Delhi District Court
Sh. Salek Chand vs Sh. Sanjeev on 28 January, 2019
IN THE COURT OF SH HARGURVARINDER SINGH JAGGI,
ADDL. DISTRICT JUDGE-02, SOUTH-WEST DISTRICT,
DWARKA COURTS, NEW DELHI
CS No. 515566/16
Sh. Salek Chand
S/o Late Lal Chand
R/o D-169, First Floor
Gali No.51, Mahavir Enclave
Part III, New Delhi -110059 ... Plaintiff
Versus
1. Sh. Sanjeev
S/o Sh. Salek Chand
2. Smt. Sarita Devi
W/o Sh Sanjeev
Both R/o D-169, First Floor
Gali No. 51, Mahavir Enclave
Part III, New Delhi -110059 ... Defendants
Date of institution of the plaint : 25.08.2015
Date of reserving the judgment : 09.01.2019
Date of pronouncement : 28.01.2019
JUDGMENT
1. This is a suit for possession, permanent injunction and for damages / mesne profits against the defendants by the plaintiff.
2. In a nutshell, the facts of the case are that the plaintiff is the absolute owner of the property bearing Plot No. 8-B, measuring 100 sq.yds. out of Khasra No. 113/14 situated at Village Palam, New Delhi CS No15566/16 Salek Chand Vs. Sanjeev Page 1 of 12 now known as property bearing No. D-169, Gali No. 51, Mahavir Enclave Part III, New Delhi consisting of a ground and first floor. It is averred in the plaint that the above property is the self acquired property and had been purchased by the plaintiff, from his own funds vide various sale / transfer documents dated 10.09.1984.
3. As per the averments in the plaint, the defendant No.1 is the younger son of the plaintiff and the defendant No.2 is the daughter-in- law of the plaintiff i.e. wife of the defendant No.1. The marriage between the defendant No.1 and the defendant No. 2 was solemnized about 13 years ago. It is also averred in the plaint that the ground floor of the aforesaid property is occupied by the eldest son of the plaintiff and on the first floor of the aforesaid property, the plaintiff and his wife were residing at one room and kitchen at the first floor, forming part of property bearing Plot No. 8-B, measuring 100 sq.yds, out of Khasra No. 113/14 situated at Village Palam, New Delhi, now known as property bearing No. D-169, Gali No. 51, Mahavir Enclave Part III, New Delhi (hereinafter the "suit property").
4. Subsequent to the marriage of the defendant Nos. 1 and 2, they were allowed to occupy the suit property i.e. one room, kitchen with common latrine-bathroom, at first floor in the suit property without any charges by the plaintiff.
5. The plaintiff has averred in the plaint that the behavior of the defendants towards the plaintiff's wife has been harsh and cruel. The defendant No. 2 often hurled abuses and quarreled with the plaintiff's wife. The plaintiff has averred instances of 11.06.2015 and 17.06.2015 about the face-off and skirmish between the defendant No. 2 and the plaintiff's wife, when the defendant No. 2 threatened to kill the plaintiff's wife in case she called police by dialing 100 just like on CS No15566/16 Salek Chand Vs. Sanjeev Page 2 of 12 11.06.2015 and thereafter she shall commit suicide.
6. The plaintiff has also averred in the plaint that the defendants are not paying any use and occupation charges to the plaintiff and enjoying the suit property without any charges. On account of the misbehavior and ill-treatment meted out by the defendants to the wife of the plaintiff it had become inevitable to live under the same roof and the plaintiff disowned / debarred the defendants from his movable and immovable properties and severed all his relations with them vide public notice dated 20.06.2015 published in daily newspaper Virat Vaibhav. The plaintiff also canceled/ revoked the said license w.e.f. 20.06.2015 and requested the defendants to vacate the said portion under their occupancy, possession but the defendant Nos. 1 and 2 did not oblige and are in illegal occupancy of the suit property. The plaintiff also lodged a complaint dated 30.06.2015 against the defendants with PS Dabri, New Delhi. The repeated requests of the plaintiff to the defendants to vacate the suit property and particularly on 02.07.2015, to vacate the portion under possession, the defendants threatened to create third party interest in the suit property under their occupation.
7. It is the case of the plaintiff that the defendants have no right, title or interest, whatsoever in the suit property, hence the defendants are liable to pay a sum of ₹5000/- (Rupees Five thousand only) per month to the plaintiff towards use and occupation charges, as the similar portion in the similar locality may easily fetch a rental income of ₹5000/- (Rupees Five thousand only) per month.
8. The plaintiff has averred that the cause of action for filing the suit against the defendants arose on account of misbehavior and skirmishes between the defendant No. 2 and the wife of the plaintiff.
