Delhi District Court
Pawan Kumar vs Ms Poonam on 8 May, 2024
IN THE COURT OF MS. SHILPI M JAIN : DISTRICT
JUDGE-05, SOUTH WEST DISTRICT, DWARKA
COURTS, NEW DELHI
CS No. 935/2019
CNR No. DLSW010132142019
IN THE MATTER OF:
Sh. Pawan Kumar
S/o Late Padam Singh
R/o Village Nuna Majra,
Tehsil Bahadurgarh,
District Jhajjar, Haryana .........Plaintiff
Versus
1. Ms Poonam
W/o Late Padam Singh
2. Master Manish Kumar
S/o Late Padam Singh
Through her mother/natural guardian
and Next Friend Ms Poonam
W/o Late Padam Singh
Both R/o H.No.25B,
Chandan Palace Kali Pyau,
Near CRPF Camp,
Jharoda Kalan,
New Delhi .....Defendants
Date of Institution : 23.11.2019
Date of Arguments : 06.04.2024
Date of Judgment : 08.05.2024
SUIT FOR DECLARATION, RECOVERY OF POSSESSION,
MESNE AND PERMANENT INJUNCTION
JUDGMENT
CS DJ ADJ 935/19 Pawan Kumar Vs. Poonam & Anr. Pg. No. 1 of 20 FACTUAL MATRIX:
1. Present case for declaration, recovery of possession, mesne and permanent injunction filed by plaintiff qua the property i.e. Plot No.25, area measuring 100 Sq. Yds. out of Khasra No.14/2, situated in the revenue estate of Village Haibutpura, Delhi in the abadi known as Chandan Park, Najafgarh, New Delhi-110043 (hereinafter referred to as 'the suit property') with the following prayer:
"
i. a decree of declaration be passed in favour of the plaintiff and against the defendants thereby, declaring the plaintiff as the owner of the suit property i.e. Plot No.25, area measuring 100 Sq. Yds. out of Khasra No.14/2, situated in the revenue estate of Village Haibutpura, Delhi in the abadi known as Chandan Park, Najafgarh, New Delhi-110043, as shown in red colour in the site plan.
ii. a decree of recovery of possession be passed in favour of the plaintiff and against the defendants thereby directing the defendants to handover the vacant and peaceful possession of Plot No.25, area measuring 100 Sq. Yds. out of Khasra No. 14/2, situated in the revenue estate of Village Haibutpura, Delhi in the abadi known as Chandan Park, Najafgarh, New Delhi-110043 to the plaintiff, as shown in red colour in the site plan, in the interest of justice.
iii. a decree of mesne profit/damages be passed in favour of the plaintiff and against the defendants thereby directing them to pay Rs 30,000/- p.m. for the use and occupation of suit property from the date of institution of the suit till the defendants handover the vacant and peaceful possession of the suit property to the plaintiff, in the interest of justice.
iv. a decree of permanent injunction be passed in favour of the plaintiff and against the defendants thereby restraining them, their LRs, assignees, etc. from creating third party interest or alienating the suit property, mortgaging the same or parting with possession of the suit property i.e. Plot No.25, area measuring 100 Sq. Yds. out of Khasra No.14/2, situated in the revenue estate of Village Haibutpura, Delhi in CS DJ ADJ 935/19 Pawan Kumar Vs. Poonam & Anr. Pg. No. 2 of 20 the abadi known as Chandan Park, Najafgarh, New Delhi-110043 in any manner, in the interest of justice.
v. a decree in respect of cost throughout of litigation be passed in favour of the plaintiff and against the defendants, in the interest of justice. vi. pass any other order(s)/relief(s), which this Hon'ble Court deems fit and proper be passed in favour of the plaintiff and against the defendants, in the interest of justice."
