Delhi District Court
Darshana Devi Through Attorney vs Anil Kumar And Ors on 31 January, 2025
IN THE COURT OF MS. SHILPI M JAIN: DISTRICT JUDGE-05,
SOUTH WEST DISTRICT, DWARKA COURTS, NEW DELHI
CS DJ ADJ 76/2019
CNR No. DLSW01-01001203-2019
Smt. Darshana Devi
W/o Shri Laxmichand
R/o RZF-772/26, Gali No.13,
Raj Nagar-II, Palam Colony,
New Delhi-110077
Through Attorney
Shri Laxmichand
S/o Late Shri Maan Singh
R/o RZF-772/26, Gali No.13,
Raj Nagar-II, Palam Colony,
New Delhi-110077 ..............Plaintiff
Versus
1. Shri Anil Kumar
S/o Shri Laxmi Chand
R/o A-241,
Sector-8, Dwarka,
New Delhi-110077 (Deleted vide Order dated 26.03.2019)
2. Smt. Sushma
W/o Shri Anil Kumar
R/o RZF-773/26,
Gali No.13, Raj Nagar-II,
Palam Colony,
New Delhi-110077
3. Shri Lokesh Sehrawat
S/o Shri Karan Singh Sehrawat
R/o H.No. 130,
V&PO Katewara, Delhi-110039 ...............Defendants
SHILPI
M JAIN Date of Institution : 24.01.2019
Digitally signed
Date of Arguments : 24.01.2025
by SHILPI M
JAIN
CS DJ ADJ 76/2019 Darshana Devi Vs Anil Kumar and Ors. Page No. 1 of 10
Date:
2025.01.31
17:00:56 +0530
Date of Judgment : 31.01.2025
SUIT FOR RECOVERY OF POSSESSION, MESNE PROFITS
AND INJUNCTION.
JUDGMENT
INDEX FACTUAL MATRIX ....................3 ISSUES ....................5 EVIDENCE GIVEN BY PARTIES ....................6 ISSUE-WISE ANALYSIS & FINDINGS ....................7 CONCLUSION ...................10
1. Present suit for recovery of possession, mesne profit and injunction filed on behalf of plaintiff for entire first floor of RZF-773/26, Gali No. 13, Raj Nagar-II, Palam Colony, New Delhi-110077 (hereinafter referred as 'suit property') with following prayer:
i) Pass a decree for recovery of possession of suit property in favour of plaintiff and against the defendants no. 2 & 3 thereby directing the defendant no. 2 & 3 to handover actual physical vacant peaceful possession of the suit property i.e. entire first floor of RZF-773/26, Gali No.13, Raj Nagar-II, Palam Colony, New Delhi- 110077 to the plaintiff,
ii) Pass a decree of mesne profits in favour of plaintiff and against the defendants no. 2 & 3 thereby directing the defendants no. 2 & 3 to pay a sum of Rs.9,000/- p.m. to plaintiff w.e.f. 19.01.2019 till the date on which the defendant no. 2 & 3 handover actual physical vacant peaceful possession of the suit property i.e. entire first floor of RZF-773/26, Gali No. 13, Raj Nagar-II, Palam Colony, New SHILPI Delhi-110077 to the plaintiff, M JAIN Digitally signed by SHILPI M JAIN CS DJ ADJ 76/2019 Darshana Devi Vs Anil Kumar and Ors. Page No. 2 of 10 Date: 2025.01.31 17:01:11 +0530
iii) Pass a decree of injunction in favour of plaintiff and against the defendants no. 1 thereby restraining him from coming back to suit property i.e. entire first floor of RZF-773/26, Gali No. 13, Raj Nagar-II, Palam Colony, New Delhi-110077 without the written consent of plaintiff, and
iv) Pass any further order, in the interest of justice.
FACTUAL MATRIX:
2. Fact of the case which are imperative to adjudicate issues involved in this matter are succinctly recapitulated: plaintiff is senior citizen and filed present suit through her husband being SPA of her. Defendant no. 1 is the eldest son who got married with defendant no.2 as per Hindu Customs on 02.11.2006. Defendant no. 3 is the brother of defendant no. 2 and brother-in- law of defendant no. 1.
