Delhi District Court
Through Her Duly Constituted Attorney vs Shri Sanjay Verma on 1 April, 2021
THE COURT OF MS. SHIVALI SHARMA
ADDITIONAL DISTRICT JUDGE03: WEST DISTRICT
TIS HAZARI COURT: DELHI
CS No. 611036/2016
In the matter of:
Smt Harshmani Mohindra
W/o Shri B C Mohindra
R/o 33, Pragati Apartments,
Pashchim Vihar,
New Delhi.
Through her duly constituted attorney
Shri Rajesh Garg
S/o Shri Om Prakash
R/o 3/204, Pal Mohan Apartments,
Club Road, Punjabi Bagh(West),
New Delhi. .................Plaintiff
Versus
Shri Sanjay Verma
S/o Shri Yashpal Verma
R/o H437, First Floor,
Vikas Puri,
New Delhi. .............Defendant
Date of institution : 04.06.2011
Date of judgment : 01.04.2021
SUIT FOR RECOVERY OF POSSESSION, DAMAGES,
MESNE PROFITS AND INJUNCTION
JUDGMENT
CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 1 of 44 Plaintiff's case:
1. The present case has been filed by the plaintiff through her duly nominated, appointed and authorized attorney Sh. Rajesh Garg. The case of the plaintiff as per the averments made in the plaint is that she is the sole, exclusive and absolute owner of property bearing no. H 437, area admeasuring 125 sq. yds. comprising of three storeys situated at Vikas Puri, New Delhi (hereinafter referred as the suit property). She purchased the suit property from Rosy Chaudhary and Bindu Babbar for valuable consideration by virtue of registered Agreement to Sell, Registered GPA, Receipt, SPA, Affidavits, Wills and Possession Letter all dated 10.03.2011. The property was initially owned by Ms. Seeta Sharma having been allotted to her by DDA vide allotment letter dated 20.09.1975 and possession letter dated 27.04.1976. Thereafter, perpetual lease deed dated 03.02.1977 was also executed in favour of Ms. Seeta Sharma duly registered on 19.03.1977. Ms. Seeta Sharma sold the said property to erstwhile owners Rosy Chaudhary and Bindu Babbar by way of registered agreement to sell, registered GPA, Registered Will, Receipt, Possession Letter all dated 02.04.2004. The water connection installed in the suit property is also in the name CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 2 of 44 of erstwhile owner Rosy Chaudhary and Bindu Babbar.
2. At the time of purchase of the suit property by the plaintiff, she was handed over the actual, vacant and peaceful physical possession of the entire ground floor and entire second floor with roof and terrace rights of the suit property. At that time, the possession of the first floor of the suit property was with the defendant as a licensee. His possession was purely permissive and he had no right or title in the suit property. Accordingly, constructive and symbolic possession of the first floor was handed over to the plaintiff.
3. Plaintiff terminated the license in favour of defendant w. e. f. 01.06.2011 vide legal notice dated 23.05.2011. Thereafter, defendant has been residing in the suit property as an illegal and unauthorized occupant. After service of legal notice on the defendant, he sent a false, frivolous and fictitious reply dated 31.05.2011. Despite termination of the license, defendant did not hand over the possession of the first floor of the suit property to the plaintiff and is illegally occupying the same without any legal right, title or interest.
4. Defendant, with ulterior motives, filed a suit against the plaintiff seeking permanent injunction and claiming to be the sole, exclusive and absolute owner of the suit property. Earlier also, defendant had filed false suits CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 3 of 44 against the erstwhile owners of the suit property making similar/identical allegations therein. Three suits filed by the defendant have been dismissed while one suit is pending in the court of Ms. Chhavi Kapoor, ld. Civil Judge, Delhi wherein an application under Order 1 Rule 10 CPC has been filed by the plaintiff. Defendant has been claiming himself as owner of the suit property on the basis of alleged sale documents i.e. GPA and Will both dated 04.06.1992 allegedly executed in his favour by the erstwhile owner Smt. Seeta Sharma. However, the said GPA was purportedly executed in favour of one Rajeev Verma and not the defendant Sanjay Verma. Moreover, the said GPA and Will have already been cancelled by erstwhile owner of the suit property vide registered cancellation deed dated 03.09.1997. Defendant is also a person having criminal antecedents and various criminal complaints have been made against him for cheating, misappropriation and breach of trust. Defendant had also been in judicial custody in case FIR No. 02/2010.
5. Defendant has no right, title or interest in the suit property and has been directed to handover vacant and peaceful possession of the first floor of the suit property to the plaintiff within seven days from the receipt of legal notice dated 23.05.2011 i. e. latest by 01.06.2011. Vide the same notice, the defendant was also called upon to pay the CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 4 of 44 damages for illegal use and occupation @ Rs. 30,000/ per month which is commensurate with the market rate of rent of the suit property. The defendant had failed to comply with the notice and handover the possession of the suit property to the plaintiff. Hence, the present suit has been filed seeking following reliefs:
a. A decree of possession in favour of the plaintiff and against the defendant in respect of first floor of the suit property.
b. A decree of permanent injunction in favour of the plaintiff and against the defendant restraining him from handing over the possession of the first floor of the suit property to any third party.
c. A decree of permanent injunction in favour of the plaintiff and against the defendant restraining him from creating any third party interest in the first floor of the suit property.
d. A decree of mesne profits and damages @ Rs. 30,000/ per month w.e. f. 01.06.2011 till the time the defendant vacates the suit property.
e. Costs of the suit.
Defendant's case
6. After service of summons, defendant put in his appearance and filed his Written statement wherein the CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 5 of 44 suit has been preliminarily objected to on the ground that it is not maintainable in its present form. The plaint does not reflect any cause of action and proper court fees has not been affixed. The suit has not been properly valued for the purpose of jurisdiction. The plaintiff has not come to the court with clean hands and had suppressed material facts from the court. Defendant has already filed a suit for declaration and consequential relief of mandatory and permanent injunction against Smt Seeta Sharma, Ashwani Verma, Bindu, Rosy and DDA which is pending disposal.