2. It is averred that, Smt. Birmati Devi W/o Sh. Mahabir Singh R/o V.P.O. Nuna Majra, Tehsil Bahadurgah, Distt. Jhajjar, Haryana intended to sell Plot No.25, area measuring 100 Sq. Yds. out of Khasra No.14/2, situated in the revenue estate of Village Haibutpura, Delhi in the abadi known as Chandan Park, Najafgarh, New Delhi-110043, which she purchased from Sh. Rajender S/o Sh. Ganpat R/o V.P.O. Beri, District-Jhajjar, Haryana. Sh. Rajender purchased this plot from Sube Singh S/o Sh. Har Gopal R/o V.P.O. Bahrana, Distt. Rohtak, Haryana. Copies of Chain documents from Sh. Sube Singh to Smt. Birmati. It is further averred that, the mother of plaintiff namely Late Sunita Devi purchased Plot No. 25, area measuring 100 Sq. Yds. out of Khasra No.14/2, situated in the revenue estate of Village Haibutpura, Delhi in the abadi known as Chandan Park, Najafgarh, New Delhi-110043 on 31.03.2000 from Smt. Birmati Devi W/o Sh. Mahabir Singh R/o V.P.O. Nuna Majra, Tehsil Bahadurgah, Distt. Jhajjar, Haryana.
3. It is further averred that, the parents of the plaintiff had also constructed rooms, kitchen, toilet upon the aforesaid plot. It is numbered as Plot No.25, part of Khasra No.14/2, Village Haibutpura, Delhi in the abadi known as Chandan Park, Najafgarh, New Delhi-110043 surrounded by East Gali 10 Ft., West Road 20 Ft. North Plot No.25A, South Road 20 Ft.
4. It is further averred that, mother of the plaintiff expired on 12.04.2005 leaving behind the plaintiff and his father Late Padam Singh as successor of CS DJ ADJ 935/19 Pawan Kumar Vs. Poonam & Anr. Pg. No. 3 of 20 the aforesaid immovable property. Thereafter, the father of the plaintiff also expired on 18.06.2008. It is further averred that, the defendant No.1 claimed herself as the wife of Late Padam Singh and further claims that defendant No. 2 is the son of Late Padam Singh. She also claims that after the death of mother of plaintiff, Late Padam Singh married her. It is further averred that, she was not able to prove her marriage by any means in any of the proceedings initiated by her for obtaining financial benefit from the CRPF Service of Late Padam Singh. It is further averred that, Late Padam Singh was serving in Central Reserve Police Force and was posted at 32 Battalion, Headquarter Sambalpur, Orissa. It is further averred that, the defendant No.1 did not look-after the plaintiff by any means since the day of her marriage, hence he started living with his grandfather's real brother Sh. Raghubir Singh after the Ld. Guardian Court, Bahadurgarh, Haryana granted custody to him.
5. It is further averred that, the defendant No. 1 has again filed Petition against the plaintiff for grant of succession certificate and has given her permanent address as the address of the plaintiff. But she illegally possess the suit property of plaintiff as he is only the successor of her mother under Section 15(2)(a) of the Hindu Succession Act, 1956. It is further averred that, there were meetings of Biradari on different dates i.e. 26.09.2013, 15.08.2014, 26.01.2015, 02.10.2015, 20.06.2019 and on various dates but she refused to handover the peaceful and vacant possession of suit property to the plaintiff. It is further averred that, the plaintiff has attained majority on 13.05.2015 since his date of birth is 14.05.1997.