CS No15566/16Salek Chand Vs. Sanjeev Page 3 of 12 The cause of action further arose on 20.06.2015 when the plaintiff severed his relations and disowned/ debarred the defendants vide notice dated 20.06.2015 and also revoked / canceled the license of the defendants with regard to the occupancy of the suit property. The cause of action also arose on 30.06.2015 when the plaintiff made a complaint with the police station Dabri and subsequently on 02.07.2015, when the plaintiff requested the defendants to vacate the suit property but they extended threats to create third party interest in the suit property. The suit had been preferred by the plaintiff against the defendants within the prescribed period of the law of limitation.
9. The summons for settlement of issues were issued to the defendants and served upon the defendant on 01.09.2015. The defendants duly appeared in court on 24.09.2015 and sought time to file their written statement. On 26.11.2015, the defendant No. 1 was proceeded as ex-parte.
10. The defendant No. 2 contested the suit by filing a written statement on 03.02.2016. The defendant No. 2 in her written statement alleged that the plaintiff has preferred the suit with the sole purpose and intention to oust the defendant No. 2 from her matrimonial home i.e. suit property. The defendant No. 1 being a divorcee did not disclose about his marital status to her. It is also averred in the written statement by the defendant No. 2 that on 17.09.2015 that she was beaten by the defendant No. 1, the wife of the plaintiff and the plaintiff himself and on account of which she had to go to her mother's house. It is averred in the written statement that the plaintiff along with his wife and his son i.e. defendant No. 1 forced the defendant No. 2 to leave her matrimonial home.
11. Needless to state that the plaintiff filed a replication CS No15566/16 Salek Chand Vs. Sanjeev Page 4 of 12 controverting the contents of the written statement of the defendant.
12. After completion of pleadings, the following issues were framed in the present matter by the Ld. Predecessor vide order dated 10.03.2016:
1. Whether the plaintiff is entitled to a decree of possession qua the suit property i.e. one room and kitchen at first floor, forming part of property bearing Plot No. 8-B, measuring 100 sq.yds, out of Khasra No. 113/14 situated at Village Palam, New Delhi, now known as property bearing No. D-
169, Gali No. 51, Mahavir Enclave Part III, New Delhi as prayed for in the prayer clause(a) of the plaint? ... OPP
2. Whether the plaintiff is entitled to a decree of permanent injunction with respect to the suit property i.e. one room and kitchen at first floor, forming part of property bearing Plot No. 8-B, measuring 100 sq.yds, out of Khasra No. 113/14 situated at Village Palam, New Delhi, now known as property bearing No. D-169, Gali No. 51, Mahavir Enclave Part III, New Delhi as prayed for in the prayer clause (b) of the plaint? ...OPP
3. Whether the plaintiff is entitled to damages/ mesne profits as prayer for in the prayer clause (c) of the plaint? ...OPP
4. Relief
13. This court observes that since the contesting parties to the suit were from the same family, the matter was referred to mediation center on 10.03.2016 and the same was settled between the plaintiff and the defendants vide mediation report dated 28.04.2016.
14. As per mediation report dated 28.04.2016, the parties were to appear before the Referral court on 21.07.2016 and give their respective statements and accordingly, the plaintiff shall withdraw the present suit before this court. On 06.09.2016, Ld. counsel for the plaintiff apprised the court that regardless of the matter settled before CS No15566/16 Salek Chand Vs. Sanjeev Page 5 of 12 the mediation centre, vide mediation report dated 28.04.2016 the defendants are not complying with the terms and conditions of the settlement. Subsequently, the defendant No. 1 did appear in court on 06.09.2016. This court accordingly issued court notice to the defendant returnable for 03.11.2016.
15. On careful examination of the case record and order sheets, this court observes that on 03.11.2016, the defendant Nos. 1 and 2 did appear in court. The case on 03.11.2016 was adjourned for admission and denial of documents and framing of issues for 18.01.2017.
16. However, none appeared on behalf of the defendant No. 2 on 20.04.2017 and the defendant No.2 was proceeded ex-parte. Thereafter the matter was fixed for ex- parte evidence.
17. This court observes that before proceeding further it would be relevant to point out the mistake of the court, which though does not cause prejudice to either party but it would be in the interest of justice to spell out, what the record of the judicial file discloses. It is observed that the issues were framed on 10.03.2016 and on 10.03.2016 the parties were referred for mediation. The matter was settled before the mediation centre vide mediation report dated 28.04.2016 and thereafter the case was sent back to the referral court. It is observed that regardless of the matter being settled through mediation, the parties failed to act on the settlement and the case proceeded further on the subsequent dates i.e. 21.07.2016, 22.08.2016, 06.09.2016, 03.11.2016, 18.01.2017, 20.04.2017 and 01.08.2017 in accordance with law. The suit was dismissed in default due to non-appearance of the plaintiff.
