Delhi District Court
Madhu Verma @ Madhubala vs Kamlesh Verma And Anr on 22 November, 2023
In the Court of Siddhant Sihag, Administrative Civil Judge-
cum-Commercial Cases Judge-cum-Additional Rent
Controller, South West District, Dwarka Courts, New Delhi
CNR No. : DLSW03-001466-2018
Smt. Madhu Verma @ Madhubala versus Shri Kamlesh
Verma & Another
a) Civil Suit No. : 994/18
b) Name & address of the : Ms. Madhu Verma @
plaintiff Madhubala,
W/o Sh. Yashwant Singh
Verma,
R/o 1097, Gali No. 11,
Sadh Nagar, Palam
Colony,
New Delhi- 110045.
c) Name & address of the : 1. Sh. Kamlesh Verma,
defendants W/o Late Rattan Lal,
2. Smt. Asha Soni,
W/o Sh. Kamlesh Verma,
Both resident of:
RZ-72, Top Floor,
Sangam Apartment,
Gali No. 14A/5,
Sadh Nagar, Palam
Colony,
New Delhi- 110045.
Date of Institution : 24.08.2018
Final arguments heard on : 27.10.2023
CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 1 of 37
Judgment pronounced on : 22.11.2023
Suit for mandatory injunction, permanent & prohibitory
injunction and damages/mesne profits.
JUDGEMENT
1. Vide this judgment, I shall dispose of the instant civil suit filed by Ms. Madhu Verma @ Madhubala (hereinafter referred to as "plaintiff") against Kamlesh Verma and Asha Soni (hereinafter referred to as "defendants") for permanent injunction.
2. Plaint: It is stated in the plaint that plaintiff is the owner of the property bearing No. RZ-956A, Sadh Nagar, Palam Colony, New Delhi-110045 (20.84 sq. yards) consisting of shop on the ground floor, residential portion on the first floor, second floor and roof above the second floor. It is further averred that plaintiff had purchased the said property from one Sh. Ram Bilas Jain s/o Sh. Mange Ram Jain on 18.02.2000 for a total consideration of Rs. 80,000/- and thereafter, a sale deed was also executed in favour of the plaintiff on 11.12.2017. It is further averred that property is ad-measuring 20.84 sq. yard i.e. 17.4188 sq. meters, which is a part and parcel of Khasra No. 93/23, situated in the area of village Palam, Delhi.
CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 2 of 37It is further averred that Sh. Ram Bilas Jain had purchased the property in question from Sh. Mitthan Lal Jain, said Sh. Mitthan Lal Jain purchased from Sh. Sanjay Gupta (136 Sq. yards), Sh. Sanjay Gupta purchased from Sh. Dilawar Singh and Sh. Dilawar Singh had purchased from Sh. Balbir Singh.
It is further averred that defendant no. 1 and 2 are brother-in-law and elder sister respectively of the plaintiff. It is further averred that in the year 2011, plaintiff had granted license to use the property in question to defendants as defendants' children particularly, their son was not having any shop and plaintiff allowed the suit property to be used by defendants and the defendant No. 1 is still occupying the shop and doing his business from the said property and other residential portion of the property is also in their possession.
It is further averred that just to create pressure and harass the plaintiff and her family members, defendant no. 2 has filed a false suit against her qua another property, which is pending for adjudication before Ld. ADJ. It is further averred that the said suit was filed at the instance of the defendant No. 1 as he wants to grab the property in question. Resultantly, the plaintiff served a legal notice to the defendants on 18.07.2018 and the defendants have neither complied nor replied to the said notice.
It is further averred that both the defendants after receipt of notice, became unauthorized occupants from 20.07.2018 and hence, defendants are liable to make payment at CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 3 of 37 market rent of Rs. 15,000/- per month and a sum of Rs. 8,000/- has become due from 28.07.2018 till date of filing of present suit. It is further averred that after receipt of notice, both the defendants have threatened the plaintiff on 20.07.2018 that they will create third paty interest or will make unauthorized additions and alternations in the property in question. Aggrieved by the conduct of both the defendants, the plaintiff has approached this court with the instant suit seeking a decree of mandatory and permanent & prohibitory injunction and a decree of damanges/ mesne profit against the defendant.
3. Relief sought: The following reliefs have been sought by the plaintiff in the instant suit:
i) That the Court may kindly be pleased to pass a decree of mandatory injunction in favour of plaintiff and against the defendant thereby directing the defendant to removed their articles from his portion (shown in site plan) in respect of property bearing no. RZ-956A, Sadh Nagar, Palam Colony, New Delhi-110045 within a reasonable time.
ii) To pass a decree of permanent and prohibitory injunction in favour of plaintiff and against the defendant thereby restraining the defendant, his agents, servants, employees, nominees, associates etc. from creating any third party interest or making any additions or alterations in her portions (shown in site plan) of CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 4 of 37 the suit property bearing No. RZ-956A, Sadh Nagar, Palam Colony, New Delhi-110045 (20.84 sq. yards) situated in Khasra No. 93/23, situated in the area of village Palam, Delhi.
iii) To pass a decree to make the payment at the market rate of rent of the protions which are in her possession, not less than Rs. 15,000/- per month and a sum of Rs. 8,000/- has become due on account of damages/mesne profit in favour of plaintiff and against the defendant thereby and also directing the defendant to pay at the rate of Rs. 500/- per day, both pendentelite and future or any amount, which court determine after holding an inquiry under Order 20 Rule 12 CPC.
iv) To award the cost of litigation in favour of plaintiff and against the defendant.
v) Grant further and/or other reliefs as this Court may deem fit and proper in the circumstances to meet the end of justice.
