Delhi District Court
Mr. K.N. Memani vs Mrs. Arati Bose on 3 June, 2014
Suit No.760/12
IN THE COURT OF SH. SUBHASH KUMAR MISHRA,
CIVIL JUDGE7, WEST, TIS HAZARI COURTS, DELHI
In Re. :
Mr. K.N. Memani
S/o Late Sh. B.D. Memani
through his General Attorney
Dr. Tamali Sen Gupta,
40/139, Chittaranjan Park,
New Delhi110019.
...............Plaintiff
Versus
Mrs. Arati Bose,
J1958, Chittaranjan Park,
New Delhi110019.
..............Defendant
SUIT FOR RECOVERY OF POSSESSION, DAMAGES/MESNE PROFITS,
MANDATORY & PERMANENT INJUNCTION
Date of institution of the suit : 25.03.2000
Order reserved on : 03.06.2014
Date of Judgment : 03.06.2014
JUDGMENT
1. In the plaint, it is stated that the plaintiff is the owner of plot no.J1957, Chittaranjan Park, New Delhi110019 (hereinafter referred to as "suit property"). The suit property was under the custody of receiver appointed by Hon'ble High Court of Delhi for more than a decade. The suit property was handed over by the receiver to Sh. K.N. Memani on Page 1 of 8 Suit No.760/12 06.01.1999. After getting the possession of suit property, the plaintiff applied to MCD for raising construction on the said property. MCD sanctioned the plan submitted by the plaintiff. In August 1999, detailed drawings were prepared and it was found that the dimension on the ground appeared to vary from the stated dimension in the perpetual lease deed. A plane table survey was conducted whereby it was found that the plot at J1957, Chittaranjan Park, in the ground floor was smaller than the stated dimensions in the perpetual lease deed. After this, the plaintiff measured the adjoining plots no. J1955 and J1958 and it was found that the plot at J1958 was occupying more area on the ground than the dimensions given in the site plan of MCD. The owner of property no. J1958 had encroached upon the suit property and had taken illegal possession of piece of plot of land measuring 6.5 square yards. The plaintiff, vide letter dated 21.09.1999, brought the fact of encroachment to the notice of the defendant and suggested that the matter be settled mutually but the defendant failed to reply the same and refused to provide the details of dimensions of her plot. Hence, the plaintiff has filed the present suit for possession of land measuring 6.5 square yards in plot no. J1958, for mandatory injunction directing the defendant to demolish and remove the illegal construction on the said land and for damages/mesne profits.
2. In written statement, defendant raised the objection that the plaintiff has not filed power of attorney in favour of Dr. Tamali Sen Gupta; that suit for mandatory and permanent injunction is being filed after more than three years of the construction made by defendant, hence, the suit is barred by limitation and that the defendant is the absolute owner of the entire plot including the excess portion by adverse possession.
Page 2 of 8 Suit No.760/12Apart from this, averments made in the plaint have been denied stating that claim of plaintiff is barred under Transfer of Property Act as the defendant has built upon the property including the portion measuring 6.5 square yards, which is claimed by the plaintiff. Defendant further states that the construction was carried out by defendant from 1969 to 1971 and occupancy and completion certificate was obtained in 1972.
It is prayed that suit of the plaintiff may be dismissed.
3. Subsequently, replication was filed denying the defence of the defendant and reiterating the averments as mentioned in the plaint. It is also stated that the defendant has given reply of only 9 paragraphs of the plaint and reply of paragraph no.10 to 16 and prayer clause has not been given.
4. On the pleadings of the parties, following issues were framed on 30.05.2001 :
ISSUE No. 1 : Whether Dr. Tamali Sen Gupta has the authority to file the present suit on behalf of the plaintiff? OPP ISSUE No. 2 : Whether the suit is barred by limitation? OPD ISSUE No. 3 : Whether the defendant has taken the possession of plot No. J1958 in accordance with the sanctioned plan? OPD ISSUE No. 4 : Whether defendant is absolute owner of plot No. J 1958, Chittaranjan Park, New Delhi. If so its effect? OPD ISSUE No. 5 : Whether there is no cause of action in the present case? OPD ISSUE No. 6 : Whether the claim of the plaintiff is barred under Transfer of Property Act? OPD Page 3 of 8 Suit No.760/12 ISSUE No. 7 : Whether the plaintiff is entitled to the relief as claimed in the suit?
ISSUE No. 8 : Relief.
5. In support of his case, plaintiff examined Dr. Tamali Sen Gupta as PW1. In her testimony, she relied on following documents :
(a) Power of Attorney : Ex. PW1/1;
(b) Sale deed : Ex. PW1/2;
(c) Report of receiver : Ex.PW1/3;
(d) Letter dated 02.06.1999 : MarkA;
(e) Sanctioned plan : Ex. PW1/5;
(f) Letter to MCD : MarkB;
(g) Letter dated 01.09.1999 : MarkC;
(h) Sanctioned plan of J1958 : MarkD;
(i) Site plan : Ex. PW1/9;
(j) Letter dated 21.09.1999 : Ex. PW1/10;
(k) Letters to MCD : Ex. PW1/11 & 1/12.
