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Delhi District Court

Sudha Mishra vs Om Kumari Mishra on 21 April, 2023

         IN THE COURT OF SH. SANJAY GARG - I
        PRINCIPAL DISTRICT & SESSIONS JUDGE,
     EAST DISTRICT, KARKARDOOMA COURTS, DELHI

RCA No. 03/2023

Sudha Mishra
W/o Sh. Rajesh Mishra
R/o FF-50B/615, Ground Floor
Laxmi Nagar,
Delhi-110092.                                  ......APPELLANT

               VERSUS

1.     Om Kumari Mishra
       W/o Late Sh. R.P. Mishra

2.     Rajesh Mishra
       S/o Late Sh. R.P. Mishra
       Both R/o FF-50B/615,
       Laxmi Nagar,
       Delhi-110092.                       ......RESPONDENTS

                                Date of filing of Appeal : 04.01.2023
                          First Date Before This Court : 06.01.2023
                                 Arguments Concluded : 11.04.2023
                                       Date of Decision: 21.04.2023

ORDER

1. Vide this Appeal, the Judgment impugned is dated 08.12.2022 vide which suit filed by the respondent no. 1, was allowed under mandatory and permanent injunctions and disallowed for recovery of mesne profit/damages/occupation charges by the Ld. Trial Court.

2. The brief facts leading to filing of the present appeal are that respondent no. 1 filed a suit for mandatory, permanent injunctions and usage charges/damages in respect of the suit RCA No. 03/2023 Sudha Mishra vs. Om Kumari Mishra & Anr. Page 1 of 11 property averring that she is a senior citizen, widow lady of 77 years of age. She has retired as a Teacher from Delhi Government and now living at the above mentioned address. Respondent no. 2 is the elder son of the respondent no. 1 and appellant is the wife of respondent no.2. Respondent no. 1 is legal owner of the entire buildup two storied (ground and first floor) property, Block F, in colony Lakshmi Nagar, Village Khureji Khas, Illaqa Shahdara, presently property bearing no. FF-50B/615, Laxmi Nagar, Delhi-110092 admeasuring 134 ½ sq. yards vide registered sale deed dated 26.02.1969 which was registered before Sub Registrar IV, Delhi on 04.04.1969. The above said property had been purchased by the respondent no. 1 herself and therefore, the said property is her self acquired property. The above said property was also constructed by the respondent no.1 by her own funds. The mutation of above said property in MCD is also in the name of the respondent no.1 since starting of the house tax in the property. Respondent no. 1 has three daughters and two sons. Respondent no. 2 is employee of Railway and was married to appellant. Since their marriage, they lived in the above said property for some time. As the behaviour of the appellant and her husband was very rude towards the respondent no. 1, therefore, they were ejected from the suit property in the year 2008 and they were shifted in Noida, U.P. where they had purchased a flat. On 25.06.2012, as the husband of respondent no. 1 expired, appellant and respondent no. 2 came at the said property and requested her to allow them to live in the said property only for some time and the respondent no. 1 had RCA No. 03/2023 Sudha Mishra vs. Om Kumari Mishra & Anr. Page 2 of 11 allowed them to live in one room and kitchen at ground floor of property bearing no. FF-50B/615, Laxmi Nagar, Delhi-110092 (hereinafter referred to as 'suit property'). Thereafter, due to the rude behaviour of appellant and respondent no. 2, respondent no. 1 asked them to vacate the suit property but they had not vacated the same. Respondent no. 1 has disowned appellant as well as respondent no. 2 from her all movable and immovable properties by publishing public notice in Rashtriya Sahara newspaper on 09.05.2017. A legal notice dated 08.05.2017 was sent to them through speed post for vacating the suit property but of no avail, hence, the suit was filed by the respondent no. 1 against the appellant and respondent no.2.

