As the defendant failed to vacate the suit property even after the receipt of legal notice dated 06.02.2018, Ex. PW1/5 whereby the plaintiffs called upon the defendants to vacate the suit property within 30 days, the Court is inclined to grant the plaintiffs damages, mesne profit and occupation charges etc. at the rate of Rs. 50,000/- per month from the date of receipt of the notice i.e. 07.06.2018 till the defendants vacate the suit property and handover the peaceful and vacant possession of the suit property to the plaintiffs. Thus, the defendants are directed to pay damages/mesne profit and occupation charges etc. at the rate of Rs. 50,000/- per month from the date of receipt of the notice i.e. 07.06.2018 till the defendants' vacating the suit property and handing over of the peaceful and vacant possession of the same to the plaintiffs. Accordingly, this issue is decided in favour of the plaintiffs and against the defendants.
ISSUES NO. 3 & 6:-
87. The issue no. 3 and 6 are interconnected, hence, they are being discussed and decided together. The issue no. 3 pertains to whether the present suit has been undervalued by the plaintiffs for the purpose of court fees and jurisdiction. The issue no. 6 pertains to whether the present suit is liable to be dismissed for CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 44 of 52 non payment of proper court fees on the relief of mandatory injunction. The onus to prove the issue no. 3 and 6 was on the defendants.
88. In the present suit, the plaintiffs have valued the relief of mandatory injunction at the nominal value of Rs. 130/-. At the same time, the plaintiffs have valued the relief of damages/mesne profit at Rs. 36 lakhs and paid the court fees accordingly on both reliefs.
89. It is contended on behalf of the defendants that for the purpose of court fees and jurisdiction, the relief of the possession was required to be valued at the market value of the suit property as per section 7(v) of the Court Fees Act. In this connection, the defendants examined witness DW2/Sh. Mahesh Babu, record keeper from the office of Sub-Registrar VIIIA, Preet Vihar, Delhi as summoned witness who brought on record notification no.
F.1(953)/Regn.Br./Div.Com/HQ/2014/5943 dated 22.09.2014 of GNCT of Delhi, Ex.DW2/B (colly.), through which minimum rate (circle rate) for valuation of lands and immoveable property in Delhi were revised and notified with effect from 23.09.2014 DW-2 has also brought in evidence the list of categories of the properties in Delhi, Ex.DW2/C (colly.), and deposed that as per Ex.DW2/C, Preet Vihar, Delhi falls under the category 'D'.
90. As per Ex.DW2/B (colly.), the circle rate of the land of the suit property situated in category 'D' was Rs. 1,27,680 per sq. mtr. and the cost of the construction of the suit property was Rs. 11,160 per sq. mtr. at the time of filing of the present suit.
CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 45 of 5291. In view of the aforesaid circle rates of the suit property, it is submitted on behalf of the defendants that at the time of filing of the present suit, the total value of the suit property measuring 167.22 sq. mtr. including the cost of the construction of the suit property as per circle rate was Rs. 2, 47, 09,766 (Rs. Two crores Forty Seven Lakhs Nine Thousand Seven Hundred Sixty Six only). It is further submitted that the market value of the suit property was Rs. 5 crores at the time of filing of the present suit. Therefore, it is contended on behalf of the defendants that in view of the valuation of the suit property as per circle rate, this Court does not have pecuniary jurisdiction to entertain and try the present suit, and hence the present suit is liable to be returned as per Order VII Rule 10 of CPC to be filed before the Hon'ble High Court of Delhi.
92. In this connection, it would be relevant to refer to the provisions as contained in Section 7(iv)(d) of the Court Fees Act, 1870 which would read as under:
"7. Computation of fees payable in certain suits. - The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:
.........
(iv) In suits-
...........
for an injunction. - (d) to obtain an injunction,............. according to the amount at which the relief sought is valued in the plaint or memorandum of appeal;
In all such suits the Plaintiff shall state the amount at which he values the relief sought;"
CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 46 of 5293. As per Section 7(iv)(d) of the Court Fees Act, 1870, for the relief of injunction, the plaintiff is required to state the amount at which the plaintiff values the relief sought and accordingly pay the court fees as per valuation of the relief in the plaint. Further, for the relief of the injunction, the plaintiff is not required to pay ad valorem court fees as per the value of the subject matter of the suit, therefore, section 8 of the Suit Valuation Act, 1887 is not applicable to Section 7(iv)(d) of the Court Fees Act, 1870.
