Delhi District Court
Kailash Devi vs . Rishi Kumar & Anr. Cs No. 795/19 on 20 December, 2022
Kailash Devi Vs. Rishi Kumar & Anr. CS No. 795/19
IN THE COURT OF MS. BABITA PUNIYA: SENIOR CIVIL
JUDGE-CUM-RENT CONTROLLER, NORTH-EAST
DISTRICT,
KARKARDOOMA COURTS, DELHI
Suit No. 795/19
Unique ID No DLNE03-001291-2019
In the matter of:
Smt. Kailash Devi,
W/o late Bhikam Singh,
R/o B-124/27, Gali No. 10,
New Usmanpur, Delhi-110053
......Plaintiff
Versus
1. Sh. Rishi
S/o late Bhikam Singh,
2. Smt. Mamta
W/o Sh. Rishi
Both R/o B-124/27 Ground Floor,
Gali No. 10, New Usmanpur,
Delhi-110053
....Defendants
Date of Institution : 03.12.2019
Date of Decision : 20.12.2022
Final Decision : Decreed
Suit for Permanent and Mandatory Injunction
Page No. 1 of 19
Kailash Devi Vs. Rishi Kumar & Anr. CS No. 795/19
J U D G M E N T
1. This is a suit for permanent and mandatory injunction filed by the plaintiff against her son and daughter-in-law. She has also claimed damages @ Rs. 10,000/- per month.
2 (a) The case of the plaintiff in brief is that she is the absolute owner of the property bearing House No. B-124/27, Gali No. 10, New Usmanpur, Delhi-110053 measuring 50 sq. yards. She had purchased the suit property from one Sh. Ram Kishan on 12th August 1985 vide Agreement for Sale and receipt.
(b) The defendants being her son and daughter-in-law were allowed to occupy the ground floor of the suit property as licensees/permissive users.
(c) It is further the case of the plaintiff that as his son and daughter-in-law are ill-treating and misbehaving with her, she disowned them by a public notice published in the Daily Newspaper Rashtriya Sahara on 14.08.2019. She, thereafter, vide legal notice dated 30.09.2019 asked them to vacate the suit property. On their failure to do so, she filed this suit against the defendants praying for a decree of mandatory injunction in favour of the plaintiff and against the defendants thereby directing them to handover the peaceful vacant possession of the suit property i.e. Ground Floor of House No. B-124/27, Gali NO. 10, New Usmanpur, Delhi-53. The Page No. 2 of 19 Kailash Devi Vs. Rishi Kumar & Anr. CS No. 795/19 plaintiff has also prayed for a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining the defendants, their attorneys, assignees, successors in interest, agents etc from creating any third party interest in the suit property. She has also prayed for damages @ Rs. 10,000/- per month from the date of filing of the present suit till the possession is handed over.
3. The summons for settlement of issues was issued to the defendants. On 18.12.2019, the defendants entered appearance and made a statement that they shall not create third party interest in the suit property during the pendency of the suit. They also filed their written statement wherein they denied the ownership of the mother with respect to the suit property and stated that Smt. Urmila w/o Sh. Rajbir is the owner thereof.
4. On the basis of pleadings, following issues were framed by the learned predecessor Judge:
Issue No. 1 - Whether the plaintiff is entitled for decree of permanent injunction thereby restraining the defendants from creating third party interest in any manner in the suit property as prayed in Clause (a)? OPP.
Issue No. 2 - Whether the plaintiff is entitled for a decree of mandatory injunction thereby directing the defendants to Page No. 3 of 19 Kailash Devi Vs. Rishi Kumar & Anr. CS No. 795/19 hand over the physical vacant possession of the suit property as prayed in Clause (b)? OPP.
Issue No. 3 - Whether the plaintiff is entitled for recovery of damages @ Rs. 10,000/- p.m., from the date of filing of the suit till handing over of the possession of the suit property as prayed in clause (c) ? OPP Issue No. 4 - Relief.
5. Thereafter, parties were directed to lead their evidence.
6. The plaintiff besides examining herself, examined five other witness to depose that she was the owner of the property and relied on the following documents:-
(i) Site Plan : Ex.PW1/A (ii) Documents of the property i.e. Agreement for Sale and
Receipt dated 12.08.1985 Ex.PW1/B (colly).
(iii) Legal Notice dated 30.09.2019 : Ex.PW1/C
(iv) Returned envelope : Ex. PW1/D.
