Delhi District Court
Smt. Shakuntala Lama vs Gulshan Lal Sharma on 22 May, 2023
-:: 1 ::- Date: 22.05.2023
IN THE COURT OF MS. SHIVALI BANSAL
ADDITIONAL DISTRICT JUDGE-03 (NORTH)
ROHINI COURTS, DELHI
CNR No. DLNT010132292016
CS No. 60097/16
In the matter of :-
Smt. Shakuntala Lama
W/o Sh. Ved Prakash Lama,
R/o 114A, Block R,
Greater Kailash - I,
New Delhi-110048. ...... Plaintiff
Versus
1. Gulshan Lal Sharma
S/o Late Sh. Bindraban Sharma
R/o 414, Bhai Parmanand Colony,
Kingsway Camp,
Delhi-110009.
2. Dharam Vir Sharma
S/o Late Sh. Bindraban Sharma,
R/o 414, Bhai Parmanand Colony,
Kingsway Camp, Delhi-110009. .....Defendants
Date of Institution : 26.11.2016
Date of Final Arguments Heard : 08.05.2023
Date of pronouncement of judgment : 22.05.2023
CS No. 60097/16 Shakuntala Lama Vs. Gulshan Lal Sharma & Ors. Page: 1 of 22
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SUIT FOR POSSESSION, MESNE PROFITS AND
PERMANENT INJUNCTION
JUDGMENT
1. The present suit is for suit for possession, mesne profits and permanent injunction.
2. The brief facts of the case as stated by the plaintiff in the plaint are as under:-
i. It is stated that the plaintiff is the sole and absolute owner of property bearing no. 414, Bhai Parmanand Colony, Kingsway Camp, Delhi-110009 constructed plot measuring about 66.89 sq. mtrs. (hereinafter referred to as 'suit property').
ii. It is stated that defendants are real brothers of the plaintiff and are presently residing in the suit property as licensees of the plaintiff. It is stated that the plaintiff purchased the suit property from one Balbir Singh Gupta, S/o Sh. Brij Dass by way of documents including GPA dated 24.02.1977. It is stated that Sh. Balbir Singh Gupta was the original allottee of the suit property in terms of letter of allotment dated 05.09.1969 No. R/662/0414/L&B. iii. It is stated that upon the plaintiff's application, the DDA allowed the suit property to be converted from leasehold to freehold based on the documents executed by Sh. Balbir Singh Gupta in favour of the plaintiff. It is stated that the plaintiff duly CS No. 60097/16 Shakuntala Lama Vs. Gulshan Lal Sharma & Ors. Page: 2 of 22
-:: 3 ::- Date: 22.05.2023 deposited the conversion charges with the DDA. It is stated that the suit property stands mutated in the name of plaintiff and the bill for property taxes generated in the name of plaintiff.
iv. It is stated that plaintiff permitted the defendants to stay in the suit property and the permission was purely in the nature of the license in as much as the plaintiff was not charging any monthly rent or other charges. It is stated that the plaintiff approached the defendants in August 2016 and asked them to vacate the suit property, however, the defendants expressed their inability to vacate the suit property. It is stated that upon the refusal of the defendants to vacate the suit property, the plaintiff asserted her save the ownership rights and demanded the defendants to vacated the suit property immediately. It is stated that plaintiff is claiming mesne profits from the defendants w.e.f. 31.08.2016 since the plaintiff asked the defendants to vacate the suit property in the month of August 2016. Hence, the present suit.
