Delhi District Court
Smt. Uma Singh vs Smt. Asha Malik @ Asha Khazan on 30 January, 2018
IN THE COURT OF SHRI VISHAL SINGH
ADDITIONAL DISTRICT JUDGE 06: CENTRAL : DELHI.
CS No. 10786/16
IN THE MATTER OF:
Smt. Uma Singh
W/o. Lt. Col. Narendra Pratap Singh
R/o. E-704, Dara Enclave, Sector9,
Nerul, Navi Mumbai - 400 706
....PLAINTIFF
VERSUS
1. Smt. Asha Malik @ Asha Khazan
W/o. Dr. Dharam Pal Malik
R/o. C-379A, Palam Extension,
Sector7, Dwarka,
New Delhi - 110 045.
2. Dr. Dharam Pal Malik
S/o. Late Sh. Surat Singh Malik
R/o. C-379A, Palam Extension,
Sector7, Dwarka,
New Delhi - 110 045.
....DEFENDANTS
Other Details:
Date of Institution : 15/09/2006
Date of Reserving Judgment : 17/01/2018
Date of Judgment : 30/01/2018
Smt. Uma Singh Vs.
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Suit For Recovery of Possession and Damages
JUDGMENT
1. This is a suit for recovery of possession based on title and damages for unauthorized user of property. Plaintiff is mother of defendant no.1 and motherinlaw of defendant no.2. Plaintiff was earlier known as Smt. Om Kumari. Plaintiff is widow of Lt. Col. Retd. Narendra Pratap Singh. Plaintiff is owner of residential property bearing No. C379A, Palam Extension, Amberhai Road, Sector7, Dwarka, New Delhi45, measuring 115 sqr. yards, (hereinafter referred to as suit property) having purchased it from Sh. Ranbir Singh Malik, advocate, on 31/10/1988.
1.(a) Plaintiff and her husband built their permanent residential home on the suit property and started living there on 01/11/1991. As per plaint, in all the documents requiring mention of address, the address of the plaintiff is mentioned as that of suit property. In April, 1995, plaintiff's husband went to Navi Mumbai to take possession of the Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 2 of 42 newly completed flat of the Army Welfare Housing Organization which he had booked earlier. In August, 1995, plaintiff joined her husband at Navi Mumbai to temporarily stay there for two years for her younger son's education. Before that, plaintiff put all her expensive items and household goods in the main bedroom of suit property and kept the key with herself. Before leaving for Navi Mumbai, plaintiff handed over the possession of suit property to her husband's younger brother Devender Singh for temporary residence, to take care of the suit property.
1.(b) In July, 1997, defendants requested the plaintiff to let them reside in suit property for temporary stay. Plaintiff got the suit property vacated from her brotherinlaw Devender Singh and gave it to defendants for temporary residence w.e.f. 05/08/1997. The defendants assured the plaintiff that they would vacate the suit property on demand.
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1.(c) In April, 2004, plaintiff noticed that defendant no.1 was in the process of breaking the main gate wall of the suit property and was constructing four shops in the vacant portion therein. When plaintiff objected to it, defendant no.1 replied very rudely and misbehaved with her. On 12/05/2004, plaintiff's husband visited the suit property and noticed that the defendants had broken the locks put on the rooms and removed the belongings of plaintiff's family. Defendant No.1 misbehaved with her father i.e. plaintiff's husband but plaintiff did not call police. By that time, defendant no.1 had also completed construction of four shops on the suit property with the money (Rs. 94,000/) that plaintiff had given to her in March, 2004 to tide over her financial difficulties.
1.(d) On 09/12/2004, plaintiff and her husband asked defendants to vacate and hand over the suit property to them but their request was rejected by defendants. Plaintiff sent legal notice dated 31/03/2006 vide which she terminated the oral licence granted to defendants to Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 4 of 42 stay in the suit property and asked them to hand over the suit property on 30/04/2006.