Plaintiff is a stranger to the defendant and has nothing to do with the suit property.
7. On merits, it is admitted that Smt. Seeta Sharma was sole, exclusive and absolute owner of the suit property. It is averred that she had executed the sale documents that are GPA, Agreement to sell, Receipt, Will (duly registered) in favour of defendant on 04.06.1992 and since then, the defendant and his brother alongwith other family members are residing in the suit property in their own right. Smt. Seeta Sharma is the Mausi of the defendant. Smt. Ashwani Verma is the real sister of Seeta Sharma and mother of the defendant. Rosy and Bindu are the real sisters of the defendant. Smt. Seeta Sharma further executed a registered GPA dated 03.09.1997 in favour of her sister Ashwani Verma in respect of the suit property CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 6 of 44 and on the basis of the said GPA both Smt. Seeta Sharma and Smt. Ashwani Verma in collusion and connivance with each other started trying to dispossess the defendant from the suit property. Defendant filed a suit for permanent injunction against them bearing CS No. 143/2007 in which Smt. Seeta Sharma gave a statement on 21.11.2007 that she will not dispossess the defendant from the first floor of the suit property without due process of law and the suit was disposed off in view of the said statement.
8. On 12.06.2004, Smt. Seeta Sharma along with husband of Rosy Verma and Bindu illegally and forcibly entered into the house of the defendant and started fighting with him and when he showed the ownership documents of the property executed in his favour, all the documents were snatched by Smt. Seeta Sharma and her associates. He called the police and a kalandara under Section 107/151 Cr. P.C. was registered vide DD No. 49B dated 12.06.2004, PS Vikas Puri. Despite request of the defendant to the police officials for return of his property documents, no action has been taken by the police in this regard.
9. Plaintiff, after filing an application Under Order 1 Rule 10 r/w Section 151 CPC in the suit pending in the court of Ms. Chhavi Kapoor, Ld. CJ, Delhi visited the suit property on 30.03.2011 and asked the defendant to CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 7 of 44 vacate the same alleging that she was the owner of the suit property. She also threatened the plaintiff for forcible dispossession. Plaintiff again visited the suit property on 03.04.2011 along with her associates and tried to dispossess the defendant from the suit property but due to active resistance of the defendant, she could not succeed. Consequently, defendant filed a civil suit for injunction against the plaintiff which was again disposed off and a statement on behalf of plaintiff dated 07.06.2011 was recorded to the effect that she would not dispossess the defendant without due process of law.
10. Title of the plaintiff to the suit property has been challenged alleging that Smt. Seeta Sharma had already sold the suit property to the defendant on 04.06.1992 and thus, could not have passed a valid title to the plaintiff. The property documents in favour of the plaintiff are alleged to be false and frivolous. The alleged sale of suit property by Smt. Seeta Sharma to Rosy Chaudhary and Bindu Babbar has also been disputed. It is specifically denied that defendant was the licensee in the suit property or that he is an illegal or unauthorized occupant. It is also stated that Rosy Chaudhary and Bindu Babbar were never in possession of the suit property. It is stated that the ground floor of the property is in the name of younger brother of the defendant namely Kamal and his CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 8 of 44 mother Smt. Ashwani Verma, first floor is in possession of the defendant and the second floor is in possession of another brother namely Rajeev Verma. Receipt of legal notice dated 23.09.2011 is not disputed. Rather it is stated that it was a false and frivolous notice and has been duly replied to vide reply dated 31.05.2011. It is also averred that the criminal complaints made against the defendant are false and fabricated. With these contentions, the suit of the plaintiff has been controverted.
REPLICATION:
11. Replication was filed by the plaintiff wherein she reiterated the contents of the plaint and denied the averments made in the WS except the admissions made.
ISSUES
12. After the completion of the pleadings, the following issues have been framed vide order dated 04.06.2013:
1. Whether the suit of the plaintiff has not properly valued for the purpose of court fees and jurisdiction? OPD
2. Whether the plaintiff has no locus standi to file the present suit as the defendant has become the owner of the suit property? OPD
3. Whether the plaintiff is entitled for the relief of possession, as prayed for?OPP CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 9 of 44
4. Whether the plaintiff is entitled for the relief of permanent injunction, as prayed for?OPP
5. Whether the plaintiff is entitled for damages/mesne profit @ Rs. 30,000/ per month w. e. f. 01.06.2001, as prayed for? OPP
6. Relief.
PLAINTIFF'S EVIDENCE:
13. The attorney of the plaintiff Sh. Rajesh Garg examined himself as PW1 in support of her case and stated and reiterated on oath, the averments made in the plaint in his affidavit Ex.PW1/A. He relied upon the following documents:
(i)Ex. PW1/1 (OSR) is the GPA dated 15.04.2011 executed in favour of deponent by the plaintiff.
(ii)Ex. PW1/2 (OSR) is the SPA dated 15.04.2011 executed in the favour of deponent by the plaintiff.
(iii)Ex. PW1/3 is the site plan of the suit property.
(iv)Ex. PW1/4 (OSR) is the registered agreement to sell dated 10.03.2011 executed by Ms. Rosy Chaudhary and Bindu Babbar in favour of the plaintiff in respect of suit property.
(v)Ex. PW1/5 (OSR) is the registered GPA dated 10.03.2011 executed by Ms. Rosy Chaudhary and Bindu Babbar in favour of the plaintiff in respect of suit property.
CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 10 of 44
(vi)Ex. PW1/6 (OSR) (colly) are the copies of receipt, SPA, Affidavit, respective Wills and Possession letters all dated 10.03.2011 executed by Ms. Rosy Chaudhary and Bindu Babbar in favour of the plaintiff in respect of suit property.