(v) Newspaper publication dated 14.08.2019 : Ex. PW1/E
(OSR).
(vi) Copy of intimation with postal receipts : Ex. PW1/F
(colly).
Page No. 4 of 19
Kailash Devi Vs. Rishi Kumar & Anr. CS No. 795/19
(vii) Copy of electricity bill : De-Ex. PW1/G as Mark G.
(viii) Copy of water bill dated 31.07.2003 to 31.08.2021 and
notice issued by Delhi Jal Board : De-Ex. PW1/H as Mark H (colly).
(ix) Adhaar Card of plaintiff : Ex. PW1/I (OSR).
(x) Complaint to SHO, PS New Usmanpur, Delhi : Ex.
PW1/J (OSR).
7. On the other hand, defendants have not examined any witness. DE was closed in view of the statement of the defendants recorded on 24.09.2022.
8. Thereafter, the matter was posted for final arguments.
Arguments
9. It was argued on behalf of the plaintiff that she is an old lady aged about 80 years and that the defendants have made her life miserable by hurling abuses at her, ill-treating her etc. He stated that she has even filed police complaints against the defendants. He submitted that plaintiff being the owner of the suit property is not interested in view of the conduct of the defendants to let them continue to reside in the suit property and therefore, legal notice dated 30.09.2019/Ex.PW1/C was served upon them and were publicly disowned by a publication effected on 14.08.2019 in "Rashtriya Sahara" newspaper. He submitted that the defendants are unauthorized occupants having no legal right or title in the suit Page No. 5 of 19 Kailash Devi Vs. Rishi Kumar & Anr. CS No. 795/19 property, therefore, they may be ordered to be evicted. He also placed reliance on a judgment passed by the Hon'ble Supreme Court of India in the case of Sultana Begum vs Prem Chand Jain decided on 10 December, 1996 wherein it was held as under:-
"................ Licencee's possession, on the contrary, is only permissive and he can be thrown out at any time. .....".
10. He also placed reliance on another judgment passed by the Hon'ble High Court of Delhi in the case of Shri Ramesh Kumar Handoo And Anr. vs Shri Binay Kumar Basu decided on 19 November, 2007 wherein it was held as under:
"......A child lives with his parents in the house of the parents under a permissive possession ......."
11. On the other hand, it was argued on behalf of the defendants that the documents i.e. Agreement for Sale and Receipt allegedly executed in favour of the plaintiff do not confer any ownership rights on the plaintiff. He stated that the documents are hit by the judgment of the Hon'ble Supreme Court of India in the case of Suraj Lamp Industries Pvt. Ltd. vs. State of Haryana and Anr. 183 (2011) DLT 1(SC).
12. In rebuttal, it was argued on behalf of the plaintiff that she has not filed the suit for declaration of her title but has asked the Page No. 6 of 19 Kailash Devi Vs. Rishi Kumar & Anr. CS No. 795/19 defendants to vacate the property as they were allowed to stay there as gratuitous licensees.
13. He placed reliance on a judgment passed by the Hon'ble Delhi High Court in the case of Suresh Kumar & Anr vs Saroj Atal decided on 1 March, 2012 wherein it was held as under:-
"8. In my opinion, the issue in the present case is not ownership of the suit property as is known in law of the respondent/plaintiff, but the issue as to entitlement to recover possession of the suit property, even assuming strict ownership may not rest with the respondent/plaintiff. Of course, the judgment in the case of Suraj Lamp (Supra) squarely applies against the respondent/plaintiff in the facts of the present case because the documents in question executed in favour of the respondent/plaintiff are dated 25.9.2001 and the amended provision of Section 53A of the Transfer of Property Act, 1882 came into force just one day before i.e. on 24.9.2001, however, it would at best mean that ownership rights as is normally known would not rest with the respondent/plaintiff, however, possessionary rights of the suit property cannot be disputed to be that of the respondent/plaintiff. These possessory rights were created in the year 2001 itself by means of the documents executed in favour of the respondent/plaintiff. In a suit for possession a plaintiff has to show better title i.e. entitlement than that of the defendant and in the present case, Page No. 7 of 19 Kailash Devi Vs. Rishi Kumar & Anr. CS No. 795/19 besides the fact that respondent/plaintiff has shown a better entitlement to possession by virtue of the documents dated 25.9.2001 executed in her favour, the appellants/defendants themselves do not have any equities in their favour inasmuch as qua both the flats purchased by them rights have been exercised. Thus, even if the respondent/plaintiff fails to prove the ownership rights stricto sensu to the extent of entitlement of possession, the appellants/defendants cannot defend the suit