Delhi District Court
Sh. Amarjit Singh Juneja S/O Late Sh. ... vs Sh. Sheetal Nanwani S/O Sh. Kartar Singh ... on 18 August, 2011
IN THE COURT OF SH. SAURABH KULSHRESHTHA:
CCJ:ARC(EAST):KARKARDOOMA COURTS: DELHI
Civil Suit no: 136/07
ID No:02402C0521532004
Sh. Amarjit Singh Juneja S/o Late Sh. R.S. Juneja
R/o 49-A, Pocket-A, MIG Flats, Dilshad Garden,
Delhi-110095. ... Plaintiff
Versus
1. Sh. Sheetal Nanwani S/o Sh. Kartar Singh Nanwani
R/o L-204-A, Ground floor, Dilshad Garden,
Delhi-110095.
2. Sh. Manohar Lal, S/o Late Sh. Sanwal Dass,
R/o Flat No. 121-122, Ground Floor,
DDA Flats, New Seemapuri,
Delhi -110 095.
3. Smt. Kanchan W/o Sh. Sheetal Nanwani
R/o L-204-A, Ground floor, Dilshad Garden,
Delhi-110095. ... Defendants
SUIT FOR RECOVERY OF POSSESSION AND DAMAGES
Date of institution of the Suit : 19.03.2002
Date on which judgment was reserved : 23.07.2011
Date of decision : 18.08.2011
Decision : Suit Decreed
JUDGMENT
1. This is a suit for recovery of possession and damages. The version of the plaintiff is that the plaintiff is the owner of flat no. L-204A, Ground floor, Dilshad Garden, Delhi-95 (herein after referred CS no:136/07 Page No: 1/31 to as the suit premises).
2. The plaintiff claims that he had purchased the suit premises from the defendant no. 2 by way of a set of transfer documents viz. agreement to sell, power of attorney, receipt, will etc. all dated 19.06.2000 for a sale consideration of an amount of Rs. 1,50,000/- and symbolic possession was also handed over by the defendant no. 2.
3. It is further the case of the plaintiff that at the time of purchase of the suit premises, the defendant no.1 who was a close relative of the defendant no. 2 was in de facto possession of the said flat as a licensee of the defendant no. 2 and the defendant no. 2 had informed the plaintiff that the defendant no.1 had been allowed to use the flat temporarily on the condition that he would vacate the same as and when desired by the defendant no.2. This fact was also admitted by the defendant no.1 at the time of purchase of the suit premises and the defendant no. 1 had in fact assured the plaintiff to vacate the suit premises. The defendant no. 3 is the wife of the defendant no. 1.
4. The grievance of the plaintiff is that the defendant no. 1 CS no:136/07 Page No: 2/31 did not vacate the suit premises despite repeated requests and reminders. Thereafter the plaintiff served a legal notice dated 21.09.2000 thereby terminating the licence of the defendant no.1 and calling upon the defendant no. 1 to vacate the suit premises by 31.10.2000. However the defendant no. 1 neither replied the said legal notice nor complied with the conditions stipulated therein.
5. The plaintiff has further pleaded that the defendant no. 3 has been wrongly claiming that she has purchased the suit premises from Sh. Rishi Lal who was the previous owner of the suit premises and from whom the defendant no. 2 had purchased the suit premises. The plaintiff has averred that the documents, if any in favour of the defendant no. 3 are forged and fabricated.
6. The plaintiff has contended that the possession of the defendants no. 1 & 3 in the suit premises is unauthorized and illegal and they are liable to vacate the same and pay damages @ Rs.4000/- per month on account of unauthorized use and occupation of the suit premises to the plaintiff.
CS no:136/07 Page No: 3/31
7. Initially the suit was filed for mandatory injunction however the plaint was amended and the relief of recovery of possession was incorporated. The plaintiff has claimed a decree of recovery of possession directing the defendants no. 1 and 3 to handover the vacant possession of the suit premises to the plaintiff. The plaintiff has further claimed a money decree of an amount of Rs. 64,000/- towards damages @ Rs. 4000/- per month with effect from October 2001 till February 2002 along with interest. The plaintiff has further claimed pendente lite and future damages.