(vii)Ex. PW1/7 is the certified copy of perpetual lease deed dated 03.02.1977 registered on 19.03.1977 executed by DDA in favour of Ms. Seeta Sharma in respect of suit property.
(viii)Ex. PW1/8 (OSR) is the agreement to sell registered on 02.04.2004 executed by Ms. Seeta Sharma in favour of Rosy Chaudhary and Bindu Babbar in respect of suit property.
(ix)Ex. PW1/9 (OSR) is the GPA registered on 09.06.2004 executed by Ms. Seeta Sharma in favour of Rosy Chaudhary and Bindu Babbar in respect of suit property.
(x)Ex.PW1/10 (OSR) is the will dated 02.04.2004 registered on 05.04.2004 executed by Ms. Seeta Sharma in favour of Rosy Chaudhary and Bindu Babbar in respect of suit property.
(xi)Ex.PW1/11 (OSR) (colly) is the copy of receipt executed by Ms. Seeta Sharma in favour of Rosy Chaudhary and Bindu Babbar in respect of suit property.
(xii)Ex.PW1/12 is the legal notice dated 23.05.2011.
(xiii)Ex.PW1/13 and Ex.PW1/14 are the postal receipts in CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 11 of 44 respect of legal notice.
(xiv)Ex.PW1/15 is the reply to the legal notice received by the plaintiff.
(xv)Ex.PW1/16 is copy of newspaper publication and disclaimer deed dated 19.01.2004 whereby the mother of the defendant Smt. Ashwani Sharma had severed all her relations with the defendant and debarred him from her immovable and movable properties.
14. This witness was duly cross examined on behalf of defendant.
Defendant's Evidence
15. In order to prove his case, defendant examined himself as DW1 and stated and reiterated on oath the averments made in his written statement in his affidavit Ex.DW1/A. He relied upon the following documents:
(i)Ex. DW1/1 (OSR) is copy of perpetual lease deed dated 03.02.1977.
(ii)Ex. DW1/2 is the certified copy of the Kalandara dated 13.06.2004.
(iii)Ex.DW1/3 is the certified copy of his statement recorded in Kalandra dated 13.06.2004.
(iv)Ex.DW1/4 is a notice dated 25.01.2011 u/o 12 rule 8 CPC issued by the defendant to Smt Seeta Sharma,Rosy CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 12 of 44 Chaudhary and Bindu Babbar
(v)Ex.DW1/6 is the LIC policy intensive revival notice of Sonia Verma w/o Defendant sent to the address of suit property.
(vi)Ex. DW1/8 is the wedding card of the defendant.
(vii)Ex. DW1/9 (OSR) is the copy of LPG Gas Card of the defendant.
(viii)Ex. DW1/10 is electricity bill in the name of Smt. Ashwani Verma.
(ix)Ex. DW1/11 is the copy of complaint dated 09.07.2008 with original receiving made by defendant to Commissioner of Police.
(x)Ex. DW1/12 is copy of complaint dated 25.06.2011 made by defendant to SHO, Vikas Puri.
(xi)Ex. DW1/13 is copy of complaint dated 27.03.2011 made by wife of defendant to SHO,Vikas Puri.
(xii)Ex. DW1/15 is copy of complaint dated 08.12.2010 made by defendant to Commissioner of Police.
(xiii)Ex. DW1/18 is the copy of birth certificate of daughter of defendant.
(xiv)Ex.DW1/19 is public notice dated 13.10.2010.
(xv)Ex.DW1/20 (OSR) is copy of DL of the defendant. (xvi)Ex.DW1/21 is copy of Ration Card of the defendant.
16. Defendant examined his wife Ms. Sonia Verma CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 13 of 44 as DW2 who deposed in her affidavit by way of evidence Ex.DW2/A that she was married to the defendant on 14.02.1997. Her parents had consented for the marriage considering the facts that the defendant was the owner of the suit property. After marriage, she had come to the suit property being her matrimonial home and since then, she is residing in the suit property. She alongwith her husband and her mother in law are residing on the ground floor of the suit property while the remaining floors have been rented out by the defendant to different tenants. Defendant is the absolute owner of the suit property and the plaintiff has no right, title or interest in the same. On 12.06.2004, Smt. Seeta Sharma alongwith husband of Bindu and Rosy forcibly entered into the suit property and started fighting with them and when defendant showed his ownership documents qua the suit property, the same were snatched by Seeta Sharma and her associates. These documents were dated 04.06.1992. Defendant reported the matter to the police and a kalandara under Section 107/151 Cr. P. C. vide DD No. 49B dated 12.04.2004 was lodged by the police.
17. Mother of the defendant namely Smt. Ashwani Verma has been examined as PW3 who stated in his evidence affidavit Ex.DW3/A that the defendant is the absolute owner of the suit property. Her real sister namely CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 14 of 44 Seeta Sharma is the original allottee of the suit property and had sold the same to the defendant on 04.06.1992 by way of documents that are GPA, Agreement to sell, Receipt and Will (duly registered). Her elder son in law Sunil Babbar was the witness on the said sale documents. On the same day i.e. 04.06.1992, Seeta Sharma had also handed over peaceful vacant and physical possession of the suit property to the defendant. She also deposed about the incident dated 12.06.2004 in consonance in deposition of DW1 and DW2. She relied upon three documents which are marked as Mark A to Mark C. Mark A is photocopy of GPA dated 04.06.1992 bearing her signatures as a witness at point A1. Mark B is photocopy of agreement to sell dated 04.06.1992 bearing her signatures as a witness at point A2. Mark C is photocopy of Receipt dated 04.06.1992 bearing her signatures as a witness at point A3.
18. Defendant also summoned some official witnesses in support of his case.
19. DW4 is ASI Yudhvir Singh, PS Vikas Puri, who produced the record of the closure report in FIR no. 677/2015 u/s 420/448/506/34 IPC registered on the complaint of plaintiff Harsh Mani Mohindra against defendant Sanjay Verma and others. The relevant record is Ex.DW4/1 & 2.
