Delhi District Court
Umed Singh Khati vs Karuna Khati on 12 February, 2024
IN THE COURT OF SH. AJAY GARG,
ADDITIONAL DISTRICT JUDGE-01,
EAST DISTRICT, KARKARDOOMA COURTS, DELHI
CS No. 856/17
CNR No. DLET01-013137-2017
In the matter of:
Sh. Umed Singh Khati
S/o Late Sh. B.S. Khati
R/o F-32, Gali No.1, Near Primary School,
East Vinod Nagar, Delhi-110091.
........Plaintiff
Versus
Smt. Karuna Khati
W/o Sh. Manmohan Khati
R/o F-32, GF Gali No.1,
Near Primary School, East Vinod Nagar,
Delhi-110091.
.........Defendant
Date of Institution : 13.12.2017
Judgment reserved on : 12.02.2024
Judgment announced on: 12.02.2024
SUIT FOR POSSESSION, MESNE PROFITS &
PERMANENT INJUNCTION
1.Present suit for possession, mesne profits & permanent injunction has been filed by the plaintiff against the defendant i.e. daughter-in-law. Brief facts of the case are as under:-
FACTUAL MATRIX
2. The plaintiff is the absolute owner of property bearing No.F-32, Gali No.1, Near Primary School East Vinod CS No.856/17 Sh. Umed Singh Khati Vs. Smt. Karuna Khati Page No. 1 of 9 Nagar, Delhi-110091 measuring 58 sq. yards as he had purchased the same on 15.03.1982 through registered documents from its erstwhile owner Sh. Doonger Singh. The defendant got married to son of plaintiff, namely, Sh. Manmohan on 22.11.2013 in Delhi according to Hindu Rites and Customs. Out of the said wedlock, one male child, namely, Master Aditya was born on 07.12.2014. The defendant being daughter-in-law of the plaintiff was permitted to occupy one room on the ground floor of the property bearing No. F-32, Gali No.1, Near Primary School East Vinod Nagar, Delhi-110091 (hereinafter referred to as "suit property") as a licensee and has no right, title or interest in the suit property. However, the relations between defendant and son of the plaintiff got strained and she turned hostile to the plaintiff and his family members. Defendant also lodged various complaints against plaintiff and his family members due to which plaintiff severed all his relations with his son and defendant. Upon this, son of the plaintiff vacated the suit property and residing separately. Thereafter, plaintiff terminated the license of the defendant and requested her to vacate the suit property and issued legal notice in this regard but to no avail. Hence, this suit.
3. On notice, the defendant appeared and filed her written statement in which preliminary objections were taken on the ground that the plaintiff has not come before the court with clean hand and has concealed the material facts from this court; the suit is not maintainable as the plaintiff has filed the present suit without any cause of action; the present suit has not been filed according to the provisions prescribed in CPC and the same is liable to be rejected under Order VII Rule 11 CPC; the plaintiff has not filed the proper court fee as per circle rate as well as CS No.856/17 Sh. Umed Singh Khati Vs. Smt. Karuna Khati Page No. 2 of 9 category of the suit property; the plaintiff has filed the forged and fabricated documents before the court only to misguide and to grab the suit property. The suit property is already acquired by the DDA and the plaintiff has no concern with the suit property. The plaintiff has illegal possession of the suit property with the connivance of the officials of DDA and son of the plaintiff and he wants himself to be declared owner of the suit property. Further, the allegations levelled against the defendant are totally baseless, false and the case has only been filed to pressurize the defendant to withdraw their cases pending against the plaintiff and her other family members. On merits, the averments of the plaint were denied and prayer to dismiss the suit was made.
4. Replication to the written statement of defendant was filed by the plaintiff in which the averments of the written statement were denied and the contents of the plaint were reiterated and reaffirmed.