6. It is further averred that, the defendants have already got 2/3rd share in the agricultural land of Late Padam Singh besides the Lal Dora land in that proportion. The plaintiff is contended with 1/3rd share in the agricultural land as well as in the Lal Dora land. But, the defendant No.1 has CS DJ ADJ 935/19 Pawan Kumar Vs. Poonam & Anr. Pg. No. 4 of 20 kept evil eye upon the suit property of the plaintiff as she has no right, title or interest in the suit property. It is further averred that, the plaintiff then complaint to the police officials of P.S. Sadar Bahadurgarh on 20.09.2013. She initially agreed to handover the peaceful and vacant possession of the suit property to the plaintiff but from next day onwards she refused to handover the vacant and peaceful possession of the suit property to the plaintiff. It is further averred that, on 13.11.2019, the plaintiff tried to convince the defendants to handover the possession of the aforesaid suit property at the time of preparing written statement of succession certificate (filed second time and the notice was received by the plaintiff and he was needed to file written statement) but defendants flatly refused to handover the vacant and peaceful possession of the aforesaid plot. It is further averred that, plaintiff and the defendants were jointly possessed the suit property but after grant of guardianship right to Sh. Raghubir Singh (grandfather) he was dispossessed from the suit property by the defendant No. 1. It is further averred that, the plaintiff finally approached the defendants for possession of the suit property and mesne profit for the use and occupation by the defendants after Diwali, 2019 i.e. on 13.11.2019 but she threatened the plaintiff that she was the only owner of the suit property and also told the plaintiff that he has no right, title oг interest in the suit property. It is further averred that, defendant No.1 is a rank trespasser and has illegally, unlawfully usurped the property of the plaintiff. Thus, the defendant needed to pay Rs.1000/- per day as damages/mesne profit for unlawful/illegal use and occupation of the suit property since 12.11.2016.
7. The summons of the suit were issued to the defendants and appearance was entered on behalf of all defendants. Written statement was filed on behalf of defendants, wherein it is stated that the deceased husband of the defendant No.1, namely Padam Singh, was married with one Ms. CS DJ ADJ 935/19 Pawan Kumar Vs. Poonam & Anr. Pg. No. 5 of 20 Sunita Devi and out of the said wedlock, the plaintiff was born. However, unfortunately Ms. Sunita expired in the year 2005 leaving behind the minor plaintiff. It is further stated that during the lifetime of Ms. Sunita Devi, Mr. Padam Singh had purchased the suit property in her name (Sunita Devi) in the year 2002. After the death of Sunita Devi, in order to take care of the minor plaintiff, Late Sh. Padam Singh solemnized second marriage with defendant No. 1 and out of the said wedlock the defendant No. 2, namely Master Manish Kumar was born. It is further stated that after getting married with Late Sh. Padam Singh, defendant No. 1 was duly discharging her responsibilities, love, and affection towards the plaintiff and was very much actively taking care of the plaintiff. It is further stated that, during his lifetime, Late Sh. Padam Singh and defendant no.1 were residing at the suit premises along with the minor plaintiff.
8. It is further stated that, in the year 2008, Late Sh. Padam Singh was passed away and by that time due to unnecessary intervention of the in- laws of defendant No. 1, the minor plaintiff was forcibly taken back by the in-laws of the answering Defendant No.1 and was shifted to his native village i.e. Village Lunamajra Tehsil- Bhadurgarh Dist. Jhajjar, Haryana. It is further stated that, since Padam Singh was a Govt. Servant as such after his death the answering Defendant No.1 under her guardianship applied for issuance of succession certificate in favour of both the minor sons of Sh. Padam Singh i.e. the plaintiff and defendant No.2 and for herself as both plaintiff and the defendant No. 2 were minor at that time. The said succession certificate was duly issued from the court Add. Civil Judge Senior Division Bahadurgarh and accordingly an amount of Rs. 5,50,000/- left by Late Sh. Padam Singh were equally disbursed in favour of the Plaintiff, the Defendant No. 1 and Defendant No.2.
CS DJ ADJ 935/19 Pawan Kumar Vs. Poonam & Anr. Pg. No. 6 of 20
9. It is further stated that, in the year 2011, one Raghuveer Singh (uncle of Padam Singh) applied for the custody of the minor plaintiff before the court of Add. Civil Judge for Division Bhadurgarh and a petition under Secession 8 of Guardian and Ward Act was filed. During the proceeding, an amicable settlement was arrived and it was mutually decreed in terms of compromise. It is further averred that, it was mutually agreed that the service benefits and the properties accrued in favor of inherited property of Padam Singh will also be divided in 3 equal shares. To that effect, a written communication of compromise was also arrived at and was duly processed before P.S. Sadar Bhadurgarh. It is further averred that, as per the compromise deed arrived before the court in Guardianship court, the defendant No.1 had applied for Succession Certificate in relation to the service benefits of Late Sh. Padam Singh.
