Delhi District Court
Shri Suresh Chand @ Suresh Chandra vs Mrs. Leela Devi @ Leela Wati on 19 April, 2012
IN THE COURT OF SHRI RAJ KUMAR: JSCC: ASCJ: GUARDIAN JUDGE
(NORTH EAST) KARKARDOOMA COURTS, DELHI.
Suit No. 219/08
Unique Case ID No. 02402C0125112008
Shri Suresh Chand @ Suresh Chandra
s/o Shri Nathu Lal
r/o C3/195, Nand Nagri, Delhi.
........... Plaintiff.
VERSUS
1. Mrs. Leela Devi @ Leela Wati
w/o Late Shri Munshi Lal
r/o B3/87, Nand Nagri, Delhi.
2. Municipal Corporation of Delhi
Through its Commissioner
Town Hall, Chandni Chowk, Delhi.
3. Municipal Corporation of Delhi
Slum and JJ department
Through its Assistant Director,
Welcome, Seelampur, Delhi.
......... Defendant.
Date of institution of the suit : 20.02.2008
Date on which order was reserved: 02.04.2012
Date of decision : 19.04.2012
SUIT FOR POSSESSION, PERMANENT AND MANDATORY INJUNCTIONS AND
MESNE PROFITS.
JUDGMENT
The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint are that jhuggi bearing no. B3/87, area measuring 22.5 sq. yards situated at Nand Nagri, was allotted to the plaintiff by the DDA on lease basis. It has been further stated that the plaintiff also paid the lease charges to the defendant no.2 and 3 and the receipt was also issued by the defendant no.3 in the name of the plaintiff. It has been further stated that however, the said receipt was misplaced by the plaintiff and a NCR bearing no. 2022/07 was got recorded by the plaintiff on 11.07.2007 with P.S. Yamuna Vihar/Gokul Puri, Delhi. It has been further stated that after such allotment, the plaintiff constructed one KACHA room on the said plot in the year 1976 and started residing there alongwith his wife and two children. It has been further stated that the plaintiff in the year 1989, had to go to village Bhaainsroli in UP to see his parents who were residing in their native village and as such, before leaving Delhi, the plaintiff handed over the suit property to defendant no.1 and her husband Shri Munshi Lal (now expired and who was brother of MOSA of the plaintiff) on licence basis. It has been further stated that after two months, after returning from his native village, the plaintiff found that defendant no.1 had illegally constructed a room in the suit property after demolishing the KACHA room and defendant no.1 also refused to hand over the possession of the suit property to the plaintiff on demand. It has been further stated that defendant no.1 demanded some time to vacate the suit property. It has been further stated that the plaintiff had to live in a rented accommodation at a monthly rental of Rs.1200/ on account of the refusal of defendant no.1 to vacate the suit property. It has been further stated that defendant no.1 further constructed the suit property upto second floor illegally and unauthorizedly without the previous permission of the plaintiff. It has been further stated that defendant no.1 also got the transfer of the suit property illegally in her name and also got installed electricity connection in the suit property illegally and unauthorizedly without the permission or consent of the plaintiff after forging the documents relating to the suit property. It has been further stated that the suit property allotted to the plaintiff by the DDA is non transferable. It has been further stated that ultimately the plaintiff sent a legal notice on 01.11.2007 through speed post thereby terminating the licence of defendant no.1 and demanding the possession but despite the receipt of the legal notice, the defendant no.1 failed to vacate the suit property. It has been further stated that defendant no.1 is liable to pay Rs.5000/ per month as charges for use and occupation and hence the present suit.
On the basis of the abovesaid allegations as contained in the plaint, the plaintiff has prayed for a decree of permanent and mandatory injunctions restraining the defendant no.1 and her agents etc. from creating any third party interest, selling, and transferring the suit property to any third person. The plaintiff has also prayed for a decree of permanent and mandatory injunctions restraining the defendant no.2 and 3 to transfer the suit property without the permission of this court. The plaintiff has further prayed for a decree of possession with regard to the suit property against defendant no.1. The plaintiff has also prayed for a decree of mesne profit directing the defendant no.1 to pay the mesne profits at the rate of Rs.5000/ per moth w.e.f. 01.11.2007 till the date of handing over of the possession of the suit property to the plaintiff.
