Delhi District Court
S/O Late Sh. Shahabuddin vs Mohd Zakir on 9 July, 2018
IN THE COURT OF DR. HARDEEP KAUR, ADJ02,
SHAHDARA, KARKARDOOMA COURTS, DELHI
CS No. 1156/2016
(Old CS No.374/14)
IN THE MATTER OF:
Zahid
S/o late Sh. Shahabuddin
R/o H.No. A22526
Old Seemapuri, Shahdara,
Delhi110095 ...Plaintiff
Versus
Mohd Zakir
s/o Late Mohd. Shahabuddin,
R/o A228, Ground Floor,
Shahdara, Old Seemapuri,
Delhi110095 ...Defendant
Date of Institution : 17.09.2014
Date of Judgment : 09.07.2018
Decision: : Decreed.
CS 1156/16
Zahid vs Mohd. Zakir
Page 1/19
Suit for Possession, Mesne Profit and Consequential
Relief of Permanent Injunction)
J UD G M E N T
1.By this judgment, this court shall dispose off suit filed by plaintiff for possession, mesne profit and consequential relief of permanent injunction.
2. Brief facts necessary for disposal of the present suit as per plaint are that plaintiff is the owner in respect of property bearing no. A228 area measuring 22.5 sq yards situated at old Seema Puri Shahdara Delhi by virtue of Regs. GPA registered on 11.07.2002 before SR IV, agreement to sell , receipt etc. executed by its previous owner Ehvaraddin son of Sh. Diriq Pal.
After purchasing the suit property the plaintiff became the absolute owner of the suit property and in the year 2009 the defendant was approached the plaintiff being real brother and requested the plaintiff to provide the ground floor of the suit property bearing no. A228, Old Seemapuri Shahdara, Delhi5, shown in red colour in the site plan for a period of one year as the defendant assured the plaintiff that the defendant will arrange another accommodation as early as possible and as such the plaintiff allowed the defendant to live on the ground floor in the suit property as licensee. After CS 1156/16 Zahid vs Mohd. Zakir Page 2/19 passing one year time when the defendant failed to vacate the house, the plaintiff number of times requested the defendant to vacate the same but every time, the defendant lingering the matter on one pretext or the other and being real brother the plaintiff accepted his request. On 11.08.2014, again requested the defendant to hand over the peaceful vacant possession of the portion under his occupation, but this time, defendant changed his tune and clearly told that whenever he will get accommodation he will vacate the same and further asked the plaintiff not to visit again in the house. On hearing this the plaintiff received a shock because the sole intention of the defendant is to grab the house of the plaintiff. Due to the acts of the defendant the plaintiff has no option except to sent a legal notice dated 14.08.2014 in which the plaintiff further requested the defendant to handover the peaceful vacant possession of the ground floor property bearing no. A228 area measuring 22.5 sq. yards Old Seemapuri, Delhi alongwith Rs. 2500/ per month as mesne profit/damages for using the ground floor of suit property as unauthorized occupant and said notice was duly served upon the defendant but he failed to comply with the same nor replied the same. Hence the plaintiff terminate the license of the defendant with the immediate effect and since then the defendant has become unauthorized occupant/trespasser in the suit property and he CS 1156/16 Zahid vs Mohd. Zakir Page 3/19 is liable to pay the damage/mesne profit to the tune of Rs 2500/ per month excluding water and electricity charges to the plaintiff being the absolute owner/landlord of the same.
After service to the legal notice upon the defendant, the defendant is adamant to create third party interest in the respect of the suit property and brought some unknown persons to show the suit property on 14.09.2014 and when plaintiff objected for the same, the defendant became annoyed and clearly told that he will create third party interest and plaintiff can not take any action against him. The acts of the defendant are highly illegal, unwarranted and against the principles of natural justice and equity. The plaintiff has no legal efficacious remedy except to file the present suit.
3. Defendant has filed written statement wherein defendant stated that the suit of the plaintiff is not maintainable and liable to be dismissed u/o 7 Rule 11 CPC as the same is without any cause of action against the defendant; the plaintiff is not the owner of the suit property as suit property is situated in JJ colony and it is owned by Government of India and the plaintiff has no right to bring suit against the defendant; suit of the plaintiff is liable to be dismissed for want of better documents; the plaintiff has failed to furnish chain of title documents showing his locus standi, lawful right title, interest and ownership qua the suit CS 1156/16 Zahid vs Mohd. Zakir Page 4/19 property; that the plaintiff has not produced the authentic, valid, registered documents and legally enforceable documents showing his ownership of the suit property; that GPA is allegedly registered illegally in the office of SRIV Delhi and the same is forged document as the property in question being government property can not be sold and the plaintiff and Mr. Ehvaraddin s/o Diriq Pal are therefore liable to be prosecuted under the provision of Sec. 420/467/468/471 IPC; suit of the plaintiff is liable to be dismissed as the defendant was never licensee of the plaintiff in the suit property but is in possession of the same being member of the family the property of which is still not partitioned between the members of the family.
4. Plaintiff filed replication to the written statement wherein plaintiff denied the contents of written statement and reiterated the averments made in plaint.
5. From the pleadings of the parties, following issues were framed by my learned Predecessor vide order dated 01.06.2016:
(1) Whether the suit is bad for non joinder of the necessary parties? OPD (2) Whether plaintiff has not valued the suit property for the purpose of court fees and jurisdiction? OPP CS 1156/16 Zahid vs Mohd. Zakir Page 5/19 (3) Whether plaintiff is entitled for possession from the defendant in respect of the suit property?OPP (4) Whether plaintiff is entitled for damages. If so, at what rate? OPP (5) Whether plaintiff is entitled for relief for permanent injunction as prayed? OPP (6) Relief.
