Delhi District Court
Smt. Sushma Singh vs Smt. Premwati (Since Deceased) on 11 April, 2022
SUSHMA SINGH v. PREMWATI AND ORS.
IN THE COURT OF VIJAY KUMAR JHA,
ADDITIONAL DISTRICT JUDGE02, KARKARDOOMA
COURTS(EAST), DELHI
Civil Suit No.2329/2016
In the matter of:
Smt. Sushma Singh
W/o Sh. J.P. Singh
R/o 62A, Guru Aangad Nagar,
Delhi 110092.
..........Plaintiff
Versus
1. Smt. Premwati (Since deceased)
W/o Late Ranjit Singh
2. Sh. Om Prakash (deceased)
S/o Late Ranjit Singh
Through legal heirs
(a) Smt. Rajesh (Wife)
(b) Sh. Sunil (son)
(c) Ms. Manju (daughter)
(d) Ms. Anju (daughter)
(e) Ms. Ritu (daughter)
(f) Ms. Sonia (daughter)
All R/o Village Bakharwa,
P.O. Modi Nagar,
District Ghaziabad,
Uttar Pradesh.
3.Sh. Satish Kumar
S/o Late Ranjit Singh
4. Sh. Ramesh Kumar
S/o Late Ranjit Singh
Both R/o 46CII,
New Ashok Nagar,
Delhi - 110096.
CS No.2329/2016 PAGE NO. 1/ 28
SUSHMA SINGH v. PREMWATI AND ORS.
Permanent resident of :
Village Bakharwa,
P.O. Modi Nagar201204,
District Ghaziabad,
Uttar Pradesh.
............Defendants
Date of Institution : 14.12.2010
Date of Arguments : 29.09.2021
Date of Judgment : 11.04.2022
Suit for Possession, Recovery of mesne profit, Permanent and Mandatory
Injunction.
JUDGMENT
1. By this judgment, I shall dispose of the present suit filed by the plaintiff against the defendants for possession, recovery of mesne profits, permanent and mandatory injunction.
2. It is pleaded by the plaintiff in the plaint that the plaintiff is the owner of the property bearing no. 31, forming part of Khasra no. 402/268, Village Chilla Saroda Bangar, Abadi known as New Ashok Nagar, Delhi (Old; and the new no. is 46CII, New Ashok Nagar, Delhi with one room which has been shown in green colour in the site plan), hereinafter referred to as the suit property was purchased by the plaintiff from its previous owner Shri Mange Ram through usual documents like Agreement to Sell, General Power of Attorney, Affidavit, Will and registered receipt all dated 10/12/1987. After the purchase of the suit property plaintiff constructed two rooms, bathrooms and latrine on the CS No.2329/2016 PAGE NO. 2/ 28 SUSHMA SINGH v. PREMWATI AND ORS.
ground floor (shown in red colour in the site plan, also part of the suit property) the defendant no. 1 is stated to be motherinlaw (since deceased) of the plaintiff while defendant no. 2 to 4 to be the real brother of the husband of the plaintiff.
3. It is the case of the plaintiff that on 08/03/1997 the defendant no. 2 and 3 approached the plaintiff with a request for residential accommodation. The plaintiff allowed defendant no. 2 and 3 to use room no. 1 of the suit property (as shown in red colour in the site plan). During that time the defendant no. 4 was residing in the tenanted premises, the defendant after vacating the tenanted premises in connivance with the defendant no. 2 and 3 started living in the suit property. The defendant no. 2 and 3 are said to have trespassed and took possession of the rooms no. 2 and 3 in the suit property (shown in red and yellow colour in the site plan). It is also alleged that the defendant no. 2 to 4 illegally and unlawfully broken the lock of the third room in the suit property which was earlier in possession of the plaintiff. On 14/04/2003 the plaintiff lodged a complaint with the local police with respect to the defendants no. 2 to 4 taking illegal possession of the third room of the suit property. On a couple of occasions that is on 14/04/2003 and 17/04/2003 matter was again reported to the police by the plaintiff.
4. It is further the case of the plaintiff that the defendants have taken electricity connections in the suit property without the permission and consent of the plaintiff. The request of the plaintiff to the defendants to hand over the vacant and physical possession of the suit property was declined. That the defendants being the licensee, the plaintiff terminated the license of the defendants vide notice dated 24/12/2003. Briefly, in CS No.2329/2016 PAGE NO. 3/ 28 SUSHMA SINGH v. PREMWATI AND ORS.
aforesaid facts and circumstances, the plaintiff has filed the present suit for the following reliefs: i. Pass a decree of possession of the suit property bearing No. 31, forming part of Khasra No. 402/268, Village Chilla Saroda Bangar, Abadi known as New Ashok Nagar Delhi (old) and new no. 46 C II, New Ashok Nagar, Delhi clearly shown in the annexed site plan, in favour of the plaintiff and against the defendant; ii. Pass a decree of recovery of use and occupation charges with effect from 01/10/2007 to 30/09/2010@₹ 5000/ per month amounting to ₹ 180,000/ along with interest@18% per annum from the date of the institution of the suit till realisation, in favour of the plaintiff and against the defendants;
iii. Pass a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining them, their agents, associates, representatives etc. from selling, transferring and/or creating 3rd party interest in the suit property bearing No. 31, forming part of Khasra No. 402/268, Village Chilla Saroda Bangar, Abadi known as New Ashok Nagar Delhi (old) and new no. 46 C II, New Ashok Nagar, Delhi and also from raising any additional, illegal and unauthorised construction and other activities in the suit property;
iv. pass a decree of mandatory injunction in favour of the plaintiff and against the defendants thereby directing the defendants to remove the illegal and unauthorised construction and restore the suit property in its original position.