8. The defendants appeared pursuant to service of summons. The defendants no. 1 and 3 are the main contesting defendants and they filed their joint written statement.
9. The defendants no. 1 and 3 have contended that the suit property was purchased by the defendant no. 3 from its erstwhile owner Sh. Rishi Lal for a sale consideration of an amount Rs. 2,50,000/-, which was paid to Rishi Lal by the defendant No. 3 after selling her property at Rohini, Delhi on 15.04.1999. They have further pleaded that a General power of attorney was executed by Sh. Rishi Lal in favour of the CS no:136/07 Page No: 4/31 defendant no. 3 and physical possession of the suit premises was also handed over to the defendant no. 3 and hence the defendant no. 3 is the lawful owner of the suit premises and both the defendants no. 1 and 3 are rightly in possession of the same. The defendants no. 1 and 3 further pleaded that the plaintiff has no legal right, title or interest in the suit premises.
10. The defendants no. 1 and 3 further pleaded that the market value of the suit property was around Rs. 5 lacs in the year 2002 and therefore the suit has not been properly valued for the purpose of court fees and jurisdiction. They further stated that the documents placed on record by the plaintiff are deficiently stamped and are liable to be impounded and are inadmissible in view of provisions of sections 17 and 49 of the Registration Act.
11. The defendants no. 1 and 3 further denied that they were inducted as licensees in the suit premises by the defendant no. 2. They further denied that they are in illegal or unauthorized possession of the suit premises and are liable to hand over the possession of the suit premises to the plaintiff or are liable to pay damages. The defendants CS no:136/07 Page No: 5/31 no. 1 and 3 prayed for dismissal of the suit.
12. Plaintiff filed replication and denied the averments of the written statement of the defendants no. 1 & 3 and simultaneously reiterated and reaffirmed the contents of the plaint.
13. Vide order dated 08.09.2003, on the basis of the pleadings of the parties the following issues were framed in this case:
1. Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for ? OPP
2. Whether the plaintiff is entitled to recovery of mesne profit? If so at what rate and for what period? OPP
3. Whether the plaintiff is entitled to receive any interest? If so at what rate and for what period? OPP
4. Relief.
14. Thereafter vide order dated 04.10.2010, following two additional issues were framed in this case:
5. Issue no.5: Whether this suit is not maintainable in the present form? OPD
6. Issue no.6: Whether the suit has been properly valued for the purpose of court fees? OPP CS no:136/07 Page No: 6/31
15. Thereafter further vide order dated 15.04.2011, the following additional issue was framed in this case:
7. Issue no. 7: Whether the plaintiff is entitled for the relief of possession of the suit property.
16. In order to prove its case the plaintiff examined himself as PW-1 and deposed on the lines of the plaint. The defendant no. 2 also gave his statement in favour of the plaintiff and the matter was compromised between the plaintiff and the defendant no. 2. The defendants no. 1 and 3 cross examined the defendant no. 2.
17. As against this the defendants no. 1 and 3 examined five witnesses in support of their case. The defendant no. 1 examined himself as DW-1. The defendant no. 3 examined herself as DW-2. Both DW 1 and DW 2 deposed on the lines of their written statement. The defendants no. 1 and 3 further examined Sh. Vijay Vadhvani as DW-3 who deposed that the defendants no. 1 and 3 had paid the sale consideration to Sh. Rishi Lal for purchase of the suit premises. The defendants no. 1 and 3 examined DW-4 Sh. Chhattar Pal, official from the office of the Sub Registrar and DW-5 Sh. Ram Singh, valuer to CS no:136/07 Page No: 7/31 establish that the suit property has been undervalued.
18. I have heard the Ld. Counsel for the parties and have given due consideration to the rival contentions and carefully perused the record. My issue-wise findings are as follows:
Issues no. 1 & 7
19. The question to be answered is as to whether the plaintiff is entitled to recover possession of the suit premises from the defendants no. 1 and 3.