18. This court observes that orders dated 03.11.2016 and 20.04.2017 recorded the presence of the defendant No. 1 as, CS No15566/16 Salek Chand Vs. Sanjeev Page 6 of 12 'Defendant No. 1 is already ex-parte.' It is apparent nay evident that not only error in the recording the presence of the defendant has crept in, as the defendant Nos. 1 and 2 did appear before the court on subsequent dates after entering into a settlement before the mediation centre i.e. 28.04.2016 but also with regard to the admission/denial of documents and framing of issues had been recorded on 03.11.2016 and 18.01.2017.
19. That said, on 01.08.2017, none appeared on behalf of the plaintiff and the suit was dismissed in default due to non-prosecution by the Ld. Predecessor. On 13.10.2017 the plaintiff moved an application seeking restoration of suit and thereafter on 10.01.2018, the said application was allowed and the suit was restored to its original number and stage. Accordingly, the matter was fixed for ex parte evidence.
20. The plaintiff in its ex-parte evidence, tendered his evidence by way of affidavit - Ex.PW1/A. As per the Ex.PW1/A, the plaintiff proved the following documents:
i. Aadhar Card (Ex.PW1/1);
ii. Sale/transfer documents dated 10.09.1984
(Ex.PW1/2 to Ex.PW1/4), and
iii. Site Plan (Ex.PW1/5).
21. Sh. S.P.S. Sagar, Ld. counsel for the plaintiff advanced his arguments afresh on behalf of the plaintiff on 09.01.2019, as the undersigned had taken charge of this court on 10.09.2018 and the case was listed for judgment on 24.09.2018. This court issued court notice to the Ld. counsel for the plaintiff vide order dated 24.09.2018.
22. Ld. counsel for the plaintiff submitted that the plaintiff is the owner of the suit property and the plaintiff granted the defendants CS No15566/16 Salek Chand Vs. Sanjeev Page 7 of 12 permissive and gratuitous possession of the suit property. Ld. Counsel for the plaintiff further submitted that the defendants have been put to notice and their possession of the suit property stands determined by filing of the present suit.
23. Ld. counsel for the plaintiff relied on the documents Ex.PW1/1 to Ex.PW1/5 and the Ex.PW1/A, unrebutted deposition of PW-1 to pray for a decree for possession, permanent injunction and for damages/ mesne profits against the defendant and costs of the suit.
24. This court observes that with the written statement of the defendant No. 2 on record and the issues being framed it is incumbent duty of this court to give an issue-wise finding - See Order XX Rule 5 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC"). This court has duly considered the pleadings, evidence on record and in light of the submissions made by the Ld. counsel for the plaintiff, the issue wise findings ensue in the following paragraphs of this judgment.
ISSUE NO. 1Whether the plaintiff is entitled to a decree of possession qua the suit property i.e. one room and kitchen at first floor, forming part of property bearing Plot No. 8-B, measuring 100 sq.yds, out of Khasra No. 113/14 situated at Village Palam, New Delhi, now known as property bearing No. D-169, Gali No. 51, Mahavir Enclave Part III, New Delhi as prayed for in the prayer clause(a) of the plaint?
25. The onus to prove issue No. 1 was on the plaintiff. As averred in the plaint, the plaintiff had purchased the suit property on 10.09.1984 and the plaintiff had been in peaceful possession of the suit property. As averred in the plaint, the plaintiff granted permissive possession to the defendants, who are his son and daughter-in-law. The defendant No. 2 in her written statement denied that the plaintiff is the absolute CS No15566/16 Salek Chand Vs. Sanjeev Page 8 of 12 owner of the suit property. The plaintiff in person recorded his deposition as PW-1 and relied upon general power of attorney and agreement to sell dated 10.09.1984 (Ex.PW1/2 - Ex.PW1/4). It is observed that the testimony of the plaintiff remains uncontroverted and unrefuted, as none appeared on behalf of the defendants to cross- examine the PW-1.
26. This court observes that the factum of the marriage between the defendant No. 1 and the defendant No. 2 is not denied. It is also observed that the defendant No. 2 in her written statement admitted that the defendant No. 1 is the son of the plaintiff and the defendant No. 2 is the daughter-in-law of the plaintiff and the suit property is the matrimonial home of the defendant No. 2. It is also observed that the defendant did not file any document in support of her written statement and to strengthen her averments in the written statement. Thus, it is apparent nay evident that the defendants were granted permissive and gratuitous possession of the suit property by the plaintiff, as the defendant No. 1 and defendant No. 2 are his son and daughter-in-law. The plaintiff had to resort to prefer the present suit against the defendants, as the defendant No. 2 quarreled incessantly with the wife of the plaintiff. The deposition of the plaintiff remains uncontroverted and there is nothing on record to refute the claim of the plaintiff as not being in possession of the suit property. It is also observed that the plaintiff has proved that he has better title than the defendants and thus, this issue is accordingly, decided in the favour of the plaintiff and against the defendants.