5. The defendant no. 1 and 3 have filed a joint written statement. By way of preliminary objections, it is the defence of the defendants that the husband of the defendant no. 1 had purchased the suit property from its previous owner Shri Mange Ram on 10/12/1987 and therefore Shri Mange Ram could not have sold the suit property to the plaintiff again CS No.2329/2016 PAGE NO. 4/ 28 SUSHMA SINGH v. PREMWATI AND ORS.
on 10/12/1987. The suit of the plaintiff has not been properly valued for the purposes of Court fees.
6. On merits, it is the case of the defendants no. 1 and 3 that suit property was purchased by Mr. Ranjit Singh (since deceased), who was the husband of defendant no. 1, father of defendants no. 2 to 4 and father inlaw of the plaintiff, from one Mr. Mange Ram on 11/12/1986. The said Mr. Mange Ram executed the customary documents of sale viz. General Power of Attorney, Agreement to Sell, Will and receipt all executed on 11/12/1986. In the municipal record, the suit property was mutated in the name of Mr. Ranjit Singh. Mr. Ranjit Singh left for his heavenly abode on 13.03.1996.
7. It is further the case of defendants no. 1 and 3 that during the lifetime of Shri Ranjit Singh, besides purchasing the suit property, Shri Ranjit Singh also purchased property bearing no. F62A, West Guru Angad Nagar, Laxmi Nagar, Delhi. The family comprised of the patriarch Shri Ranjit Singh, his wife defendant no. l and seven sons viz. Mr. Jai Prakash Singh (husband of the plaintiff), defendants no. 2 to 4, Mr. Sudesh Kumar, Mr. Sanjay Kumar and Mr. Satya Prakash. There was a family settlement between the members of the family whereby and where under it was agreed that the husband of the plaintiff would reside along with his family in Property No. F62A, West Guru Angad Nagar, Laxmi Nagar, Delhi, the defendants no. 2 to 4 would reside along with their respective families in the suit property and the remaining three brothers would reside in the ancestral property situated in the village. The defendant no. 1 and her husband late Shri Ranjit Singh would stay either in the suit property or the ancestral property at the village. The CS No.2329/2016 PAGE NO. 5/ 28 SUSHMA SINGH v. PREMWATI AND ORS.
construction at suit property was got done by the defendants and not by the plaintiff or her husband.
8. It is further the case of the defendant no. 1 and 3 that pursuant to the aforesaid family settlement, the members of the family started living in their respective portions with effect from the year 1996. The documents of title executed on 11.12.1986, after the demise of Shri Ranjit Singh, remained in the custody of defendant no. 1. However, in the month of November, 2002, Shri Jai Prakash Singh (husband of the plaintiff) approached the defendant no. 1 and succeeded in taking the original title documents dated 11/12/1986 from her by deception. The husband of the plaintiff represented to defendant no. 1 that the said documents were required by him for some undisclosed purpose. The defendant no. 1, who was unlettered and uneducated, in good faith and having no reasons to suspect the motive of her son, handed over the original title documents to him and ever since the same are in his power and possession. The answering defendants have only a photocopy each of the General Power of Attorney and Will both dated 11/12/1986. The defendant no. 1 and 3 requested the husband of the plaintiff for the return of the original title documents but it was refused.
9. It is alleged in the written statement of defendants no. 1 and 3 that in the month of December 2002 the plaintiff and her husband claimed ownership rights over the suit property and also started harassing the defendant no. 1 to 4 by lodging complaints with the police authorities. As per the defendant no. 1 and 3, the documents relied upon by the plaintiff are doubtful.
10.There are averments in the written statement filed by the defendant no.
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1 and 3 with respect to showing the possession of the suit property and it is the claim of the defendants no. 1 and 3 that the plaintiff and/or her husband were never in possession of the suit property, therefore the defendants could not have come into the possession of the suit property with the permission of the plaintiff and still further the defendant could not be the licensee of the plaintiff qua the suit property. In a sum and substance, the defendants no. 1 and 3 in the written statement has denied all the material averments as stated by the plaintiff in her plaint.
11.In the separate written statement filed on behalf of the defendant before, in sum and substance the defence of the defendant no. 4 is similar to the defences taken by the defendant no. 1 and 3 in their written statement.
12.After the inception of the suit, the defendant no. 2 expired written statement has been filed by one of the legal heirs of the defendant no. 2 in which the claim of the plaintiff being the owner of the suit property has been admitted along with other facts as averred by the plaintiff in the plaint.
13.After the completion of the pleadings, following issues were framed for trial: i. Whether the plaintiff is entitled to get a decree of possession in respect of the suit property? OPP ii. Whether the plaintiff is entitled to get a decree for charges for use and occupation? If so, at what rate and from which date and from which of the defendants? OPP iii. Whether the plaintiff is entitled to get a decree of permanent injunction? OPP iv. Whether the plaintiff is entitled to get a decree of mandatory injunction as prayed for in the plaint? OPP CS No.2329/2016 PAGE NO. 7/ 28 SUSHMA SINGH v. PREMWATI AND ORS.
v. Whether the suit has not been properly valued for the purposes of Court fee? OPD (1 and 3) vi. Whether the suit is timebarred? OPD 4 vii. Relief.
