Delhi District Court
Amit Kumar And Ors vs Karamvir on 8 August, 2024
IN THE COURT OF DISTRICT JUDGE-02: NORTH ROHINI COURTS
COMPLEX: DELHI
CNR NO. : DLNT01-007581-2024
RCA DJ 25/24
IN THE MATTER OF:-
1. AMIT KUMAR
S/o Sh. Karamvir
2. SMT. ANITA
W/o Sh. Amit Kumar
3. SH. RAHUL
S/o Sh. Karamvir
All R/o Plot no. 1524B,
Khasra no. 96/7, Gali no. 30B,
Near Bharat Mata Mandir,
Swatantra Nagar, Narela,
Delhi-110040 ...........Appellants
Versus
Sh. Karmvir
S/o Late Chander Singh
R/o Plot no. 1524B,
Khasra no. 96/7, Gali no. 30B,
Near Bharat Mata Mandir,
Swatantra Nagar, Narela,
Delhi-110040 ...........Respondent
RCA DJ 25/24 Amit Kumar and Ors. Vs. Karamvir page no.1 of 17
Date of institution : 28.05.2024
Date of Conclusion of Arguments : 03.08.2024
Date of Order/Judgment : 08.08.2024
APPEAL UNDER SECTION 96 R/W 151 С.Р.С., 1908 AGAINST THE
IMPUGNED ORDER DATED 31.10.2023 PASSED BY SH. RAKESH
KUMAR-II LD. JSCC CUM ASCJ CUM GUDN. JUDGE, NORTH DISTT,
ROHINI COURTS, DELHI IN SUIT NO. 1250/2017 TO SET ASIDE THE
IMPUGNED ORDER MENTIONED HEREINABOVE TO ACCEPT THE
APPEAL THROUGHOUT
JUDGMENT
1. By way of the present appeal, the appellants/defendants are challenging order dated 31.10.2023 passed by Ld. JSCC CUM GUDN. JUDGE, NORTH DISTT. ROHINI COURT, DELHI. Parties will be referred as per their status before the Learned Trial Court.
PLAINTIFF'S CASE
2. Plaintiff has filed suit for mandatory injunction. It is case of the plaintiff that he is the owner of plot measuring 25 sq. yards out of total land measuring 110 sq. yards. Portion of plot no. 1524-B, Khasra no. 96/7, Swatantra Nagar, gali no. 30-B, Narela, Delhi (hereinafter referred to as the suit property).
3. It is the case of the plaintiff that he retired from Delhi Jal Board and purchased the suit property. The defendant no.1 and 3 are his sons.
RCA DJ 25/24 Amit Kumar and Ors. Vs. Karamvir page no.2 of 17 Defendant no.2 is daughter in law of the plaintiff. On 15.07.2015 he disowned the defendant no. 1 and 2 by newspaper public notice.
4. It is case of the plaintiff that defendants maltreat the plaintiff. A complaint dated 25.08.2015 was given to the police but to no avail. It is the case of the plaintiff that defendants do not even pay the electricity bill. On 10.10.2017 they tried to dispossess the plaintiff along with their associates. On the strength of these averments the suit for mandatory injunctions directing defendants to vacate the suit property has been filed.
CASE OF THE DEFENDANTS
5. Written statement was filed by defendant no. 1 and 2 dated January 2018 supported by affidavit dated 09.01.2018. Preliminary objection regarding lack of pecuniary jurisdiction was taken, an objection was taken that proceedings against defendant no. 3 are barred as he is not mentally fit. It is the case of the defendants that suit property was purchased by the plaintiff after selling ancestral properties. Defendant no. 1 and 3 also have share in ancestral property. Defendant no. 1 contributed for construction of suit property. He paid 2 lakhs in cash. The defendant no.1 along with his brother in law personally did construction work, plumber, electrical fitting work in the whole house. As per oral settlements the defendant no.1 resides in ground floor. The documents of ownership in favour of plaintiff are only notarized documents and hit by judgment of Hon'ble Supreme Court in Suraj Lamp's case. It is specifically denied that suit property is self acquired property. It is denied that the defendants have been harassing the plaintiff. The allegations of dispossession are also denied.