3. Since defendant no. 1 and 2 has been harassing plaintiff and her husband, plaintiff's husband instituted CS No. 246/07 against defendant no. 1 and 2 but, same got settled. It is averred that thereafter plaintiff's husband debarred defendant no. 1 and 2 from his movable and immovable properties via public notice in newspaper. Thereafter, defendant no. 2 tendered her apology in written on 08.11.2007 and relationship normalized.
4. It is further averred that, in the year 2011, plaintiff's husband purchased entire property bearing No. RZF-773/26, Gali No. 13, Raj Nagar-II, Palam Colony, New Delhi-110077 from his own funds and in June, 2016 plaintiff and her husband permitted defendant no. 1 and 2 to reside with them on first floor of the said property.
SHILPI M JAIN Digitally signed by SHILPI M JAIN CS DJ ADJ 76/2019 Darshana Devi Vs Anil Kumar and Ors. Page No. 3 of 10 Date: 2025.01.31 17:01:18 +0530
5. Present suit is filed as defendant no. 1 and 2 started harassing plaintiff and her husband. It is averred that on 09.01.2019 defendant no. 2 trying to commit suicide by drinking phenyl and therefore police intervention was taken upon which defendant no. 2 went to her parental home and threatened plaintiff and her husband to face dire consequences.
6. It is further averred that on 13.01.2019 plaintiff and her husband again debarred defendant no. 1 and 2 from their movable/immovable via publication upon which defendant no. 2 also left suit premises with her children.
7. It is further averred that plaintiff and her husband approached Senior Citizen Tribunal, Kapashera to restrain defendant no.2 from coming back to the suit property. It is further averred that as apprehended defendant no. 2 and 3 visited suit property on 16.01.2019 and traumatized plaintiff and her husband by reoccupying suit property forcefully. Hence, present suit is filed.
8. The summons of the suit were issued to the defendants upon which defendant no. 1 given his no claim to the suit property hence deleted from the array of parties vide order dated 26.03.2019. Thereafter, WS filed on behalf of defendant no. 2 and 3. In their WS defendants sought dismissal of present suit for mis-joinder of the parties, collusive suit and locus of plaintiff. It is averred that, defendant no. 2 is the exclusive owner of the suit property and present suit is a collusive suit filed by plaintiff with defendant no. 1 to deprive defendant no. 2 from her valuable right. It is further averred that possession of defendant no. 2 is protected under Easement Act, 1882. It is also averred that plaintiff and her husband along with defendant no. 1 are continuously harassing defendant no. 2 since 2007 and took signature on blank documents on various SHILPI M JAIN occasion. It is further averred that several properties owned by defendant no. 1 Digitally signed by SHILPI M JAIN Date: 2025.01.31 CS DJ ADJ 76/2019 Darshana Devi Vs Anil Kumar and Ors. Page No. 4 of 10 17:01:24 +0530 and husband of plaintiff while suit property is exclusively owned by defendant no. 2. It is further averred that as per oral family settlement arrived between the plaintiff, her husband, defendant no.1, defendant no. 2 and younger son of plaintiff, it was mutually agreed that plaintiff and her husband would transfer suit property in the name of defendant no. 1 and 2 but same was defaulted by plaintiff and her husband. It is further averred that in lieu of said settlement, defendant no. 1 has also transferred his right/share in other property in favour of plaintiff, her husband and younger son of plaintiff. It is further averred that father of defendant no. 2 and 3 has given money to defendant no. 1 at various occasion and same was also acknowledge by defendant no. 1. It is further averred that it is only due to the financial help given by father of defendant no. 1 suit property could be constructed. Lastly, it is averred that present suit may be dismissed with heavy cost.
9. Replication to the written statement of defendants was filed on behalf of the plaintiff, thereby, reiterating and reaffirming the contents of the plaint.
10. Record reveals that vide order dated 20.02.2024, Preliminary Decree of Possession under Order XII Rule 6 CPC was passed in favour of plaintiff.
