Delhi District Court
Smt. Sharda vs Smt. Dhanwanti on 12 October, 2017
IN THE COURT OF BRIJESH KUMAR GARG,
ADDITIONAL DISTRICT JUDGE1,
NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI
RCA no. 48/17
Smt. Sharda
W/o Late Sh. Pratap
R/o H.No.CPA27, 1st floor
New Seelampur, Delhi53.
............Appellant
vs.
Smt. Dhanwanti
S/o Late Sh. Rudey Ram
R/o H.No. CPA27,
New Seelampur, Delhi110053.
...............Respondent
Date of filing of the Appeal :13.04.2017
Date when the Judgment was reserved :23.09.2017
Date of the Judgment in Appeal :12.10.2017
JUDGMENT:
The present appeal has been preferred against the judgment and decree dated 20.03.2017, passed by the Court of Sh. Rajinder Singh, JSCC/ASCJ/Guardian Judge, North East, Karkardooma Courts, Delhi, in Civil Suit No. 5534/2015 titled as, "Smt. Dhanwanti vs. Smt. Sharda". Whereby, the suit of the plaintiff was decreed and the appellant was directed to handover the vacant physical possession of the suit property to the respondent. It was further directed that the appellant shall pay RCA No.48/17 Page 1 of Pages 7 ADJ-01(NE)/Delhi the damages/mesne profits @ Rs. 1000/ per month, to the plaintiff from the date of the filing of the suit till handing over the vacant physical possession of the suit property to the plaintiff.
2. It has been stated in the present appeal that the respondent is the original allottee/owner of the property bearing No.CPA27, New Seelampur, Delhi, measuring 22 ½ sq. yards and the same was allotted to her by DDA, vide allotment No. CPA27 dated 25.11.1966. It is further stated that the appellant is the widowed daughter in law of the respondent and she is residing in the suit property, for the last about 35 years.
3. It is further stated in the present appeal that Sh. Pratap, husband of the appellant, was the original allottee and owner of the property bearing No. CPA27, New Seelampur, Delhi and therefore, the appellant and her children are the owners of the suit property, being the legal heirs of Late Sh. Pratap.
4. It has been further stated that vide judgment and decree dated 20.03.2017, the Ld. Trial Court has passed an arbitrary judgment and hence, the present appeal.
5. The arguments on the present appeal were addressed by Sh. Mithlesh, Advocate, for the appellant and by Sh. Ashok Upadhyay, Advocate, for the respondent.
6. During the course of the arguments, the main contention of the Ld. Counsel for the appellant, has remained that RCA No.48/17 Page 2 of Pages 7 ADJ-01(NE)/Delhi the Ld. Trial Court has wrongly considered the document Ex.PW2/1 as the same does not bear the seal of the DDA and the Ld. Trial Court has committed an error by not taking into consideration that the respondent/plaintiff, herein, has not proved her own case and the Ld. Trial Court relied upon the weakness of the defendant in not placing the documents of title on record. It was further argued that the impugned judgment has been passed, without proving of the title documents of the suit property. The suit property originally belonged to Sh. Rudey Ram, the husband of the respondent and therefore, the impugned judgment and decree may be set aside.
7. The Ld. Counsel for appellant has relied upon the following judgments in support of his above contentions:
(i) Suraj Bhan & Ors. vs. Financial Commissioner & Ors reported as (2007) 6 SC Cases 186
(ii) Union of India and Ors. vs. Vasavi Coop.
Housing Society Ltd. & Ors. reported as Civil Appeal No.4702 of 2004
8. On the other hand, the Ld. Counsel for the respondent has argued that the respondent had duly proved the title documents as Ex.PW2/1, by summoning the relevant record from DUSIB, as the original record was transferred by DDA to DUSIB and therefore, there is no illegality or infirmity in the impugned judgment and therefore, the present appeal may be dismissed.
9. I have carefully perused the case file and I have also RCA No.48/17 Page 3 of Pages 7 ADJ-01(NE)/Delhi given my considered thoughts to the arguments addressed by the Ld. Counsels for the parties. I have also perused the various judgments cited by the Ld. Counsel for the appellant.
10. Perusal of the record shows that the plaintiff/ respondent herein, has filed the present suit for mandatory and permanent injunction and for recovery of mesne profits, wherein, it was stated that the plaintiff/respondent herein, was the owner of the suit property bearing No. CPA27, New Seelampur, Delhi, measuring 22½ sq. yards and the same was allotted to her by DDA vide allotment No. CPA27, dated 25.11.1976.