2. Written statement has been filed on record by the defendant no.1 stating therein that the present suit is without any cause of action; the plaintiff has no locus standi to file the present suit; the plaintiff has concealed the material facts from this court; the suit has not been valued properly for the purposes of court fees and jurisdiction. Defendant no.1 has taken the stand that the plaintiff has no right, title or interest in the suit property because he has already sold out the suit property to defendant no.1 on 01.12.1990 on execution of GPA, Agreement to Sell, payment and receipt for an amount of Rs.15,000/. It has been further stated that the possession of the suit property was also handed over by the plaintiff to the defendant no.1 on the same day and as such, the plaintiff is not having any right, title or interest in the suit property. However, defendant no.1 has admitted that the suit property was allotted to the plaintiff by the DDA. The receipt of the legal notice has been denied by the defendant no.1. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed.
Written statement has also been filed on record by the defendant no.2 i.e. MCD stating therein that the present suit is bad for want of notice u/s 477/478 of the DMC Act. The MCD has taken the stand that the present suit is bad for joinder of the MCD and also without any cause of action against he MCD because the plot in question was allotted by the DDA and the disputed property is a resettlement colony settled by the DDA. It has been further stated that the MCD is responsible for providing basic amenities in the said colony and as such, the present suit is not maintainable against the MCD. It has been prayed that the suit of the plaintiff be dismissed.
Written statements has also been filed on record by the defendant no.3 i.e. Slum and JJ department of the MCD stating therein that the suit property bearing plot no. B3/87, Nand Nagri, Delhi is owned by the Govt. of India and is under the management and control of the Slum and JJ department of the MCD. It has been further stated that the said plot stands allotted in the name of the plaintiff who is the allottee of the suit property. Defendant no.3 has stated that defendant no.1 is not the allottee of the suit property. It has been further stated that the suit property was allotted under Jhuggi Jhopri Relocation scheme on licence basis and the allottee has no right to transfer the possession to anybody in any manner. It has been further stated that in case of such transfer, the licence itself is liable to be cancelled and the unauthorized occupant is liable to be evicted. It has been further stated that defendant no.1 may be an unauthorized occupant and liable to be evicted. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed.
3. Replication has been filed on record by the plaintiff to the written statement of defendant no.1 reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement.
4. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide orders dated 24.04.2009.
1) Whether the plaintiff is entitled for decree of Possession as prayed in the suit ? OPP
2) Whether the plaintiff is entitled for decree of Permanent injunction as prayed in the suit ? OPP
3) Whether the plaintiff is entitled for decree of Mandatory injunction as prayed in the suit ? OPP
4) Whether the plaintiff is entitled for mesne profits @ Rs.5000/ per month as prayed ?
OPP
5) Relief.
In order to prove their respective cases, the plaintiff has examined himself as PW1 and the defendant no.1 has examined herself as DW1, Shri Mukesh as DW2, Shri Sunil as DW3, Shri Shyam Lal as DW4, Shri Shanti Swaroop as DW5, Smt. Tara Devi as DW6. Defendant no.2 and 3 have not led any evidence and perusal of the order sheet dated 10.09.2009 reveals that suit of the plaintiff was dismissed against defendant no.2 and 3 after recording the statement of the plaintiff by my Ld. Predecessor. The detailed testimonies of these witnesses shall be discussed during the later part of this judgment.
5. I have carefully gone through the entire material on record and heard the rival submissions of Ld. counsels for both the parties.
6. My issuewise findings on the abovesaid issues are as under:
Issues No. 1 to 4.
All these issues are taken up together as the same are connected interse, overlap each other and relate to the prayer clause of the present suit.
The factual controversy has already been narrated herein above. Now let us discuss the evidence led by both the parties in support of their respective stands.
The plaintiff has examined himself as PW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record the application under RTI Act as Ex. PW1/A, NCR No. 2022/07 as Ex. PW1/B, reply to the RTI application dated 20.01.2009 as Ex. PW1/C, complaint dated 21.08.2006 as Ex. PW1/D, copy of the legal notice dated 01.11.2007 as Ex. PW1/E, receipt of the speed post as Ex. PW1/F. In the cross examination, PW1 has stated that in December 1989, he went to his native village and returned back to Delhi after a period of two months and after returning to Delhi, he started residing at the house of his inlaws. PW1 was confronted with GPA dated 01.02.1990, with the Agreement to Sell and with the Receipt dated 01.02.1990 and PW1 denied the signatures on the said documents. The said documents were marked as Mark X, Mark X1 and Mark X2 respectively. PW1 denied the receipt of the amount of Rs.15,000/ from defendant no.1. PW1 has admitted the possession of the defendant no.1 over the suit property. PW1 has further admitted that the suit property is constructed upto 2 ½ storey. PW1 has further stated that defendant no.1 is in possession of the suit property since December' 1989 when he had given the suit property to defendant no.1 for the purposes of its caretaking. PW1 has denied the suggestion that he failed to take any action against defendant no.1 for a period of 18 years because defendant no.1 is the lawful owner of the suit property. By way of volunteer, PW1 has stated that he could not take any action on account of the repeated assurance given by defendant no.1 to him to vacate the suit property.