v. The prayer made by plaintiff is inter alia reproduced herein below:-
i. pass a decree of recovery of possession of property bearing no. 414, constructed on a plot measuring about 66.89 sq. mtrs. Situated at Bhai Parmanand Colony, Kingsway Camp, Delhi in favour of the plaintiff and against the defendants;
ii. pass a decree of recovery of permanent injunction in favour CS No. 60097/16 Shakuntala Lama Vs. Gulshan Lal Sharma & Ors. Page: 3 of 22
-:: 4 ::- Date: 22.05.2023 of the plaintiff restraining the defendants, their family members, the agents, servants, etc. from parting with possession of and / or from creating any third-party interest in any manner whatsoever in respect of property bearing No. 414, constructed on a plot measuring about 66.89 sq. mtrs. situated at Bhai Parmanand Colony, Kingsway Camp, Delhi;
iii. Pass a decree under Order XX Rule 12 CPC in favour of the plaintiff directing an enquiry to ascertain the amount of mesne profits payable by the defendants to the plaintiff;
iv. Award pendent lite and future interests;
v. Award costs of the present suit; and vi. Pass any such and further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.
3. The defence of the defendants as stated by them in their WS is as under:-
i. That the father of the defendants on being migrated from Pakistan was allotted a hutment in rehabiliation scheme bearing no. 413, Bhai Parmanand Colony, Kingsway Camp, Delhi- 110009 and he used to run a kiryana shop at Mall Road. Itis stated that the adjoining property bearing no. 414, Bhai Parmanand Colony, Kingsway Camp, Delhi-110009 (suit CS No. 60097/16 Shakuntala Lama Vs. Gulshan Lal Sharma & Ors. Page: 4 of 22
-:: 5 ::- Date: 22.05.2023 property) was allotted to Sh. Balbir Singh Gupta S/o Sh. Brij Dass. That Sh. Balbir Singh Gupta was not interested to occupy the suit property and had therefore, executed a GPA dated 09.02.1970 in favour of Sh. Bindra Bhan (father of the parties herein).
ii. It is stated by the defendants that since the GPA dated 09.02.1970 was never cancelled, the claim of the plaintiff upon the suit property is not sustainable and the documents relied upon by the plaintiff are forged and fabricated documents.
iii. It is also stated that the relationship between the plaintiff and the defendants turned sour after the marriage of plaintiff. The defendants have submitted that Conveyance Deed dated 04.08.2015 is obtained after stating wrong particulars and is liable to be declared as void in view of the misrepresentation and misstatements. It is stated that the original allottee i.e. Sh. Balbir Singh Gupta and the plaintiff never resided in the suit property. This fact was wrongly represented before the DDA. It is also stated that the original allottee Sh. Balbir Singh Gupta had died years before the execution of the Conveyance Deed.
iv. The defendants have also stated that the suit property belongs to the Late father of the parties hereto and there was no occasion for the plaintiff to allow the defendants to stay in the suit property as the defendants are well settled. It is also stated that the GPA cannot be invoked to be in operation after the death of CS No. 60097/16 Shakuntala Lama Vs. Gulshan Lal Sharma & Ors. Page: 5 of 22
-:: 6 ::- Date: 22.05.2023 the executants of it and therefore, the Conveyance Deed executed in favour of the DDA is bad in law. It is also stated that the defendants are regularly paying the electricity bills, tax, Property tax to the MCD in the name of original allottee Sh. Balbir Singh Gupta etc. on the suit property.
v. The defendants have stated that they have become the owners of suit property by way of adverse possession.
vi. Lastly, it is stated by the defendants that the suit is not maintainable as the plaintiff under the garb of the present suit is trying to seek a declaration that she is the owner of the suit property. It is also stated that the plaintiff has not filed a site plan along with the present suit as she is not aware regarding the exact details of the property and therefore, this suit is liable to be dismissed.