2. To prove the case, the plaintiff has examined herself as PW1. The examination in chief of the plaintiff is by way of affidavit exhibited as Ex. PW1/A. In the examinationinchief the deposition of the plaintiff is on the lines of the facts as averred by the plaintiff in her plaint. The plaintiff has relied upon and proved the following documents: i. Ex.PW1/1 is the site plan.
ii. Ex.PW1/2 to Ex.PW1/6 are Agreement to Sell, General Power of Attorney, Affidavit, Will, Receipt all dated 10 th December, 1987.
iii. Ex.PW1/7 is the certified copy of complaint dated 17.04.2002.
iv. Ex.PW1/8 is the certified copy of complaint dated 20.12.2003.
v. Ex.PW1/9 is the copy of notice dated 24.12.2003. vi. Ex.PW1/10 to Ex.PW1/16 are the seven postal receipts. vii. Ex.PW1/17 is One UPC.
viii. Ex.PW1/18 to Ex.PW1/21 are four AD cards.
ix. Ex.PW1/22 to Ex.PW1/24 are three envelop containing the above notices.
x. Ex.PW1/25 to Ex.PW1/26 are certified copies of General Power of Attorney and Will dated 11.12.1986.
xi. Ex.PW1/27 is the certified copy of order dated 05.05.2005. xii. Ex.PW1/28 is the certified copy of plaint.
xiii. Ex.PW1/29 to Ex.PW1/33 are house tax receipts.
3. Shri R.B. Tiwari has been examined as PW2. The examination in chief is by way of affidavit exhibited as Ex. PW2/A. DW2 is an attesting witness to the documents executed by Shri Mange Ram in favour of the CS No.2329/2016 PAGE NO. 8/ 28 SUSHMA SINGH v. PREMWATI AND ORS.
plaintiff all dated 10/12/1987.
4. Shri Brij Pal Singh, from the office of the SubRegistrar has been examined as PW3 and he has proved the registered receipt dated 10/12/1987 as Ex. PW3/A.
5. Constable Rajesh Kumar from PS new Asoka Nagar has been examined as PW4 who has proved certain documents with respect to the complaints preferred by the plaintiff and the police Station as Ex. PW 4/1 and PW4/2.
6. Shri Sushil Kumar Bhatt, Assistant Ahlmad as PW5 who brought before the Court the criminal case file in a FIR no. 26/2004.
7. Shri Kamal Kishore, Junior Judicial Assistant from Record Room (Civil), KKD as PW6 who proved plaint, of CS no. 265/10/06 as Ex. PW1/28, certified copy of evidence of defendant no. 1 recorded in the said case as PW6/1 (colly) and PW6/2 (colly). Certified copy of evidence of Shri Satish Kumar examine the said case as DW2 as Ex. PW6/3 (colly) and PW6/4 (colly).
8. Vide statement of the counsel for the plaintiff on 06/10/2016 the evidence of the plaintiff was closed in affirmative.
9. On behalf of the defendants no. 1 and 3, defendant no. 1 was examined as DW1. The examinationinchief is by way of affidavit. The examinationinchief was tendered on 05/12/2016 however the cross examination of DW1 reflects that at the request of the counsel for the defendants, DW1 was dropped as DW1 was illiterate, and 76 years of age and unable to comprehend the questions.
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10.The defendant no. 3 has been examined as DW2. The examinationin chief of DW2 is by way of an affidavit exhibited as Ex. DW2/A. The deposition of facts in the examinationinchief is in consonance with the facts as stated by the defendant no. 1 and 3 in the written statement. The DW2 has deposed his father having purchased the suit property from its previous owner Shri Mange Ram on 11/12/1986 on the basis of customary documents viz. General Power of Attorney, Agreement to Sell, Will and receipt all executed on 11/12/1986. DW2 has relied upon and proved the following documents: i. The house tax receipt no. 1224635 for the year 2004 05 as Ex. DW2/1.
ii. The receipt issued by Vikas Sudhar Samiti (Regd.) as Ex.
DW2/2.
iii. Marriage card as Ex. DW2/3.
iv. Record of remuneration as Ex. DW2/4.
v. Acknowledgement slip issued by MTNL as Ex. DW2/5.
vi. Copy of police complaint dated 24/12/2003, dated 07/05/2003
and 30/04/2003 as Mark A, B and C.
11.Shri Shiv Kumar Jindad, Patwari, in the office of SDM, Mayur Vihar, Delhi husband examined as DW3 who produced the documents i.e., Jamabandi, year 198485 and Khasra Girdawari, year 2011 to 2014 of village Chilla Saroda Bangar, district East, SubDivision, Mayur Vihar, Delhi exhibited as Ex. DW3/1 (colly). And, DW3 also deposed that as per the record Khasra no. 402/268, area 1 Bigha 10 Biswah, village Chilla Saroda Bangar, district East, SubDivision, Mayur Vihar, Delhi, it pertains to ownership of Government that is Sarkar Daulatmadar and name of cultivator is Land and Building Department, Government of GNCT, Delhi.