20. DW5 Shri Kamlesh Kumar is a witness from CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 15 of 44 DDA office who produced the record of conversion application filed by Shri Rajeev Verma, attorney of Shri Sanjay Verma for the lease hold property bearing no. H 437, Vikas Puri, Delhi, on 12.10.1996 which is Ex.DW5/1.
21. Since DW5 had produced the entire file in original. In his cross examination some other documents on the file were exhibited. Ex.DW5/X1 and X2 are the copies of the registered deed of cancellation of GPA and WILL executed by Smt Seeta Sharma. Ex.DW5/X3(colly) is the application of Smt Rosy Choudhary & Bindu Babbar for conversion. Ex.DW5/X4(colly) are the office notings with regard to conversion of the suit property from lease hold to free hold.
22. DW6 Shri Mahender Pal Singh is the stamp vendor who deposed that he had issued the stamp paper vide Sl.No. 10305 of Rs. 2 on 04.06.1992 and stamp paper bearing no. 10301 dated 04.06.1992 for Rs. 10. Both the stamp papers were issued to Smt Seeta Sharma for GPA and agreement to sell. The sale register of both the stamp papers were deposited by him with the Collector of Stamps.
23. All the witnesses of the defendant were duly cross examined on behalf of the plaintiff.
24. Final arguments have been heard and record carefully perused.
Findings: CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 16 of 44
25. Now I shall proceed to give my issue wise findings.
ISSUE No. 11. Whether the suit of the plaintiff has not been properly valued for the purpose of court fees and jurisdiction? OPD.
26. The onus to prove this issue was on the defendant. The defendant has averred in preliminary objection no. 3 of his written statement that plaintiff has not affixed the proper court fees on the plaint and thus the suit is liable to be dismissed. It is also stated that the value of the suit property under the occupation of the defendant is more than Rs. 50,00,000/ and thus, this court has no jurisdiction to try and entertain the present suit.
27. Except for these bald pleadings of the defendant, there is no evidence produced on record by him in support of his contention. No evidence has been led to show that the value of the suit property at the time of filing of the suit was more than Rs. 50,00,000/. Even other wise, the pecuniary jurisdiction of this court has been increased to Rs. 2 crores and accordingly even if the value of the suit property was more than Rs. 50,00,000/ (though not proved) this court now has jurisdiction to try and finally dispose off the present suit.
CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 17 of 44
28. Plaintiff, on the other hand, has valued the suit for the purposes of court fees and jurisdiction for the relief of possession at Rs. 19.95 lakhs on which advolerem court fees of Rs. 21817/ has been paid. For the relief of injunction, the value for the purposes of court fees and jurisdiction is fixed at Rs. 130 and court fees of Rs. 13/ is paid thereon. As regards the relief of damages, the valuation is done at Rs. 200/ and the plaintiff is seeking enquiry under Order 20 Rule 2 CPC and has also undertaken to pay any further amount of court fees that is found due after the culmination of the enquiry.
29. In the absence of any evidence led by the defendant to show that this valuation is not proper, mere objection on the valuation of the suit holds no ground. I find no lacunae in the valuation of the suit for the purposes of court fee and jurisdiction done by the plaintiff. Defendant has also failed to point out any flaw in the same. This issue is accordingly, decided in favour of the plaintiff and against the defendant.
ISSUE No. 22. Whether the plaintiff has no locus standi to file the present suit as the defendant has become the owner of the suit property? OPD.
30. The onus to prove this issue was on the CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 18 of 44 defendant.
31. Let us examine the case of the defendant and the evidence brought on record by him regarding his ownership over the suit property.
32. Defendant has stated in paragraph nos.5 & 6 of the preliminary objections of his written statement that he has already filed a suit for declaration and consequential relief of mandatory and permanent injunction against Smt Seeta Sharma, Smt Ashwani Verma, Smt Bindu, Smt Rosy and DDA seeking a declaration to the effect that he is the sole, absolute and exclusive owner of the suit property on the basis of sale documents dated 04.06.1992 executed by Smt Seeta Sharma in his favour. It is also alleged that filing of the said suit is within the knowledge of plaintiff herein as she had filed an application u/o 1 rule 10 CPC seeking her impleadment in the said suit. Again, in paragraph no.9 of the plaint, it is alleged that Smt Seeta Sharma had executed sale documents that are GPA, agreement to sell, receipt and WILL (duly registered) in favour of the defendant on 04.06.1992 in respect of the suit property. It is also stated that after the execution of the documents dated 04.06.1992 the possession of the suit property was handed over to the defendant and since then, he is in possession of the same as an owner of the suit property.
CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 19 of 44
33. Defendant, when examined himself as DW1, also deposed about the execution of the property documents in his favour on 04.06.1992 in paragraph no.4 of his affidavit Ex.DW1/A. In the affidavit the photocopies of the documents were marked as A,B,C and D, but these documents were not relied upon at the time of tendering of affidavit of DW1.
34. Thereafter, DW3/Ashwani Verma, mother of the defendant was examined who again deposed about the execution of the property documents by Smt Seeta in favour of the defendant on 04.06.1992. However, as per paragraph no. 4 of her affidavit (Ex.DW3/A), the documents were executed by "Smt Seeta Verma" and not "Smt Seeta Sharma". The said documents have been identified by DW3 as MarkA to MarkC. MarkA is copy of a GPA dated 04.06.1992 executed by Smt Seeta Sharma in favour of Shri Rajiv Verma (and not the defendant Sanjay Verma) in respect of the suit property. MarkB is a copy of agreement to sell dated 04.06.1992 executed by Smt Seeta Sharma in favour of defendant Sanjay Verma for selling the suit property to him for sale consideration of Rs. 1,50,000/. MarkC is a receipt of Rs. 1,50,000/ executed by Seeta Sharma in favour of the defendant.