4. Replication is filed on behalf of the plaintiff. In the replication, the plaintiff has stated that during the pendency of the present suit, the plaintiff has obtained certified copies of record of documents available with the DDA and on the basis of such documents, it is stated that an Agreement to Sell dated 09.02.1970 was executed between Mr. Balbir Singh Gupta and Mr. Bindra Ban for a total consideration of Rs. 7400/- along with balance cost and other dues. It is further mentioned that in this agreement out of the total sale consideration of Rs. 7400/-, the first party therein, namely, Mr. Balbir Singh Gupta had received only Rs. 1700/- from Mr. Bindra CS No. 60097/16 Shakuntala Lama Vs. Gulshan Lal Sharma & Ors. Page: 6 of 22
-:: 7 ::- Date: 22.05.2023 Ban and a balance amount of Rs. 5700/- was payable at the time of registration of documents along with balance cost and dues. Thereafter, an Agreement to Sell and Purchase dated 24.02.1977 was executed by Mr. Bindra Ban in favour of the plaintiff for a total sale consideration of Rs. 20,000/- which amount is acknowledged to have been received by Mr. Bindra Ban at the time of execution of the said agreement. In the Agreement to Sell and Purchase, the plaintiff's father had delivered vacant possession of the suit property to the plaintiff. The plaintiff's father had also executed a GPA in favour of the plaintiff on the same date i.e. 24.02.1977. In the replication, the plaintiff has stated that the plaintiff had purchased the suit property from her father in her own name and from her own funds.
5. On the basis of pleadings, the following issues were framed vide order dated 14.03.2017:-
1. Whether the plaintiff is entitled for decree of recovery of possession, as prayed for?OPP.
2. Whether the plaintiff is entitled for decree of permanent injunction, as prayed for? OPP.
3. Whether the plaintiff is entitled for decree of mesne profits, as prayed for? OPP.
4. Whether the plaintiff has not come to the court with clean hands and suppressed material facts? OPD
5. Whether the present suit is without cause of action? OPD CS No. 60097/16 Shakuntala Lama Vs. Gulshan Lal Sharma & Ors. Page: 7 of 22
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6. Relief.
6. In order to prove the case, plaintiff has examined the following witnesses:
PW-1 is Smt. Shakuntala Lama W/o Late Sh. Ved Prakash Lama, R/o R-114A, GK-1, Delhi. She relied upon the following documents:-
1. Certified copy of letter of allotment dated 05.09.1969 is mark PW1/1.
2. Certified copy of Agreement to Sell dated 09.02.1970 is mark PW1/2.
3. Certified copy of GPA dated 24.02.1977 is mark PW1/3.
4. Certified copy of conversion form is mark PW1/4 (colly.).
5. Certified copy of conversion fees receipt is mark PW1/5.
6. Certified copy of mutation documents is mark PW1/6.
7. Certified copies of Conveyance Deed dated 04.08.2015 is Ex.
PW1/7.
PW-2 is Ms. Indu Bala Shah, Assistant Section Officer, DDA, Vikas Sadan, INA, Delhi. She was a summoned witness. She had brought the summoned record i.e. complete file pertaining to property bearing no. 414, Bhai Parmanand Colony, Kingsway Camp, Delhi- 110009 (tenements). She had also brought the original documents of Ex. PW1/7 which was Conveyance Deed dated 04.08.2015 as Ex. PW1/1 which is allotment of tenements dated 05.09.1969. She had CS No. 60097/16 Shakuntala Lama Vs. Gulshan Lal Sharma & Ors. Page: 8 of 22
-:: 9 ::- Date: 22.05.2023 also shown Ex. PW1/2 which is Agreement to Sell dated 09.02.1970 and Ex. PW1/3 which is the GPA dated 24.02.1977. She confirmed that the notarized photocopy of the said document is in the DDA file record and at the time of processing the conveyance Deed, the original documents must have been shown to the concerned officer at the relevant time. After which the Conveyance Deed have been processed.
The witness was also shown the original documents EX. PW1/4 which was the application form for conversion of lease hold property. She had brought the original challan receipt bearing no. 11241609 dated 19.03.2009 which was Ex. PW2/1 (OSR). She stated that the abovesaid property is Free hold in the name of plaintiff Shakuntala Lama.