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12.Shri Daya Ram Dubey, Kanoongo, in the office of LAC East, Delhi as DW4 who has proved the Award File No. 39/8283 of village Chilla Saroda Bangar which was announced on 30/09/1982 as DW4/1 (colly).
13.The defendant no. 4 has examined himself as DW5. The examination inchief of DW5 is by way of affidavit which is exhibited as Ex. DW 5/A. The deposition of DW5 is similar to the facts as averred by the defendant no. 4 in his written statement. DW5 has relied upon by the documents relied upon by the defendant no. 3.
14.After all the witnesses of the defendants were examined, the defendant's evidence was closed. With the permission of the Court, the plaintiff examined the plaintiff in rebuttal again as PW1 who proved the certified copy of the Order sheet dated 12/10/2004 in the criminal case bearing no. 49/2004 titled as Sushma Singh & others v. Om Prakash which is exhibited as Mark - Z.
15.I have heard the arguments and perused the record. Written submissions on behalf of the plaintiff and the defendants have also been filed. The Court returns the issuewise findings here under.
Issue no. 1 Whether the plaintiff is entitled to get a decree of possession in respect of the suit property? (OPP)
16.The plaintiff shall be entitled to get the decree of possession of the suit property against the defendants if the plaintiff, on the balance of probability is able to prove that the plaintiff has better 'entitlement' in the suit property than the defendants [Ref. Suresh Kumar v. Saroj Atal; 2012(189) DLT 285]. The get the possession the plaintiff is not CS No.2329/2016 PAGE NO. 11/ 28 SUSHMA SINGH v. PREMWATI AND ORS.
obligated to prove beyond reasonable doubt that the plaintiff is in fact the owner of the suit property and ownership of the plaintiff is free from any kind of blemish. The present judgment which is being given is not the judgment in rem but is binding only among the parties to the present litigation. Anyone who might have better title than either the plaintiff or the defendant is not prohibited to agitate the right in the suit property by way of legal proceedings in accordance with law.
17.In the present case, there were four defendants. After the institution of the suit defendant no. 2 expired. The legal heirs of defendant no. 2 have been impleaded as defendants in the present suit. On behalf of defendant no. 1 and 3 joint written statement has been filed. After hearing the final arguments and before the judgment could be pronounced defendant no. 1 also expired. The LR of the defendant no. 2 and the defendant no. 4 have filed their separate written statements. The LR of the defendant no. 2 in the written statement has admitted the case of the plaintiff. The contesting defendants are defendants no. 1, 3 and 4.
18.The admitted case of the plaintiff as well as defendant no. 1, 3 and 4 is that one Shri Mange Ram was the original owner of the suit property.
19.The claim of the plaintiff is that from Shri Mange Ram, the plaintiff purchased the suit property on usual documents like General Power of Attorney, Affidavit, Agreement to Sell, Will and registered receipt all dated 10/12/1987 whereas the case of the contesting defendants is that it was the deceased husband of the defendant no. 1 and father of the other contesting defendants namely Shri Ranjit Singh who had purchased the suit property from the previous owner Shri Mange Ram on 11/12/1986 by way of usual documentation that is General Power of Attorney, CS No.2329/2016 PAGE NO. 12/ 28 SUSHMA SINGH v. PREMWATI AND ORS.
agreement to sell, Will and receipt all dated 11/12/1986.
20.As per the written statements filed on behalf of the defendant no. 1 and 3 after selling the suit property to the husband of the defendant no. 1, Shri Mange Ram had no authority to sell the suit property again on 10/12/1987 and that Shri Mange Ram defrauded the plaintiff.
21.It is also the claim of defendant no. 1 and 3 that the documents relied upon by the plaintiff are forged. In what manner the documents are false has not been stated by the defendants no. 1 and 3, whether the documents on which plaintiff relying upon does not bear the signature of Shri Mange Ram or his signatures have been forged, etc. no kind of evidence has been led on behalf of the defendants with respect to the documents relied upon by the plaintiff being forged and fabricated or even to the effect that those documents are false in any sense or in any manner.
22.On behalf of the contesting defendants no documents of any kind, not even the documents like General power of attorney, affidavit, Agreement to Sell, etc. have been proved to indicate that Sh. Mange Ram did in fact execute such kind of purported documents of 'title' regarding the suit property on 11/12/1986 in favour of the husband of defendant no. 1. The documents which have been proved on behalf of the defendants do indicate that it is the defendants who are in the possession of the suit property and nothing more than that.
23.Even assuming the story as given by the defendants in the written statement that the documents of the title of the suit property which were executed on 11/12/1986 by Shri Mange Ram in favour of the husband of the defendant no. 1, Shri Ranjit Singh remained in the custody of CS No.2329/2016 PAGE NO. 13/ 28 SUSHMA SINGH v. PREMWATI AND ORS.
defendant no. 1. And, in the month of November 2002 Shri Jai Prakash Singh; the husband of the plaintiff approached the defendant no. 1 and succeeded in taking the original title documents from the defendant no. 1 by deception. No kind of efforts have been made by the defendants to lead any kind of secondary evidence in order to prove that in fact Shri Mange Ram had executed the purported title documents in favour of Shri Ranjit Singh that is the husband of the defendant no. 1 on 11/12/1986. The defendants have failed to prove that Shri Mange Ram executed any documents in favour of Shri Ranjit Singh on 11/12/1986 pertaining to the suit property.