The defendant no.1 has examined herself as DW1 and in her evidence by way of affidavit, she has reiterated and reaffirmed the stand as taken by the defendant in the written statement. She has filed on record the original GPA, Agreement to Sell and Receipt as Ex. DW1/1, Ex. DW1/2 and Ex. DW1/3 respectively, original electricity bill as Ex. DW1/4, election card Ex. DW1/6 (OSR).
In the cross examination DW1 has stated that she has not given any affidavit in the shape of evidence (Ex. DW1/A). It has been further stated that her counsel never explained the affidavit Ex. DW1/A to her. It has been further stated that she does not know the contents of Ex. DW1/A. It has been further stated that she knows the plaintiff being her relative. It has been further stated that the property bearing no. D3/87, measuring 25 sq. yards was allotted to the plaintiff in the year 1976. It has been further stated that the plaintiff remained in the property for about 56 months. It has been further stated that her husband Shri Munshi Lal expired in the year 1993. It has been further stated that the said property was purchased by her husband Shri Munshi Lal in her name for an amount of Rs.15000/. It has been further stated that she does not know when the said property was purchased. It has been further stated that earlier, some papers were prepared in respect of the property but the same were destroyed due to flood. It has been further stated that she has not filed any documents regarding property bearing no. B3/87. By way of volunteer, DW1 has stated that whatever documents, she has, the same have been filed. DW1 has further stated that she has filed election card, ration card, electricity bill only in the present suit and she has not filed any other document. It has been further stated that no other documents were executed in respect of the property after floods. DW1 has further stated that she cannot say as to whether the documents filed in the present case are false and fabricated. DW1 has further stated that she has not paid any house tax, lease charges to the Government / concerned authority with respect to the suit property w.e.f. 1976 till date. By way of volunteer, DW1 has stated that in their gali, none has deposited the same. DW1 has admitted it to be correct that the plaintiff started residing in the suit property with his wife and two children in the year 1976.
The next witness examined by the defendant no1. is Shri Mukesh who has been examined as DW2 and in his evidence by way of affidavit, he has stated that he is a tenant at the said address residing from the last 20 years.
In the cross examination DW2 has stated that he has no relation with Leela Devi but he is the tenant. DW2 has admitted it to be correct that he is the son of the daughter of the defendant. DW2 has further stated that he did not file any document to prove his tenancy.
The next witness examined by the defendant no.1 is Shri Sunil who has been examined as DW3 and in his evidence by way of affidavit, he has stated that he is the tenant at the address D3/89, Nand Nagri, Delhi from the last more than 20 years. DW3 has further stated that Smt. Leela Devi is residing at B3/87, Nand Nagri, Delhi and he knows the defendant no.1 for the last 20 years.
In the cross examination DW3 has stated that he is residing as a tenant in the aforesaid address and the defendant is his father's sister (Bua). DW3 has further stated that he did not file any document to prove his tenancy.
The next witness examined by the defendant no.1 is Shri Shyam Lal who has been examined as DW4 and his evidence by way of affidavit is exactly on the same lines as is the affidavit of DW3.
In the cross examination DW4 has stated that he knows the defendant no.1 since 198082. DW4 has further stated that he is deposing at the instance of the defendant and he is not a summoned witness.
The next witness examined by the defendant no.1 is Shri Shanti Swaroop who has been examined by the defendant no.1 as DW5 and his evidence by way of affidavit is also on the same lines as are the affidavits of DW3 and DW4.
In the cross examination, DW5 has stated that he has come to the court on that day at the instance of the defendant but he himself came to the court and spent his own fare.
The next and the last witness examined by the defendant no.1 is Smt. Tara Devi who has been examined as DW6 and in her evidence by way of affidavit she has stated that she is the tenant of defendant no.1 for the last more than 15 years.
In the cross examination DW6 has stated that she knows the defendant since her marriage approximately 2025 years ago.