3. Appellant and respondent no. 2 filed written statement in which they have averred that respondent no. 1 has concealed the facts that the property in question was purchased in the name of the respondent no. 1 and reconstructed from the joint funds of the family and the respondent no. 1 is not an exclusive owner of the said property. The suit is bad for non-joinder and mis-joinder of necessary parties. In reply on merits, they have deniesd that said property had been purchased by respondent no. 1 herself and the same is her self acquired property. It is averred that respondent no. 1 has filed the present suit under the influence of Smt. Anju, Manju and Rakesh Mishra. Smt. Manju Tiwari was also residing in the premises in question and has added/created problem to them. It is averred that appellant and respondent no. 1 were living in the suit property continuously as respondent no. 2 has constructed the suit property alongwith respondent no. 1 RCA No. 03/2023 Sudha Mishra vs. Om Kumari Mishra & Anr. Page 3 of 11 and his father after demolishing the old structure in the year 1999. It is submitted that suit property is the joint property of respondent no. 1, respondent no. 2 and appellant as the respondent no. 2 has share holder rights in the premises in question. It is averred that respondent no. 1 has no right to disown them from the joint share hold property.

4. Respondent no. 1 in her replication to the written statement, has reaffirmed and reiterated assertions, as set out in the plaint and denied all the averments of the written statement.

5. On basis of the pleadings of the parties, issues were framed on 15.10.2018 which are as under:-

(i) Whether the plaintiff is entitled to decree of mandatory injunction, as prayed for ? OPP

(ii) Whether the plaintiff is entitled to decree of permanent injunction, as prayed for ? OPP

(iii) Whether plaintiff is entitled to decree of recovery of mesne profit/damages/occupation charges @ Rs.5,000/- per month as claimed ? OPP

(iv) Whether the plaintiff is not the exclusive owner of the suit premises ? OPD

(v) Whether the suit is bad for non-joinder and mis-

joinder of necessary parties ? OPD

(vi) Relief".

6. Respondent no. 1 in support of her case, examined herself as PW-1 and deposed regarding the facts as contained in the petition and relied upon following documents :

(i).     Copy of my voter ID card as Ex.PW-1/1.
(ii).    Copy of sale deed dated 26.02.1969 as Ex.PW-1/2.

(iii). Copies of house tax & assessment of house tax as Ex.PW-1/3.

(iv). Copy of death certificate of my husband as Ex.PW-1/4.

(v). Site plan of suit property as Ex.PW-1/5.

(vi). Copy of complaint dated 22.10.2016 as Ex.PW-1/6.

(vii). Copy of public notice in Rashtriya Sahara Newspaper on 09.05.2017 as Ex.PW-1/7 .

(viii). Copy of legal notice dated 08.05.2017 as Ex.PW-1/8.

(ix). Copy of speed post receipts as Ex.PW-1/9 & Ex.PW-1/10.

(x). Two Internet generated proof of delivery as Ex.PW-1/11 & Ex.PW-1/12.

7. Respondent no. 2 in support of his case, examined himself as DW-1 and deposed regarding the facts as contained in the written statement and relied upon following documents :

(i). The copies of complaint dated 27.02.2020 vide DD No.5A, complaint dated 18.07.2020 and complaint dated 11.09.2020 PS Laxmi Nagar as Mark-A.

(ii). The copy of complaint dated 02.11.2020 PS Laxmi Nagar and print out of two photographs dated 05.11.2020 and 06.12.2020 as Mark-B.

8. After hearing, Ld. Counsels for the parties, Ld. Trial Court decreed the suit of respondent no.1 vide impugned judgment. Being aggrieved the present appeal has been filed by the appellant.