10. It is further stated that, since the death of Padam Singh, the above named above named Raghuveer Singh had been repeatedly harassing the defendants in the garb of being guardian of the minor plaintiff. It is further stated that, the defendants were neither been allowed to stay at the native village of Padam Singh nor were allowed to enjoy the inherited share of deceased Late Sh. Padam Singh. Though the same was an important aspect of compromise date 20/09/2013. It is further stated that, the above-named Raghuveer Singh had been solely enjoying the inherited property of deceased Padam Singh and now at his/Raghuveer Singh's instance, the answering defendants had been dragged in the present frivolous litigation.
11. In the preliminary objections, defendants stated that, the present suit not maintainable as the plaintiff has concealed material facts. It is further stated that, the present suit is hit by provisions of Hindu Succession Act whereby the adopted child of deceased is barred from claiming the inherited CS DJ ADJ 935/19 Pawan Kumar Vs. Poonam & Anr. Pg. No. 7 of 20 rights of his biological parents. It is further stated that, since the plaintiff had denied the factum of the status of the dDefendant No.1 but had not placed any documents to press or contend the locus of defendant no.1 hence the plaint itself suffers from the concealment of facts, as such the suit deserved to be dismissed. It is further stated that, the plaintiff has failed to project, his legal right, title or interest in the suit property hence the present suit is liable to be dismissed. In his para-wise reply, defendants have denied all the contents of the plaint.
12. Replication to the written statement of defendants was filed on behalf of the plaintiff, thereby, reiterating and reaffirming the contents of the plaint.
ISSUES
13. On the basis of pleadings of parties, following issues were framed by Ld. Predecessor of this Court vide order dated 25.07.2022 :
(1) Whether the plaintiff is entitled for decree of declaration in respect of suit property bearing plot no. 25, Khasra no. 14/2, area measuring 100 sq. yards in the revenue estate of village Haibutpura, Delhi, as prayed? OPP (2) Whether the plaintiff is entitled for decree for recovery of possession, as prayed? OPP (3) Whether plaintiff is also entitled for mesne profit/damages, if so, at what rate and for what period? OPP (4) Whether the plaintiff is entitled for decree of permanent injunction in respect of the suit property, as prayed? OPP (5) Relief.
EVIDENCE GIVEN BY PARTIES CS DJ ADJ 935/19 Pawan Kumar Vs. Poonam & Anr. Pg. No. 8 of 20
14. In support of his case, plaintiff examined four (4) witnesses in all. Sh. Raghubir Singh is examined as PW1 who tendered his evidence by way of affidavit Ex. PW1/A and has relied upon following documents:
Sl. No. Particulars of Documents Exhibits/Mark
1. SPA dated 05.11.2019 Ex. PW 1/1
2. Copies of chain of documents from Sh. Ex. PW 1/2 (colly)
Sube Singh to Smt. Birmati
3. Copy of General Power of Attorney duly Ex. PW 1/3
notarized dated 31.03.2000
4. Copy of Agreement to Sell duly notarized Ex. PW 1/4
dated 31.03.2000
5. Copy of Affidavit duly notarized dated Ex. PW 1/5
31.03.2000 .
6. Copy of Receipt duly notarized dated Ex. PW 1/6
31.03.2000
7. Copy of Will duly executed by the seller Ex. PW 1/7
dated 31.03.2000
8. Copy of Possession letter duly executed by Ex. PW 1/8
the seller dated 31.03.2000
9. Original Site Plan of suit property Ex. PW 1/9
10. Certified copy of succession certificate Ex. PW 1/10
granted by Ld. Additional Civil Judge,
Bahadurgarh, Haryana for confirmation of
death of Lt. Padam Singh and Smt. Sunita
Devi
11. Certified copy of custody order dated Ex. PW 1/11
16.11.2013 of plaintiff to deponent
12. Copy of Petition for grant of succession Ex. PW 1/12
certificate dated 26.04.2018 before the Court
of Ld. ACJ, Jhajjar, Haryana
13. Copy of Aadhar Card of the plaintiff on Ex. PW 1/13
CS DJ ADJ 935/19 Pawan Kumar Vs. Poonam & Anr. Pg. No. 9 of 20
which date of birth is shown as 14.05.1997
14. Copies of Khatauni proving the fact that the Ex. PW 1/14.
defendants had taken 1/3rd each in the
agricultural and Lal Dora land of Late Padam
Singh
15. Copy of complaint dated 20.09.2013, PS Ex. PW 1/15.
Sadar Bahadur Garh
PW1 has been cross-examined at length on behalf of the Ld. Counsel for the defendants.