1.(e) Upon failure of defendants to hand over the possession of suit property, the plaintiff instituted the suit for recovery of possession of suit property and damages @ Rs.15,000/ per month w.e.f. 01/05/2006. The plaintiff also prayed for decree of permanent injunction to restrain the defendants from creating third party interest in the suit property.
1.(f) Upon being served with summons of suit, the defendants filed their joint written statement in which they took multipronged defences. The defendants objected that the plaint is without any cause of action and the plaintiff is estopped from raising any claim in respect of suit property after a period of more than 14 years. Defendants claimed that plaintiff is neither the owner of suit property nor have any right, title or interest thereon. Defendants claimed that defendant no.1 Smt. Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 5 of 42 Asha Malik was de facto owner of the suit property where she had been residing with her family since more than 14 years as owner.
2. As per written statement, the plaintiff and her husband had, in the year 198889, under family settlement, decided to give immoveable properties to their daughter i.e. defendant no.1, at the time of her marriage. In pursuance of the said family settlement, an amount of Rs. 52,000/ had been provided by defendant no.1 for purchase of suit property which was purchased in the name of plaintiff. In view of family settlement, defendant no.1 agreed to relinquish all her claims in respect of the ancestral properties lying in village Soldah, District Rohtak, Haryana, in favour of her father.
2.(a) The defendants took defence that there is no Sale Deed in respect of suit property in favour of the plaintiff. The property documents of suit property executed in favour of the plaintiff do not create any right, title or interest in favour of the plaintiff. The defendant Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 6 of 42 reiterated that the suit property was acquired only with the aim and object of gifting the same to defendant no.1 at the time of her marriage. As such, at the time of marriage of defendant no.1, the plaintiff and her family members gifted the suit property, which was a vacant land, to defendant no.1 by delivering its physical possession to her on 24/04/1991. Hence, the suit property was acquired by defendant no.1 as stridhan. Father of defendant no.1 also gave her cash of Rs.70,000/ as stridhan to raise construction on the suit property, which was a vacant plot.
2.(b) As per written statement, after her marriage, defendant no.1 and defendant no.2 started staying with plaintiff and her husband in his government accommodation at Dhaula Kuan, New Delhi. The husband of plaintiff i.e. father of defendant no.1 got two room accommodation constructed on the suit property with the above said funds of defendant no.1. The construction was completed in September, 1991. Immediately upon completion of its construction, Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 7 of 42 defendants no. 1 & 2 shifted to the suit property for residence. On request of defendants, plaintiff and her husband also temporarily shifted to the suit property in October, 1991. The ration card of defendants was issued in the year 1991 at the address of suit property, which was referred to as property No. C380A, Palam Extension, Sector7, Dwarka, New Delhi45, for convenience as it was adjacent to the said property which was also purchased in the name of plaintiff.
2.(c) As per written statement, the plaintiff and her husband shifted to Navi Mumbai in April, 1995, permanently with all their personal and family belongings.
2.(d) Defendants alleged that it was settled between the family members that registered Sale Deed in respect of suit property would be executed directly in favour of defendant no.1 either through previous owner or through the plaintiff. As per family settlement, the suit Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 8 of 42 property was agreed to be held by plaintiff till marriage of defendant no.1. Upon marriage of defendant no.1, the suit property was gifted to defendant no.1 as stridhan alongwith delivery of its physical possession on 24/04/1991. Since then, defendant no.1 had been in its uninterrupted possession as its owner to the knowledge of plaintiff.
2.(e) As per written statement, from December, 1998 to February, 1999, defendant no.1 raised construction on the suit property for using it as office to run her business. She also paid development charges for the same to government authorities. In March, 2000, defendant no.1 opened her beauty parlour in the suit property. The plaintiff and her husband never raised any objection to construction carried out by defendant no.1 on the suit property. Thus, defendant no.1 had been using the suit property as its de facto owner since more than 14 years to the knowledge of plaintiff.
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2.(f) As per written statement, the plaintiff has raised false claim of ownership over the suit property.
