Delhi District Court
Kavita Jain vs Smt. Kanta on 24 January, 2019
IN THE COURT OF MS.NUPUR GUPTA, CIVIL JUDGE-I,
PATIALA HOUSE COURTS, NEW DELHI
Judge Code DL-0804
CS No.680/2018
Kavita Jain,
W/o Sh. Padam Jain,
R/o 3/4/34, Shyam Singh Street,
Gopinath Bazar, Delhi Cantt.
New Delhi-110010 ... Plaintiff
Versus
Smt. Kanta
R/o House No. III-1/2/I-C,
Gopinath Bazar, Delhi Cantt.,
New Delhi-110010. ... Defendant
Date of Institution : 11.05.2018
Date of Reserving Judgment : 03.01.2019
Date of Judgment : 24.01.2019
SUIT FOR MANDATORY INJUNCTION
JUDGMENT
1. By filing the present suit, the plaintiff has sought a decree of mandatory injunction in favour of the plaintiff and against the defendant thereby directing the defendant to hand over vacant and peaceful possession of the property bearing municipal no. III-1/2/I-C admeasuring 8'x45'=360 sq. ft. situated at survey no. 52/4, Gopinath Bazar Delhi Cantt., New Delhi.
PLAINTIFF'S VERSION AS PER PLAINT
2. The brief facts of the present case from the perspective of CS No.680/2018 Kavita Jain vs. Kanta Page No. 1/10 plaintiff as discernible from the plaint and documents filed by the plaintiff are that the plaintiff is the absolute owner of the property admeasuring 1120 sq. ft. from the back side of shop no. III/1/10 forming part of Survey No.52/4, Gopinath Bazar, Delhi Cantt., New Delhi. It is stated in the plaint that the defendant is an old aged lady, who is in permissive occupation of municipal no. III-1/2/I-C admeasuring 8'x45' sq.ft.=360 sq.ft. falling under the property of plaintiff situated at Survey no.52/4, Gopinath Bazar, Delhi Cantt., New Delhi. It is stated that a plot of land admeasuring 225 ft.x100 ft. total area 22,500 earlier known as Garden Road, Delhi Cantt., New Delhi, bearing survey no. 52/4 was leased out to M/s Bhola Ram and Sons, Delhi Cantt., vide lease deed dated 01.02.1930 in Schedule no. VI under section 280 of the Cantonment Act, 1924 by Cantonment Authority on behalf of the Secretary of State. It is further stated that the said lease deed was duly registered as document no. 852 in Additional Book No. 1, Volume No. 27 on pages 163 to 166 on 27.03.1930 and was executed for a period of thirty years with option to renew for further period upto 90 years. It is stated that the said plot was mutated in the records of Delhi Cantonment Board in favour of Sh. Somnath and Mohinder Nath, minor sons of Late Sh. Jaswant Rai through their mother Smt. Ram Piyari and an amendment deed was accordingly executed on 27.12.1954 registered as Document no. 298 in Book No.1, Vol. No. 302 on pages 162-167 dated 28.04.1955. It is stated that thereafter the said lease was renewed in favour of Shri Som Nath and Shri Mohinder Nath both sons of Late Jaswant Rai for a further period of 30 years and the said document is registered as document no. 5246 in Additional Book No.1, Vol. No.515 on pages 52 CS No.680/2018 Kavita Jain vs. Kanta Page No. 2/10 to 53 registered on 15.12.1959 vide letter no.DCB/21/L-1/8(52/4) dated 27.01.1999. It is further stated that Sh. Som Nath expired on 17.01.2005 leaving behind a will dated 12.07.2000 duly registered as document No. 41422 in additional Book No.3,, Vol. No.5045 on pages 105 to 106 with Sub-Registrar Delhi, whereby he bequeathed all movable and immovable properties in favour of Sh. Aman Som Nath. It is further stated that Sh. Mohinder Nath and Sh. Aman Som Nath sold the open and built up portion measuring 9034 sq.ft. in the said plot of land in Survey No. 52/4, Gopinath Bazar, Delhi Cantt., earlier known as Garden Road, having municipal No.III-1/2A/A, III-1/2/C, III- 1/2/1C, III-1/2/D, III-1/2/E, III-1/2/G to Sh. Kuldeep Verma for a sum of Rs.40,00,000/- vide duly registered sale deed dated 28.12.2006.