4. Written Statement: The defendant filed a written statement wherein the defendant has denied all the averments put forth in the plaint. The defendant has contended that the suit property has been purchased out of the funds provided by the defendants and plaintiff and her husband had assured the defendants that the suit property has been purchased in their names. It is further contended that the plaintiff and her husband had fraudulently got executed the documents of the suit property CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 5 of 37 vide sale deed dated 11.12.2017 and this fact came into knowledge of defendants, only on receipt of notice dated 18.07.2018 issued by the plaintiff. With these contentions, the defendant has sought dismissal of the suit.
5. Issues framed: The court framed issues vide order dated 11.02.2021 which are as follows:
(i) Whether the plaintiff is entitled to the relief of mandatory injunction, as prayed for? OPP
(ii) Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for? OPP
(iii) Whether the plaintiff is entitled to the relief of recovery of damages/mesne profits, as prayed for?
OPP
(iv) Whether the defendants contributed in monetary terms for purchase of the suit property as per family settlement between the parties? OPD
(v) Any other relief.
6. Evidence adduced by the plaintiff: Plaintiff got herself examined as PW-1 and tendered her evidence by way of an affidavit which is Ex. PW-1/A. She relied on the following documents:
i) Ex.PW1/1 (OSR) to Ex.PW1/7 (OSR): copy of title documents executed in favour of the plaintiff.CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 6 of 37
ii) Ex.PW1/8 (OSR): copy of sale deed dated 11.12.2017.
iii) Ex. PW1/12 (OSR): Copy of title documents dated 17.02.2000 executed by Sh. Mithan lal in favour of Sh. Ram Bilas Jain.
iv) Ex.PW1/13 (colly) (OSR): Copies of two electricity bills dated 17.07.2012.
v) Ex.PW1/14 (colly)(OSR): Copies of house tax receipts.
vi) Ex.PW1/15 (OSR): Copy of rent agreement dated 22.05.2001.
vii) Ex.PW1/16 (OSR): copy of rent agreement dated 01.02.2007.
viii) Ex.PW1/17: Site Plan.
ix) Ex.PW1/18: Plaint of the suit filed by defendant no. 2 bearing CS No. 634/2018.
x) ExPW1/19: legal notice dated 18.07.2018.
xi) Ex.PW1/20 (colly): Original postal receipts, courier receipts and the tracking reports.
xii) Mark A: Copy of two water bills.
xiii) Mark B (colly): copy of the title documents executed by Sh. Balbir Singh in favour of Sh.
Dilawar Singh and Prem Singh (although mentioned as Ex.PW1/9 (colly) in his affidavit).
xiv) Mark C: Copy of title documents executed by Dilawar Singh & Sh. Prem Singh in favour of CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 7 of 37 Sanjay Gupta (although mentioned as Ex.PW1/10 (colly) in his affidavit).
xv) Mark D: Copy of title documents executed by Sanjay Gupta in favour of Mithan Lal (although mentioned as Ex.PW1/11 (colly) in his affidavit).
7. PW-1 in her cross examination has deposed that she purchased property along with defendant no. 2 and paid the consideration amount, however, the property was purchased jointly in her name as well as in the name of defendant no. 2. She has further deposed that the said property is located in Gali no. 7, WZ-329, Sadh Nagar, Palam Colony, New Delhi and the same was purchased in the year 1991-1992. She has denied the suggestion that the said property was jointly purchased by her and her sister and the consideration amount was also paid by defendant no. 2. She has admitted to be correct that the daughter of the defendants, namely, Preeti used to reside with her and she purchased the suit property in the year 2000 from one Ram Vilas.
She has further deposed that she had purchased the suit property for a total sale consideration of Rs. 80,000/- and had given the said amount in cash. She has further deposed that she had not withdrawn the said amount from the bank and the same were lying with her. She has further deposed that one Om Prakash had accompanied her when she went to purchase property from Ram Vilas. She has further deposed that the documents Ex. PW-1/1 to Ex. PW-1/7 were executed on the same CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 8 of 37 date when she had purchased the suit property and had directly visited the office of Sub-Registrar on the day when she had purchased the suit property, that is, 18.02.2000.
She has further deposed that the documents referred to above were prepared by Ram Bilas and did not get the same inspected by any counsel. She has further deposed that Ram Bilas had handed over the documents pertaining to the suit property which are Ex. PW-1/1 to Ex. PW-1/7 at the shop of her husband. She has further deposed that she was handed over the same after the same were prepared. She has further deposed that she had inspected the suit property prior to purchasing the same. She has further deposed that nobody resided in the suit property when she had gone to inspect the same and Ram Bilas had shown the said property to her. She has further deposed that Ram Bilas did not negotiate with her regarding the sale consideration amount and her husband later informed her that the property is worth Rs. 80,000/-.
She has further deposed that she had gone to the place where the property documents, Ex. PW-1/1 to Ex. PW-1/7 were prepared and no one accompanied her to the aforesaid place. She has deposed that she had signed documents on the date when she had purchased the suit property but she did not visit any notary public on the day when she signed the documents. She has further deposed that documents were executed in the office of Sub-Registrar in Janakpuri.
CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 9 of 37She has admitted it to be correct that documents Ex. PW-1/1 to Ex. PW-1/7 do not bear her signatures and she did not get any site plan prepared in respect of the suit property prior to filing of the instant suit even at the time when she had purchased the same. She has also deposed that she did get a site plan prepared as far back as in the year 2008-2009. She has further deposed that she had let out the suit property to her brother-in- law (Dewar), namely, Vijender Soni and rent agreement was also executed in this regard at Janakpuri in the year 2001 and 2007. She has denied the suggestion that she had taken the consideration amount of Rs. 1,50,000/- from her sister when she had purchased the suit property in the year 2000 and she informed that the suit property has been purchased in favour of defendant no. 2 only. She has also denied the suggestion that the document Ex. PW-1/1 to Ex. PW-1/7 were prepared in collusion with Ram Bilas Jain. She has further denied the suggestion that the same were never executed by Ram Bilas Jain in her favour and the document Ex. PW-1/8 has been fraudulently gotten registered in her own name by her.
She has further deposed that she raised construction in the suit property in the year 2008 and got the same constructed by one Ramu Contractor (Thekedar). She denied the suggestion that the said construction, that is the first floor and second floor of the suit property was constructed by defendant no. 2 out of her CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 10 of 37 own funds in the year 2009-2010 and she had not incurred any expenditure towards the construction over the suit property.
She has deposed that she did not get any document executed when she had given the property to the defendants in the year 2011 and till the filing of the instant suit, she did not get any document prepared and executed when she had allowed the defendants to reside in the property. She has denied the suggestion that she had not taken any license fee/rent from the defendants at any given point of time since the property belongs to defendant no. 2. She has admitted it to be correct that defendant no. 2 had filed a suit against her in respect to another property before she had sent legal notice dated 18.07.2018 Ex. PW-1/19.
She has further deposed that she had asked the defendants to vacate the suit property during the period between 2011-2018 and to defendant no. 2 to vacate the suit property for the first time when she had purchased the flat and when her children had started earning in the year 2014.
She has further deposed that she had seen the previous chain of documents herself. She has further deposed that at the time of filing of the instant suit, defendant no. 1 was running the shop on the ground floor of the suit property and was residing in the first floor of the suit property alongwith their younger son, namely, Pawan who was major at that time.
CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 11 of 378. Defence evidence: The defendants called and examined as many as two witnesses to support their defence. Defendant No. 2 examined herself as DW1 and her daughter namely Ms Preeti as DW2. Testimonies of the DW1 and DW2 are discussed hereinbelow:
9. Testimony of DW-1, Ms. Asha Soni (defendant No.
2): Defendant no. 2 got herself examined as DW-1 and tendered her evidence by way of an affidavit which is Ex. DW-1/A. She relied on the following documents:
(i) Copy of the suit titled as Asha Soni v. Madhu Verma @ Madhu Bala and Ors. is Ex. DW-1/1 (colly).
(ii) Copy of sale deed dated 04.03.2015 is Ex.
DW-1/2.
(iii) Copy of rectification deed is Ex. DW-1/3.
(iv) Copy of sale deed dated 23.04.2018 is Ex. DW-1/4.
(v) Copy of complaint before SHO, PS Palam Village as mentioned in the affidavit as Ex. DW- 1/5 is de-exhibited and now marked as Mark A.
(vi) Copy of the complaint case u/s 156 (3) Cr.P.C r/w section 200 Cr.P.C is Ex. DW-1/6.
CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 12 of 37Ex. DW-1/1 to Ex. DW-1/6 is objected to being not relevant to the suit property and pertaining to some other property.
10. DW 1 in her cross examination has deposed that she used to reside in Kolkata in the year 2000 and frequently used to visit Delhi in the said year. She has further deposed that she resided in Kolkata since 1983 till 2011 and in the year 2000, she was a home maker, however, she was also working as a tailor. She has further deposed that she used to maintain a bank account with Bank of Baroda, Kolkata in the year 2000 and did not file ITR in the said year. She has further deposed that however, her husband used to file an ITR in the year 2000. She has admitted it to be correct that she does not have any ownership documents in her name pertaining to the suit property, however, she had given the consideration amount. She has also admitted it to be correct that the suit property is in the name of the plaintiff as per the ownership documents. She has deposed that the suit property was purchased by the plaintiff on 18.02.2000.
She has admitted it to be correct that the electricity meter in the suit property has been installed in the name of the plaintiff and she does not have the knowledge as to when the electricity connection has been taken by the plaintiff in the suit property. She has admitted it to be correct that the water connection in the suit property is in the name of the plaintiff. She CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 13 of 37 has further deposed that the water connection might have been taken in the year 2011, however, she is not sure about the year. She has further deposed that the house tax of the suit property has been paid by her. She has admitted it to be correct that she has not filed any house tax receipt pertaining to the property as mentioned by her. She has also admitted it to be correct that she has not filed any suit in respect to the suit property against the plaintiff and she does not have any documentary proof with regard to the payment of Rs. 1,50,000/- given to the plaintiff as alleged in para no. 9 of her affidavit.
She has further deposed that she had asked for the property documents with regard to the suit property from the plaintiff in the year 2010 however, she does not remember the exact date and month. She has further deposed that she has not exchanged any written correspondence with the plaintiff with regard to demanding the ownership documents of the suit property. She has further deposed that in the year 2000 when the suit property was purchased, there was only one shop in the suit property. She has further deposed that she does not have any documentary proof with regard to the alleged fact of construction as mentioned in her evidence affidavit in para no. 14.