9. In the grounds on which the impugned judgment and decree has been assailed are that impugned judgment and decree are bad in law and are not legally sustainable in the eyes of law. Impugned judgment is based on conjectures and surmises. Ld. Trial Court has passed the impugned judgment and decree in very hasty manner without appreciating the material and evidence RCA No. 03/2023 Sudha Mishra vs. Om Kumari Mishra & Anr. Page 5 of 11 available on record, without applying its judicial mind. Ld. Trial Court failed to appreciate that the respondent no. 1 has filed the present suit in active collusion and connivance with her son i.e. the proforma respondent no. 2 and at the instance of his mother, he did not allow the appellant to pursue with the case personally. The Ld. Trial Court has failed to appreciate that the suit property is the matrimonial house of the appellant and the suit property falls within the ambit of the shared household as defined under the provisions of judgment of Hon'ble High Court of Delhi in CM (M) 1582/2018 titled as Vinay Varma vs. Kanika Pasricha & another. This issue has been confirmed by the Hon'ble High Court of Delhi in case titled as "Ambika Jain vs. Ram Prakash Sharma, RFA No. 222/2019". Ld. Trial Court has no jurisdiction to try and decide the suit as per the judgment of Hon'ble High Court of Delhi passed in CM (M) 69/2020 titled as Avneet Kaur vs. Sadhu Singh & another dated 01.06.2022 in which the Hon'ble High Court held that the civil court has no jurisdiction, when the dispute arisen out from the matrimonial relationship and only the Family Court has jurisdiction to adjudicate the said dispute. The Ld. Trial Court has passed the impugned judgment and decree beyond its jurisdiction therefore, the impugned judgment and decree are not legally sustainable and are liable to be quashed being cryptic and illegal.

10. The respondent no.1 has contested the appeal by filing reply. It is stated that she is widow and super senior citizen aged about 85 years. Respondent no.2, appellant and their children have made her life a hell as they abuse and misbehave with her.

It is stated that the sole plea taken by the appellant is that respondent no.1 has filed the present suit in collusion with respondent no.2, whereas no such plea was taken during trial. Appellant and respondent no.2 had filed their joint written statement along with their respective affidavits during trial and an application under Order VIII Rule 1 CPC was also filed by the appellant and respondent no.2 under their own signatures and attested affidavits. Respondent no.2 and appellant had filed police complaint only against her and not against each other. The trial in this case continued for 5 years and during trial not even a single whisper has been raised by the appellant that she was having any matrimonial dispute with respondent no.2. This appeal has been filed with the sole purpose to harass her. The appellant has not come with clean hands but appellant has failed to point out any error in the judgment. In the garb of this appeal, the appellant wants to delay the grant of eviction and take advantage of old age of respondent no.1.

11. I have heard the arguments of Sh. Avishek Kumar, Ld. Counsel for appellant and Sh. Brijesh Kumar, Ld. Counsel for respondent no.1. Respondent no. 2 was proceeded ex-parte vide order dated 07.03.2023.

12. Ld. Counsel for the appellant has relied upon following judgments :

(i) Satish Chand Ahuja vs. Sneha Ahuja 2020 Legal Eagle (SC) 622 decided by the Hon'ble Supreme Court on 15.10.2020.

(ii) Avneet Kaur vs. Sadhu Singh & Anr" C.M.(M) RCA No. 03/2023 Sudha Mishra vs. Om Kumari Mishra & Anr. Page 7 of 11 69/2020 & CM APPL. 2707/2020, decided by Hon'ble High Court of Delhi on 01.06.2022

13. Ld. Counsel for the respondent no. 1 has relied upon following judgment :

(i) Ravneet Kaur vs. Prithpal Singh Dhingra decided by Hon'ble High Court of Delhi on 24.02.2022.

14. The appellant has assailed the impugned judgment solely on the legal points without even touching the evidence led by the respondent no. 1, in support of her plaint before Ld. Trial Court. As discussed in para no. 5 of this appeal, issue no.4 was the most relevant and important issue for the purpose of this case. The burden was upon the appellant and respondent no.2 to prove this issue, but they have failed to discharge this burden. On the other hand, respondent no.1 relied upon the sale deed Ex.PW1/2 which proved that she has purchased the suit property on 25.02.1969 for consideration of Rs.2,000/-.

15. The other important issue was issue nos. 1 & 2 i.e. if respondent no.1 is entitled to decree of mandatory and permanent injunction as prayed for. The onus to prove these two issues was upon respondent no.1. To prove that she has proved complaint Ex.PW1/6, copy of Public Notice in the Newspaper Ex.PW1/7, Legal Notice Ex.PW1/8. Ld. Trial Court has rightly held that the appellant and her husband/respondent no.2 have failed to prove that they have right to reside in the suit property as they are not co-owner of the property and their status is nothing more than of a licensee. Accordingly, both these issues were decided in favour of respondent no.1.

