Delhi District Court
Sh. Zahir Hussain vs Sh. Mazahir Hussain on 2 March, 2012
IN THE COURT OF CIVIL JUDGE04 (SOUTH), SAKET
COURT COMPLEX, NEW DELHI
Presided by : Ms. Vijeta Singh
Suit No.290/10
Case ID No. 02406C0356632010
In the matter of:
Sh. Zahir Hussain
R/o 703, Chandni Mahal, Jama Masjid
Darya Ganj, Delhi110002.
...... Plaintiff
VERSUS
1. Sh. Mazahir Hussain
H.No. 291, Block No. 18,
Dr. Ambedkar Nagar, Sector5
New Delhi110062.
2. Delhi Development Authority
Special Housing Scheme J J Colony,
Dakshinpuri, Vikas Minar
New Delhi 110001 (deleted on 01.12.2010) .......Defendants
Date of Institution : 13.07.2009
Date of Reserving of Judgment : 13.02.2012
Suit No. 290/10 1/26 pages
Zahir Hussain v. Mazahir Hussain & Ors.
Date of Pronouncement of Judgment : 02.03.2012
JUDGMENT
1. The present suit has been filed by the plaintiff against the defendants praying for the following reliefs:
"It is therefore most respectfully prayed to this Hon'ble Court that the present suit may kindly be admitted, tried and adjudicate and the decree be passed in favour of plaintiff and against the defendants No.1 by passing the order/direction: i. To the defendant No.1 to handover the peaceful physical possession of the property bearing no. 291 block no. 18, Dr. Ambedkar Nagar New Delhi to the plaintiff on the same condition as he had taken over from the plaintiff. ii. To declare the plaintiff as lawful true and exclusive owner of the property bearing no. 291 block no. 18, Dr. Ambedkar Nagar, New Delhi.
iii. To the defendant no.1 to pay the nominal damages of Rs. 50,000 to the plaintiff with pendent lite and future interest @12% p.a. on that amount, iv. To the defendant no.1 to pay the cost of the suit to the plaintiff and v. Any other order may deemed fit and proper be also passed in favour of plaintiff and against the defendants in the interest of justice."
CASE OF THE PLAINTIFF Suit No. 290/10 2/26 pages Zahir Hussain v. Mazahir Hussain & Ors.
2. It is the case of the plaintiff that defendant no.1 is the younger brother of the plaintiff who had been living with the plaintiff at their parental house along with other brothers at Chandni Mahal, Jama Masjid, Delhi and had also been financially supported by the plaintiff as he was only doing some part time job. With passage of time, the parental house became conjusted for the entire family including plaintiff and defendant no.1 and therefore, the plaintiff started looking for an alternative arrangement for accommodation of his family. In the year 1978, defendant no.2 has announced a scheme for allotment for small houses in Dakshinpuri, J J Colony, New Delhi on the hirepurchase basis. The plaintiff therefore, applied for allotment of a house and was successful in the draw of lots. He thereafter completed all the commercial formalities and the house bearing no. 108, Block 17 was alloted to him on higher purchase basis on 18.7.1978. However, the plaintiff requested defendant no.2 to change the house from block 17 to block 18 vide intimation letter dated 17.08.1978 and thereafter, the plaintiff was allotted the house no. 291, Block 18 (which is hereinafter referred to as the "suit property"). The total cost of the suit property was Rs.6360/ which was deposited in 15 installments @47.85% besides miscellaneous incidental charges. The plaintiff paid all the installments from his hard Suit No. 290/10 3/26 pages Zahir Hussain v. Mazahir Hussain & Ors.