3. Upon completion of pleadings, the following issues were framed on 23/05/2008:
(i) Whether the suit of the plaintiff as against the defendants is without any cause of action as claimed by the defendants in the preliminary objection no.1 of their written statement? OPD.
(ii) Whether the defendant no.1 has become de facto owner of the suit property as alleged in the written statement? If so, its effects? OPD1.
(iii) Whether the plaintiff gifted the suit property to the defendant as alleged in the written statement? OPD.
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(iv) Whether the plaintiff is the owner of the suit property? OPP.
(v) Whether the plaintiff is entitled for the decree of possession as claimed in the prayer clause of the plaint? OPP.
(vi) Whether the plaintiff is entitled for the decree of any damages/mesne profits? If so, what amount and for what period? OPP.
(vii) Whether the plaintiff is entitled for the decree of permanent injunction as claimed in the prayer clause of the plaint? OPP.
(viii) Relief.
3.(a) Vide order dated 02/03/2010, following two additional issues were framed by the Court: Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 11 of 42 (1) Issue No.2A: Whether the plaintiff has contributed any amount towards the purchase and construction over the suit property? If so, what is its effect? OPD1.
(2) Issue No.2B: Whether the defendant no.1 alternatively becomes the owner on account of the adverse possession? OPD.
4. Plaintiff examined five witnesses in support of her case i.e. PW1 Smt. Uma Singh, PW2 Lt. Col. (Retd.) Narendra Pratap Singh, PW3 Lt. Col. Yashpal Kajla, PW4 ASI Pinki Dhaniya and PW5 Sh. Krishan Kumar.
4.(a) Plaintiff Smt. Uma Singh deposed as PW1 and filed her affidavit of evidence Ex. PW1/A in which she deposed the same facts as mentioned in the plaint. PW1 relied upon the following documents in support of her evidence: Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 12 of 42 Ex. PW1/1 is the site plan of the suit property. Ex. PW1/2 is the original Gram Panchayat Palam, Praman Patra dated 31/08/1984, vide which suit property was allotted in favour of Mr. Kewal S/o. Sh. Deep Chand.
Ex. PW1/3 is original L.R. Form/Receipt dated 31/08/1984 issued by Gram Panchayat, Palam Village, New Delhi45 regarding deposit of fees of Rs.51.75 by allottee Mr. Kewal S/o. Sh. Deep Chand.
Ex. PW1/4 to Ex. PW1/8 are the original Agreement to Sell, G.P.A, Affidavit, Receipt and Will, all dated 12/09/1988 executed by Sh. Kewal regarding sale of suit property to Sh. Ranbir Singh Malik for an amount of Rs.25,000/ Ex. PW1/9 to Ex. PW1/13 are the original Agreement to Sell, G.P.A, Affidavit, Receipt and Will, all dated 31/10/1988 executed by Sh. Ranbir Singh Malik Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 13 of 42 regarding sale of suit property to plaintiff Smt. Om Kumari (@ Smt. Uma Singh) for an amount of Rs.50,000/.
Ex. PW1/14 is the original Extract of Govt. of Maharastra Gazette of 30/11/2000 showing change of name of the plaintiff from Smt. Om Kumari to Smt. Uma Singh.
Ex. PW1/15 is the original registered Will dated 10/12/1999 executed by plaintiff through which she bequeathed the suit property to her son Vikram Khazan. Ex. PW1/16 is Legal Notice dated 31/03/2006.
4.(b) PW2 Lt. Col. (Retd.) Narendra Pratap Singh filed his affidavit of evidence Ex. PW2/A through which he supported the plaintiff's case. PW2 relied upon the following documents in support of his evidence: Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 14 of 42 Ex. PW2/1 is MTNL Telephone Bill for the period of 01/11/1995 to 31/12/1995, in which the residence of PW2 is that of suit property i.e. C380A, Palam Extension, New Delhi45.
Similarly documents Ex. PW2/2 to Ex. PW2/6 show the residence of PW2 as that of suit property.