20. PW-1 has deposed that he is the owner of the suit premises having purchased the same from Sh. Manohar Lal (defendant no. 2) on 19.06.2000 for a sale consideration of an amount of Rs.1,50,000/- vide a set of transfer documents viz. Agreement to Sell Ex. PW-1/1, power of attorney Ex. PW-1/2, Receipt Ex. PW-1/3, Will Ex. PW-1/4, Affidavit Ex. PW-1/5, possession letter Ex. PW-1/6 and Special Power of attorney Ex. PW-1/7 all dated 19.06.2000. The site plan of the flat prepared by Sh. Manohar Lal at the time of the sale is Ex. PW-1/8.
CS no:136/07 Page No: 8/31
21. PW-1 further deposed that the defendant no.1 who is a relative of Sh. Manohar Lal was temporarily residing in the said flat as a licensee and both Sh. Manohar Lal and the defendant no. 1 had assured that the defendant no. 1 would vacate the suit premises as and when desired by the plaintiff. Symbolic possession of the suit premises was also given to the plaintiff.
22. PW-1 further deposed that Sh. Manohar Lal had delivered to him all the original previous documents. He further deposed that Sh. Manohar Lal had purchased the suit premises in question from Sh. Rishi Lal S/o Hari Chand on 28.05.1999 vide a set of title documents viz. GPA, SPA, Agreement to Sell, receipt etc. which are Ex. PW-1/9 to Ex. PW-1/15. Sh. Rishi Lal had purchased the said property from one Sh. Narsimhan vide documents such as GPA, Agreement to Sell, receipt etc. which are Mark A to Mark G. Sh. Narsimhan had purchased the suit property from Sh. Lekh Raj who was the original allottee of the flat from DDA. The documents executed by Sh. Lekh Raj in favour of Sh. Narsimhan such as agreement ot sell, GPA, receipt etc. are Mark H to Mark L. The documents in favour of Lekh Raj such as allotment letter, possession letter, other letters from DDA, challans for deposit of CS no:136/07 Page No: 9/31 amount, letters to obtain electricity and awter connections are Mark M to Mark T.
23. PW-1 further deposed that all these documents were delivered by Sh. Manohar Lal to the plaintiff at the time of execution of the sale document in favour of the plaintiff. The entire previous chain of documents was filed by the plaintiff. PW-1 further deposed that the site plan of the suit premises is Ex. PW-1/16.
24. PW-1 further deposed that the defendant no. 3 is falsely claiming to be the owner of the suit premises having purchased the same purportedly from Sh. Rishi Lal. He further deposed that the alleged documents on the basis of which the defendant no. 3 is claiming as the owner are forged and fabricated.
25. PW-1 was cross examined by the counsel for the defendants no.1 & 3. He stated that Manohar Lal had filed a suit for declaration and cancellation in respect of the documents executed in favour of the plaintiff. PW-1/ plaintiff in his cross examination further stated that he knows Rishi Lal. He further stated that the sale CS no:136/07 Page No: 10/31 consideration was Rs.1,50,000/- which was the market value of the flat in question. He further stated that the entire documents were got prepared by Sh. Manohar Lal. He denied any transaction between Manohar Lal and the defendants no. 1 and 3. Ld. Counsel for the defendants no. 1 and 3 could not elicit anything substantial in his cross examination so as to discredit his testimony.
26. In this respect Manohar Lal appeared before the court on 01.08.2007 and gave a statement that he had executed the documents Ex. PW-1/1 to Ex. PW-1/7 in favour of the plaintiff towards sale of the suit property to the plaintiff. He further stated that he had purchased the suit premises from Sh. Rishi Lal on 28.05.99 vide documents Ex. PW-1/9 to Ex. PW-1/14. He further stated that he had handed over all the previous documents to the plaintiff. He further stated that the defendants no. 1 & 3 are his close relatives and he had given them the suit property for the purpose of temporarily residing as licencees only. He further stated that he has not executed or witnessed any document in favour of the defendants no.1 & 3.
27. Manohar Lal was also cross examined by the counsel for CS no:136/07 Page No: 11/31 the defendants no. 1 & 3. He stated that he had filed a suit against the plaintiff, however the said suit was compromised. He further stated that one complaint under section 138 of the Negotiable Instruments Act was also filed against him, however the said complaint was also compromised. He denied his signatures on the power of attorney Ex. DW-2/A in favour of the defendant no. 3. He further stated that he had received an amount of Rs.1,50,000/- as sale consideration from the plaintiff. He further stated that the defendants no. 1 & 2 were residing in the property at the time of sale of the suit property to the plaintiff. Counsel for the defendants no.1 & 3 could not elicit anything substantial in his cross examination so as to discredit his testimony.