ISSUES :
11. From the pleadings of parties, following issues are framed vide order dated 20.05.2024:-
i. Whether plaintiff is entitled for mesne profit @ Rs. 9,000/- PM against defendant no. 2 & 3 w.e.f. 19.01.2019 till date of actual physical possession qua suit property i.e. First floor of RZF-773/ 26, Gali No. 13, SHILPI M JAIN Raj Nagar II, Palam Colony, New Delhi-110077 as prayed for? OPP Digitally signed by CS DJ ADJ 76/2019 Darshana Devi Vs Anil Kumar and Ors. Page No. 5 of 10 SHILPI M JAIN Date: 2025.01.31 17:01:31 +0530 ii. Whether the plaintiff is entitled for cost of the suit? OPP.
iii. Relief.
EVIDENCE GIVEN BY PARTIES
12. In support of his case, plaintiff examined Sh.
Laxmichand/Attorney of plaintiff, S/o Late Sh. Maan Singh, R/o RZF-772/26, Gali No. 13, Raj Nagar Part-II, Palam Colony, New Delhi-110077 who tendered his evidence by way of affidavit Ex. PW1/A and has relied upon following documents:
SL. PARTICULARS OF DOCUMENTS EXHIBITS/MARK NO.
1. Original Power of Attorney Ex.PW1/1
2. Certified copy of the order dt. 27.07.2024 Ex.PW1/2
3. Original rent agreement dt. 19.01.2019 qua Ex.PW1/3 second floor
4. Original rent agreement dt. 19.01.2019 qua Ex.PW1/4 third floor
5. Original rent agreement dt. 30.10.2023 qua Ex.PW1/5 the third floor
6. Original rent agreement dt. 14.09.2023 qua Ex.PW1/6 the second floor PW1 has not been cross-examined as defendant no. 2 and 3 have not appeared and opportunity was closed.
13. Thereafter, PE stands closed and matter was listed for DE.
However, as no evidence by way of affidavit filed on behalf of the defendants, DE also stands closed.
SHILPI 14. Arguments heard. Record Perused.
M JAIN Digitally signed by SHILPI M JAIN Date: 2025.01.31 17:01:39 +0530 CS DJ ADJ 76/2019 Darshana Devi Vs Anil Kumar and Ors. Page No. 6 of 10 ISSUE-WISE ANALYSIS AND FINDING:
Issue No. 1: Whether plaintiff is entitled for mesne profit @ Rs. 9,000/- PM against defendant no. 2 & 3 w.e.f. 19.01.2019 till date of actual physical possession qua suit property i.e. First floor of RZF-773/ 26, Gali No. 13, Raj Nagar II, Palam Colony, New Delhi-110077 as prayed for? OPP Issue no. 2: Whether the plaintiff is entitled for cost of the suit? OPP
15. Since above issues are inter related, taken simultaneously.
16. At this juncture, it would be imperative to refer to Section 2(12) of the CPC, which defines mesne profits and also to Order XX Rule 12 CPC, which prescribes the procedure to be followed by the Court while dealing with a claim for grant of mesne profits.
Section 2(12) CPC provides that:
"mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession;
Order XX Rule 12 CPC provides that, '12. Decree for possession and mesne profits.--
(1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree--
(a) for the possession of the property;
(b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent.
(ba) for the mesne profits or directing an inquiry as to such mesne profits;
SHILPI (c) directing an inquiry as to rent or mesne profits from the institution M JAIN of the suit until--
Digitally signed(i) the delivery of possession to the decree-holder, by SHILPI M JAIN Date: 2025.01.31 CS DJ ADJ 76/2019 17:01:47 +0530 Darshana Devi Vs Anil Kumar and Ors. Page No. 7 of 10
(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or
(iii) the expiration of three years from the date of the decree, whichever, event first occurs.
(2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.'
17. In the present matter, it is the contention of the plaintiff that plaintiff has debarred defendant no. 1 and 2 twice. Firstly, vide public notice dt.
22.07.2007 but, subsequent to that, on tendering of apology, plaintiff permitted defendant no. 1 and 2 to live in their house. However, defendant no. 1 and 2 did not mend their atrocities and again started to harass plaintiff and compelled by the circumstances, plaintiff again debarred defendant no. 1 and 2 vide public notice dt. 13.01.2019 and defendants left the premises. It is further submitted that, from 16.01.2019 onwards defendant no. 2 in connivance with defendant no. 3 again started visiting to the suit property with sole motive to harass the plaintiff who is senior citizen and infact forcefully occupied the suit property w.e.f. 19.01.2019. Hence, defendants are liable to make payment towards the mesne profit as plaintiff sustained the loss of proposed rent of Rs. 8,000/- to Rs. 10,000/- per month.