She has denied the suggestion that the suit property was given by the plaintiff on rent to Sh. Vijender Soni in the year 2001 till 2010 at the rate of Rs. 1000/- per month. She admitted it to be correct that in the year 2018, she along with her husband CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 14 of 37 and children was residing in the property RZ-72, Top Floor, Sangam Apartment, Gali no. 14A/5, Sadh Nagar, Palam Colony, New Delhi-45. She further admitted it to be correct that she has received the Ex. PW-1/19 from the plaintiff with regard to vacating the suit premises. She has denied the suggestion that she has not replied to the said legal notice Ex. PW-1/19, that is why she has not placed the same on record.
She has further deposed that the property bearing no. RZ-72, Top Floor, Sangam Apartment, Gali no. 14A/5, Sadh Nagar, Palam Colony, New Delhi-45 was in the name of her son namely, Pankaj Soni. She has denied the suggestion that she has taken a false defence of giving money after she received the legal notice Ex. PW-1/19 from the plaintiff and after receiving the summons of the present suit. She has also denied the suggestion that she has not asked for the property documents from the plaintiff as she was aware of the fact that the plaintiff is the owner and she was only a licensee in the suit property. She has further denied the suggestion that she was permitted to do business in the shop in the year 2011 alongwith her husband as a licensee only. She has further denied the suggestion that she was well aware of the fact that the electricity connection and water connection is in the name of the plaintiff as she is the owner of the premises.
She has further denied the suggestion that she is liable to pay Rs. 15,000/- per month as she is unauthorised CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 15 of 37 occupant in the suit property. She has further denied the suggestion that her license has been revoked by the plaintiff by the legal notice dated 18.07.2018. She has admitted it to be correct that the sale documents are executed in the name of the plaintiff in the year 2000 and were not executed in her presence. She has denied the suggestion that the property bearing no. 329A, Gali no. 7, Sadh Nagar, Palam Colony, New Delhi was also under the ownership of the plaintiff and in order to pressurize the plaintiff, she has filed the false and frivolous suit and complaint against the plaintiff. She has also denied the suggestion that she has never given any alleged amount of Rs. 1,50,000/- to the plaintiff for the purchase of the suit property. She has further denied the suggestion that neither she nor the defendant no. 1 is having any right to occupy the suit property and the both are unauthorised occupants in the same and also that she is deposing falsely.
11. Testimony of DW-2 Ms. Preeti: Defendant has also got examined Ms. Preeti as DW2 and who tendered her evidence by way of an affidavit which is Ex. DW-2/A. She relied on the following documents:
(i) Copy of suit titled as "Asha Soni v. Madhu Verma @ Madhu Bala & Ors. is already Ex. DW-
1/1 (colly).
CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 16 of 37 (ii) Copy of sale deed dated 04.03.2015 is
already Ex. DW-1/2.
(iii) Copy of rectification deed is already Ex. DW-1/3.
(iv) Copy of sale deed dated 23.04.2018 is
already Ex. DW-1/4.
(v) Copy of complaint made before SHO, PS
Palam Village and other police authorities is Mark A.
(vi) Copy of complaint case u/s 156 (3) Cr.P.C r/w section 200 Cr.P.C is already Ex. DW- 1/6.
Ex. DW-1/1 to Ex. DW-1/6 is objected to being not relevant to the suit property and pertaining to some other property.
12. DW2 in her cross examination has deposed that the present suit has been filed by the plaintiff in respect to the property bearing no. RZ-956 A, Gali no. 16, Sadh Nagar, Palam Colony, Delhi- 110045 and the property in question has been purchased in the year 2000. She has deposed that the owner of the suit property in the title documents is Ms. Madhu. She has admitted it to be correct that no complaint has been filed in respect to the suit property by defendant no. 2 and her mother, that is, defendant no. 2 has not filed any civil suit pertaining to CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 17 of 37 the suit property. She has further admitted it to be correct that there are separate civil suits pending between the plaintiff and defendant no. 2 in respect to the property bearing no. WZ-329A, khasra no. 67/7/1, Gali no. 7, Sadh Nagar, Palam Colony, New Delhi and the said suit has been filed by them as they have not signed any GPA.
She has deposed that her mother, though was house wife from the year 1990 till 2000, however she used to work as a tailor at home only. She has further deposed that her mother was not an income tax assessee at that time and her father was having a shop in Kolkata from where he used to work from the year 1990 till 2011. She has further deposed that she is not sure whether her father was an income tax assessee or not. She has further deposed that she is aware with regard to the facts that her mother and father was having bank account in Kolkata at the relevant time and her mother and father have not filed any statement of account in the present suit pertaining to the bank accounts in Kolkata. She has admitted it to be correct that there is no written correspondence that has taken place between the plaintiff and defendant no. 2 with regard to giving and taking of any alleged money because they are real sisters.
She has admitted it to be correct that defendant no. 2 has never issued any legal notice to the plaintiff with regard to handing over the title documents of the property in question. She has further deposed that the family is joint as she was also CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 18 of 37 residing there with plaintiff. She is not aware of the fact whether Sh. Vijender Soni was a tenant in the property at any point of time. She has denied the suggestion that defendant no. 2 was residing in the property no. RZ 72, Top Floor, Sangam Apartment, Gali no. 14A/5, Sadh Nagar, Palam Colony, New Delhi- 110045. She has admitted it to be correct that the address mentioned in Ex. PW-1/19 with regard to her mother and father is the correct address. She has further deposed that she is not aware of the fact that her mother and father has received the legal notice dated 18.07.2018.