28. Thus the Plaintiff claims to have purchased the suit property from Sh. Manohar Lal vide a set of transfer documents viz. GPA, Agreement to Sell, receipt etc. which are Ex. PW-1/1 to Ex. PW-1/7. The documents have been attested by a Notary Public. The documents include a receipt for an amount of Rs. 1,50,000/-. The execution of the documents has also been admitted by Sh. Manohar Lal who executed them.
CS no:136/07 Page No: 12/31
29. It is not disputed by the defendants no. 1 and 3 also that Sh. Rishi Lal was the previous owner. The plaintiff has also placed on record the documents executed by Sh. Rishi Lal in favour of Sh. Manohar Lal. The same are Ex. PW 1/9 to Ex. PW-1/14. The power of attorney Ex. PW-1/9 and Ex. PW 1/10 and the will Ex. PW 1/11 executed by Rishi Lal in favour of Sh. Manohar Lal have been duly registered with the office of the Sub Registrar.
30. The Plaintiff has also filed the entire previous chain of documents which are Ex. PW 1/9 to Ex. PW 1/15 and Mark A to Mark T. These documents clearly show that the suit premises was initially allotted to Sh. Lekh Raj and thereafter it was purchased by one Narsimhan and thereafter it was sold to Rishi Lal. Rishi Lal sold the suit premises to Sh. Manohar Lal and Sh. Manohar Lal sold it to the present plaintiff. Such documents in favour of the plaintiff having been executed prior to the 24.09.2001 (date of insertion of section 17(1A) in the Registration Act) do not require compulsory registration.
31. It is no longer res integra that a person who purchases immovable property on the basis of an agreement to sell or power of CS no:136/07 Page No: 13/31 attorney etc. for consideration definitely acquires a valid title and an enforceable interest in the property. Reference may be made to the judgments titled as Kuldeep Singh Vs Surender Singh Kalra 76 (1998) DLT 236; Asha M. Jain vs. Canara Bank 2002 reported as 94 (2001) DLT 841 (DB); Sikha Properties Pvt. Ltd. Vs S. Bhagwant Singh reported as 74 (1998) DLT 113; Ajeet Narain vs. Shri Arti Singh reported as 81 (1999) DLT 355; Veer Bala Gulati vs. MCD reported as 104 (2003) DLT 787, J.C. Mehra v. Kusum Gupta reported as 117 (2005) DLT 506.
32. In the judgment tiled as Asha M. Jain vs. Canara Bank 2002 reported as 94 (2001) DLT 841 (DB) the Hopn'ble High Court of Delhi held:
" ......17. We have considered this aspect taking into consideration these judgments and we are in agreement with the view that the concept of power of attorney sales have been recognised as a mode of transaction. These transaction are different from mere agreement to sell since such transactions are accompanied with other documents including General Power of Attorney, Special Power of Attorney and Will and affidavits and full consideration is paid. This is what also has happened in the CS no:136/07 Page No: 14/31 present case. There are two general power of attorneys, special power of attoney and the Will apart from the agreement to sell. One of the general power of attorney is registered. Further the Will is also registered. Thus there are two contemporaneous documents which are registered and they lend authenticity to the date of execution of documents. The power of attorneys are for consideration within the meaning of Section 202 of the Contract Act, 1872. Thus there is no doubt that interest has been created in the property in favour of the appellant. Possession is also been handed over. Thus the provisions of Section 53A of the Transfer of Property Act would also come into play. The bank is debarred from enforcing any right qua the property other than the right conferred by the agreement to sell. The agreement to sell has nowhere reserved any right on the transferor either for resuming the property or payment of any additional money. The transferor is debarred from claiming back the property from the appellant. The net result of all this is that the rights have been created in favour of the appellant which cannot be defeated by the attachment order...."