3. It is further stated that the said Sh. Kuldeep Verma transferred 1462.50 sq. ft. of area out of 9034 sq.ft. in the plot of land in Survey No. 52/4, Gopinath Bazar, Delhi Cantt., earlier known as Garden Road with super structure along with proportionate leasehold rights also comprising municipal no.III-1/2C and III-1/2/I-C vide registered gift deed dated 15.01.2007 in favour of his wife Smt. Parveen Verma. It is further stated that the said municipal no.III-1/2C and III-1/2/I-C were in the occupation of Sh. A.K. Tuli and Smt. Kanta respectively and the said fact is duly recorded in the Gift Deed dated 15.01.2007. It is further stated that the said occupation was purely permissive without any rent or consideration. It is further stated that as per clause 2 of the said gift deed the donee was given liberty to deal with the defendant in the manner as she likes and the relevant portion of the said gift deed is as under:-
"2. That Donor has delivered physical vacant CS No.680/2018 Kavita Jain vs. Kanta Page No. 3/10 possession of land and delivered symbolic possession of portion occupied by above occupants and donee shall be at liberty to deal with them in manner she likes."
4. It is further stated that as per above clause the defendant has no right, title or interest in the property and she is merely in permissive occupation of the suit property. It is further stated that the plaintiff vide sale deed dated 08.02.2010 purchased a portion of land out of the said property admeasuring 1120 sq.ft. from the back side of shop no.III/1/10 for a total sum of Rs.35,00,000/- from Sh. Kuldeep Verma and Mrs. Parveen Verma. The said property is bounded as under:-
North - Sham Singh Street South - Property of Mrs. Kavita Jain and Sh. Padam Jain West - Portion of Mrs. Parveen Verma East - Portion of Mrs. Parveen Verma
5. It is further stated that at the time when the plaintiff purchased the aforesaid property, the municipal no. III-1/2C stood demolished and a boundary wall existed and Sh. A.K. Tuli was no longer in occupation of any part of the aforesaid property. It is further stated that property bearing municipal no. III-1/2/I-C i.e. suit property continued to remain in occupation of Smt. Kanta. It is further stated that the plaintiff on humanitarian grounds refrained from taking any action against the defendant for eviction from the suit property and allowed the defendant to continue to occupy the same due to her old age. It is further stated that since past 3-4 months, the defendant has left the suit premises after locking up the same and has not come back. Therefore, it is believed that the defendant is no longer interested in CS No.680/2018 Kavita Jain vs. Kanta Page No. 4/10 staying in the suit property and now plaintiff seeks eviction of the defendant from the suit property. It is further stated that the cause of action for filing the present suit first arose on 08.02.2010 when the plaintiff purchased the property including the suit property and it continued to arise till the plaintiff allowed the defendant to occupy the suit property. Hence the present suit.
6. In view of the above submissions, the plaintiff has prayed for a decree of mandatory injunction in favour of the plaintiff and against the defendant thereby directing the defendant to hand over vacant and peaceful possession of the property bearing municipal no.III-1/2/I-C admeasuring 8'x45'=360 sq. ft. situated at Survey No. 52/4, Gopinath Bazar, Delhi Cantt., New Delhi.
7. The present suit was received by way of assignment on 11.05.2018. Summons for settlement of issues were sent to the defendant for service by advertisement in the newspaper "The Statesman", which were received back duly served on 01.09.2018 and after lapse of 30 days period neither the defendant has put in appearance nor any written statement was placed on record on her behalf. Therefore, vide order dated 10.10.2018, the defendant was proceeded against exparte.
8. During its ex-parte evidence, the plaintiff examined herself, who deposed by way of affidavit Ex.PW-1/A reiterating the facts narrated in the plaint. PW-1 had relied upon following documents in support of his case:-
1. Copy of site plan Ex.PW1/1 which is Mark A;CS No.680/2018 Kavita Jain vs. Kanta Page No. 5/10
2. Certified copy of sale deed dated 28.12.2006 Ex.PW1/2;
3. Certified copy of gift deed dated 16.01.2007 Ex.PW1/3; and
4. Certified copy of sale deed 08.02.2010 Ex.PW1/4.
9. After the closing of ex-parte evidence of the plaintiff on 03.12.2018, ex-parte final arguments were heard from Sh. Ishan Jain, Counsel for the plaintiff on 03.1.2019.
10. By way of present suit the plaintiff has claimed that she had purchased the suit property vide sale deed dated 08.02.2010 from Sh. Kuldeep Verma and Mrs. Parveen Verma. It is further mentioned in the plaint that Kuldeep Verma had purchased the suit property vide registered sale deed dated 28.12.2006 and executed a Gift deed for a portion of the property in favour of his wife Ms. Praveen Verma. It is further the case of the plaintiff that defendant is in the possession of the suit property and the said fact is duly recorded in the Gift Deed dated 15.01.2007 executed by Kuldeep Verma in favour of his wife. Thus, it is relevant to reproduce clause 1 and 2 of the Gift Deed which reads as follows:-
"1. That Donor hereby gift/donate the abovementioned plot of land measuring 22'-6"
x 65'=1462.50 sq. ft. with super structure along with proportionate leasehold rights having municipal No. III-1/2C & III-1/2/I-C, Gopi Nath Bazar, Delhi Cantt. In occupation of Smt. Kanta & Shri A.K. Tuli and Donee hereby accept the said gift.