She has denied the suggestion that defendants no. 1 and 2 are only the licensee in the property in question as they were permitted to do the work in the shop in the property in the year 2011 when the defendants no. 1 and 2 returned from Kolkata. She has further denied the suggestion that she is well aware of the fact that plaintiff is the owner of the suit property as she has purchased the property in question out of her own consideration amount. She has denied the suggestion that she is even aware of the fact that the electricity connection, water connection and the property tax has been already paid by the plaintiff, being the owner of the property. She has denied the suggestion that she does not have any personal knowledge with regard to the transaction of sale that has been done by the plaintiff in respect to the suit property.
CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 19 of 37She has further denied the suggestion that she was tutored witness and is deposing falsely at the instance of her mother, that is defendant no. 2 as she is also a beneficiary in the property if the defendant no. 2 will succeed in the case. She has denied the suggestion that the defendant no. 1 and 2 are having no right to occupy the suit premises and they are only unauthroised occupants. She has further denied the suggestion that the property bearing no. 329A, Gali no. 7, Sadh Nagar, Palam Colony, New Delhi was also under the ownership of plaintiff and in order to pressurize the plaintiff, they had made false complaints and filed false suit against the plaintiff in respect to said property also. She has further denied the suggestion that at no point of time, an alleged amount of Rs. 1,50,000/- was paid by the defendants no. 1 and 2 to the plaintiff to purchase the suit property and she was deposing falsely.
Issue wise findings Issue No. 4: Whether the defendants contributed in monetary terms for purchase of the suit property as per family settlement between the parties? OPD
13. I shall first decide Issue no. 4. The onus to prove the instant issue was on the defendants. The defendants have submitted that a sum of Rs. 1,50,000/- was paid by the defendants to the plaintiff and her husband in 1999-2000 to purchase a shop in their name. No documentary proof has been adduced by the defendants to prove the same. The same is also CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 20 of 37 admitted to, by DW1 in her cross-examination. DW2, in her cross-examination, has also admitted that there is no written correspondence that has taken place between the plaintiff and defendant no. 2 qua the aforementioned alleged payment of consideration. Nobody has witnessed the alleged transaction. There is nothing on record to support the bald averment of the defendants that the consideration amount of the suit property was paid by them to the plaintiff. In such a scenario, it is held that the defendants have failed to discharge the burden placed on them to prove the instant issue. Accordingly, this issue is decided against the defendants and in favour of the plaintiff.
Issue No. 1 Whether the plaintiff is entitled to the relief of mandatory injunction, as prayed for? OPP Issue No. 2 Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for? OPP
14. Issue no. 1 and 2 are being discussed together as they are inter-connected. The burden of proving the afore-mentioned issues lies on the shoulders of the plaintiff and in order to prove the same, the learned counsel for the plaintiff has addressed the following arguments. Ld. counsel for plaintiff contends that the plaintiff is the owner of the aforementioned suit property which she has validly purchased from Sh. Ram Bilas Jain in the year CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 21 of 37 2000 vide original title documents (Ex. Pw1/1 to Ex. PW1/8 OSR). Chain of the title documents of the suit property are Mark B to Mark D. The counsel further contends that the electricity and water connection had also been taken in the name of the plaintiff in the year 2001 and the plaintiff had diligently been paying the electricity and water bills. Two copies of electricity bills are Ex. PW1/13 (OSR), copies of two water bills are Mark A and copies of house tax receipts are Ex. PW1/14 (OSR). He further submits that he had rented the suit property in the year 2001 to Sh. Vijendra Soni, who is her brother in law vide rent agreement dated 22.05.2001 at Rs. 1,000/- per month for a period of 5 years which was further renewed on 01.02.2007 and that he continuously received the rent for the property till the year 2010.
Further, the counsel has submitted that because the defendant no. 2 is the real sister and jethani of the plaintiff and defendant no. 1 is jija and jeth; she, out of natural love and affection, gave the defendants the license to use the said property particularly to support the defendants' son who was not having any shop to run his business. However, as the relations turned sour between the parties, the plaintiff vide legal notice dated 18.07.2018, Ex. PW1/19 revoked the license of the defendants to continue to stay in the property and requested them to vacate the same. But the defendants have not complied with or replied to the said notice, thereby forcing the plaintiff to approach the court.
CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 22 of 37The learned counsel for the plaintiff has submitted that the plaintiff has affirmed these facts in her examination in chief by way of affidavit Ex. PW1/A and has passed the test of cross- examination as the counsel for the defendants has failed to challenge the genuineness of these facts in the cross-examination of the plaintiff. He has further contended that the defendant no. 2 in her cross-examination has admitted the factum of receipt of legal notice by the plaintiff for vacation of the suit premises and he has not filed any reply to the same nor any civil action has been initiated against the plaintiff. Therefore, it clearly shows that they were very much aware that they are not the owners of the property and have been inducted as licensee only. Reliance in this regard has been placed by the learned counsel upon the judgment of the Delhi High Court in Harsha Gupta v. M/s Insulation and electrical products (P) Ltd. 2011 SCC Online Del 3980, wherein it has been held that no reply to legal notice will amount to implied admission.
Further, it is submitted by Ld. counsel that the defendant no. 2 has admitted that the suit property is in the name of the plaintiff as per the ownership documents and that the water connection is also in the name of the plaintiff. The defendant no. 2 has failed to produce any house tax receipts nor has shown in any manner that the house tax was being paid by her.