33. It is the admitted case of the parties that at the time of execution of the documents the defendant no. 1 was in actual possession CS no:136/07 Page No: 15/31 of the suit premises. The plaintiff has contended that the defendant no. 1 was a licensee of the previous owner Sh. Manohar Lal. Hence no question of actual delivery of physical possession could have arisen and delivery of symbolic possession is sufficient in such cases. Moreover the sale of immovable property cannot be made dependent on the will of the licensee or attornment by the licensee.
34. In this respect reference may be made to the judgment titled as J.C. Mehra v. Smt. Kusum Gupta reported as 2004 A.D. (Delhi) 473 wherein it was held:
" .......... 19. It is not right to say that it needs a tenant's consent to attornment before delivery of possession takes place. Once possession - or right to recover rent - has been handed over, it is sufficient delivery of possession. Delivery of possession does not have to be physical. In these circumstances, that is for power of attorney sales, so long as the right to recover rent has been handed over, it is sufficient. The question is transfer of that right. Whether consequent to such transfer the transferee exercises these rights or not is not germane because it is transfer of that right and not exercise of it that is relevant or matters. Provisions of Order 21 rule 35 have been so worded because of court proceedings and CS no:136/07 Page No: 16/31 third parties; but when two persons enter into an agreement they may decide upon whatever mode of delivery they deem proper.
35. The Law Lexicon by P. Ramantha Alyer 2nd edition 1997 (page 1848) defines symbolical delivery as under :-
"Symbolical delivery is a substitute for actual delivery, when the latter is impracticable, and leaves the real delivery to be made afterwards. As between the parties, the whole title passes by such delivery, when that is their intention."
36. If the decision is Sushil Kanta Chakravorty's Case (supra) is read in its entirety, this was the precise question which was answered by the court. The only attempt to distinguishing it is made by the fact that in that case the property was vacant and it the present case it was tenanted. If a property is tenanted, the sale thereof by any accepted mode does not have to be dependent or await attornment by the tenant. It depends on the agreement to sell, full payment and transfer of right to recover the rent as distinct from sending a letter of attornment to the tenant. The contention of the petitioner that asking the tenant to attorn is imperative, may now be tested. If attornment letter is not sent by the purchaser would it mean that only on giving the information the power CS no:136/07 Page No: 17/31 of attorney sale would be complete, or that the statutory authorities would assess the previous owner and not the purchaser as the owner. The answer to each is in negative. To my mind omission to ask the tenant to atttorn cannot be fatal or postpone the actual sale till that is done. The petitioner in his written submissions filed in this Court conceded that in 1993 in the petition No. 9/96 titled J.C. Mehara v. Pushpawati filed by the petitioner, he was informed that property in question had been bought by the responded herein. The date of the proceedings is more than 5 years prior to filing of the eviction petition. I am fortified in this regard by a judgment of this court Jagdish Chander Gulati (supra) which has been dealt with above....."
37. The result is that the plaintiff is the owner of the suit premises on the basis of the documents in question.
38. As against this DW-1 and DW 2 have deposed that the suit property was purchased on 15.04.1999 by Smt. Kanchan (defendant no.
3) from Sh. Rishi Lal for a sale consideration of Rs. 2.5 lacs, and since then the defendants No. 1 & 3 are residing in the suit property. DW-1 and DW 2 further deposed that the consideration amount was paid in CS no:136/07 Page No: 18/31 cash the presence of witnesses Vijay Wadhwani and B.L. Ahuja and GPA dated 15.04.1999 was executed by Sh. Rishi Lal in favour of the defendant no.3 towards sale of the suit premises. The said General Power of Attorney is Ex. DW-2/A. DW1 and DW 2 further deposed that the defendant no. 3 is the rightful owner in possession of the suit premises.
39. Now let us examine the documents produced by the defendants no. 1 and 3. The defendants have produced one GPA Ex. DW-2/A purported to have been executed by Sh. Rishi Lal in favour of the defendant no. 3. The defendants no. 1 and 3 have claimed that the defendant no.3 had purchased the suit property from Sh. Rishi Lal for a sale consideration of Rs.2,50,000/-.
40. It is pertinent to note that no other documents have been placed on record by the defendants. It is in fact admitted by the defendants no. 1 and 3 that no other documents were executed by Sh. Rishi Lal in favour of defendant no.3. Thus there is no agreement to sell, receipt etc. in favour of the defendant no. 3.