earned money and the last installment was paid by him in the year 1992 against receipt dt. 7.9.1992. After taking possession of the house on 19.8.1978, he acquired water and electricity connection in his name. The plaintiff also started using the suit property. Defendant no.1 could not afford a rented accommodation as he had no fixed income and he therefore, requested the plaintiff to be allowed to live in the suit property. After some years, defendant no.1 got a private job at Nehru Place and had to commute from Jama Masjid to Nehru Place and he requested the plaintiff to allow him to occupy the suit property as it was convenient for him to travel to his work place from the suit property. Being the elder brother, the plaintiff accepted the request of the defendent no.1 and allowed him to occupy the suit property in the year 1992 on license basis without any charges. Defendant no.1 undertook to vacate the suit property without any delay as and when the plaintiff would demand for. The plaintiff contended to pay all the installments to defendant no.2 and also paid electricity and water bills. But later, defendant no.1 was allowed to pay the water and electricity bills as it was defendant no.1 who was using the same. Now with passage of time since the children of the plaintiff have grown up and the plaintiff himself is suffering from old age related problems, he requires the suit Suit No. 290/10 4/26 pages Zahir Hussain v. Mazahir Hussain & Ors.
property for his own occupation. The plaintiff is residing on the second floor at the Chandni Mahal property and is facing difficulty in using the staircase and he therefore, wants to shift in the suit property which is situated in the ground floor and has an open terrace. The plaintiff requested defendant no.1 to vacate the suit property as the plaintiff was in need of the same but defendant no.1 denied to vacate it. Defendant no. 1 had also taken electricity connection illegally in his name without the permission of the plaintiff. The plaintiff therefore, realised that the defendant no.1 has an intention to grab the suit property and he immediately demanded the possession of the same. A legal notice dated 27.2.09 was sent to the defendant no.1 for revocation of the license and for demanding vacant and peaceful possession of the suit property. The notice was duly received by the defendant no.1 but was not replied to. The plaintiff again sent legal notice dated 24.4.2009 demanding the possession of the suit property and damages. The said legal notice was replied to wherein defendant no.1 admitted that the suit property was allotted in the name of the plaintiff and later he came into possession of it and is enjoying the same. The plaintiff is aggrieved that defendant no. 1 has denied his ownership and has also declined for vacation of the suit property and hence present suit has been filed.
Suit No. 290/10 5/26 pages Zahir Hussain v. Mazahir Hussain & Ors.
3. Cause of action stated to have arisen on various dates when defendant no.1 was permitted to use the suit property on license basis; on 22.2.2009 when legal notice was sent to defendant no.1 and he failed to vacate the same on expiry of the notice period; on 24.4.2009 when the second legal notice was issued to defendant no.1 which was replied to on 85.09 admitting that the property was allotted to the plaintiff but when defendant no.1 also showed his dishonest intention to not vacate the suit property on the ground that he has become owner of the same and cause of action is stated to be continuing.
CASE OF THE DEFENDANT No. 1
4. Written statement was filed by the defendant no.1 on 11.11.2009 wherein objections were taken by defendant no.1 to the effect that plaintiff has not approached the Court with clean hands and has misrepresented and concealed material facts, that the suit is barred by limitation and that it had not been properly valued. In reply on merits, it is admitted that the plaintiff is the elder brother of defendant no.1. However, as per defendant no.1 after the death of parents of the plaintiff and defendant no.1 they along with other brothers decided that the plaintiff after getting his share in amount from other brothers agreed that he will leave Suit No. 290/10 6/26 pages Zahir Hussain v. Mazahir Hussain & Ors.
the parental house in favour of defendant no.1. As per the understanding of all four brothers, it was decided that plaintiff shall relinquish his share in the parental house in favour of defendant no.1. It is not denied that it was the plaintiff who has applied for allotment of the suit property to defendant no.2. However, defendant no.1 had stated that the plaintiff had applied because he had relinquished his share in the parental house in favour of defendant no.1. Therefore, when defendant no.1 got employed at Nehru Palce and started commuting from Jama Masjid to Nehru Place, the plaintiff requested/offered defendant no.1 to stay at the suit property and the plaintiff in turn would reside at the parental house at Chandni Mahal property. Defendant no.1, therefore accepted the proposal of the plaintiff and started living in the suit property. Similarly, plaintiff started living in the parental house at Chandni Mahal and after some time plaintiff and defendant no.1 also had agreed to exchange the houses which would be beneficial for both the brothers, keeping in view their work places. It is therefore, denied that defendant no.1 is in occupation of the suit property as licenseee of the plaintiff. On the contrary, he claimed that to have been residing in the suit property since 1979 on exchange basis. He has renovated the suit property considering it to be his own property. Water connection is in Suit No. 290/10 7/26 pages Zahir Hussain v. Mazahir Hussain & Ors.