The receipt dated 25/05/1981, Ex. PW2/7, issued by Hindustan Petroleum mentions the residence of PW2 as H. No. 145, Pratap Chowk, Delhi Cantt, New Delhi. The complaints made by PW2 against defendant no.1 to the police and NHRC are Ex. PW2/9 and Ex. PW2/10. The Statement of Account Ex. PW2/12 to Ex. PW2/15 shows withdrawal of different amounts by defendant no.1 from Bank Account of PW2 upon cheques issued in her favour from time to time by PW2 from dated 06/12/1999 to 23/07/2003.
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4.(c) PW3 Lt. Col. Yashpal Kajla is son of the plaintiff. He also supported the case of plaintiff. He deposed that there was no family settlement to gift the suit property to defendant no.1 on her marriage, neither was it gifted to defendant no.1. He deposed that defendant no.1 did not contribute money in purchase of suit property. He deposed that his parents had sufficient funds to purchase the suit property. He deposed that his mother was owner of the suit property, whereas, defendants are in unauthorized user and occupation of the same since 01/05/2006.
4.(d) PW4 ASI Pinki Dhaniya produced the record of DD No.37B dated 18/06/2004, Ex. PW4/1 (OSR).
4.(e) PW5 Krishan Kumar produced the summoned record of registered Will Ex. PW1/15.
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5. Defendants examined 11 witnesses in favor of their defence.
DW1 Smt. Asha Malik filed her affidavit of evidence Ex. DW1/A in which she deposed on the lines of her written statement. The relevant documents relied upon by DW1 in her testimony are as follows:
The site plan of the suit property filed by the defendants is DW1/1.
The photographs of the suit property alongwith negatives are Ex. DW1/2 to Ex. DW1/7.
The photocopy of electoral card of defendant no.1, dated 09/05/1994 to show that she was resident of suit property as on 09/05/1994 is Ex. DW1/9.
5.(a) DW2 Girjesh Kumar, peon in MDH School, Janak Puri, New Delhi, produced the summoned record regarding admission of Master Rohit Malik, son of the defendants, the copy of which is Ex. DW2/1.
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5.(b) DW3 HC Vishram Singh only stated that the office record of kalandra upto 31/12/2008 had been destroyed as per rules.
5.(c) DW4 John P. Minj, SubRegional Employment Officer, Directorate of Employment, Delhi University Campus, deposed that the record regarding issuance of I card by Directorate of Employment to defendant no.1 was not traceable in the office.
5.(d) DW5 Amitabh Srivastava, Clerk, Shiksha Bharti Public School, Sector7, Dwarka, New Delhi, produced the admission register regarding admission of Master Rohit Malik in the school.
5.(e) DW6 Mahender Singh, UDC, Election Department, produced the summoned record regarding electoral roll of AC30, Palam, for the year 2005 & 2008.
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5.(f) DW7 Ct. Lekhram produced the summoned record regarding DD No.31, 04/03/2006 and stated that the complaint register had been destroyed as per rules.
5.(g) DW8 Sanjeev Narang, Chief Section Supervisor, MTNL, produced the computer generated record of telephone installed in the name of defendant no.2 at the suit property. As per record, the telephone was installed on 25/07/1997 and was permanently closed on 31/12/2004. The installation reports are Ex. DW8/1 and Ex. DW8/2.
5.(h) DW9 Achche Lal produced the summoned record of account opening form of Sunny Overseas.
5.(i) DW10 Amitabh Srivastava, Shiksha Bharti Public School, produced the summoned record, as per which the son of defendants was admitted in the said school on 11/01/1997. Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 19 of 42
5.(j) DW Dr. Nikhil Mehta, Safadarjang Hospital, was inadvertently examined as PW10. He stated that summoned record was not available in the hospital, being already destroyed as per rules.
5.(k) DW11 Chittar Singh produced the summoned record regarding driving licence detail of defendant no.1.