for possession once no title or interest in the suit property is claimed by them. The respondent/plaintiff, therefore, need not strictly prove, that a license deed ought to have been executed before the suit for possession could be filed by respondent/plaintiff. A license is merely a right to enter and exit a property and for which there is no deed which is required to be drawn up. The stand thus of the appellants/defendants of alleged collusion between the respondent/plaintiff and Smt. Kamlesh Gautam-sister of the respondent/plaintiff, does not take the case of the appellants any further because the registered documents executed in favour of the respondent/plaintiff are of the year 2001 and admittedly appellants/defendants admit to have got possession of the suit property in 2008. I also take on record the statement of the counsel for the respondent/plaintiff that the relations of respondent/plaintiff with her sister have gone bad on account of the dishonesty of her sister-Kamlesh Gautam and her husband-Raj Kumar Gautam.Page No. 8 of 19
Kailash Devi Vs. Rishi Kumar & Anr. CS No. 795/19
14. He also placed reliance on another judgment passed by the Hon'ble High Court of Delhi in the case of Sh. Bidhan Chand Biswas (Since ... vs Sh. Prakash Chand Bansal & Ors. decided on 20 May, 2014 wherein it was held as under:-
"...... In the case of Swadesh Ranjan Sinha versus Haraded Banerjee reported In (1991) 4 SCC 572, the Hon'ble Supreme Court was pleased to hold that all that the plaintiff needs to prove is that he has a better title than the defendant. He has no burden to show that he has the best of all possible titles. His ownership is good against all the world except the true owner.
15. It was also argued on behalf of the defendants that the plaintiff in the garb of injunction is seeking the relief of possession of the suit property but has not valued the plaint properly for the purpose of court fees and jurisdiction. He, therefore, prayed dismissal of the suit on this ground alone.
16. In rebuttal, it was contended on behalf of the plaintiff that she has prayed for a decree for injunction seeking direction to the defendants to vacate the suit premises. He stated that such a relief is to be valued under the provisions of section 7(iv)(d) of the Court Fees Act and placed reliance on the judgment passed by the Hon'ble High Court of Delhi in the case of Puneet Chaddha vs. Page No. 9 of 19 Kailash Devi Vs. Rishi Kumar & Anr. CS No. 795/19 B.P. Chaddha decided on 1 December, 2009 wherein it was observed as under:-
"17. In view of the dicta of the Supreme Court, and no other judgment to the contrary having been shown, it is to be held to be the law that where a suit is found for mandatory injunction only, it is to be valued under Section 7(iv)(d) and not under Section 7(v) of the Act..."
17. I have heard both the parties and also perused the file carefully.
18. First of all I will deal with the submission of the learned counsel for the defendants that the plaintiff has not properly valued the plaint for the purposes of court fees and jurisdiction.
19. The Hon'ble Supreme Court of India in the case of Sant Lal Jain vs. Avtar Singh reported in (1985) 2 SCC 332 has held that the status of a licencee remains as a licencee and the plaintiff in such situation is only required to bring the suit for mandatory injunction to call upon the defendant to vacate the suit premises.
20. In the case in hand the plaintiff has prayed for a decree of mandatory injunction to direct the defendants to remove their belongings and to vacate the suit premises. Such a relief of mandatory injunction is to be valued under the provisions of section Page No. 10 of 19 Kailash Devi Vs. Rishi Kumar & Anr. CS No. 795/19 7(iv) (d) of the Court Fees Act 1870 as has been held by the Hon'ble High Court of Delhi in the case of Puneet Chaddha vs. B.P. Chaddha. Hence, the plaintiff is only required to value her relief for mandatory injunction at Rs.130/- and to affix court fee of Rs.13/- on the same.
21. Hence, the argument is devoid of substance and is rejected accordingly.
22. My issue-wise findings are as under:-
23. I will first take up issue no. 2.
Issue No.2: Whether the plaintiff is entitled for a decree of mandatory injunction thereby directing the defendants to hand over the physical vacant possession of the suit property as prayed in Clause (b)? OPP
24. The onus to prove this issue was on the plaintiff.
25. The plaintiff has claimed to have purchased the rights in the suit properly from one Sh. Ram Kishan by means of usual documents such as Agreement for Sale, receipt etc. As per plaintiff, she had allowed defendants to use and occupy the suit property out of natural love and affection as a licensee/permissive user/gratuitous licensees only.