CS no:136/07 Page No: 19/31
41. No receipt has been placed on record by the defendants no. 1 and 3 to establish that any sale consideration was paid. They also did not show the source of funds. Sh. Vijay Wadhwani was examined as DW-3. He has stated that the defendant no.1 is his brother in law. He deposed that on 15.04.2009 the sale consideration for Rs. 2,40,000/- was paid to Rishi Lal in the office of Manohar Lal in his presence. However, he stated in his cross examination that no receipt of money was executed and no copies of documents relating to the suit property were exchanged. He further stated that B.L. Ahuja had not witnesses the payment whereas the defendants have stated that B.L. Ahuja had witnessed the payment of sale consideration. He further stated that he did not come to the court for execution of the sale documents. DW 3 is the relative of the defendants no.1 & 3 and therefore the possibility of his having intentionally deposed in favour of the defendant no.1 & 3 cannot be ruled out. In the absence of any written evidence of payment of sale consideration much reliance cannot be placed on the testimony of DW 3.
42. Moreover Sh. Rishi Lal was the best witness who was available and who could have proved the sale transaction in favour of the defendants no. 1 and 3 but he has not been examined by the defendants.
CS no:136/07 Page No: 20/31 Since best evidence has been kept out of the scrutiny of the court, therefore adverse inference ought to be drawn against the defendants no. 1 and 3 on this count.
43. Thus no document was executed by Sh. Rishi Lal in favour of defendants no. 1 & 3 apart from GPA Ex. DW-2/A. In the absence of any other document such as Agreement to sell, receipt etc. it cannot be said that the suit property was sold by Sh. Rishi Lal to the defendant no.
3. Moreover the GPA Ex. DW 2/A does not mention that the same has been executed for consideration or towards sale of the suit property.
44. Further as far as the GPA Ex. DW -2/A is concerned Rishi Lal has not been examined to prove the said GPA. The defendants no. 1 and 3 had contended that Sh. Manohar Lal had purportedly signed as an attesting witness on the said GPA. But Manohar Lal has deposed against the defendants no.1 & 3 and has disputed his signatures on the said GPA. When Manohar Lal was cross examined by the defendants no.1 & 3 no question was put to him in a detailed manner to show that any such GPA was witnessed by him. No handwriting expert was examined by the defendants to prove the signatures of Manohar Lal on the said GPA.
CS no:136/07 Page No: 21/31 Thus the said GPA has not been properly proved.
45. Moreover Rishi Lal had executed registered documents in favour of Manohar Lal. The same are Ex. PW-1/9, 10 & 11. There is no reason to disbelieve the said documents. The signatures of Rishi Lal appearing on these registered document Ex. PW-1/9 to Ex. PW-1/11 are manifestly different from the signatures of Rishi Lal appearing on the General power of attorney Ex. DW-2/A. The difference is visible with naked eyes. Such comparison can be done in view of section 73 of the Evidence Act. The result is that Ex. DW2-A was never executed by Rishi Lal and the signatures of Rishi Lal on Ex. DW -2/A are forged or fabricated and the document EX. DW 2 /A is a fabricated document. Therefore the said GPA Ex. DW 2 /A confers no right, title or interest upon the defendant no. 3 in respect of the suit property.
46. The other documents produced by the defendants no. 1 and 3 only show their possession over the suit property. It has not been disputed by the plaintiff that the defendants no.1 & 3 were in possession of the suit property at the time of sale of the suit property. However these documents do not establish the title of the defendant no. 3 in CS no:136/07 Page No: 22/31 respect of the suit property.
47. The evidence on record therefore establishes that the plaintiff is the owner of the suit property and the defendants no.1 & 3 have no right, title or interest in the suit property.
48. PW 1 further deposed he requested the defendant no. 1 to vacate the suit premises however when the defendant failed to deliver the vacant possession of the suit premises, the plaintiff issued legal notice dated 21.09.2000, which is Ex. PW-1/17 which was duly served on the defendant terminating the license of the defendant no. 1 and calling upon him to vacate the suit premises. The postal receipts are Ex. PW-1/18 and Ex. PW-1/19 and the AD card is Ex. PW-1/20. Nothing has been brought on record to show that the said notice was not served upon the defendant. The defendants did not issue any reply to the said legal notice and therefore adverse inference ought to be drawn against them defendant no.1 & 3 on that count also.