7. In order to prove the case, the defendants have examined following witness:-
DW-1 is Sh. Dharamvir Sharma S/o Late Sh. Bindraban Sharma R/o H. No. 414, 1st Floor, Bhai Parmanand Colony, Kingsway Camp, Delhi- 110009. He tendered his evidence by way of affidavit Ex. DW1/A bearing his signature at point A and B. He relied upon the following documents:
1. Mark DW1/1 is the photocopy of GPA dated 09.02.1970.
2. Ex. DW1/2 (Colly.) are the electricity bill, phone bills, water bills from page no. 26 to 34.
CS No. 60097/16 Shakuntala Lama Vs. Gulshan Lal Sharma & Ors. Page: 9 of 22
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3. Ex. DW1/3 (Colly.) are the documents/ receipts of MCD from page no. 35 to 45.
4. Ex. DW1/4 (Colly.) (OSR) are the ID proofs of deponent from page no. 46 to 54.
8. During the pendency of the suit, defendant no. 1 expired and his LRs were substituted. Since none has appeared on behalf of the LRs of defendant no. 1 despite service, they all were proceeded ex-parte on 21.01.2023 and 25.04.2023. The defendant no. 2 has not led any evidence and has closed DE.
9. I have heard the final arguments and perused the record.
10. My issue-wise findings are as follows:
1. Whether the plaintiff is entitled for decree of recovery of possession, as prayed for?OPP.
2. Whether the plaintiff is entitled for decree of permanent injunction, as prayed for? OPP The onus to prove issue no. 1 and 2 is upon the plaintiff. The plaintiff in order to prove his case has examined herself and a witness from DDA i.e. PW2. The witness from the DDA has proved Ex. PW1/1, Ex. PW1/2, Ex. PW1/3, Ex. PW1/4 and Ex.
PW1/7.
In the present case, the plaintiff has claimed herself to be the absolute owner of the suit property on the basis of Conveyance CS No. 60097/16 Shakuntala Lama Vs. Gulshan Lal Sharma & Ors. Page: 10 of 22
-:: 11 ::- Date: 22.05.2023 Deed dated 04.08.2015. It is stated by the plaintiff in her plaint that she became the owner of the leasehold suit property by way of documents including GPA dated 24.02.1977 executed by the original allottee of the suit property i.e. Late Sh. Balbir Singh Gupta and later on, got the property converted from leasehold to freehold on the basis of the documents executed by Late Sh. Balbir Singh Gupta in her favour. She has also stated that she had allowed the defendants to reside in the suit property as licensees but when she asked them to vacate the premises, they declined the request.
In the replication filed by the plaintiff, the plaintiff has completely changed her stance and stated that she had purchased the suit property from her father and not Late Sh. Balbir Singh Gupta. It is stated by her in the replication that during the pendency of the present suit, the plaintiff has obtained certified copies of record of documents available with the DDA and on the basis of such documents, it is stated that an Agreement to Sell dated 09.02.1970 was executed between Mr. Balbir Singh Gupta and Mr. Bindra Ban for a total consideration of Rs. 7400/- along with balance cost and other dues. It is further mentioned that in this agreement out of the total sale consideration of Rs. 7400/-, the first party therein, namely, Mr. Balbir Singh Gupta had received only Rs. 1700/- from Mr. Bindra Ban and a balance amount of Rs. 5700/- was payable at the time of registration of CS No. 60097/16 Shakuntala Lama Vs. Gulshan Lal Sharma & Ors. Page: 11 of 22
-:: 12 ::- Date: 22.05.2023 documents along with balance cost and dues. Thereafter, an Agreement to Sell and Purchase dated 24.02.1977 was executed by Mr. Bindra Ban in favour of the plaintiff for a total sale consideration of Rs. 20,000/- which amount is acknowledged to have been received by Mr. Bindra Ban at the time of execution of the said agreement. In the Agreement to Sell and Purchase, the plaintiff's father had delivered vacant possession of the suit property to the plaintiff. The plaintiff's father had also executed a GPA in favour of the plaintiff on the same date i.e. 24.02.1977. The plaintiff has stated that she had purchased the suit property from her father in her own name and from her own funds.