11. It was further stated in the plaint that the defendant was married with the son of the plaintiff namely Sh. Pratap and after her marriage, she occupied the first floor of the suit property and after death of her husband, she started quarreling and abusing the plaintiff and therefore, the plaintiff terminated her license vide legal Notice dated 25.05.2015 and filed the suit against her.
12. During trial, the plaintiff had examined herself as PW1 and has also examined the UDC in the Office of DUSIB from Zonal Office, East ZoneB, Welcome, Seelampur, Delhi53, as PW2.
13. In her testimony as PW1, the plaintiff has reiterated and reaffirmed the contents of the plaint and has specifically mentioned in her affidavit Ex.PW1/A that the appellant was her licensee and she terminated her license vide legal notice dated RCA No.48/17 Page 4 of Pages 7 ADJ-01(NE)/Delhi 25.05.2015. The legal notice has been proved on record as Ex.PW1/4. The said legal notice was replied by the appellant vide reply dated 09.06.2015, which has been proved on record, as Ex.PW1/5. The plaintiff has also placed on record a photocopy of the report of the noncognizable offence, regarding missing of the documents, dated 04.03.2007 as Ex.PW1/1.
14. In order to prove the title of the suit property, she had also examined PW2 Sh. Dinesh Kumar, UDC from the Office of the DUSIB, who had brought the summoned record pertaining to the suit property and had produced the register pertaining to the year 19671968, regarding allotment of the suit property. He has categorically stated that the suit property bearing No.CPA27, New Seelampur, Delhi, was alloted to Smt. Dhanwanti w/o Sh. Rudey Ram, vide entry No.27. A copy of the register containing relevant entry, has been proved on record as Ex.PW2/1.
15. The document Ex.PW2/1 is the bone of contention in the present proceedings. Perusal of the document Ex.PW2/1, indicates that the document is the copy of the Register of the MCD, pertaining to the year 19661967 and 19671968, regarding allotment of suit property. Perusal of this document clearly indicates that the suit property was originally allotted to Sh. Jamuna Dass s/o Sh. Ram Diya, on 15.09.1965 and was allotted to the respondent Dhanwanti w/o Rudey Ram, against CPA27, dated 25.11.1976, on the basis of the sterilization operation. This document bears the entry at Sl. No.27, which has been made by E.O.J.J. of the DDA.
RCA No.48/17 Page 5 of Pages 7 ADJ-01(NE)/Delhi
16. Perusal of the record further shows that a photocopy of the allotment order, passed by Family Planning Centre of the DDA, bearing No. CPA27 dated 25.11.1976, is also placed on record, but, the same could not be proved, in accordance with law. The plaintiff has also placed on record a photocopy of the First Information Report, in respect of the noncognizable offence, dated 04.03.2007, lodged by her regarding missing of the aforesaid documents. However, the said FIR in respect of non cognizable offence, also could not be proved, in accordance with law. But, perusal of the allotment letter dated 25.11.1976 and the subsequent FIR, in respect of noncognizable offence dated 04.03.2007, coupled with the document Ex.PW2/1, clearly indicates that the suit property was duly allotted by the DDA, in favour of the respondent Smt. Dhanwanti w/o Rudey Ram on 25.11.1976.
17. Perusal of the record further shows that during the trial the defendant/appellant has failed to produce any document in her favour to show her right, title or interest in the suit property. Mere possession of the suit property, by the appellant, does not entitle her to remain in possession of the suit property, till eternity.
18. In these circumstances, I do not find any illegality or infirmity in the impugned judgment dated 20.03.2017 and therefore, the present appeal is hereby dismissed.
RCA No.48/17 Page 6 of Pages 7 ADJ-01(NE)/Delhi
19. A copy of this order be sent to Ld. Trial Court alongwith trial court record for information and necessary compliance.
The appeal file be consigned to record room, after due compliance.
Digitally signed by
BRIJESH BRIJESH KUMAR
Announced in the open Court on KUMAR
GARG
Location: Karkardooma
Courts, Delhi
this 12th day of October, 2017. GARG Date: 2017.10.13
15:46:27 +0000
BRIJESH KUMAR GARG
Addl. District Judge1(North East)
Karkardooma Courts,
Delhi.
RCA No.48/17 Page 7 of Pages 7 ADJ-01(NE)/Delhi