RCA DJ 25/24 Amit Kumar and Ors. Vs. Karamvir page no.3 of 17 REPLICATION
6. Replication was filed by the plaintiff. Averments in plaint were reiterated. Submissions in Written Statement were denied.
ISSUES
7. Vide order dated 04.07.2018 , following issues were framed by the Ld. Trial Court:
a. Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for ? OPP.
b. Whether the suit of the plaintiff is maintainable in the present form or not ? OPD c. Relief.
PLAINTIFF'S EVIDENCE.
8. In support of his case, the plaintiff examined 2 witnesses:
SR No. Name of witness Documents exhibited
of
witness
1. The plaintiff He tendered his evidence by way of affidavit
Karamvir got Ex.PW1/A and relying upon the following
himself examined documents:
as PW-1
1. Original Site Plan is Ex.PW 1/1
RCA DJ 25/24 Amit Kumar and Ors. Vs. Karamvir page no.4 of 17
2. Public notice, GPA, Agreement to sell,
Receipt, Possession letter are Ex. PW 1/2 to
Ex.PW1/7 (OSR)
3. Complaint made by plaintiff dated
25.08.2015 which is marked as mark A.
2. PW2 Sh. He deposed that he was a summoned witness.
Bhagwan PW 2 stated that he was brother in law of
plaintiff. PW 2 further stated that he had been
doing the job of construction of contract basis. He has taken the contract of construction in the plot of the plaintiff and received Rs. 85,000/- as consideration for construction of the said plot of plaintiff.
9. PE was closed on 09.07.2019.
DEFENDANTS EVIDENCE
10. In support of his case, the defendant examined one witness.
SR No. of Name of witness Documents exhibited
witness
1. DW-1 defendant He tendered his evidence by way of affidavit
RCA DJ 25/24 Amit Kumar and Ors. Vs. Karamvir page no.5 of 17
no. 1 himself. which is Ex. DW1/A and he further relied
upon the documents mentioned in the
evidence i.e. Ex. PW 1/1 & Ex. PW 1/3
which was marked as Mark A and Mark B.
Complaints dated 11.11.2017 Ex. DW1/2
(colly)
11. DE was closed on 28.09.2022 by order of Ld. Trial Court.
SUMMARY OF FINDINGS BY LD. TRIAL COURT.
12. Issue no. 1 was:-
a. Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for ? OPP.
13. Learned trial court returned finding on this issue that defendant could not prove that suit property is ancestral. No documentary evidence to show that the defendants financially or otherwise helped in purchase or construction of suit property.
14. Issue no.2 was:-
b. Whether the suit of the plaintiff is maintainable in the present form or not ? OPD
15. A finding was returned on this issue by Ld. Trial Court that the suit for mandatory injunction as framed is maintainable. Plaintiff is owner of suit property. The suit property is self acquired. Defendants are merely licencee and thus the suit is maintainable.
RCA DJ 25/24 Amit Kumar and Ors. Vs. Karamvir page no.6 of 17 ARGUMENTS OF COUNSEL FOR THE PARTIES FIRST ARGUMENT
16. Learned counsel for the defendants has argued that plaintiff has relied upon GPA (Ex. PW 1/3), Agreement to sell(Ex.PW 1/4), receipt (Ex. PW 1/5), possession letter (Ex. PW 1/6) and Will Ex. PW1/7 to prove his ownership over the suit property. These documents are hit by the Judgment of Hon'ble Supreme court in Suraj Lamp's case(Suraj Lamp & Industries P. Ltd. Vs. State of Haryana reported in 2009 (7) SCC 363, (2012) 1 SCC
656).
17. Per contra counsel for Respondent/plaintiff contends that the defendant no.1 in his examination in chief affidavit para no. 2 has himself admitted that suit property was purchased by the plaintiff.