The counsel has further relied upon the Judgement of the Hon'ble Supreme court in Sant Lal Jain v. Avtar Singh CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 23 of 37 (1985) 2 SCC 332 and of Hon'ble High Court of Delhi in Sanjeev Kapoor vs Anil Kumar C.R.P. No. 96/2015 decided on 08.10.2015 wherein it has been held that a suit for mandatory injunction is permissible against a licensee to get the property vacated.
Per contra, the learned counsel for the defendants contends that the case of the plaintiff is false and the defendants in the year 1999-2000 had given an amount of Rs. 1,50,000/- to the plaintiff and her husband and had requested them to purchase a shop in their name. It has been argued that because the plaintiff is the real sister of the defendants, they trusted the plaintiff and never questioned her intentions. Further, it has been argued that the plaintiff and her husband had confirmed to them that the suit property has been purchased in their name and they can come back at any time from Calcutta and start their business and gave the reassurance that the plaintiff will take care of the property in the meantime. It is contented by the counsel for the defendants that the defendants discovered that the suit property has not been purchased in the name of the defendant but in the name of the plaintiff only when she received the legal notice dated 18.07.2018 from the plaintiff.
Further, Ld. counsel for the defendant has submitted that there are multiple defects in the title documents filed by the plaintiff and has pointed out the same. Accordingly, it is argued that the plaintiff is not the owner of the suit property. Ld. counsel CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 24 of 37 for the defendants has submitted that although plaintiff has filed GPA, Agreement to sell, possession letter, etc (Ex. PW1/1 to Ex. PW1/7) of the suit property executed in her favour however the said documents suffer from multiple irregularities. It is submitted that the aforementioned documents do not bear the signatures of the plaintiff nor has been signed by any witnesses. Accordingly, it is submitted that the suit for mandatory injunction is not maintainable in the present case as the plaintiff is out of possession and there is a doubt as to his title in the suit property. Reliance in this regard is placed by Ld. counsel on the judgment of Hon'ble Supreme Court in Anatullah Sudhakar v. P. Buchi Reddy (dead) 2008 (6) CTC 237, Jharkhand State Housing Board vs Sh. Didar Singh Civil Appeal No. 8241 of 2009 decided on 09.10.2018, Kayalulla Moidu Haji vs. N. Vinodan Civil Appeal No. 5575-5576 of 2021.
In brief, the case of the plaintiff is that she is the owner of the property who was in possession and on account of blood relation between the parties, she permitted the defendants to enjoy the possession of the suit property as licensees. The meaning and import of the term "licence" and "licensee" has been explained by the Hon'ble Bombay High Court in Prabhudas Damodar Kotecha and Anr v. Smt. Manharbala Jeram Damodar and Ors.2007 (5) BomCR 1 wherein it has been held that:
CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 25 of 37"43. As opposed to this, the expression "license", as defined under Section 52 of the Indian Easement Act, provides that 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 immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to easement or an interest in the property, the right is called a license. Section 52 does not require any consideration, material or non-material, to be an element of the definition of license, nor does it require that the right under the license must arise by way of contract or as a result of a mutual promise. Thus, license as defined in Section 52 of the Indian Easement Act can be a unilateral grant and unsupported by any consideration.
Licence may be oral also. Reference in this regard may be made to the judgment passed by the Hon'ble Supreme Court in Ram Sarup Gupta v. Bishun Narain Inter College (1987) 2 SCC 555, 566.
In this context, I shall now examine if the plea of the plaintiff that the defendants were in possession of the suit property as mere licensees is legally sustainable. Ex. PW1/8 is the sale deed in favour of the plaintiff. Ex. PW1/1 to Ex. PW1/7 (OSR) are the GPA, will etc. which were executed in the favour of the plaintiff on the basis of which sale deed was registered in her favour. Plaintiff has also filed on record copies of two electricity bills of the year 2012 Ex. PW1/13 (OSR). The said CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 26 of 37 bills are in the name of the plaintiff. Ex. PW1/14 (OSR) are the copies of house tax receipts which are also in the name of the plaintiff.
Plaintiff had also sent a legal notice to the defendants Ex. PW1/19 wherein he claimed to be the owner of the suit property and defendants being inducted as mere licensees, however the said legal notice was never replied to, by the defendants. It has been held by the Hon'ble High Court of Delhi in Harsha Gupta vs M/S. Insulation & Electrical Products 183(2011) DLT 557 that:
" 20. In the instant case it is on record that the rent for the month of December 1999 had been tendered to a wrong person i.e. to Vidyawati when the tenant had specific knowledge about the fact that Vidyawati has since gifted this property to Harsh Gupta; the rent was now payable to Harsh Gupta; this was the communication addressed by Vidyawati herself to her tenant which was received by the tenant on 02.2.2000; yet on 13.2.2000 he still chose to pay the rent for December 1999 to Vidyawati. This fact was brought to his notice even in the legal notice dated 19.2.2002 which was received by him on 29.2.2000 but he did not pay any heed. He in fact even did not reply to the said notice. The RCT has made a wrong assumption that this was a bonafide and a genuine mistake committed by the tenant; it the tenant was not sure about his landlord i.e. whether it was Vidyawati or Harsh Gupta; if this was the confusion, provisions of Section 27 of the DRCA should have been resorted to by him and the CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 27 of 37 tenant was mandated to have deposited the rent in the court of Rent Controller; he chose not to do so.