The law on replication is explained in the judgment of the Hon'ble High Court of Delhi in "Anant Construction (P) Ltd. Vs. Ram Niwas, 1994 IVAD Delhi 185, 1994 (31) DRJ 205, 1995 RLR 20", wherein it is stated as under:-
"(19) A distinction between a plea requiring amendment of the plaint and a plea sought to be introduced by replication shall have to be kept in view. A plea which essentially constitutes the foundation of a claim made by the plaintiff or which is essentially a part of plaintiff's cause of action cannot be introduced through a replication. As already stated replication is always a defensive pleading in nature. It is by way of confession and avoidance or explanation of a plea raised in defense.
It will be useful to quote from Halsbury's Laws of England (Vol 36, para 62, p 48):-
"62. Necessity for amendment. The fact that a party may not raise any new ground of claim, or include CS No. 60097/16 Shakuntala Lama Vs. Gulshan Lal Sharma & Ors. Page: 12 of 22
-:: 13 ::- Date: 22.05.2023 in his pleadings any allegation or fact inconsistent with his previous pleadings, has been considered elsewhere. In order to raise such a new ground of claim, or to include any such allegation, amendment of the original pleading is essential."
17.1 In M.S.M. Sharma vs. Sri Krishna Sinha, their Lordships refused to consider a plea raised in rejoinder for the first time, observing: "THE case of bias of the Chief Minister ( respondent No.2) has not been made anywhere in the petition and we do not think it would be right to permit the petitioner to raise this question, for it depends on facts which were not mentioned in the petition but were put forward in a rejoinder to which the respondents had no opportunity to reply."
(20) A plea inconsistent with the case set out by the plaintiff in the plaint can never be permitted to be raised in replication. So also a plea in rejoinder cannot be inconsistent with the case set out by the defendant in his written statement. Any subsequent pleading inconsistent with the original pleading shall be refused to be taken on record and if taken 'shall be liable to be struck off and taken off the file.
(21) Ms Ritu Bhalla advocate, as stated in an earlier part of this judgment, pointed out a Practice Direction which reads as under :-
"REPLICATION: When the defendant has filed a written statement, the court may call upon the plaintiff to file a written statement in reply. Under Order Viii Rule 9, the court has power to call upon both parties to file written statement at any time and this power should be freely used for elucidating the pleas when necessary, especially in complicated cases. In simple cases, however, examination of the parties, after the defendant has filed his written statement is generally found to be sufficient."
CS No. 60097/16 Shakuntala Lama Vs. Gulshan Lal Sharma & Ors. Page: 13 of 22
-:: 14 ::- Date: 22.05.2023 19.1 This direction is to be found contained in Chapter 1 Practice in the Trial of Civil Suits. This chapter applies to subordinate Courts and not to High Court (Original Side). Be that whatever it may, the scope of the above said provision is limited, as the language of the direction itself suggests. It refers to order 8 Rule 9.1t vests power in the Court to call upon the parties to file written statement meaning thereby additional pleading by way of replication or rejoinder) for elucidating the pleas when necessary, especially in complicated case. The direction does not confer any right on a party to file a subsequent pleading and to insist on hearing being adjourned enabling filing of replication. The practice direction does not in any manner run counter or in departure with the legal position discussed hereinabove. 19.2 Any practice direction or a provision in rules governing original side of High Court contemplating replication has not been brought to my notice.
(26) To sum up:
(1)'replication' and 'rejoinder' have well defined meanings. Replication is a pleading by plaintiff in answer to defendant's plea. 'Rejoinder' is a second pleading by defendant in answer to plaintiff's reply i.e. replication. (2) To reach the avowed goal of expeditious disposal, all interlocutory applications are supposed to be disposed of soon on their filing. A delivery of copy or the I.A. to the counsel for opposite party is a notice of application.