24.Coming to the crossexamination of the plaintiff as PW1 on above said aspect; no kind of suggestion given or question was asked from PW1 that the husband of the PW1 took the purported title documents all dated 11/12/1986 from the custody of the defendant no. 1 by deception.
25.The plaintiff has not examined her husband as a witness but that did not incapacitate the defendants from examining the husband of the plaintiff as a witness in any manner, with respect to such a vital fact regarding the husband of the plaintiff taking documents dated 11/12/1986 from the custody of the defendant no. 1.
26.It may also be noted that from the suggestion to the PW1 that the suit property was first purchased from Shri Mange Ram by Shri Ranjit Singh ("It is wrong to suggest that the suit property was first purchased from Sh. Mange Ram by Sh. Ranjit Singh".) the first nail in the coffin of the case of the defendant was put by the suggestion given by the counsel for the defendant no. 4 (the crossexamination was adopted by the counsel for defendant no. 1 and 3) to the plaintiff; indicating that the CS No.2329/2016 PAGE NO. 14/ 28 SUSHMA SINGH v. PREMWATI AND ORS.
case of the defendants was that Sh. Mange Ram sold the property for the second time to the plaintiff which is consistent with the defence taken by the defendants in the written statement. The other nails in the coffin of the case of the defendants were put by the defendants by not examining any witness and even not leading any secondary evidence to prove that Sh. Mange Ram did in fact execute any kind of document with respect to the suit property in favour of Shri Ranjit Singh on 11/12/1986.
27.The suggestion as given to the plaintiff in her crossexamination as referred to herein above and the case as set up by the defendants in the written statement leads to the admission that Sh. Mange Ram was the previous owner of the suit property having the authority to sell the suit property. First Shri Mange Ram sold the suit property to Shri Ranjit Singh that is the husband of the defendant no. 1 and subsequently to the plaintiff which Sh. Mange Ram having already sold to Shri Ranjit Singh could not have sold the property to the plaintiff. Even in the written submissions filed on behalf of the defendant no. 1 and 3 in paragraph 17 it has been stated, "That Sh. Manga Ram had no authority to sell the suit property again on 10.12.1987: Mr. Mange Ram defrauded the plaintiff. The documents relied upon by the plaintiff are forged. The documents relied upon and filed by the plaintiff are doubtful". Merely by taking the defence that the documents are forged or are doubtful in nature does not make any document forged or doubtful. If anyone takes any defence of any kind that as per Section 101 and 102 of Evidence Act the burden of proving the fact that the documents were forged and doubtful whereupon the defendants taking such defence. It may again be noted that in the crossexamination of the plaintiff as PW1 there is not CS No.2329/2016 PAGE NO. 15/ 28 SUSHMA SINGH v. PREMWATI AND ORS.
even a suggestion that the documents exhibited as Ex. PW1/1, PW1/2, PW1/3, PW1/4 and PW1/5 (which are General power of attorney, Agreement to Sell, receipt, Will and affidavit) or bearing the thumb impression and the signature of Shri Mange Ram does not bear the signature and thumb impression of Shri Mange Ram.
28.On receipt; Ex. PW1/3 there is some ambiguity with respect to the letter 'J' or 'T', in the name of the husband of the plaintiff. When there is no ambiguity in the name of the plaintiff who has been referred to as the wife of someone either J.P.Singh or T.P.Singh that does not affect Ex. PW1/3 in any manner. One is referred to as the son/daughter or wife of somebody so that the identity of such person can be fixed with certainty. It is not the case of the defendants that in the name of Smt. Sushma Singh there is some other person who is not the plaintiff and whose husband's name is Shri T.P.Singh which has been so clarified by the plaintiff in her crossexamination wherein PW1 has deposed, "I have seen document Ex. PW1/4 and the name of my husband is wrongly written there as T. P. Singh in place of J. P. Singh".
29.The title in any property does not arise by merely residing or having the physical possession of the property, though certain rights may arise by the possession which may be perfected as title if the possession is adverse to that of the real owner. Merely because the defendants are residing in the suit property for many number of years unless the defendants are residing and claiming title in such property adverse to that of the rightful owner no right as such is created by having the physical possession of an immovable property. It is not the case of the defendants that the defendants are the title in the suit property by way of CS No.2329/2016 PAGE NO. 16/ 28 SUSHMA SINGH v. PREMWATI AND ORS.
adverse possession.
30.Before the defendants could claim to be as the coowners of the suit property or having any right, title or interest in the suit property by way of any family settlement the first requirement was to prove that the husband of the defendant no. 1 Shri Ranjit Singh was really the owner of the suit property which already discussed herein above the defendants have not proved. Because of failure to prove any right, title or interest in the suit property that of Shri Ranjit Singh, the claim of the defendants being the coowners in the suit property or having any right, title or interest in the suit property by way of any family settlement cannot be countenanced and cannot be assumed to have been proved.