6. I have heard the final arguments and analyzed the evidence led by parties. Now my issue wise findings are as under:
7. Issue No.1: Whether the suit of the plaintiff as against the defendants is without any cause of action as claimed by the defendants in the preliminary objection no.1 of their written statement? OPD.
7.(i) The onus of proof of this issue was upon the defendants. This is a suit for recovery of possession based on title documents. Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 20 of 42 The plaintiff relied upon the documents that purportedly constitute title in her favour in respect of suit property. As per plaint, the suit was filed because the defendants refused to vacate the suit property despite notice. The issue whether the documents set up by plaintiff do actually constitute valid documents of transfer of title is a question of evidence. The same cannot be confused with the issue regarding absence of cause of action.
7.(ii) The defendants led no evidence to the effect that plaintiff did not have any cause of action against them. Hence, issue no.1 is decided in favour of the plaintiff and against the defendants.
8. Issue No.2: Whether the defendant no.1 has become de facto owner of the suit property as alleged in the written statement? If so, it effects? OPD1.
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Issue No.2B: Whether the defendant no. 1 alternatively becomes the owner on account of the adverse possession? OPD.
8.(i) Issue No. 2A has been wrongly drafted. Rather, issue no. 2A should have been "Whether the defendant no.1 has contributed any amount towards the purchase and construction over the suit property? If so, what is its effect?"
OPD1. Issues No. 2, 2A and 2B are connected issues and shall be decided together. The onus of proof of these issues was upon the defendants. In the written statement, defendants took the defence that they have been in continuous and uninterrupted possession of the suit property since more than Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 22 of 42 14 years, as owner thereof. Hence, the plaintiff is not entitled to recover the possession of the suit property. Defendants also took the defence that defendant no.1 contributed Rs.52,000/ towards purchase of the suit property, whereas, balance amount was contributed by husband of the plaintiff.
8.(ii) The defendants took the defence but did not prove that defendant no.1 actually contributed Rs.52,000/ towards purchase of suit property. The defendants did not mention what was the consideration amount for purchase of the suit property and how much balance amount was contributed by husband of the plaintiff. The money receipt dated 31/10/1988, Ex. PW1/12, executed by Sh. Ranbir Singh Malik in respect of the sale of the suit property to the plaintiff is itself in the amount of Rs.50,000/. Thus, defendant no.1 could not have contributed Rs.52,000/ as part purchase amount of the suit property. Defendant No.1 gave no proof that she was earning Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 23 of 42 in the year 1988 to be able to contribute towards purchase of the suit property. In fact, she admitted in cross examination that she had completed her graduation in the year 1988. Thus, in order to prove issue no. 2A defendants led no evidence that defendant no.1 had contributed money towards purchase of the suit property.
8.(iii) The defendants pleaded that father of defendant no.1 gave her cash of Rs.70,000/ as shagun upon her marriage in the year 1991 to raise construction on the suit property which was a vacant plot. She utilized this fund to construct two rooms on the suit property. On the other hand, plaintiff had pleaded that she had raised the construction over the suit property with her own funds and the funds of her husband. Thus, beyond pleadings, defendants did not adduce any proof that they constructed the rooms on suit property with their own fund in the year 1991. On the other hand, it is admitted case of both Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 24 of 42 the parties that the defendants constructed shops on the front portion of the suit property with their own funds, which, as per plaintiff, happened against her and her husband's wish.
8.(iv) The defendants claimed that defendant no.1 had become de facto owner of suit property by continuous and interrupted possession over the suit property for 14 years before filing of the plaint. In the alternate, defendants pleaded ownership by way of adverse possession over the suit property.
8.(v) The defendants pleaded that they came in possession of the suit property in September1991, whereas, the plaintiff and her husband shifted to the suit property in October1991. As per written statement, the plaintiff and her husband permanently shifted to Navi Mumbai in April1995 without their belongings. On the other hand, plaintiff pleaded that she went to Navi Mumbai in August1995 to temporarily stay there with Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 25 of 42 her husband for two years. The suit was instituted on 06/10/2006.