49. The license of the defendant no.1 was clearly terminated vide legal notice Ex. PW-1/17. Even otherwise there is no legal CS no:136/07 Page No: 23/31 requirement of a notice being issued to this effect. The fact that the suit has been filed by the plaintiff against the defendants shows that he is not inclined to keep them in the suit premises and their license is deemed to have been terminated.
50. The result is that the plaintiff is the owner of the suit premises and the defendants have no right, title or interest therein. The license of the defendants no. 1 and 3 has been terminated and now their possession in the suit premises is illegal and unauthorized and they have no right to continue in possession of the suit premises. The defendants no.1 & 3 are therefore liable to vacate the suit premises and the plaintiff is entitled to recover the possession of the suit property.
This issue is therefore decided in favour of the plaintiff and against the defendants no. 1 and 3.
Issue no.5 & 6
51. The question to be answered is as to whether the suit has been properly valued for the purpose of court fees and jurisdiction and whether the suit is maintainable in the present form. These two additional issues were framed vide order dated 04.10.2010.
CS no:136/07 Page No: 24/31
52. Initially the plaintiff had claimed a mandatory injunction directing the defendant to handover the vacant possession of the suit property to the plaintiff and the suit was valued for the relief of mandatory injunction at Rs. 130/- only. However, during the course of proceedings an application under Order 6 Rule 17 CPC for amendment of plaint was moved which was allowed vide order dated 19.03.2011. The plaintiff was permitted to add the relief of recovery of possession and value the relief on the purported value of the suit property as on the date of institution of the suit. The plaintiff valued the suit at Rs.1,50,000 for the purpose of relief of possession.
53. Thus after amendment the suit has been converted to a suit for recovery of possession. Thus the suit is very much maintainable. Nothing has been shown as to how the suit is not maintainable.
54. The defendants no. 1 and 3 have contended that the suit has not been properly valued for the purpose of the relief of possession also. The defendants no. 1 and 3 further contended that the value of the suit property on the date of amendment was Rs. 20 lacs and the plaintiff CS no:136/07 Page No: 25/31 wrongly valued the same at only Rs.1,50,000/-.
55. This argument of the defendants no. 1 and 3 is not tenable as it is well settled that the amendment relates back to the date of institution of the suit. Reference may be made to the judgments titled as Sampath Kumar v. Ayyakannu reported as AIR 2002 SC 3369 and Siddalingamma v. Mamtha Shenoy reported as AIR 2001 SC 2896. Hence once the amendment is allowed the relief of possession had to be valued at the prevailing value of the suit property as on the date of institution of the suit and not on the date of amendment.
56. The plaintiff has contended that on the date of institution of the suit, the value of the suit property was Rs.1,50,000/-. The plaintiff had purchased the suit property on this value. The defendants no. 1 and 3 have contended that there was a phenomenal increase in the market value and the value of the suit property on the date of institution of the suit was much more. The defendants no. 1 and 3 also examined official from the office of the Sub Registrar as DW-4 and a valuer as DW-5 to prove this contention. DW 4 has stated that he is not aware as to how the valuation of the properties was done in the year 2002 and what is the CS no:136/07 Page No: 26/31 circle rate of the suit property.
57. DW-5 filed his valuation reports which are Ex. DW-5/1 and Ex. DW-5/2. He stated that the value of the suit property in December 2002 was Rs.4,62,000/-. However in his cross examination he stated that no circle rate was applicable in Delhi in the year 2002. He stated that he had calculated the value of the suit property in the year 2002 @ Rs.7700/- per sq. meter. However he stated that there is no documentary evidence to show that the prevailing rate in December 2002 in the area where the the suit property is situated was Rs.7700/- per sq. meter. He stated that he calculated this rate on his own inquiry and experience. What was the nature and authenticity of this inquiry is not known. He further stated that he had not made any inquiry with respect to the value of the entire flat. Thus the report of the valuer does not show any material or established basis for the purpose of calculating the value of the suit property in the year 2002. Therefore the report of the valuer cannot be taken as conclusive and it cannot be said that the value of the suit property in the year 2002 was Rs.4,62,000/-. Moreover the suit was filed in March 2002 and value has been calculated by DW 5 as on December 2002. The defendant has therefore failed to prove that the CS no:136/07 Page No: 27/31 value of the suit property on the date of institution of the suit was Rs. 5 lacs.