SECOND ARGUMENT
18. Learned counsel for the appellants/defendants has argued that GPA (Ex. PW 1/3), Agreement to sell(Ex.PW 1/4), receipt (Ex. PW1/5), possession letter (Ex. PW 1/6) and Will (Ex. PW1/7) have not been proved as per law. No attesting witness or marginal witness of the documents was examined.
19. Per contra counsel for respondent/plaintiff contends that at the time of exhibition of documents, no objection was taken by counsel for the appellant regarding mode of proof.
THIRD ARGUMENT RCA DJ 25/24 Amit Kumar and Ors. Vs. Karamvir page no.7 of 17
20. Learned counsel for the appellants /defendants has argued that defendant no.3 is not mentally fit. Proceedings against him are barred under Mental Health Act,2017. No guardian has been appointed.
21. Per contra counsel for respondent/plaintiff contends that mark A on record shows that defendant no. 3 Rahul is 85 % disabled. Same pertains to disability of ear only. It is not shown that Rahul is mentally ill. Reliance is placed upon section 2 (s) of the Mental Healthcare Act, 2017. It is further argued that defendant no. 3 has filed this appeal and has sworn affidavit at page 12, 26 of the appeal paper book.
FOURTH ARGUMENT
22. Learned counsel for the appellants /defendants has argued that plaintiff PW1 in his cross examination dated 13.02.2019 has admitted that "it is correct that I have sold my aforesaid house in village Nahri."
23. Per contra counsel for respondent/plaintiff contends that DW1 Namely Sh. Amit Kumar in his cross examination dated 18.12.2019 has admitted that he is not owner of the suit property and he does not know how his father purchased the suit property.
FIFTH ARGUMENT
24. Learned counsel for the appellants /defendants has argued that in case tilted as Prabha Tyagi Vs. Kamlesh Devi decided by Hon'ble Supreme Court of India it was held that wife cannot be dispossessed from her shared household.
25. Per contra counsel for respondent/plaintiff contends that defendant no.1 and 2 have cordial relationship. Joint written statement was filed. Joint RCA DJ 25/24 Amit Kumar and Ors. Vs. Karamvir page no.8 of 17 appeal was filed. Further reliance is placed upon case titled as Arti Sharma & Anr. Vs. Ganga Saran decided on 24.08.2021 by Hon'ble High Court of Delhi to contend that in the present case there are no allegations of domestic violence so eviction can be ordered. Further joint appeal and written statement has been filed by defendant no. 1 and 2 along with defendant no.
2. SIXTH ARGUMENT
26. Learned counsel for the appellants/defendants has argued that proper notice of eviction was not given.
27. Per contra counsel for plaintiff contends that om view law laid down in Nopany Investment (P) Ltd. Vs. Santokh Singh (HUF), 2008 (2) SSC 728 suit itself is notice.
SEVENTH ARGUMENTS
28. Learned counsel for the appellants/defendants has argued that PW 1 in his cross examination dated 13.02.2019 has admitted that suit property was purchased @ 34,000/- per sq. yard. Proper court fees was not paid. It is further the objection that trial court did not have pecuniary jurisdiction.
29. Per contra counsel for plaintiff/respondent contends that in view of law laid down in case titled as Bharat Bhushan Gupta Vs. Pratap Narain Verma and Anr. Reported in 2022 live law SC 552, it has been held that nature of relief claimed in the plaint is decisive for valuation and not the market value of subject matter of litigation. It is argued that suit is for mandatory injunction and the valuation and court fees as given in para 12 of the plaint is proper.
30. No other point was argued by the counsel for the parties.
RCA DJ 25/24 Amit Kumar and Ors. Vs. Karamvir page no.9 of 17
31. FOLLOWING POINTS OF DETERMINATION UNDER ORDER 41 RULE 31 CPC ARISE FOR CONSIDERATION BY THIS COURT.
1. Whether plaintiff could not prove his right over the suit property and entitlement to relief as claimed in the suit?
2. Whether the suit as framed is not maintainable?
3. Whether Smt. Neeta defendant no. 2 cannot be dispossessed from suit property as the same is 'her shared house hold'?
BRIEF RECAPITULATION OF THE FACTS
32. This Court has heard counsel for parties at length, perused case record and carefully considered rival submissions made.