During the course of final arguments, Ld. Counsel for the plaintiff has argued that the documents have been filed on record by the defendant no.1 without the permission of the defendant and as such, the same cannot be looked into. It has been further argued that the defendant no.1 has not been able to prove her case and as such, the suit of the plaintiff has to be decreed.
Ld. Counsel for the defendant no.1, during the course of arguments has argued that the present suit is barred by the Limitation Act. Ld. Counsel for the defendant no.1 has relied upon section 3, 9 and 27 of the Limitation Act and has argued that cause of action in the present suit arose in the year 1989 but the present suit has been filed in the year 2008 and as such, the suit is barred by the law of Limitation. It has been further argued that the NCR and the documents form the MCD have not been proved in accordance with law because the plaintiff failed to summon any relevant witness from the concerned department. It has been further argued that DW5 and DW6 have not been cross examined on material points and as such, their testimony is unrebutted. Ld. Counsel for the defendant no.1 has relied upon the following authorities: (1) cited as AIR 1960 Mysore 83 titled as Baswanneppa Yellappa and Anr. Vs. Basavannappa and others, wherein it has been held as under: "Limitation Act (1908), Arts. 142 and 144 Scope of articles - Under Art. 142 plaintiff has to prove both his title and dispossession or discontinuance within 12 years before suit Article 144 is residuary article."
(2) cited as AIR 1984 MP 147 titled as Kalooram and Anr. Vs. Mangilal wherein it has been held as under : "Limitation Act (9 of 1908) Arts. 142, 144 Applicability of - Suit for possession of property based on the alleging previous possession and subsequent dispossession by defendants Art. 142 is applicable and not 144 Burden to prove dispossession within 12 years next before institution of suit is on plaintiff."
(3) cited as (2007) 6 Supreme Court Cases 737 titled as Ramchandra Sakharam Mahajan Vs. Damodar Trimbak Tanksale and others, wherein it has been held as under : "Specific Relief Act, 1963 Ss. 5 and 34 - Recovery of possession on strength of title Burden of proof on plaintiff Effect of weakness of defence or failure of defendants to establish rival title set up by them. Specific Relief Act, 1963 Ss. 5 and 34 Recovery of possession based on title Production of document(s)/material based on which title is sought to be established, or to lay foundation to lead secondary evidence in respect thereof Giving of opportunity to plaintiff Need for appointment of commission to get property identified and demarcated Civil Procedure Code, 1908 S. 75 and Or. 26 R.1."
(4) cited as AIR 1968 Punjab 60 (V 55 C 16) titled as Lila Ram Vs. Mohar Chand and others, wherein it has been held as under : "Limitation Act (1908), Arts. 142, 144 Onus of proof in cases falling under Art. 142 Where plaintiff bases his claim on title and alleges his previous possession and subsequent dispossession by defendants, suit is governed by Art. 142 and it is for plaintiff to show that he had been in possession of property within 12 years of institution of suit. AIR 1933 Lah 721 held overruled by AIR 1935 Lah 475 (FB) and AIR 1965 Punj 415 and AIR 1966 SC 605, Rel. on; Second Appeal No. 146 D of 1957, D/28.02.1962 (Punj) Affirmed."
(5) cited as AIR 1983 Calcutta 337 titled as Traders Syndicate Vs. Union of India, wherein it has been held as under : "Evidence Act (1 of 1872), Ss. 137, 138 Examinationinchief of plaintiff's witness on point in dispute No cross examination preferred on the point Court can hold that defendant accepts plaintiff's case on the point in entirely No dispute on the point can be raised in argument." (6) cited as (2012) SCCR 116 titled as Khatri Hotels Private Limited and Anr. Vs. Union of India and Anr. wherein it has been held as under : " Limitation Act, 1963 Article 58 read with Sections 2 (j) and 3 Bar of limitation Residuary article is applicable to every kind of suit not otherwise provided for in Schedule If a suit is based on multiple causes of action, period of limitation will begin to run from date when right to sue first accrues Successive violation of right will not give rise fresh causes and suit will be liable to be dismissed if it is beyond period of limitation counted from day when right to sue first accrued."