Page No. 11 of 19Kailash Devi Vs. Rishi Kumar & Anr. CS No. 795/19
26. The defendants have denied the ownership of the plaintiff and have taken the plea that Smt. Urmila w/o Sh. Rajbir is the actual owner of the suit property.
27. In this background, now let us see if the plaintiff has been able to discharge her initial burden of proof?
28. In order to discharge the burden cast by the said issue, the plaintiff has filed her own affidavit by way of evidence in which she had supported on oath, the case set up in the plaint. She has also stated that she is in possession of the suit property having purchased it from one Sh. Ram Kishan by paying the entire sale consideration and that defendants being relatives were allowed to stay as licensees in the suit property which was terminated vide legal notice dated 30.09.2019 Ex.PW1/C.
29. Ex.PW1/B (colly) are the Agreement for Sale and receipt executed by the vendor. Ex/PW1/C is the legal notice whereby the license was terminated by the plaintiff while Ex.PW1/I is her Adhar Card. As against these documents, the defendants have not filed any document to show a better title.
30. The plaintiff was cross-examined by the learned counsel for the defendants but nothing was brought out to discredit Page No. 12 of 19 Kailash Devi Vs. Rishi Kumar & Anr. CS No. 795/19 her testimony. She denied the suggestion that her daughter Smt. Urmila is the owner of the suit property.
31. PW2-Gireesh Babu, in his evidence by way of affidavit Ex.PW2/A, has deposed that plaintiff is the owner in possession of the suit property. He was not cross-examined by the defendants.
32. PW3- Shiv Kumar and PW4- Prem Kishore, in their evidence by way of affidavits Ex. PW3/1 and Ex. PW4/A respectively, have deposed that plaintiff had purchased the property from erstwhile owner on 12.08.1985 in their presence and that they had accompanied the plaintiff to Sub-Registrar's Office. They were also not cross-examined by the defendants.
33. PW5- Smt. Sharda, in her evidence by way of affidavit Ex. PW5/A, has deposed that plaintiff is the owner in possession of the suit property. She too was not cross-examined by the defendants.
34. PW6 (inadvertently typed as PW1) - Rajender Singh, Record Attendant, Department of Delhi Archives has proved the cash receipt registered vide Registration No. 15538, volume No. 1316 on 12.08.1985. Same is Ex.PW1/1 (OSR). He was also not cross-examined.
35. Thus, the plaintiff in view of the oral and documentary evidence has been able to create a high degree of probability so as to Page No. 13 of 19 Kailash Devi Vs. Rishi Kumar & Anr. CS No. 795/19 shift the onus on the defendant. Now it was for the defendants to discharge their onus.
36. It is the case of the defendants that Smt. Urmila is the actual owner of the suit property. However, neither Smt. Urmila was examined nor any document was filed to show that defendants have a better title. They have not even stepped into the witness box to state their case on oath. Thus, a presumption would arise that the case set up by them was not correct.
37. The Hon'ble Supreme Court of India in the case of Janki Vashdeo Bhojwani & Anr vs Indusind Bank Ltd. & Ors decided on 6 December, 2004 has held that in civil dispute the conduct of the parties is material. Relevant para of the judgment reads as under:-
"Apart from what has been stated, this Court in the case of Vidhyadhar vs. Manikrao and Another, (1999) 3 SCC 573 observed at page 583 SCC that "where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct".Page No. 14 of 19
Kailash Devi Vs. Rishi Kumar & Anr. CS No. 795/19
38. In view of the above discussion, I am of the view that the defendants have failed to discharge their onus and in the absence thereof the burden of proof lying on the plaintiff is held to have been discharged. In other words, the plaintiff has proved by her evidence that the defendant were occupying the suit premises as licensees which stood terminated vide legal notice dated 30.09.2019.
39. I may note that the documents i.e., the Agreement for Sale, Receipt etc., though do not make the plaintiff an absolute owner in the strict sense but she definitely has a better title/right in the suit property as compared to the defendants so as to claim possession from the defendants who were allowed to stay in the suit property as gratuitous licensees.