the name of the defendant no.1 and electricity connection in the name of the plaintiff. However, it is denied that electricity and water bills have ever been paid by the plaintiff. It has been denied that the plaintiff has every requested defendant no.1 to vacate the suit property. Defendant no.1 has stated that the son of the plaintiff had requested him to re exchange the properties which was refused by defendant no.1. Therefore, son of the plaintiff threatened defendant no.1 of dire consequences. Defendant no.1 also has stated that it was agreed between him and the plaintiff that after installments were cleared and no objection certificate was obtained from defendant no.2, the plaintiff would transfer the suit property to defendant no.1 and defendant no.1 would transfer the property at Chandni Mahal to the plaintiff. It has been denied that defendant no.1 has ever promised to vacate the suit property as and when demanded by the plaintiff. He also has denied that he is liable to pay any damages @1000/ per month as has been claimed by the plaintiff.
CASE OF THE DEFENDANT No. 2
5. Written statement was filed by defendant no.2 wherein preliminary objection was taken by it to the effect that no notice as required under Suit No. 290/10 8/26 pages Zahir Hussain v. Mazahir Hussain & Ors.
section 53 (b) of the Delhi Development Act 1957 was sent prior to filing of the present suit; that the plaint does not discloses any cause of action against the defendant no.2 under the provisions of section 7 Rule 11 of CPC and that the suit is not maintainable as no relief against the defendant no.1 has been claimed from it. In reply on merits it is admitted that the suit property was allotted to the plaintiff on hire purchase basis and possession letter was issued on 14.8.1978. However, defendant no.2 stated that the plaintiff be put to strict proof of the fact that all the installments have been cleared. Defendant no.2 handed over the possession of the suit property to the plaintiff on 19.8.1978.
REPLICATION
6. Replication to written statement of defendant no.1 was filed on 18.3.2010 wherein the defence raised by defendant no.1 was brushed aside as an attempt to twist the facts to mislead the Court. It was denied that any relinquishment deed has been executed by the parties and as such the defence raised by defendant no.1 was baseless and vague. The plaintiff denied to have relinquished his share in the parental house. It was also denied that any exchange deed has been executed between the parties. It has been denied that the son of the plaintiff threatened Suit No. 290/10 9/26 pages Zahir Hussain v. Mazahir Hussain & Ors.
defendant no.1. The suit was stated to have been properly valued as the suit property is not a freehold property and was alloted on a higher purchase basis @Rs.6360/. Therefore the plaintiff had valued 9% of actual cost @Rs.60000/ for the relief of possession and for the relief of declaration the value is @Rs.200/ and for the purposes of damages @50,000/. Thus the suit is valued @Rs.1,10,200/ for the purposes of pecuniary jurisdiction and requisite Court Fees has been paid. It was also denied that the suit was barred by limitation as the same had been filed within the limitation from the expiry of the notice period given to the defendants. No replication was filed to the written statement of defendant no.2.
7. Vide order dated 1.12.2010, defendant no.2 was deleted from the array of parties on the statement given by the counsel for the plaintiff.