15. PW-2 Sh. Mahavir Singh S/o late Sh. Lal Chand has tendered his evidence by way of affidavit Ex. PW2/A. He identified his signature at point A on already exhibited document as ExPW1/3, at point B on already exhibited document as Ex PW1/4, at point C on already exhibited document as Ex PW1/6, at point D on already exhibited document as Ex PW1/7, at point E on already exhibited document as Ex PW1/8. PW2 has been cross- examined on behalf of the Ld. Counsel for the defendants.
16. PW3 Smt. Santosh W/o Sh. Baljeet Singh has tendered his evidence by way of affidavit Ex. PW3/A. PW3 has been cross-examined at length on behalf of the Ld. Counsel for the defendants.
17. PW 4/plaintiff Pawan Kumar has tendered his evidence by way of affidavit Ex. PW4/A. He identified his signature at point A on already exhibited SPA as ExPW1/1 and signature of witnesses at point B and C who have signed in his presence. PW4 has been cross-examined on behalf of the Ld. Counsel for the defendants.
CS DJ ADJ 935/19 Pawan Kumar Vs. Poonam & Anr. Pg. No. 10 of 20
18. Thereafter, plaintiff closed its evidence and the matter was listed for defendant's evidence.
19. In support of its case, defendant/ Poonam examined only herself as a defence witness and has tendered his evidence by way of affidavit Ex. DW1/A and has relied upon the following documents:
Sl. No. Particulars of Documents Exhibits/Mark
1. Copy of compromise deed, statement of Ex.DW1/A
parties and order passed by the court
2. Copy of the compromise/communication dt. Mark A
20.09.2013
20. He has been cross-examined at length on behalf of the plaintiff. Thereafter, defendant evidence was closed and the matter was listed for final arguments.
21. Arguments heard. Record Perused.
ISSUE WISE ANALYSIS:
ISSUE NO. 1: Whether the plaintiff is entitled for decree of declaration in respect of suit property bearing plot no. 25, Khasra no. 14/2, area measuring 100 sq. yards in the revenue estate of village Haibutpura, Delhi, as prayed? OPP
22. Section 34, Specific Relief Act1 provides that a suit against any person denying or interested to deny the plaintiffs' title to the legal character or right to any property can be filed. To obtain the relief of declaration the 1 34. Discretion of court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
CS DJ ADJ 935/19 Pawan Kumar Vs. Poonam & Anr. Pg. No. 11 of 20 plaintiff must establish that (1) the plaintiff was at the time of the suit entitled to any legal character or any right to any property (ii) the defendant had denied or was interested in denying the character or the title of the plaintiff,
(iii) the declaration asked for was a declaration that the plaintiff was entitled to a legal character or to a right to property (iv) the plaintiff was not in a position to claim a further relief than a bare declaration of his title. It is a discretionary relief.
23. Hon'ble Supreme Court of India in Deccan Paper Mills Co. Ltd. V Regency Mahavir Properties, Civil Appeal No 5147 of 2016 observed that document though not necessary to be set aside may, if left outstanding, be a source of potential mischief. The jurisdiction under section 39 of the Specific Relief Act, 1877 (which is the pari materia provision to section 31 of the 1963 Act) is a protective or a preventive one. It is to prevent a document to remain as a menace and danger to the party against whom under different circumstances it might have operated.