16. One of the main contention raised on behalf of the appellant is that Ld. Trial Court has failed to appreciate that this suit is in active collusion with respondent no.1 and her son i.e. respondent no.2 and due to this reason she was unable to pursue this case in a proper manner. As pointed out by Ld. Counsel for respondent no1, before Ld. Trial Court, both appellant and her husband/respondent no.2 have filed joint written statement and had contested the case together, hence, there is no substance in this plea.

17. Other contention raised by the appellant is that the property is a matrimonial house of the appellant and it was within the ambit of "shared household" but Ld. Trial Court has failed to appreciate that. In support of his submission, Ld. Counsel for appellant has relied upon the observation made in Satish Chand Ahuja vs. Sneha Ahuja (Supra). Here, the Apex Court in this case relating to Protection of Women from Domestic Violence Act has observed that under Domestic Violence Act, aggrieved person can claim right of residence even in a shared house-hold, not belonging to the joint family or wherein, her husband has no share. But this right is not indefeasible. Ld. Counsel for respondent no.1 has stated that judgment of the Apex Court relied upon by appellant is in relation to Domestic Violence Act matters but here it is a simple civil suit. Even in Ravneet Kaur vs. Prithpal Singh Dhingra (Supra) interpreting this judgment of the Apex Court, Hon'ble High Court has observed that admittedly right of residence under section 19 of the D.V. Act is indefeasible right of residence in the shared house-hold RCA No. 03/2023 Sudha Mishra vs. Om Kumari Mishra & Anr. Page 9 of 11 especially when the daughter in law is pitted against aged father in law and mother in law. In this case, both being senior citizens of aged about 74 and 69 years and being in the evening of their life, are entitled to live peacefully and not to be haunted by the marital discord between their son and daughter in law. In view of the aforesaid reasons, I agree with the contention raised by Ld. Counsel for respondent no.1. Judgments relied upon by Ld counsel for the appellant is of no help to her.

18. The other contention raised by the appellant is that this matter should not have been tried by Ld. Trial Court, rather it should have been tried by the Family Court and on this very basis, the impugned judgment and decree should be set aside. In support of her contention, she has relied upon judgment titled "Avneet Kaur vs. Sadhu Singh & Anr" C.M.(M) 69/2020, decided by Hon'ble High Court of Delhi on 01.06.2022". In this case, a civil suit between daughter-in-law and parents-in-law filed before the Civil Court, was transferred to Family Court interpreting clause (d) of the Explanation to Section 7(1) Family Courts Act. This plea should have been taken by the appellant before the Ld. Trial Court but to the reasons best known to the appellant, no such plea was taken by her before the Ld. Trial Court.

19. Under these circumstances, the point to be considered is, does this non-transferring of the matter to the Family Courts affect the impugned judgment and decree in any way. To the mind of this Court, the impugned judgment has been passed by the Court of Competent Jurisdiction and if the same was not got RCA No. 03/2023 Sudha Mishra vs. Om Kumari Mishra & Anr. Page 10 of 11 transferred to the Family Courts, in the light of the law laid down in Avneet Kaur vs. Sadhu Singh & Another (Supra), it is a sheer irregularity and cannot be termed as illegality causing any shadow on the impugned judgment and decree.

20. In view of the afore-discussed reasons, I found no substance in the appeal and same is thereby dismissed.

21. A Copy of this order alongwith Trial Court Record be sent back to the Ld. Trial Court for information.

22. Appeal file be consigned to Record Room.

SANJAY Digitally by SANJAY signed GARG - GARG -I Date: 2023.04.21 I 16:57:58 +0530 Announced in the open court (SANJAY GARG - I) today on 21th April,2023 Principal District & Sessions Judge East, Karkardooma Courts, Delhi (pm) RCA No. 03/2023 Sudha Mishra vs. Om Kumari Mishra & Anr. Page 11 of 11