21. Record also shows that the rent was payable in advance. This is clearly averred in the eviction petition as also in the legal notice; no reply having been furnished to the legal notice in spite of the specific averment having been made in this notice; it is an implied admission." (emphasis supplied) Thus, the fact that the defendants chose not to reply to the legal notice sent by the plaintiff is also an implied admission on their part admitting to the averments made by the plaintiff. Both the defence witnesses also admitted in their cross- examination that defendants have not filed any civil suit against the plaintiff qua the suit property despite receiving the aforementioned legal notice. Further, the defendant no. 2 has admitted that the suit property is in the name of the plaintiff as per the ownership documents and that the water connection is also in the name of the plaintiff. As has been discussed in Issue no. 4, there is nothing on record to support the bald averment of the defendants that the consideration amount of the suit property was paid by them to the plaintiff.
Ex. PW1/15 (OSR) and Ex. PW1/16 (OSR) are the copies of rent agreements wherein the plaintiff had let out the suit property to her brother-in-law in 2001 which was again renewed in 2007. However, plaintiff in her cross-examination had stated CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 28 of 37 that the said rent agreements were prepared as a mere formality. She had stated in vernacular that "jhooth mooth ka banwaya tha".
Accordingly, I am not inclined to attribute any significance to the said rent agreements.
However, in my opinion, even if no evidentiary weight is afforded to the aforementioned rent agreements, still the plaintiff has been successful in proving that she was in possession of the suit property in 2011 when she inducted the defendants in the suit property. Nothing substantial has come in the cross-examination of the plaintiff to rebut her assertion that the defendants were inducted in the suit property as the licensees of the plaintiff and that she had allowed the defendants to live in the property from 2011 onwards on account of blood relation between the parties. As has been discussed above, plaintiff has title documents in her favour and the electricity meter and house tax receipts are also in the name of the plaintiff. Defendant no. 2 has also admitted that water bills are in the name of the plaintiff. Except for bald averments of the defendants, nothing is on record to suggest that they were staying in the suit property in any other capacity other than the licensees of the plaintiff. Thus, it is held that the defendants were staying in the suit property as mere licensees of the plaintiff.
Once it is held that the defendants were staying in the suit property as licensees of the plaintiff, I shall now address CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 29 of 37 whether the defendants can challenge the title of the plaintiffs in the suit property. Section 116 of the Evidence Act reads as under:
"116 No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such license was given."
In Bansraj Laltaprasad Mishra v. Stanley Parker Jones AIR 2006 SC 3569, the Hon‟ble Supreme Court held as under:-
"14. The "possession" in the instant case relates to second limb of the Section. It is couched in negative terms and mandates that a person who comes upon any immoveable property by the license of the person in possession thereof, shall not be permitted to deny that such person had title to such possession at the time when such license was given."
In view of the law, as discussed above, it is apparent that the licensee is not permitted to challenge the title of the CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 30 of 37 licensor that existed at the time of the commencement of the license. It is also essential to observe that it is not the case of the defendant that the plaintiff had lost the title to the suit property subsequent to the grant of lease, which is an exception to Section 116, Indian Evidence Act. In the instant case, the defendants, despite being licensees, are challenging the title of the licensor/plaintiff at the time of grant of license which is expressly prohibited. Thus, it is held, that the irregularities/defects that have been pointed out by the Ld. counsel for the defendant in the title documents of the plaintiff Ex. PW1/1 to Ex. PW1/8 (OSR) are of no consequence as being licensees, the defendants are not permitted to challenge the title of the licensor that existed at the time of the commencement of the license.
The next question that comes up for consideration is whether a suit for mandatory injunction is permissible against a licensee to get the property vacated. In Sanjeev Kapoor vs Anil Kumar C.R.P. No. 96/2015 decided on 08.10.2015 the Hon'ble High Court of Delhi held as under:
"I have considered the submissions made by the learned counsel for the petitioner. The learned Civil Judge has referred to judgments of this Court, especially on similar factual matrix where the Court has held that in case a plaintiff is seeking retrieval of possession of the suit property from any of his relations like son, daughter, etc. then in such an event a suit for possession is not necessary and a suit for mandatory injunction CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 31 of 37 would suffice. The reason and the logic for doing so is that the relation between the parties is such that essentially petitioners are is the licensee of the respondent/plaintiff. In the instant case, the petitioner No.1 is the son of the respondent who has filed a suit for mandatory injunction. The property is admittedly belonging to the father. The son along with his wife and child is living in the property only as a licensee. Since the father does not want son and his family to continue any more in the house, therefore, a suit for mandatory injunction seeking that the petitioners must be removed from the licensed premises, is sufficient."
Thus, it is held that the plaintiff is entitled to file a suit for mandatory injunction against the defendants/licensees to get the property vacated and the same is maintainable.
I shall now discuss another issue raised by the Ld. counsel for the defendants. Ld. counsel has drawn the attention of the court to the cross-examination of PW 1 and has contended that plaintiff, in her cross-examination has stated that in 2014, when the defendants acquired another flat, she asked the defendants to vacate the suit property. Accordingly, it is argued that the notice to terminate the license, for the first time, was given in the year 2014 and not in the year 2018 as claimed by the plaintiff in her plaint. Thus, the present suit which has been filed in the year 2018 is barred by the law of limitation as it is not CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 32 of 37 brought within 3 years of the accrual of cause of action as per section 113 of the Limitation Act, 1963. He further submits that it is settled law that such a suit for injunction should be instituted without any delay. Reliance in this regard is placed on Joseph Severance vs Benny Mathew and Ors. (2005) 7 SCC 667, Sant Lal Jain vs. Avtar Singh (1985) 2 SCC 332. Ld. counsel has further submitted that even though no separate issue was framed qua limitation however the Court is duty-bound to look into the said aspect even if no separate issue of limitation is framed. Reliance is also placed on Section 3 of the Limitation Act, 1963 in support of the submission that whether the defence of limitation is set up or not, the trial Court is bound to reject the time barred claim. It is submitted that issue of limitation can be raised by the defendants at any stage.