ISSUES
8. On the basis of pleadings vide order dt. 1.12.2010, the following issues were framed:
1. Whether the plaintiff is entitled to a decree of possession of H.No. 291, Block NO. 18, Dakshin Puri, New Delhi? OPP
2. Whether the plaintiff is entitled to a decree of declaration that Suit No. 290/10 10/26 pages Zahir Hussain v. Mazahir Hussain & Ors.
plaintiff is the lawful true and exclusive owner of property bearing H.No. 291, Block NO. 18, Dakshin Puri, New Delhi? OPP
3. Whether the plaintiff is entitled to a decree of damage of Rs.
50,000/ with pendentelite interest @ 12 % per annum? OPP
4. Whether the suit has been properly valued for the purposes of jurisdiction and Court Fees? OPP
5. Whether the suit of the plaintiff is barred by limitation? OPD1
6. Relief.
9. In support of his contentions plaintiff examined himself as PW1 and Sh.
Rais Ahmed as PW2. They tendered affidavits Ex.PW1/X and Ex.PW2/X, in their examination in chief respectively. They were duly cross examined by counsel for defendant no.1. Thereafter, plaintiff evidence was closed vide the statement of the plaintiff on 16.12.2011.
10. Defendant examined himself as DW1 and Sh. Fateh Mohd. as DW2.
They tendered affidavits Ex.DW1/X and Ex.DW2/X in their examination in chief. They were duly cross examined by counsel for the plaintiff. Defence evidence was closed on 24.1.2012 in view of statement given by the defendant.
11. Final arguments concluded on 18.02.2012.
Suit No. 290/10 11/26 pages Zahir Hussain v. Mazahir Hussain & Ors.
12. This court given its thoughtful consideration to the submissions made on behalf of the parties. The material on record has also been carefully perused.
13. The issue was findings are as under:
ISSUE NO.4 Whether the suit has been properly valued for the purposes of jurisdiction and Court Fees? OPP
14. The onus to prove this issue was upon the plaintiff.
15. It has been argued by Ld. Counsel for the plaintiff that the suit has been properly valued for the purposes of Court fees and jurisdiction as the suit property was allotted in slum J.J. Colony scheme on hire purchase basis on installment of Rs. 47.98/ with the total cost being 6360/ as per the agreement. Further, that the suit property as per clause 12 of the agreement also could not be sold or let out without the permission of DDA. Further, the liability of ground rent has also not been discharged by the plaintiff as the liability rests on the plaintiff being the original allottee. The DDA can charge the entire ground rent along with the arrears amounting to lakhs later. But since, at present the property is not free from charge and cannot be sold in the market, its value cannot be Suit No. 290/10 12/26 pages Zahir Hussain v. Mazahir Hussain & Ors.
assessed on the market value.
16. As per the defendant, placing reliance upon Renu Nagar v. Anup Sing Khosla 2009 (156) DLT 723, it has been urged that the suit should have been valued as per Section 7(v)(e).The Courts Fees Act and taking judicial notice of The Delhi Stamp (Prevention of undervaluation of Instruments) Rules, 2007 (w.e.f. 18.07.2007), the market value of the property would be as under:
"Minimum Cost of Land = Minimum value of land rate per square meter x area x use factor Minimum Cost of construction = cost of construction x plinth area x age factor x structure type Applying the formula:
Min. Cost of Land = Rs.13,700/ x 20.91 x 1 = Rs.2,86,467/ Minimum Cost of construction = Rs.4750/ x 20.91 x 0.7 x 1 = Rs. 69,526/ Thus minimum value of the property is Minimum cost of Land Minimum + Minimum Cost of Construction i.e., Rs.2,86,467/ + Rs.69,526/ = Rs. 3,55,993"
This is coupled with the valuation of the suit for relief of declaration and damages and hence, this Court does not have the jurisdiction.
17. In rebuttal, Renu Nagar (Supra) was distinguished as it pertained to a freehold property that was easily saleable in the market. Therefore, it was urged that the same would not be applicable in the present suit.
Suit No. 290/10 13/26 pages Zahir Hussain v. Mazahir Hussain & Ors.