33. Tersely put in chronological order, the vital facts of the case put in tabular form are as under:
DATE EVENT 31.10.2014 Plaintiff retired from Delhi Jal Board. 18.11.2014 The plaintiff purchased the suit property vide G.P.A.,
agreement to sell , receipt possession letter Ex. PW 1/2 to PW 1/7 on 18.11.2014 15.07.2015 Public notice was issued in newspaper disowning defendant no.1 and 2 as plaintiff was harassed by them.
25.10.2017 Present suit was filed by plaintiff seeking mandatory injunction directing defendants to vacate the suit property.
RCA DJ 25/24 Amit Kumar and Ors. Vs. Karamvir page no.10 of 17 FINDINGS ON POINTS OF DETERMINATION
34. The first point for determination is whether plaintiff could not prove his right over the suit property and entitlement to relief?
FINDINGS ON FIRST POINT OF DETERMINATION:
35. Learned counsel for the defendants has argued that plaintiff has relied upon G.P.A. (Ex. PW 1/3), Agreement to sell(Ex.PW 1/4), receipt (Ex. PW 1/5), possession letter (Ex. PW 1/6) and Will Ex. PW1/7 to prove his ownership over the suit property. These documents are hit by the Judgment of Hon'ble Supreme court in Suraj Lamp's case. This argument is rejected.
36. Hon'ble Supreme Court in case titled as Suraj Lamp and Industries Private Limited v.State of Haryana, 183 (2011) DLT 1 (SC), has held that General Power of Attorney transactions do not convey any title or interest in an immovable property.
37. Hon'ble Delhi High Court interpreted this judgment in case titled SHRI RAMESH CHAND Versus SURESH CHAND & ANR. Decided by Hon'ble Delhi High Court on 9th April, 2012 wherein it was held that:
"........A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement/right to the possession of the property than qua the person who is in actual physical possession thereof....."
38. Further in case titled as HARDIP KAUR versus KAILASH & ANR. Decided by Hon'ble Delhi High Court on 18th May, 2012 it was held that :
".......... A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement/right to the RCA DJ 25/24 Amit Kumar and Ors. Vs. Karamvir page no.11 of 17 possession of the property than qua the person who is in actual physical possession thereof......."
39. The argument by Learned counsel for the defendants has argued that G.P.A. (Ex. PW 1/3), Agreement to sell (Ex.PW 1/4), receipt (Ex. PW1/5), possession letter (Ex. PW 1/6) and Will (Ex. PW1/7) have not been proved as per law. No attesting witness or marginal witness of the documents was examined. This submission is rejected. No objection was taken by counsel for the appellant regarding mode of proof at the time of tendering of documents. The failure to raise objection would estop the defendant from due proof the document as held in case tiled as R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Anr. reported in (AIR 2003 SC 4548) . Plaintiff is signatory to the documents and has duly prove the same. Other than will other documents do not require examining of attesting witness.
40. The contention by Learned counsel for the defendants that plaintiff PW1 in his cross examination dated 13.02.2019 has admitted that "it is correct that I have sold my aforesaid house in village Nahri" does not show that the suit property was purchased from funds of sale of ancestral property. It is admitted by DW1 Sh. Amit that plaintiff retired from Delhi Jal Board. It is probable that plaintiff had funds out of self acquired money to purchase the suit property.
41. Further DW1 Namely Sh. Amit Kumar in his cross examination dated 18.12.2019 has admitted that he is not owner of the suit property and he does not know how his father purchased the suit property. No documentary evidence was produced by the defendant to show that suit property was purchased out of funds received from sale of ancestral property.