8.(vi) The defendants did not specifically plead in the written statement at what point of time their possession became adverse to the interest of plaintiff. A mere long and uninterrupted possession of even more than 12 years is not enough to constitute adverse possession unless it was openly hostile to the knowledge of actual owner. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. In this case, the defendants, on one hand pleaded that the suit property was gifted to defendant no.1 by plaintiff on her marriage in the year 1991, on the other hand, they pleaded adverse possession of the same. In the former situation they claimed title through the plaintiff, whereas, in the latter, against the plaintiff. The defendants took contradictory stand by asserting ownership through as Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 26 of 42 well as against the plaintiff. The claim of 'de facto' ownership of the suit property is completely alien to law, regarding which issue no. 2 was framed.
8.(vii) In Karnataka Board of Wakf Vs. Govt. of India (2004) 10 SCC 779 Hon'ble Supreme Court observed that in the eyes of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Nonuse of the property by the owner even for a long time would not affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', i.e. peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 27 of 42 the possession is adverse to the true owner. The person who claim adverse possession should show
(a) on what date he came into possession.
(b) what was the nature of his possession.
(c) whether the factum of possession was known to the other party.
(d) how long his possession has continued, and
(e) his possession was open and undisturbed.
8.(viii) A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.
8.(ix) In the present case, the defendants pleaded that they obtained possession of suit property from the plaintiff and her husband, Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 28 of 42 which runs contrary to the defence of adverse possession. The defendants did not plead at what point of time they asserted ownership and denied the title of plaintiff over the suit property. Considering the fiduciary relationship of mother- daughter between plaintiff and defendant no.1, it became all the more necessary for defendants to adduce specific evidence of hostile possession over suit property to the knowledge of plaintiff for the statutory period. In the absence thereof, the defence of adverse possession must fail.
8.(x) In view of forgoing discussion, it is clear that defendant no.1 has not become de facto owner of the suit property, neither became owner thereof by way of adverse possession. Defendant No.1 did not contribute any amount towards purchase of the suit property. On the other hand, expenditure by defendant no.1 for construction of shops in the front portion of the suit property has no bearing upon the outcome of the Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 29 of 42 present case. Issues no. 2, 2A & 2B are decided against the defendants and in favour of the plaintiff.
9. Issue No.3: Whether the plaintiff gifted the suit property to the defendant as alleged in the written statement? OPD.
9.(i) Defendants pleaded that the suit property was orally gifted to defendant no.1 by her parents at the time of her marriage, as dowry.
9.(ii) It is trite law that an immoveable property cannot be orally gifted; it needs to be a written instrument of gift and registered in terms of Section 17 (1) (a) of The Registration Act, 1908. Evidently, in this case, the suit property cannot be considered as gifted by plaintiff to defendant no.1 as it was not done through a registered Gift Deed. Anyhow, plaintiff had denied that she had gifted the suit property to defendant no.1. Issue Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 30 of 42 no.3 is decided against the defendants and in favour of the plaintiff.
10. Issue No.4: Whether the plaintiff is the owner of the suit property? OPP.
Issue No.5: Whether the plaintiff is entitled for the decree of possession as claimed in the prayer clause of the plaint? OPP.
10.(i) The plaintiff has based her suit upon claim of ownership over the suit property. Plaintiff has relied upon the documents Ex. PW1/9 to Ex. PW1/13 which are original Agreement to Sell, GPA, Affidavit, Receipt and Will in respect of suit property, all dated 31/10/1988, executed by seller Sh. Ranbir Singh Malik in favour of the plaintiff, whose name was Smt. Om Kumari at that time. It is not in dispute that the plaintiff changed her name from Smt. Om Kumari to Smt. Uma Singh Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 31 of 42 through publication in Government of Maharashtra Gazette dated 30/11/2000, Ex. PW1/14. The documents Ex. PW1/4 to Ex. PW1/8 are Agreement to Sell, GPA, Affidavit, Money Receipt and Will in respect of suit property, all dated 12/09/1988, executed by seller Sh. Kewal in favour of Sh. Ranbir Singh Malik. As per document Ex. PW1/2, Sh. Kewal was the original allottee of the suit property from Gram Panchayat Palam Village, Delhi.