Per Contra, Ld. counsel for the plaintiff submits that the instant suit is essentially a suit seeking possession by way of mandatory injunction. Accordingly, it is argued, that the period of limitation would be of 12 years, as is in the case of any suit seeking possession. Reliance in this regard is placed on Sant Lal Jain v. Avtar Singh (1985) 2 SCC 332.
Section 3 of the Limitation Act provides that if a suit is prima facie barred by limitation even if no plea has been raised by the defendant, it is the duty of the Trial Court to consider and to dismiss the suit which has been preferred beyond limitation. Section 3(1) reads as under.-
CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 33 of 37"Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence"
In the case of P.K. Ramachandran v. State of Kerala, AIR 1998 SC 2276, the Hon'ble Supreme Court ruled as under:
"Law of limitation may harshly effect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds."
Thus, it is well settled principle of law, as laid down in the aforementioned case, that law of limitation has to be stringently followed, in view of the mandate of Section 3(1) of Limitation Act. Section 5 of the said Act does not apply to suits, therefore there cannot arise any question of condonation of delay in filing the suit.
Limitation Act, 1963 does not provide any specific article which governs suits pertaining to injunctions. In such a scenario, any such suit is governed by Article 113 of the Act which is a residuary article and prescribes a limitation period of three years. Section 113 of Limitation Act reads as follows:
CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 34 of 37"Any suit for which no period of limitation is provided elsewhere in this Schedule and the period of limitation is three years from the time when the right to sue accrue"
In this regard, i find support from the decision passed by Hon'ble High Court of Madras in R. Kumar vs. G.Jaganmoorthy S.A.No.674 of 2015 decided on 08.08.2017 wherein it has been held that:
"We do not find any reason to differ with the opinion expressed by the Division Bench which to us appears to be the correct view of the provisions of law. There is no separate Article provided under the Limitation Act for a suit for injunction. So a suit for injunction has to be governed by the residuary Article i.e. Article 113. Under this Article, a suit can be filed within 3 years from the date of accrual of the cause of action."
Further, I am of the opinion that the reliance placed by Ld. counsel for the plaintiff on Sant Lal Jain v. Avtar Singh (1985) 2 SCC 332 is misplaced as in the said case, the Hon'ble Supreme Court held that a suit which is in effect a suit for possession is maintainable against a licensee even though it is couched in the form of a suit for mandatory injunction. The only observation that had been made by the Hon'ble Court in the said case with respect to limitation was that there should not be any CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 35 of 37 considerable delay in such cases so as to disentitle the plaintiff from the discretionary relief of injunction.
In the instant matter, the plaintiff's case is that the license of the defendants was terminated in 2018 vide legal notice dt. 18.07.2018 Ex. PW1/19 and the instant suit was instituted on 24.08.2018. However, plaintiff, in her cross examination has stated that she had asked the defendants to vacate the suit property for the first time in 2014. She also stated that the said fact was also informed to her counsel prior to the filing of the suit. In such a scenario, it must be held that the license of the defendants was terminated by the plaintiff in 2014. Accordingly, the limitation period for filing a suit for mandatory injunction against the defendants expired in 2017 and the instant suit has been instituted on 24.08.2018 i.e. beyond limitation period. There is considerable delay on the part of the plaintiff in filing the instant suit. In light of the aforementioned, it is held that the instant suit with the prayer of injunction is filed beyond limitation period. Accordingly, this issue is decided against the plaintiff.
Issue No. 3: Whether the plaintiff is entitled to the relief of recovery of damages/mesne profits, as prayed for? OPP
15. The onus to prove the instant issue is on the plaintiff. Mesne Profits are described in Section 2(12) of the Code of Civil Procedure as:
CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 36 of 37"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"
16. In the instant matter, with respect to prayer clause of damages/mesne profits, nothing whatsoever is placed on record by the plaintiff to reflect that the market rent of suit property is Rs. 15,000/- per month. There is one rent agreement on record Ex. PW1/16 (OSR) of the suit property which pertains to the year 2001 which mentions the rent of the property as Rs. 1,000/- per month however as has been discussed above, no reliance can be placed on the said document. No other evidence has been led by the plaintiff to prove the instant issue. Accordingly, the same is also decided against the plaintiff.
Issue 5: Any other relief.
17. In view of the foregoing discussion, it is held that the plaintiff has failed to prove her case. Thus the suit is hereby dismissed. There are no orders as to costs.
Digitally signed by SIDDHANT SIDDHANT SIHAG
Announced in the open SIHAG Date:
2023.11.22
court today i.e. 22.11.2023 04:19:51 -0600
Siddhant Sihag
ACJ-CCJ-ARC/South West
Dwarka Courts: New Delhi
CS SCJ 994/18 Madhu Verma @ Madhubala versus Kamlesh Verma & Anr. Page 37 of 37