RCA DJ 25/24 Amit Kumar and Ors. Vs. Karamvir page no.12 of 17
42. In totality of circumstances this point of determination is decided against the defendant/ appellant.
43. Second point of determination is :
Whether the suit as framed is not maintainable?
44. Learned counsel for the defendants has argued that defendant no.3 is not mentally fit. Proceedings against him are barred under Mental Health Act, 2017. No guardian has been appointed. This argument is not sustainable. Perusal of mark A on record produced by plaintiff himself, shows that defendant no. 3 Rahul is 85 % disabled. Same pertains to disability of ear only. It is not shown that Rahul is mentally ill. Reliance is rightly placed upon section 2 (s) of the Mental Healthcare Act, 2017 by counsel for the plaintiff to contend that 'disorder' must be of such a gravity so as to render the person ill unable to meet the ordinary demands of life. Perusal of the record shows that defendant no. 3 has filed this appeal and has sworn affidavit at page 12, 26 of the appeal paper book.
45. The further argument by ld counsel for the appellants/defendants that proper notice of eviction was not given is rejected as in view law laid down in case titled as Nopany Investment (P) Ltd. Vs. Santokh Singh (HUF), reported in 2008 (2) SCC 728 wherein it was held that suit itself is notice.
46. The argument by counsel for the appellants/defendants that PW 1 in his cross examination dated 13.02.2019 has admitted that suit property was purchased @ 34,000/- per sq. yard. Proper court fees was not paid is rejected in view of law laid down in case titled as Bharat Bhushan Gupta Vs. Pratap Narain Verma and Anr. Reported in 2022 live law SC 552, wherein it has been held that nature of relief claimed in the plaint is decisive for valuation and not the market value of subject matter of litigation, the RCA DJ 25/24 Amit Kumar and Ors. Vs. Karamvir page no.13 of 17 objection raised by counsel for the defendant is not sustainable. It is rightly argued by counsel for the plaintiff that suit is for mandatory injunction and the valuation and court fees as given in para 12 of the plaint is proper.
47. It would be relevant to take note of the provisions as contained in Section 7(iv)(d) of the Court Fees Act, relevant part of which is as under: -
"7.Computation of fees payable in certain suits. - The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows: - .........
(iv) In suits- .... for an injunction. -
...........(d) to obtain an injunction, ..... according to the amount at which the relief sought is valued in the plaint or memorandum of appeal; In all such suits the plaintiff shall state the amount at which he values the relief sought;"(emphasis is by the court)
48. It remains that it is the nature of relief claimed in the plaint which is decisive of the question of suit valuation. As a necessary corollary, the market value does not become decisive of suit valuation merely because an immovable property is the subject matter of litigation. The market value of the immovable property involved in the litigation might have its relevance depending on the nature of relief claimed but, ultimately, the valuation of any particular suit has to be decided primarily with reference to the relief/reliefs claimed.
49. Point of determination is decided against the defendants.
50. Third point of determination is :
RCA DJ 25/24 Amit Kumar and Ors. Vs. Karamvir page no.14 of 17 Whether Smt. Neeta defendant no. 2 cannot be dispossessed from suit property as the same is 'her shared house hold'?
51. There is no dispute in the proposition of law as laid down by Hon'ble Supreme Court of India in case tilted as Prabha Tyagi Vs. Kamlesh Devi. However, same is on distinguishable facts. Defendant no.1 and 2 in present case have a cordial relationship. Joint written statement was filed by them. Joint appeal was filed by them. Further reliance is rightly placed by counsel for the plaintiff upon case titled as Arti Sharma & Anr. Vs. Ganga Saran decided on 24.08.2021 by Hon'ble High Court of Delhi to contend that in the present case there are no allegations of domestic violence. Joint appeal and written statement has been filed by defendant no. 1 and 2.