The plaintiff has categorically alleged that the suit property was allotted to him by the DDA on lease basis and when the plaintiff gone to his native village in UP, in the year 1989, he handed over the suit property to husband of defendant no.1 and defendant no.1 as well on licence basis for taking care of the suit property. It has been further stated that when the plaintiff returned back, the defendant no.1 refused to vacate the suit property. It has been further stated that however, the defendant kept on giving assurances, but the suit property was not vacated and ultimately, the plaintiff sent a legal notice dated 01.11.2007 for vacation of the suit property. The defence of the defendant no.1 is that the suit property was purchased by her from the plaintiff on 01.12.1990, on execution of GPA, Agreement to Sell and payment receipt. It has to be seen that in the cross examination the defendant no.1 i.e. DW1 has categorically admitted that the suit property was allotted to the plaintiff in the year 1989. Even if the documents which are from the MCD such as Ex. PW1/C and Ex. PW1/A wherein it has been categorically mentioned that the suit property was allotted to the plaintiff, are not to be looked into as argued by Ld. Counsel for the defendant no.1 then also, in view of the categorical admission of DW1 in the cross examination, the said submission of the Ld. Counsel for the defendant no.1 to my mind, does not hold much water. Furthermore, it has to be seen that in the written statement itself, defendant no.1 has alleged that the suit property was purchased by her from the plaintiff. The documents placed on record by the defendant no.1 are the notarized GPA, notarized Agreement to Sell and notarized Receipt Ex. DW1/1 to Ex. DW1/3. The settled law is that immovable property cannot be sold by way of the aforesaid documents as has been held in the authorities cited as AIR 2003, Delhi 120 titled as G. Ram Vs. DDA, the authority cited as AIR 2009 SC 1489 titled as Avinash Kumar Chauhan Vs. Vijay Krishna Mishra. It has been held in the above stated authorities that the transfer of an immovable property can take place only by way of a registered Sale Deed and the GPA, Agreement to Sell, Receipt and Affidavit etc. cannot transfer the title in immovable property.
The main thrust of the submission of Ld. Counsel for the defendant no.1 is on the Limitation aspect of the matter. Ld. Counsel for the defendant no.1 has vehemently argued that the cause of action firstly arose in the year 1989 when defendant no.1 refused to vacate the suit property and the present suit has been filed only in the year 2008 which is apparently beyond the period of limitation.
There cannot be any dispute with the proposition of law as laid down in the authorities relied upon by Ld. Counsel for the defendant no.1 but in the case in hand, it has to be seen that the plaintiff has categorically asserted in the plaint that the defendant no.1 kept on giving assurances to the plaintiff to vacate the suit property and not handed over the possession of the same to the plaintiff. The plaintiff in the cross examination as well has categorically asserted that he failed to take any action against the defendant no.1 for a period of 18 years, on account of repeated assurances given by the defendant no.1 to him to vacate the suit property and also on account of the pressure of the defendant no.1 and her family. Ultimately, the plaintiff sent the legal notice dated 01.11.2007. The present suit has been filed in the year 2008 and as such, with due respect to the observations of the Hon'ble Supreme Court and Hon'ble High Court, Delhi as contained in the above stated authorities, I am of the opinion that the present suit is within the period of limitation.
In the light of the above discussion, I am of the opinion that the plaintiff is entitled for a decree of possession. I am also of the opinion that the plaintiff is also entitled for a decree of permanent injunction. So far as the mesne profits are concerned, the plaintiff has demanded the mesne profits @ Rs.5000/ per month w.e.f. 01.11.2007. It has to be seen that the suit property is a jhuggi measuring 25 sq. yards situated in the area of Nand Nagri, Delhi and as such, I am of the opinion that if mesne profits @ Rs.500/ per month w.e.f. 01.11.2007 is granted to the plaintiff, the same would be sufficient to meet the ends of justice. Issue no.1 to 4 stand decided accordingly. Relief.
In the light of my findings upon the foregoing issues, I hereby pass a decree of possession in favour of the plaintiff and against the defendant no. 1 with respect to the suit property no. B3/87, area measuring 22.5 sq. yards situated at Nand Nagri, Delhi. I also hereby pass a decree of permanent injunction against the defendant no.1 and in favour of the plaintiff restraining the defendant no.1 and his agents etc. from creating any third party interest, selling alienating and transferring the suit property to any third person. I also hereby grant mesne profits @ Rs.500/ per month in favour of the plaintiff w.e.f. 01.11.2007 till the date of handing over the possession of the suit property by the defendant no.1 to the plaintiff. Costs of the suit are also awarded in favour of the plaintiff. Decree sheet be prepared accordingly by the Reader after payment of additional court fees, if any. File be consigned to record room.
Announced in the open court ( RAJ KUMAR)
on this 19th day of April 2012 JSCC/ASCJ/G. Judge (NE)
Karkardooma Courts, Delhi.