6. Defendant was proceeded ex parte vide order dated 09.02.2012. She neither cross examined the plaintiff's witness nor led evidence in support of her case.
7. After hearing the arguments and going through the material available on record, my issuewise findings are as under :
ISSUE No. 1 : Whether Dr. Tamali Sen Gupta has the authority to file the present suit on behalf of the plaintiff? OPP
8. Onus to prove this issue was on the plaintiff. In her Page 4 of 8 Suit No.760/12 testimony PW1 exhibited the general power of attorney as Ex.PW1/1, authorizing her to file any suit with regard to the suit property. As PW1 was not cross examined by the defendant, her testimony and authenticity of document Ex.PW1/1 remained unchallenged and, therefore, same can be accepted as true. Accordingly, it is held that Dr. Tamali Sen Gupta had the authority to file the present suit on behalf of the plaintiff. Issue no.1 is decided accordingly.
ISSUE No. 2 : Whether the suit is barred by limitation? OPD
9. Onus to prove this issue was on the defendant. In the written statement, defendant states that she is the owner of excess portion, if any, by way of adverse possession and suit is barred by limitation.
As she did not examine any witness to prove her averments in this regard, the said averments as made in the written statement stands not proved. Moreover, a suit for possession of immovable property based on title can be brought within 12 years since possession of defendant becomes adverse to plaintiff. As the defendant has failed to prove the factum of her possession adverse to plaintiff, it is held that the suit is not barred by limitation period. Issue no.2 is decided accordingly.
ISSUE No. 3 : Whether the defendant has taken the possession of plot No. J1958 in accordance with the sanctioned plan? OPD ;
ISSUE No. 4 : Whether defendant is absolute owner of plot No. J 1958, Chittaranjan Park, New Delhi. If so its effect? OPD ; and ISSUE No. 5 : Whether there is no cause of action in the present Page 5 of 8 Suit No.760/12 case? OPD
10. Onus to prove these issues was on the defendant but as the defendant did not examine any witness in support of her case, these issues remained not proved. Issue no.3, 4 and 5 are decided accordingly.
ISSUE No. 6 : Whether the claim of the plaintiff is barred under Transfer of Property Act? OPD
11. Onus to prove this issue was on the defendant. In her written statement, she states that the claim of the plaintiff is barred under Transfer of Property Act as the defendant has built upon property including the portion alleged by the plaintiff measuring 6.5 square yard at her own cost, without any objection. However, she did not lead any evidence in support of her averments. Therefore, said averments remained not proved.
Accordingly, it is held that the claim of the plaintiff is not barred under Transfer of Property Act. Issue no.6 is decided accordingly.
ISSUE No. 7 : Whether the plaintiff is entitled to the relief as claimed in the suit?
12. Onus to prove this issue was on the plaintiff. PW1 deposed on the lines of plaint. She exhibited the sale deed as Ex.PW1/2 and the site plan as Ex.PW1/9. She exhibited the notice to defendant as Ex.PW1/10 wherein proposal was given to defendant for amicable settlement of the dispute. She also exhibited another notice dated Page 6 of 8 Suit No.760/12 21.12.1999 addressed to defendant as Ex.PW1/12 wherein defendant was called upon to examine and demolish the unauthorized construction. Her testimony remained unchallenged as she was not cross examined. Therefore, her testimony and documents exhibited by her can be accepted as true. Moreover, in her written statement, the defendant has replied only paragraph no.1 to 9 of the plaint. Paragraph no.10 to 16 was not replied by the defendant.
In para 10, plaintiff states that defendant has illegally taken the possession of land measuring 6.5 square yard as shown red in the site plan, which belongs to plaintiff and the defendant has raised illegal construction thereon.
As per Order VIII Rule 5 CPC, every allegation of fact in the plaint if not denied specifically or by necessary implication or stated to be not admitted in the pleadings of the defendant, shall be taken to be admitted. Accordingly, in the instant case also said averments of plaintiff made in the plaint can be taken as admitted.
Furthermore, in her written statement, the defendant has stated that she is the owner of excess portion, if any, by adverse possession. However, the said averment remained not proved in the absence of evidence by defendant in this regard. Moreover, the plaintiff has examined PW1 and exhibited relevant documents in this regard.
Therefore, in view of above said discussions, it is held that plaintiff is entitled for possession of the suit property. But, no evidence has been led by the plaintiff on the aspect of quantum of mesne profits/damages, as claimed by him. Therefore, he is not entitled for relief regarding mesne profits/damages. Issue no.7 is decided accordingly.
Page 7 of 8 Suit No.760/12RELIEF
13. In view of finding on issue no.1 to 7, it is held that plaintiff has proved his case. Accordingly, suit of the plaintiff is decreed and defendant is directed to hand over the peaceful possession of 6.5 square yard of land in plot No.J1958, Chhitranjan Park, New Delhi110019, as per site plan Ex.PW1/9 within six months, by taking appropriate measures in this regard. Order of costs in favour of plaintiff. Decree sheet be prepared accordingly. Site plan Ex.PW1/9 will be part of the decree. File be consigned to Record Room after completion of necessary formalities.
Announced in the open court (Subhash Kumar Mishra) today i.e. 03.06.2014. Civil Judge07/West/THC Delhi Page 8 of 8