52. Further their is no dispute with the law laid down in Prabha Tyagi Vs. Kamlesh Devi decided by Hon'ble Supreme Court of India. Even otherwise the right of defendant no 2 is not an indefeasible right (as held in case decided by a three judge Hon'ble bench of Apex Court titled as Satish Chander Ahuja Vs. Sneha Ahuja reported in (2021) 1 SCC 414 in para 90) Furthermore, in facts of case titled as Prabha Tyagi Vs. Kamlesh Devi decided by Hon'ble Supreme Court of India are clearly distinguishable from the case in hand. The appellant in Prabha Tyagi case was a widow lady. The widow who also had a posthumous daughter. She was being harassed by the in laws after death of her husband. In the present case the defendant no. 2 has not alleged any domestic violence.
53. Furthermore, in case decided by Hon'ble High Court of Delhi titled as Vinay Varma Versus Kanika Pasricha and another reported in 2019 SCC OnLine Del 11530 it was held:
RCA DJ 25/24 Amit Kumar and Ors. Vs. Karamvir page no.15 of 17 "..58. However, later decisions of various High Courts have, while giving divergent opinions on the concept of 'shared household', followed one uniform pattern in order to protect the daughter-in-law and to provide for a dignified roof/shelter for her. The question then arises as to whether the obligation of providing the shelter or roof is upon the in-laws or upon the husband of the daughter-in-law i.e., the son. Some broad guidelines as set out below, can be followed by Courts in order to strike a balance between the PSC Act and the DV Act:
1. The court/tribunal has to first ascertain the nature of the relationship between the parties and the son's/daughter's family.
2. If the case involves eviction of a daughter in law, the court has to also ascertain whether the daughter-in-law was living as part of a joint family.
3. If the relationship is acrimonious, then the parents ought to be permitted to seek eviction of the son/daughter-in-law or daughter/son in-law from their premises. In such circumstances, the obligation of the husband to maintain the wife would continue in terms of the principles under the DV Act.
4. If the relationship between the parents and the son are peaceful or if the parents are seen colluding with their son, then, an obligation to maintain and to provide for the shelter for the daughter-in-law would remain both upon the in-laws and the husband especially if they were living as part of a joint family. In such a situation, while parents would be entitled to seek eviction of the daughter-in-law from their property, an alternative reasonable accommodation would have to be provided to her.
5. In case the son or his family is ill-treating the parents then the parents would be entitled to seek unconditional eviction from their property so that they can live a peaceful life and also put the property to use for their generating income and for their own expenses for daily living.
6. If the son has abandoned both the parents and his own wife/children, then if the son's family was living as part of a joint family prior to the breakdown of relationships, the parents would be entitled to seek possession from their daughter-in-law, RCA DJ 25/24 Amit Kumar and Ors. Vs. Karamvir page no.16 of 17 however, for a reasonable period they would have to provide some shelter to the daughter-in-law during which time she is able to seek her remedies against her husband...."
54. Applying the law to the facts of instant case it is clear that the defendant no. 2 and defendant no. 1 have no domestic conflict. Defendant no. 2 has not alleged any domestic violence at hands of the plaintiff. Plaintiff is having right in the suit property and suit for mandatory injunction is maintainable and rightly decreed by the Ld. Trial Court.
55. This point of determination is decided against the defendant/ appellant.
56. As a result, in the totality of circumstances the present appeal fails because the appellant/defendant has utterly failed to prove any illegality, infirmity or perversity in the impugned judgment dated 31.10.2023. The appeal is dismissed being devoid of merits. The plaintiff has failed to prove his case on touchstone of preponderance of probability. The judgment and decree of the Learned Trial Court dated 31.10.2023 is upheld. All pending applications are disposed off accordingly.
57. File of the appeal be consigned to record room. A copy of this order along with the TCR be sent back to the Ld. Trial Court immediately by the Ahlmad. Digitally signed VIKRAM by VIKRAM BALI Announced in open Court BALI Date: 2024.08.08 16:33:17 +0530 today i.e. 08.08.2024 (Vikram Bali) District Judge-02, North Rohini Court Complex, Rohini Delhi/08.08.2024 RCA DJ 25/24 Amit Kumar and Ors. Vs. Karamvir page no.17 of 17