35. DW3 has identified her signatures on all these documents which she had signed as a witness. However, CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 20 of 44 the original of these documents have not been brought on record.
36. Merely photocopies of the alleged sale documents in respect of the suit property executed in his favour in the year 1992 have been placed on record by the defendant and vague submissions have been made that the original documents have been snatched by the predecessor in interest of the plaintiff which is without the support of any corresponding complaint made in this regard or action initiated by the plaintiff for recovering the said documents. As per the pleadings of the defendant, the WILL executed by Smt. Seeta Sharma in his favour was a registered document, however, no effort has been made for summoning the record in this regard from the office of Sub Registrar. The alleged WILL is not even marked or exhibited by any of the defendant's witnesses.
37. It is the case of the defendant that on 12.06.2004, husbands of his sisters namely Bindu and Rosy alongwith Seeta Sharma had illegally and forcibly entered into the suit property and started fighting with them. When the defendant showed the ownership documents qua the suit property executed in his favour by Smt Seeta Sharma, husbands of Bindu and Rosy snatched the said documents. The matter was also reported to the police vide DD no. 49 B dated 12.06.2004 PS Vikas Puri and a Kalandra u/s CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 21 of 44 107/151 CrPC was registered against the parties. Certified copy of the said kalandra alongwith statement of the defendant recorded therein are Ex.DW1/2 and Ex.DW1/3 respectively.
38. A careful perusal of the said kalandra as well as statement of defendant recorded therein shows that there is no allegation made in the said kalandra regarding snatching of the property documents of the defendant dated 04.06.1992 by Smt Seeta Sharma or husbands of Rosy and Bindu. In fact the said kalandra and statement of defendant (Ex.DW1/2&3) do not mention even the existence of the documents of the suit property executed in favour of the defendant in the year 1992. The stand of the defendant in his statement Ex.DW1/3 is that the suit property was sold by Smt Seeta Sharma to his father Shri Yashpal Verma in the year 19811982 and his father Shri Yashpal Verma had transferred the same in his name and in the name of his brother Rajiv Verma in the year 198182 itself. It also records that in the year 1997 Smt Seeta Verma had again sold the suit property to the mother of the defendant namely Smt Ashwani Verma on the basis of her old ownership documents and his mother and sister were trying to dispossess him from the suit property on the basis of the said documents. In his statement before the IO in kalandra vide DD no. 49B dated 12.06.2004 PS Vikas Puri, CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 22 of 44 the defendant has neither alleged to be an owner of the suit property on the basis of any documents executed in his favour by Smt Seeta Sharma in the year 1992 nor he has made any allegation of snatching of any such documents by Smt Seeta Sharma and her associates as being alleged in the present suit. This completely falsifies the case of the defendant that the alleged original documents in his favour qua the suit property were snatched by Smt Seeta Sharma or her associates on 12.06.2004.
39. Except for the kalandra Ex.DW1/2 and statement of defendant therein Ex.DW1/3, the defendant is not relying upon any other document to explain the non filing of the original property documents allegedly executed in his favour in 1992 on the court record. Admittedly, no complaint has been made by the defendant regarding the snatching of the said documents nor any proceeding has been initiated by him against the Smt Seeta Sharma or husbands of Rosy and Bindu for recovery of the said documents allegedly snatched by them.
40. In addition to this, the defendant is relying upon copy of a notice dated 25.01.2011 u/order 12 rule 8 CPC (Ex.DW1/4) issued by him to Smt Seeta Sharma, Smt Bindu and Smt Rosy through his counsel Shri R S Verma, advocate, for production of the original property documents executed in favour of the defendant qua the suit CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 23 of 44 property. Interestingly, this notice does not mention the details of the relevant documents of which production is sought. It simply states that addressee no.1/Smt Seeta Sharma, had executed a power of attorney, agreement to sell, WILL and receipt in favour of Sanjay Verma in respect of the suit property which was snatched by the addressees in collusion and connivance with each other, which matter was reported to the police vide DD no. 49B dated 12.06.2004. The production of those original snatched documents is sought vide notice Ex.DW1/4. As pointed out earlier, there is no mention of the documents dated 12.06.1992 or snatching of any documents in Kalandra vide DD no. 49B dated 12.06.2004. Similarly, there is no mention of the date of the documents which were allegedly snatched by the addressees of the legal notice and of which production has been sought through Notice Ex.DW1/4. Accordingly, this notice is of no support to the contention of the defendant in this regard. Even otherwise, a notice for production of documents being issued in 2011 in respect of the documents which were allegedly snatched in the year 2004, is in itself sufficient to hold that the notice is merely an after thought and not an immediate action taken by a prudent man.
41. In these circumstances, considering the overall evidence on record I have no hesitation in holding that the CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 24 of 44 defendant has miserably failed to prove on record the existence of any documents regarding the ownership of the suit property executed in his favour by the erstwhile owner Smt Seeta Sharma. Considering the wavering stands of the defendant regarding the documents on the basis of which he is claiming ownership over the suit property and his failure to reasonably explain nonproduction of the original documents before the court is sufficient to give a finding that defendant has failed to prove his ownership over the suit property.
42. It is also worthwhile to mention here that DW3 Ashwani Verma is even otherwise not a reliable witness as she is even a witness to the property documents executed in favour of the plaintiff by Smt Rozy Choudhary and Bindu Babbar which are Ex.PW1/4 to 6. DW3 has admitted her signatures on these documents and has not explained under what circumstances she had witnesses these documents when the suit property was already sold to her son i.e. defendant herein.
43. As regards the locus of the plaintiff to file the present suit, the same has been challenged merely on the ground that since defendant had become an owner of the suit property, the plaintiff had no locus standi to file the present suit.
44. In view of the failure of the defendant to CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 25 of 44 prove his ownership over the suit property, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE No. 3: Whether the plaintiff is entitled for the relief of possession, as prayed for?OPP.