18. Neither of the parties to the suit have led any evidence on the issue. The judgment relied upon by the defendant has been perused. This Court has also perused Ashok Chaudhary v. Dr. Inderjit Sandhu 1998 AD Delhi 917 which was relied upon in Renu Nagar (Supra). His Lordships have held therein in paragraph no. 17 as under:
"In Sisir Kumar Vs. Susil Kumar, a Special Bench of the Calcutta High Court had on occasion to consider the question as to what is the proper valuation of a suit for ejectment of a licensee upon revocation or termination of his licence for purposes of court fee and jurisdiction; and, it was held that valuation of a suit for ejectment of a licensee, upon revocation or termination of his licence, either for purpose of court fee or for the purpose of jurisdiction shall be made under the provisions of Section 7(v) of the Court Fees Act. This question was also considered by a Full Bench of Patna High Court in Jagdish Chandra Vs. Basant Kumar and it was held that a suit for ejectment of a licensee, upon revocation or termination of his licence is clearly a suit for recovery of possession from a trespasser and it has to be valued under Section 7(v)(e) of the Court Fees Act. We are in respectful agreement of the aforesaid views taken by the High Courts of Calcutta and Patna."
19. Thus, the value of the relief has to be the value of the subject matter, namely the suit property. But it has also been observed in Hafiz MD.
Suit No. 290/10 14/26 pages Zahir Hussain v. Mazahir Hussain & Ors.
Fateh Nasib v. Haji Abdur Rub AIR 1954 Cal101 that where the plaintiff sues as a limited owner such as a mutwalli, he is seeking relief only as a mutawalli and as a mutawalli his interest in the disputed property will be much narrower than the interest of the full owner. Therefore, the interest claimed by the plaintiff cannot be valued at the same figure as his interest as a full owner.
20. In the present suit, the factum of the property being a lease hold is not in dispute. Therefore, the plaintiff's status cannot be equated with that of the absolute owner of the suit property. The plaintiff at present is not in the capacity to sell/ transfer or even let out the suit property without the prior approval of the lessor. Thus, this Court is of the considered view that the plaintiff should not be compelled to value the suit at the market value as shown by the defendant. In Ashok Chaudhary (Supra) or in Renu Nagar (Supra), the property is not shown to be a leasehold property, thus, the facts of the aforesaid judgments are distinguishable from the facts of the present suit. There being no other, means to ascertain the value, this court is constrained to accept the vaulation provided by the plaintiff.
21. The issue is therefore, decided in favour of the plaintiff and against the Suit No. 290/10 15/26 pages Zahir Hussain v. Mazahir Hussain & Ors.
defendant.
ISSUE NO. 5 Whether the suit of the plaintiff is barred by limitation? OPD1
22. The onus to prove this issue was upon the defendant no.1.
23. It has been argued by Ld. Counsel for defendant no. 1 Sh. Sharad Bhatt that the suit is barred by limitation as the plaintiff approached this Court after 31 years had passed since allotment of the suit property to the plaintiff. The family settlement cum understanding of exchange between the brothers as a result of which the suit property came into share of the plaintiff took place in 1980. Thus, the suit for declaration was maintainable only till 1992. Even if 12 years is calculated from 1990 when the plaintiff in his cross examination has admitted that he had revoked the license and has asked for his property back from the defendant no.1, the suit could have been filed latest by the year 2002. Thus, it has been argued that defendant has been able to prove that he has been in lawful, true and exclusive possession of the suit property as its owner for the last 29 years which was within knowledge of the plaintiff and hostile to his interest. Since it is an admitted fact that the possession of the suit property since 1980 has been with defendant no.1 Suit No. 290/10 16/26 pages Zahir Hussain v. Mazahir Hussain & Ors.
and no evidence has been led by the plaintiff to show that since last 31 years he has done even a single act of ownership as regards the suit property before issuance of the suit property, the suit is expressly barred by limitation.