Reply, if any, may be filed in between, if the time gap was reasonable enough enabling reply being filed . (3) I.As. which do not involve adjudication of substantive rights of parties and/or which do not require investigation or inquiry into facts are not supposed to be contested by filing written reply and certainly not by filing replication. (4) A replication to written statement is not to be filed nor permitted to be filed ordinarily, much less in routine. A replication is permissible in three situations. (i) when CS No. 60097/16 Shakuntala Lama Vs. Gulshan Lal Sharma & Ors. Page: 14 of 22
-:: 15 ::- Date: 22.05.2023 required by law; (ii) when a counter claim is raised or set off is pleaded by defendant (iii) when the court directs or permits a replication being filed. (5) Court would direct or permit replication being filed when having scrutinised plaint and written statement the need of plaintiff joining specific pleading to a case specifically and newly raised in written statement is felt. Such a need arises for the plaintiff introducing a plea by way of 'confession and avoidance.' (6) A plaintiff seeking leave of the court has to present before it the proposed replication. On applying its mind the court may grant or refuse the leave. (7) A mere denial of defendant's case by plaintiff needs no replication. The plaintiff can rely on rule of implied or assumed traverse and joinder of issue. (8) Subsequent pleadings are not substitute for amendment in original pleadings. (9) A plea inconsistent with the pleas taken in original pleadings cannot be permitted to be taken in subsequent pleadings. (10) A plea which is foundation of plaintiff's case or essentially a part of causes of action of plaintiff, in absence whereof the suit will be liable to be dismissed or the plaint liable to be rejected cannot be introduced for the first time by way of replication. .Appreciation is placed on record of useful assistance rend erred by Shri Ishwar Sahai Sr Advocate and Ms Ritu Bhalla advocate both from civil side of High Court Bar who brought to the notice of the court quite a few aspects relevant to the issues at hand."
Since the plaintiff has not preferred amendment of the plaint and has incorporated new pleas in the replication, the same shall not be read by the court as the defendants never had the opportunity to rebut the same by filing an additional WS. On perusal of the testimony of PW1, the documents relied upon by her are the CS No. 60097/16 Shakuntala Lama Vs. Gulshan Lal Sharma & Ors. Page: 15 of 22
-:: 16 ::- Date: 22.05.2023 Agreement to Sell dated 09.02.1970 (Ex. PW1/2), GPA dated 24.02.1977 (Ex. PW1/3). The agreement to Sell dated 09.02.1970 is beyond the pleadings of the plaintiff and the GPA dated 24.02.1977 as per the plaint, is claimed to be executed between Late Sh. Balbir Singh Gupta and the plaintiff, whereas the Ex. PW1/3 is executed between Sh. Bindraban and the plaintiff, which is again beyond pleadings of the plaintiff. Even the testimony of PW1 is self contradictory. During her cross examination, it is stated as under:-
"Balbir Singh never executed any GPA in the name of my father with respect to the suit property........ My father had told me that Balbir Singh executed a GPA and Agreement to Sell in his favour on 09.02.1970. My father had expired around 28 years back......... Balbir Singh passed away around 1 and ½ years back. Balbir Singh never resided in the suit property. Balbir Singh had cancelled the documents which he had executed in favour of my father in 1970 itself. I do not know whether any cancellation Deed was reduced into writing by Balbir Singh...."
It is beyond understanding that if the GPA executed in favour of the father of the plaintiff i.e., Late Sh. Bindraban was cancelled in 1970, then how can he execute documents in favour of the plaintiff.
Despite the aforesaid observations,since the defendants have not agitated the same before this court by seeking declaration of the CS No. 60097/16 Shakuntala Lama Vs. Gulshan Lal Sharma & Ors. Page: 16 of 22
-:: 17 ::- Date: 22.05.2023 Conveyance Deed as null and void, this court is not inclined to pass any finding on the same.