45. The onus to prove this issue was on the plaintiff. It is the case of the plaintiff that she had purchased the suit property from the erstwhile owners Rosy Chaudhary and Bindu Babbar by way of registered agreement to sell, registered GPA, receipt, SPA, affidavits, WILLs and possession letters, all dated 10.03.2011. All these documents have been produced on record in original and are Ex.PW1/4 to Ex.PW1/6.
46. As regards the previous chain of documents, the plaintiff has proved the certified copy of the perpetual lease deed dated 03.02.1977 registered on 19.03.1977 executed by DDA in favour of Smt Seeta Sharma qua the suit property as Ex.PW1/7. This document is even otherwise not disputed and is also relied upon by the defendant as Ex.DW1/1. The original lease deed was not produced by the plaintiff and as per the case of the plaintiff the original perpetual lease deed was misplaced in the year 2004 for which NCR was lodged with PS Tilak Nagar by Smt Seeta Sharma which is Ex.PW1/17.
47. The documents of transfer of the suit property CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 26 of 44 by Smt Seeta Sharma in favour of Rosy Chaudhary and Bindu Babbar i.e. agreement to sell, registered GPA, registered WILL and receipt all dated 02.04.2004 are proved as Ex.PW1/8 to Ex.PW1/11. All these documents have been produced in original and exhibited by PW1.
48. Relying upon the testimony of PW1 and the original documents proved on record, it is submitted by the Ld.counsel for the plaintiff that the plaintiff has duly proved on record the ownership of the plaintiff over the suit property. It is further submitted that defendant was merely a licensee in the suit property and after the termination of his license vide legal notice dated 23.05.2011 (Ex.PW1/12), the defendant is liable to handover the possession of the suit property to the plaintiff.
49. Per contra it is submitted on behalf of the defendant that plaintiff has failed to step into the witness box to prove her case. The documents Ex.PW1/4 to Ex.PW1/11 have not been duly proved as per law. PW1 is merely a power of attorney holder and his deposition on the facts which are not in his personal knowledge cannot be relied upon by the court.
50. Ld.counsel for the defendant has relied upon the decision of the Apex Court in Man Kaur vs Hartar Singh Sangha 2011(1) RCR (Civil) and Janki Vashdeo Bhojwani & another vs Indusind Bank Ltd. in Appeal CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 27 of 44 (Civil) 6790 of 2003 order dated 06.12.2004 in support of his submissions.
51. I have perused both the decisions relied upon by the defendant. In Man Kaur's case (Supra) the Apex Court after considering its earlier decisions (including Janki Vashdeo's case Supra), in which the evidentiary value of the depositions of the attorney holders was considered, summarised the position in this regard as under: "12. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:
(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney holder cannot depose or give evidence in place of his principal for the acts CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 28 of 44 done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/ attorney holders or persons residing abroad managing their affairs through their attorney holders.
(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder.
(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined.
(g) Where the law requires or contemplate the plaintiff or other party to a proceeding to establish or prove something with reference to his 'state of mind' or 'conduct', normally the person concerned alone has to to give evidence and not an attorney holder. A landlord who CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 29 of 44 seeks eviction of his tenant, on the ground of his 'bona fide' need and a purchaser seeking specific performance who has to show his 'readiness and willingness' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney who may happen to be a close family member, it may be possible to accept the evidence of such attorney even with reference to bona fides or 'readiness and willingness'.
Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.
52. Now, let us apply these principles laid down by the Apex Court to the facts of the present case.
53. In the present case, PW1, a power of attorney holder of the plaintiff, has deposed on behalf of the plaintiff on the basis of GPA (Ex.PW1/1) and SPA (Ex. PW1/2), both dated 15.04.2011 executed in his favour by the plaintiff. PW1 has basically deposed on the basis of documents which are proved on record by production of the originals. The defendant has raised no objection qua the said documents at the time of exhibition of the same. The testimony of PW1 cannot be discarded merely because CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 30 of 44 he was a power of attorney holder and not the plaintiff himself when the documents of ownership of the suit property in favour of the plaintiff have been duly proved on the record. Interestingly, PW1 has also not been given any suggestion regarding not having any personal knowledge of purchase of the suit property by the plaintiff through documents Ex.PW1/4 to Ex.PW1/6. These documents are also proved by DW3 who, being a witness to the documents, has identified her signatures thereon in her cross examination. Moreover, PW1 has categorically testified that the property documents in favour of plaintiff were executed in his presence which deposition has not been rebutted by the defendant.
54. In these circumstances, I find no reason for not relying upon the testimony of PW1 or drawing an adverse inference against the plaintiff merely because she has not stepped into the witness box.
55. The judgments relied upon by the defendant are of no use to him as the attorney holder in the present case i.e. PW1 has deposed about the facts/transaction, which had taken place in his presence and were thus, in his personal knowledge. Moreover, the documents evidencing his deposition are already proved on record. Accordingly, I find no reason for not relying upon his testimony.
56. As regards the legal notice terminating the CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 31 of 44 license of the defendant (Ex.PW1/12), it is an admitted document as it has been duly replied to by the defendant vide reply Ex.PW1/14.
57. Considering the overall documents produced on record on behalf of the plaintiff and the deposition of PW1, I have no hesitation in holding that the plaintiff has duly proved on record the purchase of the suit property by her from the erstwhile owners vide GPA,agreement to sell,WILL etc all dated 10.03.2011.
58. The defendant, on the other hand, has miserably failed to bring on record any evidence to show any legal right over the suit property. As discussed earlier, he has taken contradictory stands regarding the ownership of the suit property before various forums and at different stages and has failed to produce or prove on record any documents pertaining to the suit property executed in his favour by any of the erstwhile owners.
59. Now, the question that arises for consideration is whether on the basis of property documents that are GPA etc., the possession of the suit property can be granted in favour of the plaintiff especially in view of the decision of the Apex Court in Suraj Lamp & Industry Pvt. Limited vs State of Haryana and another (2012) 1SCC 656 wherein it has been held that these are not proper documents for transfer of immovable property.
CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 32 of 44
60. It is argued by Ld.counsel for the defendant that the Apex Court has held in the Suraj Lamp's judgment (Supra) that the Courts will not treat transactions of the nature of GPA sales or "SA/GPA/WILL transfers" as conveyances as they neither convey title nor create any interest in an immovable property. Thus, the plaintiff cannot claim any right, title or interest in the suit property on the basis of GPA sales documents Ex.PW1/4 to 6.
61. Per contra, it is argued by Ld.counsel for the plaintiff that even the judgment in Suraj Lamp's case(Supra) qualifies that any observations made therein are not intended to in any way affect the validity of the sale agreement & POA executed in genuine transactions. The title of the plaintiff over the suit property has not been challenged by the erstwhile owners in the present suit. Plaintiff is not seeking a declaration of her ownership on the basis of the set of GPA etc., documents against the original/erstwhile owner. The present suit has been filed by the plaintiff seeking possession based on her title u/s 5 of the Specific Relief Act, 1963. In order to succeed in the present suit the plaintiff is only required to prove a better title than the defendant which she has successfully proved and thus, she is entitled to the relief of possession as prayed.
62. The Apex Court has discussed the legality of CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 33 of 44 SA/GPA/ Will transaction and their effect on conveyance of title in immoveable property at length in Suraj Lamp's case (Supra). The conclusive paragraphs of the decision of the Apex Court are reproduced hereinunder for the sake of clarity.
Conclusion
23. Therefore, an SA/GPA/WILL transaction does not convey any title nor creates any interest in an immovable property. The observations of the Delhi High Court in Asha M.Jain vs. Canara Bank, that the "concept of powerofattorney sales has been recognised as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognised or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognise or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
24. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of "GPA sales" or "SA/GPA/WILL transfers" do not convey title and do not amount to transfer, nor can they be recognised as valid mode of transfer of CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 34 of 44 immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognised as deeds of title, except to the limited extent of Section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in municipal or revenue records. What is stated above will apply not only to deeds of conveyance in regard to free hold property but also to transfer of leasehold property. A lease can be validity transferred only under a registered assignment of lease. It is time that an end is put to the pernicious practice of SA/GPA/Will transactions known as GPA sales.
25. It has been submitted that making declaration that GPA sales and SA/GPA/WILL transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularise the transactions by obtaining deeds of conveyance. It is also submitted that this decision should be made applicable prospectively to avoid hardship.
26. We have merely drawn attention to and reiterated the wellsettled legal position that SA/GPA/WILL transactions are not "transfers" or "sales" and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreements of sale. Nothing prevents the affected parties from CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 35 of 44 getting registered deeds of conveyance to complete their title. The said "SA/GPA/WILL transactions" may also be used to obtain specific performance or to defend possession under Section 53A of the TP Act. If they are entered before this day, they may be relied upon to apply for regularisation of allotments/leases by development authorities. We make it clear that if the documents relating to "SA/GPA/WILL transactions" have been accepted/acted upon by DDA or other developmental authorities or by the municipal or Revenue Authorities to effect mutation, they need not be disturbed, merely on account of this decision.
27. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding "SA/GPA/WILL CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 36 of 44 transactions' are not intended to apply to such bonafide/genuine transactions".
63. A reference to the decision in Suraj Lamp's case (Supra) shows that unless there is a proper registered conveyance deed, title of an immovable property does not pass. The Apex Court has however reiterated that right which is created pursuant to Section 53 A of Transfer of Property Act, 1882 dealing with the doctrine of part performance; an irrevocable right of a person holding a Power of Attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872 (Para
13); and devolution of interest pursuant to a WILL (para
14), shall continue to exist. Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53 A of the Transfer of Property Act,1882 and Section 202 of the Contract Act 1872. There also takes place devolution of interest after the death of the testator in terms of a WILL.
64. Our own High Court of Delhi in Ramesh Chand vs Suresh Chand and ors cited as ILR (2012) V Delhi 48 after considering the decision in Suraj Lamp's case (Supra) held as under: CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 37 of 44 "12. In view of the aforesaid facts and the validity of the documents, being the power of attorney and the WILL dated 16.05.1996, the respondent no.1/plaintiff would though not be the classical owner of the suit property as would an owner be under a duly registered sale deed, but surely he would have better rights/entitlement of possession of the suit property than the appellant/defendant no.1. In fact, I would go to the extent saying that by virtue of para 14 of the judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt.Ltd.(Supra) taken with the fact that Shri Kundan Lal has already died, the respondent no.1/plaintiff becomes an owner of the property by virtue of the registered WILL dated 16.05.1996. A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement/right to the possession of the property than qua the person who is in actual physical possession thereof. The facts of the present case show that the respondent no.1/plaintiff has undoubtedly better entitlement/title/right in the suit property so as to claim possession from the appellant/defendant no.1/brother. I have already held above that the appellant/defendant no.1 miserably failed to prove that there was any partition as alleged of the year 1973 whereby the suit property allegedly fell to the share of the appellant/defendant no.1. In fact, the second reason for holding the appellant to be unsuccessful in establishing his plea of partition is that the appellant failed to lead CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 38 of 44 any evidence as to the other two properties being the property no. 290, Ambedkar Basti, Delhi and the second property being the property adjoining the property no.290, Ambedkar Basti, Delhi as having belonged to the father Shri Kundan Lal."