24. Ld. Counsel for the plaintiff Sh. J K Singh urged that the suit is not barred by limitation as the cause of action to seek declaration of title arose when defendant no.1 by way of Ex.DW1/PX1 challenged the ownership of the plaintiff for the first time in May 2009.
25. Before proceeding to decide the issue, it is pertinent to mention here that though the onus was upon the defendant no.1, no affirmative evidence has been led to the effect that the suit is barred by limitation. The admission on part of the PW2 during his cross examination that PW2 has been residing in the suit property since 25 to 30 years and the deposition of PW1 that the plaintiff is in occupation of the suit property for more than 20 years cannot in the considered view of this Court afford the defendant no.1 the opportunity to state that the suit is barred by limitation, even assuming that the plaintiff had came into occupation of the suit property in 1980. There is no evidence led by defendant no.1 to show that he had questioned the title of the plaintiff to afford the plaintiff a cause of action way before the past 12 years prior to the Suit No. 290/10 17/26 pages Zahir Hussain v. Mazahir Hussain & Ors.
institution of the suit. Plaintiff has relied upon Ex.PW1/DX1 which is the reply to the legal notice issued by plaintiff and is an admitted document. No suggestion was put to the plaintiff's witnesses to the effect that the cause of action arose much prior to when it has been alleged by the plaintiff.
26. Further, the argument of Ld. Counsel for the defendant that the defendant has also acquired ownership by way of adverse possession is of no consequence in view of the settled law that in case of grant of license, possession continues to be that of the owner. Reliance is placed upon Sant Lal Jain v. Avtar Singh AIR 1985 SC 857 wherein it is held as under;
"The respondent was a licensee, and he must be deemed to be always a licensee. It is not open to him, during the subsistence of the license or in the suit for recovery of possession of the property instituted after the revocation of the license to set up title to the property in himself or anyone else."
27. In the considered view of this Court, for the aforesaid reasons, the balance of probabilities tilts in favour of the plaintiff and therefore the issue is decided against the defendant and in favour of the plaintiff. ISSUE NO. 1 and 2
Suit No. 290/10 18/26 pages Zahir Hussain v. Mazahir Hussain & Ors.
Whether the plaintiff is entitled to a decree of possession of H.No. 291, Block NO. 18, Dakshin Puri, New Delhi? OPP and Whether the plaintiff is entitled to a decree of declaration that plaintiff is the lawful true and exclusive owner of property bearing H.No. 291, Block NO. 18, Dakshin Puri, New Delhi? OPP
28. The onus to prove these issues were upon the plaintiff.
29. It has been argued on behalf of the plaintiff that once the plaintiff has admitted that property had been allotted in the name of the plaintiff and that the installments have have been paid by the plaintiff, the plaintiff is entitled to the declaration as being owner of the suit property. Ld. Counsel for the plaintiff submitted that the plaintiff is entitled to the reliefs because defendant no.2 has admitted that the property continues to be in the name of the plaintiff, has failed to establish existence of a family settlement, has admitted the receipt of termination notice and has continued in possession even thereafter. Attention of the Court was drawn to cross examination of PW1 wherein the testimony of PW1 that payment had been made by him to the defendant no.2 was not traversed. It has been further argued that although, defendant no.1 has set up a defence of plaintiff having relinquished the share in the property on a Suit No. 290/10 19/26 pages Zahir Hussain v. Mazahir Hussain & Ors.
monetary consideration given by defendant no.1, defendant no.1 has not adduced any relinquishment deed which is the appropriate mode for relinquishment as per the Transfer of Property Act. Also, during his cross examination, DW1 has admitted not having paid any consideration to the plaintiff nor the plaintiff having relinquished the share in the parental property. Thus, the contradiction in the examination of DW1 show that he has failed to establish his contention. Further, in the deposition of PW2, it is clear that the share of defendant no.1 is still preserved in the parental property at Chandni Mahal.