18. To prove their contention plaintiff relied upon rent agreement for 2nd and 3rd floor of the same premises for 19.01.2019 and 30.10.2023 as Ex.PW1/2 to Ex.PW1/6. Careful perusal of the Ex.PW1/3 to Ex.PW1/6 also reveals rent of Rs. 10,000/- to Rs. 11,500/- per month for per floor but, admittedly no material placed on record to show that defendant no. 2 and 3 used the premises to earn mesne profit.
19. Admittedly, defendant no. 2 (daughter-in-law) of the plaintiff and SHILPI at the best was in occupation of suit premises as licensee. At this juncture, it M JAIN Digitally signed by SHILPI M JAIN CS DJ ADJ 76/2019 Darshana Devi Vs Anil Kumar and Ors. Page No. 8 of 10 Date: 2025.01.31 17:01:54 +0530 would be apt to refer to the observations made by Calcutta High Court in Rampada Basak & Anr Vs The State of West Bengal & Ors1 " It is now well settled that the children and their spouses living in the senior citizen's house are at best 'licensees'. Such license would come to an end once the senior citizens are not comfortable with their children and their families."
20. Thus, Defendant No. 2 and 3 didn't have absolute right to remain in possession of her in law's self acquired property. Hence, vide order dated 20.02.2024, Preliminary Decree of Possession under Order XII Rule 6 CPC was passed in favour of plaintiff.
21. In the case at hand, instances galore, of ill treatment of the parents by the defendant no. 2 and 3 have been brought forth. Parents are stated to be suffering from various ailments, and the stress caused by the defendant no. 2 and 3 are only adding to their woes. But, role of dis obedient son of plaintiff (erstwhile defendant no. 1) can't be ignored who has equally participated in the enormous suffering and frustration of plaintiff and given his no claim after filing of this suit to get his name deleted. Thus, this Court observes that two statutes i.e. the DV Act and the PSC Act, would have to be borne in mind while passing orders, thereby maintaining the balance between two warring parties, namely the parents/in-laws and children/their families. While the right of residence of the daughter-in-law is to be recognized, the same also needs to be balanced depending upon the facts of each case with the right of the peaceful living of the parents as well.
22. Hence, considering overall facts and circumstances of present case, this court doesn't deem fit to grant monthly rent/mesne profit to the SHILPI M JAIN 1 WPA No. 10835 of 2021 decided on 23.07.2021 Digitally signed by SHILPI M JAIN Date: 2025.01.31 17:02:01 +0530 CS DJ ADJ 76/2019 Darshana Devi Vs Anil Kumar and Ors. Page No. 9 of 10 plaintiff rather lumpsum sum of Rs. 1,00,000/- is awarded in favour of plaintiff and against the defendant no. 2 and 3 for the unauthorised occupation charges of the suit property. Plaintiff shall be further entitled for pendente-lite and future interest @ 6% per annum on above decretal amount in addition to cost of suit. Issue No. 1 and 2 disposed off accordingly.
Issue No. 3: Relief (CONCLUSION)
23. Decree of Rs. 1,00,000/- is passed in favour of plaintiff and against the defendant no. 2 and 3 for the unauthorised occupation charges of the suit property. Plaintiff shall be further entitled for pendente-lite and future interest @ 6% per annum on above decretal amount from date of institution of present suit till date of actual realization. Plaintiff shall also be entitled for cost of the suit.
24. Decree sheet be prepared accordingly.
25. File be consigned to record room after due compliance.
Announced in open court on 31.01.2025 (SHILPI M JAIN) District Judge-05, South West District Dwarka Courts, New Delhi Digitally signed by SHILPI SHILPI M JAIN M Date:
JAIN 2025.01.31
17:02:08
+0530
CS DJ ADJ 76/2019 Darshana Devi Vs Anil Kumar and Ors. Page No. 10 of 10