65. Applying the principles laid down in the abovestated judgments to the facts of the present case, it is amply clear that the plaintiff has been able to establish on record a better entitlement/title/right in the suit property so as to claim the possession thereof from the defendant. It is established on record that GPA sales documents Ex.PW1/4 to Ex.PW1/6 were executed in favour of the plaintiff. The execution of the said documents is not disputed by the executant/erstwhile owners of the suit property. On the other hand, defendant has miserably failed to prove on record any document in his favour to show his entitlement to retain the possession of the suit property. As per the case of the plaintiff defendant was a licensee in the suit property whose license has been duly terminated vide legal notice dated 23.05.2011 (Ex.PW1/12). The notice has been duly served upon the defendant as is evident from the reply to the legal notice (Ex.PW1/15) . In view of the termination of the license of the defendant, the plaintiff is entitled for the relief of possession, as prayed for. This issue is accordingly, decided CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 39 of 44 in favour of the plaintiff and against the defendant.
ISSUE No. 4: Whether the plaintiff is entitled for the relief of permanent injunction, as prayed for?OPP
66. The onus to prove this issue was on the plaintiff. The plaintiff has sought a permanent injunction seeking restraint against the defendant, his agents,associates, assignees, family members etc., thereby creating any third party interest in respect of the first floor of the suit property or parting with the possession thereof in favour of a third party.
67. In view of my issuewise findings given on issue no.3 above, since the plaintiff has been able to establish a better title than the defendant over the suit property and has been held entitled to receive the possession of the suit property from him, it is appropriate that defendant is restrained from creating any third party interest in or parting with the possession of the first floor of the suit property. This is moreso, as the defendant has failed to prove on record any document to show his ownership or any possessory rights over the suit property.
68. This issue is accordingly, decided in favour of the plaintiff and against the defendant.
ISSUE No. 5:Whether the plaintiff is entitled for CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 40 of 44 damages/mesne profit @ Rs. 30,000/ per month w. e. f. 01.06.2001, as prayed for? OPP.
69. The onus to prove this issue was on the plaintiff. As per the case of the plaintiff the license of the defendant to reside on the first floor of the suit property was terminated vide legal notice dated 23.05.2011 (Ex.PW1/12) w.e.f. 01.06.2011. His possession over the suit property beyond 31.05.2011 is unauthorized and illegal. Accordingly, damages for illegal use and occupation @30,000/ per month has been prayed w.e.f. 01.06.2011 till the handing over the possession of the suit property to the plaintiff. The demand of damages for illegal and unauthorized occupation @ Rs.30,000/ per month was raised vide legal notice Ex.PW1/12.
70. In order to prove his entitlement to damages @ Rs.30,000/ per month plaintiff is relying not only upon his legal notice Ex.PW1/12, but also, on the deposition of PW1 who has categorically deposed in paragraph no.12 of his affidavit Ex.PW1/A that the damages for illegal use and occupation @Rs.30,000/ per month was commensurate with the market rent of the suit premises. There is no cross examination of PW1 on this aspect. During the cross examination of DW1, he has also admitted the suggestion that the property in question, if let out, is capable of earning Rs.30,000/ per month as rent. The relevant CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 41 of 44 portion of the cross examination of DW1/defendant dated 24.03.2018 is reproduced hereinunder: " It is correct that the property in question if let out, is capable of Rs. 30,000/ per month as rent. The rental would be almost the same even if let out the same in the year 2011".
71. Accordingly, there is a clear admission of the defendant in his cross examination that the first floor of the suit property is capable of earning Rs. 30,000/ per month as rental income.
72. The property in question is consisting of four rooms (two rooms of size 12 x 10ft and two rooms of size 14 x 10 ft) alongwith courtyard, lobby, varanda, kitchen and bathroom as shown in the site plan Ex.PW1/3. The same is located on the first floor of H.no. H437, situated in Vikas Puri and is admeasuring about 125 square yards. Accordingly,the rental income of Rs. 30,000/ per month appears to be a fair market rent of the property in question. Although, the plaintiff has not brought any additional evidence to show market rate of rent in respect of the suit property or other similar properties situated in the locality, however, considering the size of the property, its location as well as the admission of the defendant regarding the capability of the suit property to earn a rental income of CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 42 of 44 Rs. 30,000/ per month, the claim of the plaintiff regarding his entitlement to Rs. 30,000/ per month as mesne profits appears to be reasonable and well founded.
73. As discussed above, the license of the defendant has been terminated by the plaintiff vide legal notice Ex.PW1/12, w.e.f. 01.06.2011. Accordingly, the possession of the defendant in the suit property w.e.f. 01.06.2011 is unauthorized and illegal. The plaintiff is, thus, entitled to mesne profit/occupation and user charges for the suit property for the illegal retention of the possession of the suit property from the defendant w.e.f. 01.06.2011.
74. In view of the above discussion and the evidence on record, this issue is decided in favour of the plaintiff and against the defendant holding that the plaintiff is entitled to a decree of mesne profits/damages @ Rs.30,000/ per month w.e.f. 01.06.2011 till the vacation of the suit property.
Relief
75. In view of my issue wise findings given above, the suit of the plaintiff is decreed and following reliefs are granted in favour of the plaintiff and against the CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 43 of 44 defendant:
(i) Decree of possession of the first floor in the suit property bearing no. H437, area admeasuring 125 sq. yds. comprising of three storeys situated at Vikas Puri, New Delhi as shown in red colour in the site plan Ex.PW1/3. (Site plan is made a part of the decree sheet).
(ii) Decree of permanent injunction restraining the defendant, his agents,associates, assignees, family members etc., from creating any third party interest in or parting with the possession in favour of a third person of the first floor of the suit property.
(iii) Decree of mesne profit/damages @ Rs.30,000/ per month w.e.f. 01.06.2011 till the vacation of the suit property.
(iv) Cost of the suit.
76. Decree sheet be prepared accordingly.
77. Decree qua mesne profits be prepared after filing of additional court fees.
78. File be consigned to the record room.
Digitally signedSHIVALI by SHIVALI SHARMA Announced in the open court SHARMA Date: 2021.04.01 15:59:15 +0530 today i.e. 01.04.2021 (SHIVALI SHARMA) ADJ03/WEST/THC/DELHI CS: 610252/2016 Harshmani Mohindra vs Sanjay Verma 44 of 44