94. In this connection, it is also relevant to take note of the judgement of the Hon'ble Supreme Court of India in Bharat Bhushan Gupta Vs. Pratap Narain Verma and Ors. Reported as MANU/SC/0783/2022 which has been relied upon by the plaintiffs. In the said judgement, the Hon'ble Supreme Court has held that the valuation of any particular suit has to be decided primarily with reference to the relief/reliefs claimed and it is the unquestionable principle of law that a suit for mandatory and prohibitory injunction is not required to be valued at the market value of the property. The relevant extracts of the said judgement are reproduced hereinbelow:
"9. The nature of the present suit, as noticed hereinabove, makes it evident on the face of record that the Plaintiff- Appellant has sought the reliefs of mandatory injunction against the Defendants for removing themselves and their belongings from the plot in question, while alleging that the Defendants were in occupation thereof only as licensees; and were obliged to remove themselves after termination of respective licenses. The Plaintiff has also prayed for the relief of perpetual prohibitory injunction that the Defendants may not create any third-party rights in the suit property or raise any construction thereon. The Plaintiff has valued the suit for the purpose of Court fees and CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 47 of 52 jurisdiction at Rs. 250 for each of the reliefs for injunction and at Rs. 1 lakh for damages; and has paid the Court fees accordingly.
9.1. It remains trite that it is the nature of relief claimed in the plaint which is decisive of the question of suit valuation. As a necessary corollary, the market value does not become decisive of valuation merely because an immovable property is the subject-matter of litigation. The market value of the immovable property involved in the litigation might have its relevance depending on the nature of relief claimed but, ultimately, the valuation of any particular suit has to be decided primarily with reference to the relief/reliefs claimed.
9.2. So far as the present suit is concerned, the Plaintiff has alleged the Defendants to be the licensees and has sought mandatory injunction obliging them to remove themselves and their belongings. Not much of discussion is required to find that with such pleadings, claim of mandatory injunction is not unknown to the legal process................
...................................
.................................
10. The High Court has not even considered the overall circumstances of the present case where the Plaintiff has valued the reliefs of mandatory and prohibitory injunction at the nominal Rs. 250 but, at the same time, has also valued the suit with reference to the claim of damages at Rs. 1 lakh and had paid the Court fees accordingly. It is apparent on the face of the record that despite unquestionable principle of law that such a suit for mandatory and prohibitory injunction is not required to be valued at the market value of the property, the High Court has relied only upon the market value of the property to hold the valuation of the present suit to be "arbitrary". Such a conclusion of the High Court neither stands in conformity with law nor with the frame and the nature of the present suit.CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 48 of 52
11. The decision in the case of Commercial Aviation (supra) does not further the cause of the Respondent No. 1 in any manner whatsoever. The said decision related with a suit for rendition of accounts, which is one of the species of the suits envisaged by Clause (iv) of Section 7 of the Court Fees Act. Even in that context, this Court, inter alia, observed that the Plaintiff's assessment in such a plaint about the amount due to his share was a guesswork in the absence of any cogent material and would not constitute objective standard of valuation. This Court explained the principles governing the valuation of the suits falling Under Section 7(iv) of the Court Fees Act in the following terms:
"7. So far as suits coming Under Section 7(iv) of the Court Fees Act are concerned, the legislature has left the question of valuation of the relief sought in the plaint or memorandum of appeal to the Plaintiff. The reason is obvious. The suits which are mentioned Under Section 7(iv) are of such nature that it is di cult to lay down any standard of valuation. Indeed, the legislature has not laid down any standard of valuation in the Court Fees Act. Under Section 9 of the Suits Valuation Act, the High Court may, with the previous sanction of the State Government, frame Rules for the valuation of suits referred to in Section 7(iv) of the Court Fees Act. Although the Punjab High Court has framed Rules Under Section 9 of the Suits Valuation Act which are applicable to the Union Territory of Delhi, such Rules do not lay down any standard of valuation with regard to suits coming Under Section 7(iv) of the Court Fees Act. It has already been noticed that Under Rule 4(i) of the Punjab High Court Rules, the value of suit for accounts for purposes of court fee will be as determined by the Court Fees Act, which means that the valuation of the relief will have to be made by the Plaintiff Under Section 7(iv)(f) of the Court Fees Act."