30. Ld. Counsel for defendant no.1 argued that the very fact that a declaration is being sought by the plaintiff underlines the doubt in his mind as regards his own ownership. Defendant has successfully proved that for the last 31 years he is in occupation, use and control of the suit property and PW2 also stated during his cross examination that defendant resided on the ground floor 25 to 30 years back. Even the plaintiff has admitted that defendant no.1 is in occupation since more than 20 years. Thus, since the suit is expressly barred by limitation, the relief of declaration cannot be granted.
31. This Court has already given its findings on whether the suit is barred by limitation while discussing issue no.5.
Suit No. 290/10 20/26 pages Zahir Hussain v. Mazahir Hussain & Ors.
32. The fact that the property was allotted in the name of the plaintiff is not disputed. However, defendant no.1 sought to create a defence that after the death of the parents of the plaintiff and defendant no.1, the plaintiff was given money and he relinquished his share in favour of defendant no.1 so far as parental house at Chandni Mahal is concerned. It was subsequent to this relinquishment, that plaintiff had applied for the allotment. Thereafter, defendant no.1 resided at Chandni Mahal and the plaintiff was residing in the suit property. However, subsequently an agreement was entered into considering the proximity of work places of the parties and on an exchange basis defendant no.1 occupied the suit property and the plaintiff at the parental house at Chandni Mahal. Once, it was admitted fact that the property was allotted in the name of plaintiff, the onus shifted upon defendant no.1 to show that it was acquired for the benefit of the joint family as stated by him. DW1 in his affidavit Ex.DWD1/X in paragraph no. 4, 5 and 6 stated as under:
"4. I state that the DDA had announced a scheme of allotment of small house in Dakshinpuri for those persons who had not owner of any plot/property anywhere in India, the condition was applied because the plaintiff was relinquished his share in the parental house at 703, Chandni Mahal, Jama Masjid, Delhi in my favour.
5. I state that the DDA was allotted the suit property in the Suit No. 290/10 21/26 pages Zahir Hussain v. Mazahir Hussain & Ors.
name of the plaintiff in 1978 when we were jointly resided with out parent at 703, Chandni Mahal, Jama Masjid, Delhi in my favour.
6. I state that the suit property was allotted in the name of my elder brotherMr. Zahir Hussain in my joint family."
33. In paragraph no. 8 he stated that the plaintiff had monetarily gained from the defendant no.1 for relinquishment of his share. As per the Transfer of property Act r/w. Section 18 of the Registration Act, 1908, the relinquishment of any right, title or interest in a property can only be through a registered document. DW1 in his cross examination stated that, "The plaintiff did not relinquish his share in the Chandni Mahal property". He also stated that, "I had not paid any money to the plaintiff". Thus, his deposition that the plaintiff has relinquished his share in the parental house for money in favour of defendant no.1 and he thereafter, applied for the suit property was traversed. Even otherwise to state so and then to say that the suit property was taken for the joint family is mutually destructive as DW1 had admitted as under:
"I have correctly stated that the application for the allotment was made on behalf of joint family. I have not signed on any application for allotment. The installments were paid by the plaintiff."
34. PW1 also had admitted in his cross examination that there has been no Suit No. 290/10 22/26 pages Zahir Hussain v. Mazahir Hussain & Ors.
partition/family settlement in writing. Defendant no.1 has heavily relied upon the deposition of PW2 and in specific his statement that, "The defendant has a share in the Chandli Mahal Property. If he hands over the suit property to the plaintiff, he shall get his share in the Chandni Mahal Property." and that the share of the defendant in the Chandni Mahal property went to the plaintiff. However, the deposition of PW2 has been carefully examined. The testimony has been traversed on issues like who is in possession of the rooms that come into the share of the plaintiff in the parental house, that the plaintiff is residing on second floor, the time of allotment of the property and the amount paid by the plaintiff, employment of defendant no.1, allotment of suit propety in the present condition etc. Thus, the testimony of PW2 is not reliable.
35. Defendant no.1 has miserably failed to prove the existence of a family settlement on the basis of which he came into occupation of the suit property.