40. Reference may be made to the judgment of the Hon'ble High Court of Delhi passed in the case of Ramesh Chand vs. Suresh Chand & Anr 188(2012) DLT 538 wherein it was held as under:-
"... 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."Page No. 15 of 19
Kailash Devi Vs. Rishi Kumar & Anr. CS No. 795/19
41. In view of the above, the plaintiff has been able to prove her case against the defendants. She is, thus, entitled to possession of suit property. Accordingly, issue no. 2 is decided in favor of the plaintiff and against the defendants.
42. Now, I will take up issue no.1.
Issue No. 1 - Whether the plaintiff is entitled for decree of permanent injunction thereby restraining the defendants from creating third party interest in any manner in the suit property as prayed in Clause (a)? OPP
43. In view of my findings on issue no. 2, it is clear that the defendants do not have any right, title or interest in the suit premises. As such, they cannot part with possession of the suit premises, in favor of any person other than the plaintiff.
Accordingly, this issue is also decided in favor of the plaintiff and against the defendants.
44. Now I will take up issue no. 3.
Issue No. 3 - Whether the plaintiff is entitled for recovery of damages @ Rs. 10,000/- p.m., from the date of filing of the suit till handing over of the possession of the suit property as prayed in clause (c)? OPP Page No. 16 of 19 Kailash Devi Vs. Rishi Kumar & Anr. CS No. 795/19
45. The burden to prove this was placed upon the plaintiff.
46. The plaintiff has proved that the defendants were allowed to reside in suit premises as licensee which stood terminated vide legal notice dated 30.09.2019. Thus, they have become unauthorized occupant and are liable to pay damages for illegal use and occupation charges.
47. The plaintiff has claimed the damages @ Rs. 10,000/- p.m., however, she has neither produced any documentary evidence nor examined any independent witness on the question of quantum of mesne profit and damages.
48. Ordinarily, rate of damages is equivalent or comparable to the rental value of the premises for the time the licensor is kept out of possession.
49. It is no more res integra that Court can take judicial notice of the prevalent market rent of different areas in Delhi.
50. Therefore, taking a judicial notice of the fact of increase in rents and in order to provide fair compensation to the plaintiffs I consider that a sum of Rs. 5,000/- per month to be a fair amount towards damages/mesne profits to be awarded in favor of the plaintiff. Therefore, the plaintiff will be entitled to Page No. 17 of 19 Kailash Devi Vs. Rishi Kumar & Anr. CS No. 795/19 damages/manse profits @ Rs. 5,000/- per month w.e.f. October, 2019 with interest @ 8% per annum till the date of handing over of vacant possession of the premises to the plaintiff.
Reliefs
51. In view of my findings on the aforesaid issues, the suit of the plaintiff is decreed as under:-
(a) A decree of mandatory injunction is passed in favor of the plaintiff and against the defendants in respect of the suit property. Defendants are directed to hand over the vacant and peaceful physical possession of the suit premises i.e. B-124/27, Gali No. 10, New Usmanpur, Delhi-110053 more specifically shown in red colour in the site plan/Ex.PW1/A to the plaintiff within one month from passing of the judgment; and
(b) A decree of permanent injunction is passed in favor of the plaintiff and against the defendants thereby restraining the defendants, their associates, agents, attorneys etc. from parting with possession, transferring, alienating, mortgaging, selling or creating any third party interest in any form whatsoever in the suit premises as shown in red colour in the site plan Ex.PWI/A; and Page No. 18 of 19 Kailash Devi Vs. Rishi Kumar & Anr. CS No. 795/19
(c) A decree of damages/mesne profits in favour of the plaintiff @ Rs. 5,000/- per month w.e.f. October, 2019 with interest @ 8% per annum till the date of handing over of vacant possession of the premises to the plaintiff; and
(d) The plaintiff shall also be entitled to the cost of the suit.
52. Decree sheet be drawn accordingly on filing of deficient court fees, if any, Announced in open Digitally signed by BABITA Court on 20th day of December, 2022 BABITA PUNIYA Date:
PUNIYA 2022.12.20
16:56:10
+0530
(Babita Puniya)
SCJ-cum-RC
North East District, KKD/Delhi
20.12.2022
This judgment contains 19 pages and each page bears my signature.
Digitally signedBABITA by BABITA PUNIYA PUNIYA 16:56:20 Date: 2022.12.20 +0530 (Babita Puniya) SCJ-cum-RC North East District, KKD/Delhi 20.12.2022 Page No. 19 of 19