The plaintiff has proved her case on a balance of probabilities by proving the Conveyance Deed dated 04.08.2015 (Ex PW1/7) by calling PW-2 before this court and also by placing on record Ex.PW1/DX1 pertaining to suit no. 301/99 titled as 'Dharamvir Sharma & Anr. Vs. Lachaman Das & Ors.' filed on behalf of the defendants for partition, possession, declaration and injunction. The said suit was filed with respect to the property bearing no. 413, Bhai Parmanand Colony, Kingsway Camp, Delhi-110009 and not the suit property. It is the contention of the plaintiff that no partition was sought with respect to the suit property as the defendants were aware that the property belongs to the plaintiff. It is trite law that the partition has to be sought with respect to all the properties of the deceased person. The defendants have not asked for partition of the suit property in the earlier suit gives a ground to this court to raise a presumption under Section 114 of the Indian Evidence Act against the defendants in the present suit. This means that the defendants were aware that the suit property does not belong to the father i.e. Late Sh. Bindraban and has raised a frivolous defence before this court. The plaintiff is able to establish her title over the suit property by way of the Conveyance Deed dated 04.08.2015, therefore, she is entitled to a decree of possession of the suit property from the defendants and CS No. 60097/16 Shakuntala Lama Vs. Gulshan Lal Sharma & Ors. Page: 17 of 22
-:: 18 ::- Date: 22.05.2023 a decree of permanent injunction against the defendants.
During the course of arguments, the defendants have argued that the present suit is not maintainable as the plaintiff has filed the present suit without seeking declaration. The defendants have relied upon the judgment of Hon'ble Supreme Court in "Anathula Sudhakar Vs. P. Buchi Reddy (Dead), 2009 (II) OLR (SC) - 388". The contention of the defendants is not sustainable as the defendants by their averments have not been able to raise cloud on the title of the plaintiff. The defendants have not produced any title documents in his favour so as to raise a cloud over the title of the plaintiff. For raising a cloud over the title of the plaintiff, the defendants were required to show some apparent defect in the title of the plaintiff and some prima facie right of a third party over it, which is not done in the instant case. The plaintiff is able to prove her title by proving Conveyance Deed dated 04.08.2015 (Ex. PW1/7) in her favour. The Conveyance Deed stands proved in view of the judgment of the Hon'ble High Court of Bombay in "Vasudha Vs. C. I. D. C of MAH Ltd. (2008(5)Mh.L.J 147)", wherein it is stated as under:
"14. Consequently whenever there is a variance between an unproved private document or its copy and a certified extract of a public record, the latter must prevail as it has more probative value, carrying the presumption as it does under Section 79 of the Evidence Act. This presumption would continue to hold until it is rebutted. It can be rebutted only by production of the original public record CS No. 60097/16 Shakuntala Lama Vs. Gulshan Lal Sharma & Ors. Page: 18 of 22
-:: 19 ::- Date: 22.05.2023 from which the extract is made out and certified to be true by the relevant authority. Only if it is so rebutted, such certified copy issues by a public authority would stand nullified.
15. The contents of private documents can be proved by primary or secondary evidence under Section 61 to 65 in Chapter V of the Evidence Act . The proof of the contents of public documents can be by production of their certified copies under Section 77 in Chapter VI of the Evidence Act. Since the certified copies carry a presumption as to their genuineness under Section 79 of the Evidence Act, they need not be proved in evidence."
The defendants in the WS have stated that the plaintiff has not filed a site plan along with the suit. This contention of the defendants is not sustainable as Order VII Rule 3 CPC only mandates the identification of the suit property when the subject matter of the suit is immovable property. In the present case, the plaint contains a description of the property sufficient to identify it.