31.Merely having electricity connection or telephone connection in an immovable property and the fact that property tax is being deposited with the government does not create any right as to the title in an immovable property. These facts indicate that the person on whose name the electricity connection or telephone connection or the tax is being deposited may be in the possession of an immovable property having such utility connections or with respect to which the tax is being paid. Similarly if one has a voter, I card issued on any property of the members of the society by retreating the defendants as the coowners of the suit property does not create any right, title or interest in an immovable property. Right, title and interest in an immovable property is created on the basis of registered document or through a person who had title in an immovable property on the basis of documents which are legally recognised as title documents.
32.If it is assumed that the plaintiff is having the title in the suit property CS No.2329/2016 PAGE NO. 17/ 28 SUSHMA SINGH v. PREMWATI AND ORS.
and the defendants are unable to explain their possession in the suit property or the reasons which have been given by the defendants leading to the defendants having the possession of the suit property have not been proved then keeping into consideration the relationships between the plaintiff and the defendants it has to be assumed, on the balance of probability that if the defendants are having the physical possession of the suit property it could be only because of leave and license of the plaintiff and the legal status of the defendants would be that of a licensee. In civil cases the facts have not to be proved beyond reasonable doubt, it is sufficient that on balance of probability one line of the story appears to the Court more believable than the other line of story [Ref. Rameshwar Dass v. Hakim Javed; 2012(187) DLT 73].
33.Any Will if executed does not have the magical power to confer the title in immovable property if the person executing the will himself/herself did not have the title. A person can never transfer the title better than what one himself has except in few exceptional cases recognised by law and transfer of better title by execution of Will is not one of the exceptions recognised by the law. Even if the defendant no. 1 executed Will dated 22/08/2003 in favour of the defendant, if the defendant no. 1 did not have the title in the suit property then to whomsoever the defendant no. 1 might have bequeathed the suit property by way of execution of the said Will not get a better title than what the defendant no. 1 herself had.
34.It is true that General power of attorney, Agreement to Sell, Will and affidavit are not title documents of an immovable property but these documents, particularly the power of attorney does give some rights to CS No.2329/2016 PAGE NO. 18/ 28 SUSHMA SINGH v. PREMWATI AND ORS.
do or perform certain acts with respect to an immovable property on behalf of the owner of the said property which, if done would in law, would be tantamount to have been done by the owner of such property. The unregistered Agreement to Sell if executed before 24/09/2001 gives the protection of section 53A of Transfer of Property Act.
35.Even if by way of Ex.PW1/1 that is the General power of attorney in favour of the plaintiff executed by admitted owner of the suit property Shri Mange Ram the plaintiff cannot be held to be the owner of the suit property, in spite of it by one of its clauses the plaintiff has the right conferred by the admitted owner Shri Mange Ram to file inter alia, suits relating to the suit property indicating that even if the plaintiff is assumed not to be the owner of the suit property in spite of it on behalf of the owner the plaintiff can file the suit for possession on behalf of the owner of the suit property on the basis of General power of attorney.
36.It may again be mentioned that it is not the case of the defendants that the donor of the General power of attorney Ex. PW1/1 is dead or Ex. PW1/1 stands revoked or is legally void. Such kind of case has not been set up by the defendants nor there is any crossexamination in this regard from the witnesses of the plaintiff.
37.The present is the case in which the plaintiff has some semblance of right on the basis of documents PW1/1 to PW1/5 including that of part performance under section 53A of Transfer of Property Act, that right is not that of the ownership or the title in the suit property but the plaintiff on the basis of such documents has certain rights in the suit property which is superior to that of the defendants and whatever right the plaintiff has on the basis of said documents in the suit property could CS No.2329/2016 PAGE NO. 19/ 28 SUSHMA SINGH v. PREMWATI AND ORS.
only be impeached and questioned by the admitted owner of the suit property that is Shri Mange Ram and not by the defendants.
38.In a suit for possession, it is always not necessary that an absolute title by the plaintiff be proved. It is sufficient if the plaintiff is able to prove a better right to have the possession of the suit property than the defendants. In the facts and circumstances of the case the ratio of the judgment of the Hon'ble Supreme Court in Suraj Lamp and Industries Private Limited v. State of Haryana (2012) 1 SCC 656 is not applicable as both the plaintiff and the defendants admit to derive the right in the suit property from the admitted owner of the suit property Shri Mange Ram. The plaintiff has proved certain documents Ex. PW1/1 to PW1 1/5 which gives certain rights including that of filing of the suit whereas the defendants have failed to prove any rights emanating from the original owner of the suit property.
39.In the failure of putting relevant question to PW1 regarding execution of documents Ex. PW1/1 to PW1/5, e.g., the said documents have not been executed by Shri Mange Ram, that Sh. Mange Ram did not have any right, title or interest in the suit property, that Shri Mange Ram was not the owner of the suit property because of which Shri Mange Ram could not have executed the said documents in favour of the plaintiff, etc. therefore any facts of any kind elicited from the other witnesses of the plaintiff could not salvage the case of the defendants in any manner.
40.It was an afterthought to try to prove that the suit property belonged to the government as such line of crossexamination is completely missing from that of the plaintiff for the witnesses of the plaintiff. The defendants did not take such defence in the written statement. By way CS No.2329/2016 PAGE NO. 20/ 28 SUSHMA SINGH v. PREMWATI AND ORS.
of deposition of DW3; Shiv Kumar Jindad, Patwari, from the office of SDM, Mayur Vihar, Delhi and Shri Daya Ram Dubey, Kanoongo from the office of LAC, East, Delhi the defendant tried to prove that the suit property was acquired by the government and that it was the government who was the owner of the suit property. However, the deposition of DW3 and DW4 is of no consequence as any amount of evidence lead which is beyond the pleadings could not be seen by the Court [Ref. Chander Kishore Sharma v. Shrimati Kampa Wati; 1984 AIR (Delhi) 14, Fats Inc. v. Zen Technologies Limited; 2008(149) DLT 260, Bondar Singh v. Nihal Singh; 2003 AIR (SC) 1905].