ISSUES
5. From the pleadings of the parties, following issues were framed for adjudication on 11.04.2018:-
1. Whether the suit, as presented, is maintainable? OPP.
2. Whether plaintiff is entitled for the decree of possession, as claimed, in the plaint? OPP.
3. Whether plaintiff is also entitled for the decree of mesne profits and if so, for what period and for what rate? OPP.
4. Relief.
EVIDENCE
6. In order to substantiate the case, the plaintiff CS No.856/17 Sh. Umed Singh Khati Vs. Smt. Karuna Khati Page No. 3 of 9 examined himself as PW1 and tendered his evidence by way of affidavit Ex.PW1/A, wherein he reiterated all the averments made in the plaint. The same are not repeated here for the sake of brevity. He has also placed reliance on the following documents:
i. Ex.PW1/1 is site plan.
ii. Ex.PW1/2 (colly) are copy of GPA, agreement to sell and
receipt.
iii. Ex.PW1/3 is copy of legal notice dated 25.10.2017.
iv. Ex.PW1/4 is postal receipt.
v. Ex.PW1/5 is newspaper cutting.
vi. Ex.PW1/6 is copy of OPD record of plaintiff.
vii. Ex.PW1/7 is copy of sewer bill.
viii. Ex.PW1/8 is copy of property tax receipt.
ix. Ex.PW1/9 is copy of electricity bill.
x. Ex.PW1/10 is copy of challan.
xi. Ex.PW1/11 is copy of settlement.
xii. Mark A is tracking report.
xiii. Mark B is copy of complaint dated 20.09.2016.
xiv. Mark C is copy of complaint dated 18.04.2017.
xv. Mark D is copy of rent agreement.
This witness was exhaustively cross-examined by ld. Counsel for defendant. No other witness was examined by the plaintiff.
7. In defence, the defendant only examined herself as DW1 and tendered her evidence by way of affidavit Ex.DW1/A. This witness was exhaustively cross-examined by ld. Counsel for plaintiff.
8. Final arguments heard. Record perused. Considered.
CS No.856/17 Sh. Umed Singh Khati Vs. Smt. Karuna Khati Page No. 4 of 9 On the basis of submissions advanced at bar, pleadings and evidence, my issue-wise findings are as under:-
FINDINGS ISSUE NO.1:
"Whether the suit, as presented, is maintainable? OPP"
9. Onus to prove this issue is upon the plaintiff. The plaintiff has filed the instant suit for possession, mesne profits and injunction claiming himself to be the licensor and the defendant merely a licensee/permissive user. In support, the plaintiff has proved his title documents which entitles him at least the possessory rights over the suit property. Even otherwise, defendant being the daughter-in-law claiming her right in the suit property through plaintiff, cannot go beyond the title of the plaintiff as provided under Section 116 of Indian Evidence Act. The same is reproduced herein for ready references:-
"Estoppel of tenant; and of licensee of person in possession.- No tenant of immovable property, or person claiming through such tenant, shall during the continuance of the tenancy, be permitted to deny that the landlord of such tenant hand, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given."
Therefore, in view of law laid down in case titled as "Vishal Builders P. Ltd. Vs. DDA & Ors. 130 (2006) DLT 667 Delhi High Court" wherein it is held that no person who comes in possession of immovable property on the basis of license or permission given by person in possession cannot be permitted to deny the title of such person to such property and such license, it is held that the present suit is very much maintainable in the CS No.856/17 Sh. Umed Singh Khati Vs. Smt. Karuna Khati Page No. 5 of 9 present form.
ISSUE NO.2:
"Whether plaintiff is entitled for the decree of possession, as claimed, in the plaint? OPP"
10. Onus to prove this issues was upon the plaintiff. In support, the plaintiff has examined himself as PW1 and proved the documents Ex.PW1/1 to Ex.PW1/11 and Mark A to D showing his possessory rights over the suit property. On the contrary, apart from mere bald suggestions, no documentary evidence has been led by the defendant to negate the right, title or interest of the plaintiff over the suit property. Further, the claim of the defendant that the suit property stood acquired by the DDA and plaintiff is illegally occupying the same does not hold water as neither any supporting document regarding acquisition of property by DDA has been filed on record nor defendant examined any witness from the DDA to prove this contention. Even otherwise, since defendant herself claiming her right over the suit property through plaintiff only, she cannot go beyond the title of the plaintiff as held in "Vishal Builders P. Ltd. Vs. DDA & Ors. 130 (2006) DLT 667 Delhi High Court" wherein it is held that no person who comes in possession of immovable property on the basis of license or permission given by person in possession cannot be permitted to deny the title of such person to such property and such license. Further, the defendant is claiming right to live in the suit property only due to her marriage with the son of plaintiff and relied upon case titled as "Vinay Varma Vs. Kanika Pasricha & Anr." CM (M) 1582/2018 & CM APPL. 53645/2018, decided by Hon'ble High Court of Delhi on 29.11.2019, wherein it is so held:-
"50. Though the present is a civil suit, this Court observes that the said two statutes i.e., the DV Act and the PSC Act, would CS No.856/17 Sh. Umed Singh Khati Vs. Smt. Karuna Khati Page No. 6 of 9 have to be borne in mind while passing orders, maintaining the balance between two warring parties,namely the parents/in-laws and children/their families. The conflict between the rights of the parents and the rights of the daughter-in-law which have arisen out of the DV Act and the PSC Act requires to be resolved. The facts of each case are different as there could be cases where the parents or senior citizens do not wish to permit their son and daughter-in-law to continue in their property due to issues of acrimony and misunderstanding. In such cases also, the provisions of the DV Act may be invoked by the son/daughter-in-law subjecting the parents to enormous suffering and frustration. While the right of residence of the daughter-in-law is to be recognized, the same also needs to be balanced depending upon the facts of each case with the right of the peaceful living of the parents as well. In several cases, these rights have conflicted with each other and they have flooded the Criminal and Civil Courts in abundance.