24. Similarly, in Suhrid Singh V Randhir Singh, (2010) 12 SCC 112, Hon'ble Supreme Court held that where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. In Deccan Paper Mills Co. Ltd (supra), it was observed that the expression "any person" does not include a third party, but is restricted to a party to the written instrument or any person who can bind such party. It was further observed as under:
"The incongruous result of section 31 of the Specific Relief Act being held to be an in rem provision. When it comes to cancellation of a deed by an executant to the document, such person can approach the Court under section 31, but when it CS DJ ADJ 935/19 Pawan Kumar Vs. Poonam & Anr. Pg. No. 12 of 20 comes to cancellation of a deed by a non-executant, the non- executant must approach the Court under section 34 of the Specific Relief Act, 1963. Cancellation of the very same deed, therefore, by a non-executant would be an action in personam since a suit has to be filed under section 34. However, cancellation of the same deed by an executant of the deed, being under section 31, would somehow convert the suit into a suit being in rem."
25. The main contention of the plaintiff is that, he is sole legal heir of Late Smt. Sunita Devi and Late Sh. Padam Singh and since marriage of defendant no. 1 with Late Sh. Padam Singh could not be proved, neither defendant no. 1 nor her son i.e. defendant no. 2 has any right, title or interest qua the suit property. However, this court is not inclined to accept this plea as validity of the marriage has not been challenged in present proceedings. Moreover, there is a admission in the plaint itself about factum of marriage. Relevant paragraphs wherein plaintiff has specifically admitted the factum of marriage and right of defendants is reproduced here-in-below:
"6. That the defendant No.1 did not look-after the plaintiff by any means since the day of her marriage, hence he started living with his grandfather's real brother Sh. Raghubir Singh after the Ld. Guardian Court, Bahadurgarh, Haryana granted custody to him. Certified copy of custody order dated 16.11.2013 of plaintiff to Sh. Raghubir Singh is annexed as Annexure P-10.
XXXXX
9. That the defendants have already got 2/3rd share in the agricultural land of Late Padam Singh besides the Lal Dora land in that proportion. The plaintiff is contended with 1/3rd share in the agricultural land as well as in the Lal Dora land. But the defendant No.1 has kept evil eye upon the suit property of the plaintiff as she has no right, title or interest in the suit property. Copies of Khatauni proving the fact that the defendants had taken 1/3rd each in CS DJ ADJ 935/19 Pawan Kumar Vs. Poonam & Anr. Pg. No. 13 of 20 the agricultural and Lal Dora land of Late Padam Singh are annexed as Annexure P-13 (Colly)."
26. Now, first aspect before this court is to ascertain actual ownership qua suit property. With respect the title, plaintiff has relied upon chain of documents from Sube Singh to Rajender, then Rajender to Birmati Devi and Birmati Devi to Late Smt. Sunita Devi i.e. mother of plaintiff which includes GPA, agreement to sell, affidavit, receipt, Will all dt. 31.03.2000. While, in WS defendant stated that suit property was purchased in the name of Late Smt. Sunita Devi in the year 2002 and Sunita Devi left for heavenly abode in 2005. During cross-examination, defendant no. 1 i.e. DW1 deposed as follows:
'The suit property is in the name of Padam Singh. It is correct that the suit property is in the name the of Ms. Sunita who was first wife of Padam Singh. Again said, the suit property was in the joint name. It is correct that the suit property is name of mother of plaintiff namely Sunita. It is correct that neither nor my relatives were present when the suit property was purchased. It is correct that I did not see any bank account, DD pertaining to the consideration amount of the suit property paid by the mother of the plaintiff. It is correct that I never asked anything from the seller or witnesses of the sale, pertaining to the purchase of suit property by the mother of plaintiff. After about one week after my marriage, my second husband informed me that he has purchased the suit property in the presence of one of my neighbor Sheela Devi. I have not written to any authority about the purchase of suit property by Padam Singh or in the written statement filed before this court. It is wrong to suggest that, Padam Singh did not purchase the suit property,'
27. Thus, testimony of DW1 is not reliable being contradictory in itself. Late Smt. Sunita Devi is the recorded owner qua the suit property by virtue of GPA, agreement to sell, affidavit, receipt, Will all dt. 31.03.2000. It is also not disputed that, Late Smt. Sunita Devi left for heavenly abode on CS DJ ADJ 935/19 Pawan Kumar Vs. Poonam & Anr. Pg. No. 14 of 20 12.04.2005 intestate leaving behind plaintiff and his father Late Sh. Padam Singh. It is well settled law that, in terms of Sec. 15 of Hindu Succession Act, 1956, the property of female Hindu dying intestate shall devolved upon the son/daughters and husband. Hence, after the demise of Late Smt. Sunita Devi, suit property devolved upon her husband namely Late Sh. Padam Singh and plaintiff in equal portion i.e. 50% each. It is also not disputed that, Late Sh. Padam Singh also left for heavenly abode intestate on 18.06.2008 and succession certificate dt. 26.04.2018 already issued in favour of plaintiff and defendants herein for his death benefits. Thus, plaintiff shall be further entitled for 1/3rd share of remaining 50% in the suit property.