10.(ii) Ld. Counsel for defendants argued that the original allottee Sh. Kewal was not entitled to sell the suit property to anyone because of the stipulation mentioned in the allotment certificate Ex. PW1/2 that the allottee shall not be entitled to transfer or sell the allotted land. In view of the express prohibition stipulated in the allotment certificate Ex. PW1/2, the ownership of the allotted land (suit property) could not be legally transferred through the documents Ex. PW1/4 to Ex. Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 32 of 42 PW1/8 and then through the documents Ex. PW1/9 to Ex. PW1/13. Thus, Ld. Counsel for defendants argued that plaintiff could not claim ownership over the suit property on the strength of above mentioned documents and was not entitled to recover possession of the suit property from defendants.
10.(iii) Indeed, the complete ownership title in respect of suit property was not transferred in favour of the plaintiff by virtue of the documents relied upon by her. Indeed, by virtue of Agreement to Sell, GPA, Affidavit, Money Receipt and Will dated 31/10/1988, the plaintiff would not be the classical owner of the suit property as would an owner be under a duly registered Sale Deed, but surely she would still have better rights/entitlement of possession of the suit property than the defendants. In this regard, I rely upon the judgment of Hon'ble Delhi High Court in Ramesh Chand Vs. Suresh Chand & Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 33 of 42 Anr. 188 (2012) DLT 538 in which the plaintiff was held entitled to recover possession of the suit property on the strength of GPA etc. In the said case Hon'ble High Court had observed that 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.
10.(iv) Surely, in this case, the plaintiff has better entitlement / rights in the suit property as against the defendants.
10.(v) Even if the documents Ex. PW1/4 to Ex. PW1/13 are not taken into consideration, defendants cannot raise any objection to the title of plaintiff over the suit property. The defendants entered the suit property with permission of the plaintiff and her husband. The plaintiff claimed that she handed over the Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 34 of 42 possession to defendants for permissive user of the suit property in the year 1997, whereas, the defendants claimed that they were inducted in the suit property in the year 1991, immediately upon marriage of defendant no.1 with defendant no.2. It does not matter if the defendants entered the suit property in the year 1991 or in the year 1997; what matters is the nature of possession of the defendants over the suit property. I have already decided in issue no.3 that the suit property was not gifted to defendant no.1 by the plaintiff. I have decided in issue no.2B that the defendants have not become the owner of suit property by way of adverse possession. The defendants entered the suit property as licensee of the plaintiff and continued to remain so till the pleasure of plaintiff.
10.(vi) As per law, defendants cannot challenge the title of plaintiff over the suit property. Section 116 of The Indian Evidence Act Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 35 of 42 precludes a person who came upon an immovable property by the license of the person in possession thereof from denying the title of licenser to such possession at the time when the said license was given. Thus, the title of the plaintiff over the possession of suit property is beyond the scope of challenge by the defendants.
10.(vii) The defendants took a vacuous defence that since they had raised construction of permanent nature on the suit property to the knowledge of the plaintiff, the plaintiff shall be estopped from revocation of the license in respect of suit property. They submitted that as per Section 60 of The Indian Easements Act, a licence may be revoked by the granter unless the licencee, acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution.
10.(viii) As observed hereinabove, defendants did not adduce any Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 36 of 42 evidence that they had constructed the rooms in which they came into possession as permissive user, and did so with their own funds. It is an admitted case between the parties that the defendants constructed shops in the suit property from December1998 to February1999. The defendants contended that the plaintiff and her husband did not raise any objection when they were constructing the shops in the suit property. On the other hand, the plaintiff mentioned in the plaint that she as well as her husband had objected to defendant no.1 when she was raising the construction of shops. Defendants could not prove that they raised construction of shops while "acting upon the licence" or with permission of the plaintiff. Hence, the defence taken under Section 60 of Indian Easements Act is untenable.