However, the law laid down in Vinay Varma (Supra) also do not come to the aid of defendant as it merely provides for balancing the rights of parents-in-law vis-a-vis daughter-in-law. However, in the instant case, plaintiff has categorically mentioned that he has already segregated his relation with his son who is residing separately. Though defendant denied this contention, however, has not led any evidence to show that her husband i.e. the son of plaintiff is still residing in the suit property. In these circumstances, since the defendant is claiming her right over the suit property through her husband only and since her husband himself is not residing in the suit property, balance of rights are heavily tilted in favour of plaintiff since defendant has no independent right to stay in the suit property. Even otherwise, plaintiff has categorically stated that he has terminated the license of the defendant to reside in the suit property. In these circumstances, since defendant has no independent right to live in the suit property, plaintiff is entitled to seek recovery of possession as held in case titled as "Suresh Kumar Vs. Saroj Atal 2012 III AD Delhi 718" wherein the Hon'ble Delhi High Court has held that in a suit for possession, plaintiff has to show a better title i.e. entitlement than that of defendant and even if he fails CS No.856/17 Sh. Umed Singh Khati Vs. Smt. Karuna Khati Page No. 7 of 9 to prove his ownership rights stricto sensu defendant cannot defend suit for possession when no title has been claimed by him/her. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO.3:
"Whether plaintiff is also entitled for the decree of mesne profits and if so, for what period and for what rate? OPP."
11. Onus to prove this issue was upon the plaintiff. In support of this issue, though plaintiff has not filed any documentary evidence or exemplars, however, he has categorically averred that the defendant is liable to pay monthly rent of Rs.4,000/- on account of use and occupation charges of the suit property from the date of filing of the suit till possession. This contention of the plaintiff has gone unrebutted and unassailed since neither defendant has cross-examined the plaintiff on the aspect of mesne profits nor led any evidence in defence in this regard. Rather, in her cross-examination, the defendant has pleaded ignorance regarding the monthly rental value of the portion under her possession in the suit property. In these circumstances, since the claim of the plaintiff has gone unrebutted and unassailed, I find no reason to disbelieve the same. Even otherwise, by taking judicial notice of the sky rocketing rental values of the properties in Delhi, I am of the considered opinion that the claim of the plaintiff is at par with market value. Accordingly, the plaintiff is held entitled to mesne profits/ use and occupation charges @ Rs.4,000/- per month from the date of filing of the suit till handing over the possession. Accordingly, this issue is decided in favour of the plaintiff.
ISSUE NO.4 (RELIEF):
CS No.856/17 Sh. Umed Singh Khati Vs. Smt. Karuna Khati Page No. 8 of 9
12. In view of the findings recorded in issue no.2 & 3, the suit of the plaintiff is decreed and the defendant is directed to handover the vacant peaceful possession of the suit property i.e. one room on the ground floor of the property bearing No. F-32, Gali No.1, Near Primary School East Vinod Nagar, Delhi-110091, as shown in red colour in site plan to the plaintiff immediately. The plaintiff is also held entitled to recover mesne profits/use and occupation charges @ Rs.4,000/- per month from the defendant from the date of filing of the suit till handing over the possession.
Decree sheet be prepared accordingly, after payment of deficient court fee, if any.
File be consigned to record room after due compliance.
Announced in the open Court (AJAY GARG) on 12.02.2024. Additional District Judge-01, East District, KKD Courts, Delhi CS No.856/17 Sh. Umed Singh Khati Vs. Smt. Karuna Khati Page No. 9 of 9