ISSUE NO. 2Whether the plaintiff is entitled to a decree of permanent injunction with respect to the suit property i.e. one room and kitchen at first floor, forming part of property bearing Plot No. 8-B, measuring 100 CS No15566/16 Salek Chand Vs. Sanjeev Page 9 of 12 sq.yds, out of Khasra No. 113/14 situated at Village Palam, New Delhi, now known as property bearing No. D-169, Gali No. 51, Mahavir Enclave Part III, New Delhi as prayed for in the prayer clause (b) of the plaint?
27. The onus to prove issue No. 2 was also on the plaintiff. The plaintiff has based his case on the documents - general power of attorney and agreement to sell dated 10.09.1984 (Ex.PW1/2 - Ex.PW1/4).
28. In the preceding paragraph it is held that the plaintiff has proved that he has better title to the suit property than the defendants. The sine qua non for a grant of an injunction - prima facie case, irreparable loss and injury and balance of convenience are in favour of the plaintiff and against the defendants. I may note that the plaintiff has proved his ownership by means of usual documentation being the agreement to sell, power of attorney etc which were exhibited as Ex.PW1/2 to Ex.PW1/4.
29. This court holds that the plaintiff is entitled to decree of permanent injunction against the defendants. Accordingly, the issue No. 2 is decided in favour of the plaintiff and against the defendants.
ISSUE NO. 3Whether the plaintiff is entitled to damages/ mesne profits as prayed for in the prayer clause (c) of the plaint?
30. The onus to prove the issue No. 3 was on the plaintiff. The plaintiff in the plaint has averred that the granted permissive and gratuitous possession to the defendants, who are his son and daughter- in-law. It is also averred in the plaint on 02.07.2015 the plaintiff requested the defendants to vacate the portion of the suit property under their occupation. The plaintiff in the plaint inter alia other reliefs has sought damages, mesne profits @ ₹5,000/- (Rupees Five CS No15566/16 Salek Chand Vs. Sanjeev Page 10 of 12 thousand only) per month from the defendants.
31. This court observes that the plaintiff did not place on record any evidence with regard to putting the defendants to notice and seeking damages, mesne profits @ ₹5,000/- (Rupees Five thousand only) per month from the defendants.
32. This court is in consonance with the submissions advanced by Sh. S.P.S. Sagar that filing of the present suit and receiving of the summons is good enough to put the defendants to notice that their permissive and gratuitous possession is determined and they ought to pay the damages for the unauthorized and illegal possession of the suit property.
33. However, this court observes that the plaintiff has failed to lead any evidence to prove issue No. 3 and particularly, with regard to the going rent in the vicinity, neighborhood and/or similar placed location as the suit property. The dictum in law is well settled and as hold as the hills that 'one who avers must prove.' This court holds that the plaintiff has failed to lead an iota of evidence with regard the issue under consideration and accordingly, the issue No. 3 is decided against the plaintiff and in favour of the defendants.
34. This court holds that with the issue Nos. 1 and 2 viz., possession and permanent injunction being decided in the favour of the plaintiff and against the defendants and the issue No. 3 for damages and mesne profits is decided against the plaintiff and in favour of the defendants. The relief be granted, accordingly, to the plaintiff.
35. The plaintiff is entitled for a decree of possession of suit property i.e. one room and kitchen at first floor, forming part of property bearing Plot No. 8-B, measuring 100 sq.yds, out of Khasra No. 113/14 situated at Village Palam, New Delhi, now known as CS No15566/16 Salek Chand Vs. Sanjeev Page 11 of 12 property bearing No. D-169, Gali No. 51, Mahavir Enclave Part III, New Delhi.
36. The plaintiff is also entitled for a decree of permanent injunction restraining the defendants, their agents, representatives, associates from creating any third party interest in the suit property i.e. one room and kitchen at first floor, forming part of property bearing Plot No. 8-B, measuring 100 sq.yds, out of Khasra No. 113/14 situated at Village Palam, New Delhi, now known as property bearing No. D- 169, Gali No. 51, Mahavir Enclave Part III, New Delhi.
37. In light of the above observations and discussion, the suit of the plaintiff is decreed in favour of the plaintiff and against the defendants for issue Nos. 1 and 2. The costs of the suit are awarded to the plaintiff.
38. Decree sheet be drawn up accordingly.
39. Let the file be consigned to record room after all necessary and due compliance. Digitally signed by HARGURVARINDER HARGURVARINDER SINGH JAGGI SINGH JAGGI Date: 2019.01.28 16:21:30 +0530 Pronounced in the open (Hargurvarinder Singh Jaggi) Court on 28.01.2019 Addl. District Judge-02 South West District Dwarka Courts Complex New Delhi CS No15566/16 Salek Chand Vs. Sanjeev Page 12 of 12