41.In the light of discussion herein above, the issue under discussion is decided in favour of the plaintiff and against the defendants. The plaintiff shall be entitled to get a decree of possession of the suit property.
Issue no. 2 Whether the plaintiff is entitled to get a decree for charges for use and occupation? If so, at what rate and from which date and from which of the defendants? OPP
42.As per the defendants, the defendants came into the possession of the suit property on the basis of family settlement whereby it was agreed that the defendants no. 2 and 4 would reside along with the respective families in the suit property. In the entire case including the written statement and the deposition of the witnesses of the defendants no specific date has been given as to when the family settlement was arrived at. Whether it was before the death of Shri Ranjit Singh; the CS No.2329/2016 PAGE NO. 21/ 28 SUSHMA SINGH v. PREMWATI AND ORS.
husband of the defendant no. 1 or after the death of Shri Ranjit Singh on 13/03/1996. The defendants also failed to prove even on the balance of probability that Shri Ranjit Singh had purchased the suit property from its previous owner Shri Mange Ram on 11/12/1986. In these circumstances when the defendants have failed to prove the material facts on the basis of which the defence to the suit of the plaintiff has been taken, it has to be assumed that the facts with which the plaintiff has approached the Court is true.
43.It may again be reiterated here that the nature of crossexamination of the plaintiff; PW1 is such that the substantial testimony of PW1 has gone unrebutted.
44.In the examination in chief of PW1 i.e. Ex. PW1/A, PW1 has deposed to regarding construction of two rooms, bathrooms and latrine on the ground floor of the suit property after purchasing the suit property, allowing defendant no. 2 and 3 to use room no. 1 in the suit property as shown in red colour in the site plan, the defendant no. 2 and 3 illegally and unlawfully occupying the second room in the suit property as shown in yellow colour in the site plan, the defendant no. 4 after vacating the tenanted premises started residing in the suit property in connivance with the defendants no. 2 and 3, the defendants no. 2 (since deceased) to defendant no. 4 taking possession of the third room after breaking the lock also shown in yellow colour in the site plan. Despite these averments in the examinationinchief of PW1 none of the facts have been touched upon in the crossexamination of the plaintiff; PW1 even suggesting that these facts were wrong relating to the inescapable conclusion that on the balance of probabilities of these CS No.2329/2016 PAGE NO. 22/ 28 SUSHMA SINGH v. PREMWATI AND ORS.
facts have been duly proved by the plaintiff.
45.The legal status of all the defendants including that of defendant no. 4 visàvis the plaintiff and the suit property would be that of a licensee (this aspect has been touched upon at the time of discussion on issue no.
1) and the license as per the provisions of Easement Act would stand terminated when the plaintiff asked the defendants to vacate and handover the physical possession of the suit property.
46.From the deposition in paragraphs 8 and 9 of Ex. PW1/A, it appears that in April 2003 the plaintiff asked the defendants to vacate the suit property (the present suit has been filed in December 2010 making the suit within limitation period as per Article 65 of Limitation Act). This aspect has also gone unrebutted in the crossexamination of the plaintiff as PW1.
47.The license of the defendants to stay in the suit property as per the case of plaintiff and the deposition was terminated in April 2003. The plaintiff has deposed in examinationinchief; PW1/A that the similarly situated property in the area of new Ashok Nagar would fetch a rental of ₹5000/ per month at the time of filing of the suit also that at the time of giving the deposition of similarly situated property would fetch a rental ₹10,000/ per month. Once again in the crossexamination of PW1 the said testimony has gone completely unrebutted. Therefore, for the period of three years immediately filing the present suit that is w.e.f. 01/10/2007 to 13/09/2010 the plaintiff would be entitled to recover use and occupation charges @ ₹5000/ per month amounting to ₹180,000/ from all the defendants jointly and severally.
48.The plaintiff is not specifically prayed for use and occupation charges CS No.2329/2016 PAGE NO. 23/ 28 SUSHMA SINGH v. PREMWATI AND ORS.
since the time of filing of the suit till the defendants hand over vacant and peaceful possession of the suit property to the plaintiff. However, as the plaintiff has prayed for any other or further orders which may be passed and the relief granted as the Court finds fit and proper. Therefore, it is hereby directed that the defendants shall be liable to pay use and occupation charges @ ₹5000/ per month since the date of filing of the present suit till the defendants hand over the vacant and peaceful possession of the suit property to the plaintiff. The plaintiff shall also be entitled to simple interest @ 6% per annum on the accrued use and occupation charges amounting to ₹180,000/ from the date of filing of the suit till the defendants actually pay the said amount and also simple interest at the same date on use and occupation charges @ ₹5000/ per month since the date of the filing of the present suit till the defendants hand over the vacant peaceful possession of the suit property to the plaintiff. The issue under discussion is decided accordingly.