58. Where the valuation put by the plaintiff is not wholly arbitrary and unreasonable and no clear and specific value has been established by the defendant there is no reason to reject the valuation put forward by the plaintiff. This squarely applies to the present case. The defendant has therefore failed to prove that the suit has not been properly valued for the purpose of court fee and jurisdiction.
These issues are therefore decided in favour of plaintiff and against the defendants.
Issues no. 2 & 3
59. The question to be answered is as to whether the plaintiff is entitled to mesne profits.
60. I have already held that the plaintiff is the owner of the suit premises and the defendants no. 1 and 3 have no right, title or interest therein. PW-1 has deposed that the possession of the defendants became unauthorized and illegal after the licence of the defendants no. 1 and 3 CS no:136/07 Page No: 28/31 was terminated vide legal notice dated 21.09.2000. The defendants are therefore in unauthorized and illegal possession of the suit property. The defendants have occupied and enjoyed the premises without any authority of law, therefore, the plaintiff is entitled to damages/mesne profits at the market rate provided the same is not penal and unconscionable.
61. The plaintiff has claimed that the defendants no. 1 and 3 are liable to pay damages @ Rs.4000/- per month from October 2002 to February 2002 amounting to Rs. 64,000/-. There is no denial to the effect that the suit premises is not cable of fetching rent to the tune of Rs.4000/- per month. No suggestion has been given by the defendants no. 1 and 3 to the plaintiff/ PW 1 in his cross examination to this effect.
62. The result is that the plaintiff has established that he is entitled to damages @ Rs.4000/- per month since October 2001 to February 2002 amounting to Rs.64000/- payable by the defendants no. 1 and 3. The ends of justice shall also be met in case the plaintiff is awarded pendente lite and future interest @ 6% p.a. on the said amount of Rs. 64,000/- from the date of institution of suit till realization. The CS no:136/07 Page No: 29/31 plaintiff shall also be entitled to pendente lite and future damages @ Rs. 4000/- from the date of institution of the suit till the date of handing over the possession of the suit premises by the defendants no. 1 and 3.
These issues are therefore decided in favour of the plaintiff and against the defendants no. 1 and 3.
RELIEF
63. In view of the findings and reasons stated herein above, the plaintiff is entitled to decree of recovery of possession directing the defendants nos. 1 and 3 to hand over the vacant possession of the suit premises i.e. flat no. L-204A, Ground floor, Dilshad Garden, Delhi-95 to the plaintiff.
64. A decree of damages of Rs.64,000/- @ Rs.4,000/- per month from October 2001 to February 2002 amounting to is also passed in favour of the plaintiff and against the defendants no. 1 and 3 along with pendente lite and future interest @ 6% per annum on the amount of Rs. 64,000/- from the date of institution of the present suit till realization.
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65. The plaintiff is also awarded pendente lite and future damages/mesne profits at the rate of Rs. 4000/- per month from the date of institution of the suit till the date of handing over of vacant possession of the suit premises to the plaintiff payable by the defendants no. 1 and
3.
66. The plaintiff is also entitled to costs of the suit. I find that the defence raised by the defendants no. 1 and 3 was utterly frivolous and vexatious. Therefore exemplary costs of Rs. 3000/- are also awarded in favour of the plaintiff and against the defendants no. 1 and 3 u/s 35 A of the Code of Civil Procedure.
67. The suit of the plaintiff is accordingly decreed with costs in the aforesaid terms against the defendants no. 1 and 3. Decree sheet be accordingly prepared. The decree qua the pendente lite damages/ mesne profits shall not be prepared till balance court fee on the amount as on the date of decree is paid. File be consigned to record room.
Announced in the open (SAURABH KULSHRESHTHA)
Court on 18.08.2011 CCJ/ARC(East)
(Judgment contains 31 pages.) KARKARDOOMA COURTS,
DELHI
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