28. But, Ld. Counsel for defendants submits that, uncle of Late Sh. Padam Singh namely Sh. Raghbir Singh took custody of plaintiff vide order dated 16.11.2013 in GW Act Case no. 31/2011 from the Court of Ld. Civil Judge, Bahadurgarh u/s 8 of Guardian and Wards Act, hence, he has left with no claim with the suit property being adopted son of Sh. Raghbir Singh. It is also submitted that, during said proceedings, there was settlement agreement between Raghbir Singh and defendant no. 1 i.e. reproduced here-in-below-
"An agreement has been reached between both the parties regarding this case, the terms of which have been fixed as follows-
1. That Minor Pawan s/o Padam Singh, now 16 years old, has been living with his grandfather Raghbir Singh (plaintiff) for the last 12 years. Defendant No. 2 Poonam has no objection to appointing plaintiff Raghbir Singh as its natural guardian.
2. That Minor Pawan's father Padam Singh C.R. P.F. Now after his death, he has two sons Pawan and Manish and wife Poonam. The service benefits of Shri Padam Singh after his death. Out of them, no party has any objection in giving 2/3rd share to defendant no. 2 and 1/3rd share to Pawan.
CS DJ ADJ 935/19 Pawan Kumar Vs. Poonam & Anr. Pg. No. 15 of 20
3. That 1/3rd share of Minor Pawan should be given to Raghbir Singh who is the grandfather of Minor Pawan and bears the expenses of his education and defendant no. 2 Poonam has no objection to the same.
That both the parties will remain bound by the above conditions"
29. This court is not inclined to accept the plea made by defendants as merely appointment of natural guardian for a minor does not preclude him to claim inheritance from his biological parent as concept of guardianship and adoption is totally different under the law. Guardianship implies the legal authority and corresponding duty of a person to care for another person who is below the age of 18 years and is incompetent to manage affairs on his own. But, this relationship does not extinguish a biological parent's legal relationship to the child, such as obligations for support, care, and inheritance rules. The adoption process is more substantial and permanent in that it transfers biological parents' rights to another parent who takes full responsibility for the child, including well-being, financial support, and inheritance rights. Adoption is the formal process through which a child is separated from the biological parents to become the lawful child of adoptive parents. In any case no proof given by defendant no. 1 for adoption of plaintiff by grand father-in-law. Relevant deposition of DW1 is reproduced hereinbelow:
"I do not know whether Pawan Kumar was adopted by grand father in law Raghuvir Sing or not. I have not seen any document pertaining to adoption'
30. Further, succession certificate i.e. Ex.PW1/10 has no relevancy in present proceedings as same is issued for death benefit only and subject matter of the suit property is not the subject matter of the succession certificate.
CS DJ ADJ 935/19 Pawan Kumar Vs. Poonam & Anr. Pg. No. 16 of 20
31. Hence, issue no. 1 is partly decided in favour of plaintiff. He is declared owner of the suit property to the extent of 50% + 1/3rd of 50% i.e. 2/3 share.