Issue no. 3 Whether the plaintiff is entitled to get a decree of permanent injunction? OPP
49.As the plaintiff has been found to be entitled to the decree of possession of the suit property against the defendants. Further as the legal status of the defendants qua the suit property is found to be that of a licensee, therefore plaintiff shall be entitled to a decree against the defendants, their agents, etc. thereby restraining them from creating any third party interest in the suit property or raising any additional, illegal and unauthorised construction of the suit property. The issue is decided in favour of the plaintiff and against the defendant.
Issue no. 4 Whether the plaintiff is entitled to get a CS No.2329/2016 PAGE NO. 24/ 28 SUSHMA SINGH v. PREMWATI AND ORS.
decree of mandatory injunction as prayed for in the plaint? OPP
50.The deposition of the plaintiff; PW1 in paragraph 9 of the examination inchief Ex. PW1/A that is, "The defendants have also caused damages to the property in question by removing the door of the room and bathroom, extended room no. 1 and constructed the kitchen and shed", has gone unrebutted, therefore the plaintiff shall be entitled to get a decree of mandatory injunction as prayed for. The defendant shall be liable to remove the aforesaid construction and restore the suit property in its original position. Issue under discussion is decided in favour of the plaintiff and against the defendants.
Issue no. 5 Whether the suit has not been properly valued for the purposes of Court fee? OPD
51.The onus to prove this issue was on the defendants no. 1 to 3 but in the entire case and in the deposition of witnesses of the defendants, the defendants have not deposed to any fact which may indicate or prove the market value of the suit property at which the plaintiff ought to have valued the suit for the purposes of Court fees and jurisdiction. Neither to the plaintiff nor to any witnesses of the plaintiff any suggestion as to the fact of the market value of the suit property at the time of the institution of the suit has been given. In the examinationinchief of DW1 (who was dropped as a witness) and DW2 there is deposition as to the fact that the value of the suit property is ₹12,000,000/ in the year 2010, however, in the written statement of the defendants no. 1 and 3 no such valuation was given. There is nothing in the examination in chief as to on what basis the valuation of ₹12,000,000/ as the market value of the CS No.2329/2016 PAGE NO. 25/ 28 SUSHMA SINGH v. PREMWATI AND ORS.
suit property in the year 2010 has been arrived at. No sale deed or any kind of document of the properties in the neighbourhood of the suit property has been proved. In these circumstances, it cannot be said to be proved on the balance of probability that the valuation as put by the plaintiff is wrong or perverse or that the plaintiff ought to have valued the suit property at ₹12,000,000/. The issue under discussion is decided in favour of the plaintiff and against the defendant.
Issue no. 6 Whether the suit is timebarred? OPD
52.In the crossexamination of the plaintiff; PW1 no fact was elicited as to the date for which the limitation period ought to have started for the plaintiff to file the suit and also in the deposition of the witnesses of the defendants, there is deposition of no fact regarding the date from which the limitation period ought to have started for the plaintiff to file the instant suit. By merely taking a defence that the suit is barred by limitation is not sufficient. The defendant also has to prove the facts on the basis of which the limitation period is applicable. On the basis of previous possession and title the limitation period as per Article 64 and 65 of Limitation Act is 12 years since the time of accrual of the cause of action. In the facts and circumstances with which the plaintiff has approached the Court, the limitation period for getting the possession of the suit property started from the month of April 2003 in the present suit having been filed in December 2010 is very well within the limitation period. The issue is decided in favour of the plaintiff and against the defendants.
Relief CS No.2329/2016 PAGE NO. 26/ 28 SUSHMA SINGH v. PREMWATI AND ORS.
53.On the basis of the decision of the Court on the issues framed, the suit of the plaintiff is liable to be decreed with costs and the plaintiff shall be entitled for the following reliefs: i. The plaintiff shall be entitled to get a decree of possession of the suit property.
ii. The plaintiff shall also be entitled to simple interest @ 6% per annum on the accrued use and occupation charges amounting to ₹180,000/ from the date of filing of the suit till the defendants actually pay the said amount and also simple interest at the same date on use and occupation charges @ ₹5000/ per month since the date of the filing of the present suit till the defendants hand over the vacant peaceful possession of the suit property to the plaintiff along with simple interest @ 6% per annum on the accrued use and occupation charges till its payment. iii. Plaintiff is entitled to a decree of the permanent injunction against the defendants, their agents, etc. thereby restraining them from creating any 3rd party interest in the suit property or raising any additional, illegal and unauthorised construction of the suit property.
iv. The plaintiff is entitled to get a decree of mandatory injunction as prayed for. The defendant shall be liable to remove the door of the room and bathroom, extended room no. 1 and unauthorised construction in the kitchen and shed and restore the suit property in its original position.
Suit of the plaintiff is decreed with costs in favour of plaintiff and against the defendants.
Decree sheet be prepared in terms of the judgment.
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Payment of any deficient Court fees shall be a condition precedent for execution of the decree.
File be consigned to record room.
VIJAY Digitally signed by
VIJAY KUMAR JHA
KUMAR Date: 2022.04.12
JHA 15:23:12 +0530
Announced in the open Court (VIJAY KUMAR JHA)
on 11th April, 2022. Addl. District Judge02(East) Karkardooma Courts, Delhi.
CS No.2329/2016 PAGE NO. 28/ 28