11.1. The observations occurring in paragraph 13 of the said decision, which are sought to be relied upon by the contesting Respondent, read as under:
"13. But, there may be cases under Section 7(iv) where certain positive objective standard may be available for the purpose of determination of the valuation of the CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 49 of 52 relief. If there be materials or objective standards for the valuation of the relief, and yet the Plaintiff ignores the same and puts an arbitrary valuation, the court, in our opinion, is entitled to interfere under Order VII, Rule 11(b) of the Code of Civil Procedure, for the court will be in a position to determine the correct valuation with reference to the objective standards or materials available to it. In Urmilabala Biswas, v. Binapani Biswas [ MANU/WB/0190/1937 : AIR 1938 Cal 161 : 42 CWN 192 : 177 1C 893] a suit was instituted for declaration of title to provident fund money amounting to a de nite sum with a prayer for injunction restraining the Defendant from withdrawing the said money. It was held that there was no real distinction between the right to recover money and the right to that money itself, and that the relief should have been valued at the provident fund amount to which title was claimed by the Plaintiff. Thus, it appears that although in that case the suit was one under Section 7(iv) (c) of the Court Fees Act, there was an objective standard which would enable the Plaintiff and the court too to value the relief correctly and, in such a case, the court would be competent to direct the Plaintiff to value the relief accordingly."
11.2. These observations were, in fact, taken note of by the High Court in the impugned judgment too but they cannot be read to mean that in a suit for mandatory injunction concerning a property and thereby seeking certain mandates over the acts/omissions of the Defendant, the suit is required to be valued as per the market value of the property. Such a proposition, for suit valuation on the market value of the property involved, irrespective of the nature of relief claimed, if accepted, would render the whole scheme of the Court Fees Act concerning suit valuation with reference to the nature of relief going haywire. This argument is required to be rejected (emphasis added)
95. In the present case, defendant no. 1 has executed sale deed dated 02.09.2013, Ex. PW1/1 in favour of the plaintiffs. After ex- ecution of the said sale deed, the defendants were in permissive CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 50 of 52 occupation of the suit property as the licensee of the plaintiffs. The present suit is a suit praying for the relief of mandatory in- junction for vacating of licensees i.e. defendants from the suit property. In view of the detailed discussion on issue no. 1 and 5, it has been held that in the facts and circumstances of the present case, the present suit for a mandatory injunction has been appro- priately instituted.
96. Therefore, the market valuation of the suit property or val- uation of the suit property at the circle rate does not become deci- sive in the valuation of the present suit for mandatory injunction and damages/mesne profit. The valuation of the present suit has to be decided on the basis of reliefs of mandatory injunction and damages/mesne profit and as held by the Hon'ble Supreme Court in the aforesaid judgment of Bharat Bhushan Gupta (supra) a suit for mandatory injunction is not required to be valued at the mar- ket value of the subject property. Thus, the reliefs in the present suit have been properly valued for the purpose of court fees and jurisdiction and proper court fees has been paid on the relief of mandatory injunction as prayed in the present suit. Accordingly, issue no. 3 and 6 are decided against the defendants and in favour of the plaintiffs.
RELIEF
97. In view of my aforesaid findings, the suit of the plaintiffs is decreed as follows:
(a) A decree of mandatory injunction is passed in favour of the plaintiffs and against the defendants, their agents, associates, assignees, representatives etc. directing the defendants to hand CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 51 of 52 over the vacant and peaceful physical possession of the suit property i.e. B-58, Preet Vihar, Delhi-110092 admeasuring 200 Sq. Yards as shown in red colour in the site plan annexed to the plaint, to the plaintiffs within three months from today.
(b) A decree of recovery of mesne profits/ damages for unauthorized use & occupation charges is passed in favour of the plaintiffs and against the defendants whereby plaintiffs are entitled to mesne profits/ damages/ occupation charges at the rate of Rs. 50,000/- (Rupees Fifty Thousand only) per month from 07.02.2018 till the delivery of physical possession of the suit property.
98. The cost of the suit is also awarded in favour of the plaintiffs and against the defendants.
99. The decree sheet be prepared accordingly subject to payment of deficient court fees on damages/ mesne profit/ occupation charges awarded to the plaintiff till the date of judgment/decree.
File be consigned to Record Room after due compliance.
Digitally
signed by
SOMITRA
Announced in the open Court on SOMITRA
KUMAR
KUMAR
Date:
this 24th day of December, 2024 2024.12.24
16:55:23
+0530
(SOMITRA KUMAR)
District Judge-06, East,
Karkardooma Courts, Delhi
CS No. 278/18 Smt. Anila Sharma Vs. Smt. Shiksha Rathore Page 52 of 52