ISSUE NO. 2: Whether the plaintiff is entitled for decree for recovery of possession, as prayed? OPP
32. Only objections raised by defendant no. 2 in the present proceedings is that plaintiff was never in possession of the suit property, hence, not entitled for relief of possession. However, this court is not inclined to accept the submissions given by defendants on two grounds. Firstly, plaintiff is admittedly class I Legal Heir of Late Smt. Sunita Devi and Late Sh. Padam Singh. Secondly, in their WS defendants duly admitted the fact that, plaintiff was well residing in the suit property. For the purpose of clarification relevant portion is reproduced here-in-below:
"C) After getting married with Padam Singh, the answering Defendant No. 1 was duly discharging her responsibilities, love, and affection towards the Plaintiff and was very much actively taking care of the Plaintiff. During his lifetime, Padam Singh and the answering Defendant No.1 were residing at the suit premises along-with the minor Plaintiff."
33. Thus, in view of above discussions, plaintiff is held entitle for decree of possession w.r.t. 2/3 share of the suit property. Hence, this issue is decided in favour of plaintiff ISSUE NO. 3: Whether plaintiff is also entitled for mesne profit/damages, if so, at what rate and for what period? OPP CS DJ ADJ 935/19 Pawan Kumar Vs. Poonam & Anr. Pg. No. 17 of 20
34. In present suit plaintiff is claiming Rs. 1000/day as damages/mesne profit from the date of filing of the suit till the defendants vacates.
35. At this juncture, It would be imperative to refer to Section 2(12) of the CPC, which defines mesne profits and also to Order XX Rule 12 CPC, which prescribes the procedure to be followed by the Court while dealing with a claim for grant of mesne profits.
Section 2(12) CPC provides that:
"mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession;
Order XX Rule 12 CPC provides that, '12. Decree for possession and mesne profits.--
(1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree--
(a) for the possession of the property;
(b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent.
(ba) for the mesne profits or directing an inquiry as to such mesne profits;
(c) directing an inquiry as to rent or mesne profits from the institution of the suit until--
(i) the delivery of possession to the decree-holder,
(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or
(iii) the expiration of three years from the date of the decree, whichever, event first occurs.
(2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.' CS DJ ADJ 935/19 Pawan Kumar Vs. Poonam & Anr. Pg. No. 18 of 20
36. No material placed on record by plaintiff to show that, he has sustain damages or defendants have earned undue profit by occupying the suit property. Moreover, defendants are also held entitled for 1/3rd share in the suit property hence, this issue decided against the plaintiff.
ISSUE NO. 4: Whether the plaintiff is entitled for decree of permanent injunction in respect of the suit property, as prayed?OPP
37. Since issue no.1 is already decided in favour of plaintiff, hence present issue is accordingly decided in favour of plaintiff thereby restraining defendants, their LRs, assignees, etc. from creating third party interest qua title or possession or alienating the suit property, mortgaging the same in any manner.
RELIEF/CONCLUSION
38. Suit is partly decreed in favour of plaintiff. Hence, Plaintiff is declared owner of the suit property i.e. Plot No.25, area measuring 100 Sq. Yds. out of Khasra No.14/2, situated in the revenue estate of Village Haibutpura, Delhi in the abadi known as Chandan Park, Najafgarh, New Delhi-110043 to the extent of 50% + 1/3rd of 50% i.e. 2/3 share. Decree of possession and permanent injunction is also passed in favour of plaintiff. Defendants, their LRs, assignees, etc. are restrained from creating third party interest qua title or possession or alienating the suit property, mortgaging the same in any manner. However, plaintiff is not entitled for any mesne profit or damages.
39. No order as to cost.
CS DJ ADJ 935/19 Pawan Kumar Vs. Poonam & Anr. Pg. No. 19 of 20
40. Decree Sheet to be prepared accordingly.
41. File be consigned to record room after due compliance.
Announced in open court on 08.05.2024 (SHILPI M JAIN) DISTRICT JUDGE-05 DWARKA COURTS, NEW DELHI CS DJ ADJ 935/19 Pawan Kumar Vs. Poonam & Anr. Pg. No. 20 of 20