36. But, be that as it may, the relief of declaration that the plaintiff is the lawful, true and exclusive owner of the suit property if granted would entail a declaration to the exclusion of the rights of defendant no. 2 (now deleted). It is the plaintiff's own case that the property was given on lease by DDA/ defendant no.2 and has not been converted into a free Suit No. 290/10 23/26 pages Zahir Hussain v. Mazahir Hussain & Ors.
hold property. Issue no. 2 is therefore, decided against the plaintiff.
37. Be that as it may, the relief of possession in the considered view of this Court is not a consequential relief to the relief of declaration as it cannot be said that the same flows from the relief of declaration. Reliance is placed upon "Hans Raj Kalra Vs. Kishan Lal Kalra & Ors." ILR 1976 Delhi 745 wherein it has been held in paragraph no. 20 as under : "It is fairly well settled that it is not the form of the plaint or the manner in which the relief is worded in it, but the substance of it, which is determinative of its real nature and character and in determining whether a suit is a mere declaration or for a declaration with consequential relief Court must not be carried away by the form of the plaint but must look to the substance of it ....(8). A relief is consequential to a declaration if it follows on such declaration and depends on it (9). What ensues or follows must have a necessary connection with the cause. Cause and consequence are corelative terms, one implying the other. What the court must, therefore, see is whether the relief, other than the declaratory decree, follows as a natural consequence from the declaration or in other words flows from it (10). But the mere fact that a certain relief flows from the right declared will not only its own force make it consequential relief unless it is asked for as incidental to the declaration (II)."
38. The plaintiff, in view of the above discussion, has been able to prove that the suit property was given on license to defendant no.1 and the Suit No. 290/10 24/26 pages Zahir Hussain v. Mazahir Hussain & Ors.
same has been terminated by way of notice despite which defendant no.1 has continued in possession of it. Thus, since the license stands terminated, the occupation of defendant no.1 of the suit property has become unauthorised and he is therefore liable to be evicted. Thus, issue no.1 is decided in favour of the plaintiff and against defendant no.1. ISSUE NO. 3 Whether the plaintiff is entitled to a decree of damage of Rs. 50,000/ with pendentelite interest @ 12 % per annum? OPP
38. The onus to prove this issue was upon the defendant.
39. It has been urged on behalf of the plaintiff that he is entitled to the damages as prayed for as despite notice dated 24.4.2009 to vacate the suit property, the defendant has failed to vacate the suit premises and has continued to be in unauthorised occupation.
40. It has been submitted on behalf of the defendant that the defendant is not liable to pay damages as he was under no obligation to accede to the demand of the plaintiff to reexchange the properties and make a new family settlement. Further, there is no basis as to how Rs.50,000/ has been claimed for the suit property.
41. The receipt of legal notice is not in dispute. The defendant has also not Suit No. 290/10 25/26 pages Zahir Hussain v. Mazahir Hussain & Ors.
been able to prove the existence of a family settlement for reasons stated in under issue no. 1 and 2. Be that as it may, affidavit Ex.PW1/X has been perused. The same is silent as to the entitlement of damages of Rs. 50000/ with interest as claimed. Even otherwise, the basis for calculation of damages @Rs.50,000/ with interest has not been provided for. The same therefore cannot be granted.
42. The issue is therefore decided in against the plaintiff and in favour of the defendant.
RELIEF
43. In view of findings in issue no. 1, 4 and 5, plaintiff is entitled to the relief of possession of the suit property bearing no. 291 block no. 18, Dr. Ambedkar Nagar New Delhi.
44. Decree sheet be prepared accordingly.
45. Parties to bear their own cost.
46. File be consigned to Records.
Announced in the open Court (Vijeta Singh)
on 02.03.2012 Civil Judge04 / South District
New Delhi
Suit No. 290/10 26/26 pages
Zahir Hussain v. Mazahir Hussain & Ors.