CS No.680/2018 Kavita Jain vs. Kanta Page No. 6/102. That Donor has delivered physical vacant possession of land and delivered symbolic possession of portion occupied by above occupants and Donee shall be at liberty to deal with them in manner she likes."
11. It is then stated in the plaint that after the execution of the Gift Deed plaintiff has purchased the suit property in the year 2010 and defendant remained in the possession of the suit property.
12. It is pertinent to mention that plaintiff has claimed that defendant is in occupation of the suit property as a licensee. Though the possession of defendant in suit property is clear from the above mentioned clause mentioned in the gift deed, however, in what capacity defendant is in possession of suit property is not mentioned anywhere in the above mentioned clause. Sec. 52 of the Indian Easements Act defines a licencee, which reads as follows:-
"Where one person grants to another, or to a definite number of other persons, a right to do or continue to do in or upon the immoveable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence."
13. It is a well settled law that under the aforesaid section, if a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence. The legal possession, therefore, CS No.680/2018 Kavita Jain vs. Kanta Page No. 7/10 continues to be with the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose'. But for the permission, his occupation would be unlawful. It does not create in his favour any estate or interest in the property. There is, therefore, cleat distinction between the two concepts. The dividing line is clear though sometimes it becomes very thin or even blurred. At one time it was thought that the test of exclusive possession was infalliable and if a person was given exclusive possession of a premises, it would conclusively establish that he was a lessee.
14. However in the present case neither the date of induction of defendant as licensee nor the date of cancellation/revocation of license by the plaintiff is mentioned anywhere in the entire pleadings. Moreover, it is also relevant to quote clause 5 of the sale deed executed in favour of the plaintiff which reads as follows:-
"5. That the sellers have delivered the physical vacant possession of the open land and symbolic possession of built up portion occupied by different persons/tenant to the purchaser on the spot with the authority to deal with it in any manner whatsoever."
15. Bare perusal of the above clause shows that there is no mention of defendant being in possession of the suit property as a licensee at the time the property was purchased by the plaintiff. Moreover, the plaintiff has failed to aver relevant ingredient fulfilling the conditions of defendant being a licensee in the suit property in his CS No.680/2018 Kavita Jain vs. Kanta Page No. 8/10 plaint. Rather the above mentioned clause in the sale deed creates a doubt as to in what capacity defendant is in possession of suit property as a tenant or a licensee. The onus was upon the plaintiff to prove that defendant is in possession of suit property as a mere licensee, which plaintiff has miserably failed to prove.
16. Further, right to file a suit for mandatory injunction for obtaining possession from licensee only arises on the date when the license of the licensee is revoked and licensee refuses to vacate the property. However, in the present suit there is not a single averment to that effect in the entire pleadings. Rather date of accrual of cause of action mentioned in the plaint itself is vague.
17. Para 14 of the plaint stating the cause of action in favour of plaintiff reads as follows:-
14. That the cause of action for filing the present suit first arose on 08.02.2010 when the plaintiff purchased the property including the suit property. It continued to arise on thereafter till the plaintiff allowed defendant to occupy the suit property.
18. It can be seen that even as per the own case of the plaintiff, cause of action arose in the year 2010 when plaintiff purchased the suit property and after that no date of accrual of cause of action is mentioned in the entire paragraph. Even in the paragraph stating cause of action, plaintiff has not given any date on which the license of the defendant was revoked. Moreover if we go by the averments made in the plaint, the present suit is apparently barred by limitation as admittedly the cause of action arose in the year 2010 and the CS No.680/2018 Kavita Jain vs. Kanta Page No. 9/10 present suit has been filed in the year 2018. However, in fact since plaintiff has failed to aver that he has revoked the license of the defendant and has communicated the same to the defendant, no cause of action can be said to have arisen in favour of the plaintiff for filing of the present suit. Neither the plaintiff has been able to satisfy that any cause of action has arisen to her nor she is able to prove that defendant is in possession of the suit property as a licensee.
19. In view of the above discussion, the plaintiff is not entitled for the relief of mandatory injunction as claimed by her by way of the present suit. Accordingly, the present suit is dismissed with no order as to costs. Decree sheet be prepared accordingly. Thereafter, file be consigned to Record Room after due compliance.
Announced in the open Court (Nupur Gupta)
on 24.01.2019 Civil Judge-I, New Delhi District
New Delhi
CS No.680/2018
Kavita Jain vs. Kanta Page No. 10/10