10.(ix) Issue No. 4 is decided in favour of the plaintiff and against the defendants.
Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 37 of 42
10.(x) The defendants did not vacate the suit property despite receipt of legal notice Ex. PW1/16 dated 31/03/2006 issued by the plaintiff. Issue No. 5 is decided in favour of plaintiff and against the defendants. Plaintiff is entitled to decree of possession of the suit property against the defendants.
11. Issue No.6: Whether the plaintiff is entitled for the decree of any damages/mesne profits? If so, what amount and for what period? OPP.
11.(i) Plaintiff/PW1 Smt. Uma Singh proved that she constructed two room set on the suit property in the year 1991. Plaintiff gave it for temporary residence to the defendants. The defendants refused to vacate it despite repeated demands and legal notice Ex. PW1/16 dated 31/03/2006 due to which they became unauthorized occupants of the suit property w.e.f. from 01/05/2006. Plaintiff has demanded mesne profits @ Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 38 of 42 Rs.15,000/ per month w.e.f 01/05/2006 from the defendants for unauthorized user of the suit premises. The plaintiff has not demanded, and is not entitled to demand mesne profits in respect of four shops constructed by defendant no.1 in the front portion of the suit property without her permission.
11.(ii) PW1 and PW2 deposed that the prevailing rent in the area where suit property is situated was Rs.15,000/ per month in the year 2006. PW1 and PW2 did not adduce any proof of the rent agreements related to neighbouring properties to clarify the rent generated by them in the year 2006 or any other year. However, the suit property measures 115 sqr. yards and is situated in an urban area. The Court takes judicial notice of the factum of high rentals of residential properties in urban areas of Delhi in the year 2006. Two room set in a property measuring 115 sqr. yards in Dwarka, New Delhi, could easily fetch Rs. 7,000 - 8,000/ per month of rent if given on lease Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 39 of 42 for residential purpose.
11.(iii) Issue No. 6 is decided in favour of plaintiff and against the defendants. Plaintiff is held entitled to damages/mesne profits @ Rs.7,000/ per month w.e.f. 01/05/2006 with 10% compounding yearly from the defendants for unauthorized user of the suit premises. Plaintiff shall be entitled to interest @ 6% per annum on the awarded damages/mesne profits.
12. Issue No.7: Whether the plaintiff is entitled for the decree of permanent injunction as claimed in the prayer clause of the plaint? OPP.
12.(i) In the plaint, the plaintiff has sought the relief of permanent injunction to restrain the defendants from subletting, alienating, constructing, parting with possession, and/or creating any third party interest in the suit property. It is not Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 40 of 42 the case of plaintiff that the defendants ever attempted to sublet, alienate, part with possession or create any third party interest in the suit property. Hence, issue no.7 is decided against the plaintiff and in favour of the defendants.
13. Relief: In view of above mentioned analysis and discussion, the suit is decreed in favour of the plaintiff and against the defendants. The defendants shall hand over the vacant and peaceful possession of the suit premises i.e. property bearing No. C 379A, Palam Extension, Amberhai Road, Sector7, Dwarka, New Delhi45, measuring 115 sqr. yards, as per site plan Ex. PW1/1 to the plaintiff within two months of this judgment. The plaintiff shall be entitled to damages/mesne profits @ Rs.7,000/ per month w.e.f. 01/05/2006 with 10% compounding yearly from the defendants for unauthorized user of the suit premises, till recovery / handing over of the Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 41 of 42 premises. Plaintiff shall be entitled to interest @ 6% per annum on the awarded damages/mesne profits throughout. Decree sheet be prepared accordingly upon payment of deficient court fees.
14. File be consigned to record room.
Announced in open Court Dated: 30.01.2018 (VISHAL SINGH) Addl. District Judge06 (Central) Tis Hazari Courts, Delhi Smt. Uma Singh Vs. Smt. Asha Malik @ Asha Khazan & Anr. . CS No. 10786/16 Page No. 42 of 42