Another contention of the defendants that the GPA cannot be invoked to be in operation after the death of the executant is also not correct. Section 202 of the Indian Contract Act clearly states that when a GPA is executed for consideration, the same becomes irrevocable even upon the death of the executant as an interest is created in the same.
Accordingly, issue no. 1 and 2 are decided in favour of the plaintiff and against the defendants.
CS No. 60097/16 Shakuntala Lama Vs. Gulshan Lal Sharma & Ors. Page: 19 of 22
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3. Whether the plaintiff is entitled for decree of mesne profits, as prayed for? OPP.
The onus to prove this issue is upon the plaintiff. Since issue no. 1 and 2 are decided in favour of the plaintiff, this issue is also decided in favour of the plaintiff and the plaintiff is entitled to mesne profits. The plaintiff in his plaint has stated that the suit property is likely to fetch a monthly rent of Rs. 10,000/- per month, however, have failed to adduce any evidence to show that the suit property is capable of fetching a rent of Rs. 10,000/- per month. This court takes judicial notice of the fact that the suit property is situated at Bhai Parmanand Colony, Kingsway Camp, Delhi and is capable of fetching a minimum rent of Rs. 8,000/- per month. Accordingly, this court awards a sum of Rs. 8,000/- per month as mesne profits from the date of filing of the suit till actual possession of the suit property is handed over by the defendants to the plaintiff
4. Whether the plaintiff has not come to the court with clean hands and suppressed material facts? OPD The onus to prove this issue is upon the defendants. The defendant no. 2 has not led any evidence and the deceased defendant no. 1 in his testimony has stated that there is no Agreement to Sell or title documents in his favour. It is also stated that the deceased father did not execute any Will / CS No. 60097/16 Shakuntala Lama Vs. Gulshan Lal Sharma & Ors. Page: 20 of 22
-:: 21 ::- Date: 22.05.2023 Testamentary document in favour of deceased defendant no. 1 with respect to the suit property. In fact, the defendants in the WS have claimed the ownership to the suit property by way of adverse possession. By raising a plea of adverse possession against the plaintiff, the defendants have impliedly acceded to the ownership of the plaintiff as the claim of adverse possession is maintainable against the owner of the property. In these circumstances, it cannot be said that the plaintiff has not come to the court with clean hands.
5. Whether the present suit is without cause of action? OPD The onus to prove this issue is upon the defendant no. 1. Since issue no. 1 and 2 is decided in favour of the plaintiff, this issue is also decided in favour of the plaintiff and against the defendants.
RELIEF The plaintiff is entitled to :-
i. a decree of recovery of possession of property bearing no. 414, constructed on a plot measuring about 66.89 sq. mtrs. Situated at Bhai Parmanand Colony, Kingsway Camp, Delhi in favour of the plaintiff and against the defendants;
ii. a decree of permanent injunction in favour of the plaintiff restraining the defendants, their family members, the agents, servants, etc. from parting with possession of and / or from creating any third-party interest in any manner whatsoever in CS No. 60097/16 Shakuntala Lama Vs. Gulshan Lal Sharma & Ors. Page: 21 of 22
-:: 22 ::- Date: 22.05.2023 respect of property bearing No. 414, constructed on a plot measuring about 66.89 sq. mtrs. Situated at Bhai Parmanand Colony, Kingsway Camp, Delhi;
iii. a decree of mesne profits @ Rs. 8,000/- per month from the date of filing of the suit till handing over actual possession of the suit property subject to payment of deficient court fees.
Decree Sheet be prepared accordingly.
File be consigned to record room. Digitally signed
SHIVALI by SHIVALI
BANSAL
BANSAL Date: 2023.05.22
Announced in open 16:58:47 +0530
Court on 22.05.2023 Shivali Bansal
Additional District Judge-03
North District, Rohini Courts, Delhi
CS No. 60097/16 Shakuntala Lama Vs. Gulshan Lal Sharma & Ors. Page: 22 of 22