An additional issue is also framed which is as under: "Whether plaintiff has no locus standi to file the present suit? OPD
6. To prove his claim, plaintiff examined himself as PW1 and other witnesses Sh. Gopal Dutt as PW2, Sh. S.S Makhija, Head Clerk from Delhi Jal Board as PW3 and Sh. Babu Shankar Section Officer BSES Yamuna Power as PW 4.
Plaintiff closed his evidence and the matter was fixed for DE. Defendant examined himself as DW1 and one another witness Sh. Pradeep Kumar, LDC from DUSIB as DW 2.
PW1 relied upon following documents:
1. GPA dated 11.07.2002 as EX PW 1/1 (OSR)
2. Agreement to sale dated 11.07.2002 as EX PW 1/2 (OSR)
3. Receipt dated 11.07.2002 as EX PW 1/3 (OSR) 4. Site plan as EX PW 1/4 CS 1156/16 Zahid vs Mohd. Zakir Page 6/19
5. Receipt of Jal Board as EX PW 1/5 (OSR)
6. Letter dated 27.06.1990 as EX PW 1/6 (OSR)
7. Receipt dated 05.08.1972 as EX PW 1/7 (OSR)
8. Receipt of house tax as EX PW 1/8 (OSR)
9. Electricity Bill as EX PW 1/9
10. Legal notice dated 14.08.2014 as EX PW 1/10
11. Postal receipt with tracking report as EX PW 1/11 (colly) The documents which being relied and marked as :
1. Complaint dated 16.08.2014 marked as Mark PW 1/A1.
2. Tracking reports as Mark PW 1/A2 (colly)
3. Postal receipts dated 16.08.2014 (in two pages) as Mark PW 1/A3.
Document EX PW 1/12 is deexhibited being a photocopy and same is marked as PW 1/A1.
After examination of plaintiff witnesses, defendant examined himself as DW1 and relied upon following documents:
1. Mark A Voter Card (Ex. DW 1/1 deexhibited and same is mark A) 2 Mark B, copy of the Scheme of JJR (Ex. DW ½ deexhibited and same is Mark B.
3. Mark C, photocopies of terms and conditions of JJ Colony (Ex. DW 1/3 deexhibited and same is Mark C)
4. Mark D Guideline for transfer of the license (Ex. DW 1/4 CS 1156/16 Zahid vs Mohd. Zakir Page 7/19 deexhibited and same is Mark D). Defendant examined another Pradeep Kumar Sharma, LDC from Delhi Urban Shelter Improvement Board (DUSIB) NCT of Delhi, Welcome,Seelampur Phase III Delhi53 as DW2. Vide order dated 13.03.2018, on separate statement of defendant, DE was closed.
7. Arguments heard on behalf of parties and gone through the material available on record. Plaintiff has relied upon judgment titled as Nand Lal Gupta vs Akhilesh Kumar, RSA No. 155 /2012 of Hon'ble High Court of Delhi, decided on 19.03.2014.
8. My issue wise findings on the above said issues are as under: Additional issue was framed by my ld. predecessor on 29.09.2015 and the same is decided before deciding the other issues.
"whether plaintiff has no locus standi to file the present suit?
Burden to prove this issue was on the defendant. Defendant deposed in his evidence by way of affidavit (Ex DW 1/A) that suit property is situated in JJ Colony owned by Govt. of India and plaintiff has no right to bring the suit against the defendant. While in his cross examination defendant deposed that he does not know the name of the CS 1156/16 Zahid vs Mohd. Zakir Page 8/19 person who is the original allottee of the suit property and he is residing in the suit property since about 1415 years as his brother /plaintiff told him to reside in the suit property. Perusal of the record shows that plaintiff deposed in his evidence by way of affidavit (Ex PW 1/A) that he has filed the suit for possession, permanent injunction and mesne profit against the defendant on the basis that he has permitted the defendant being his brother to reside in the suit property on his request for the period of one year; further he deposed that defendant is residing in the suit property as a licensee and he requested several times to the defendant to vacate the suit property but he fails to do so. Record further shows that defendant herein admitted in his cross examination that plaintiff told him to reside in the suit property. Hence defendant clearly admitted that he is licensee in the suit property and plaintiff has every right to take back the possession of the suit property. Accordingly, this issue is decided against the defendant and in favour of plaintiff. Issue no. 1 Whether the suit is bad for non joinder of the necessary parties? OPD Onus to prove issue no. 1 was on the defendant. Defendant stated in his written statement that plaintiff neither impleaded Govt of India nor Delhi Urban Shelter CS 1156/16 Zahid vs Mohd. Zakir Page 9/19 Improvement Board and further stated that plaintiff has not impleaded other five brothers of plaintiff and defendant.
Perusal of the record shows that plaintiff has filed the present suit for possession of the suit property as well as for mesne profits against the defendant. No evidence has been led on behalf of the defendant as to how Union of India, DUSIB and other brothers of plaintiff and defendant are necessary party to the present suit. Hence issue no. 1 is decided against the defendant.
Issue no. 2 "Whether plaintiff has not valued the suit property for the purpose of court fees and jurisdiction?"
Onus to prove this issue lies upon the defendant.
Plaintiff has valued the suit for the purpose of court fees and jurisdiction at Rs. 4,75,000/ for the relief of possession and Rs. 130/ for the relief of permanent injunction and Rs. 48.80/ for the relief of mesne profits and paid Rs. 7,000/ as court fees.
In written statement defendant has taken preliminary objection that the suit of the plaintiff is not maintainable as it has been valued less than market rate to avoid the court fees as the value of the suit property is more than 18 lakhs at the time of filing of the suit but the plaintiff has valued the suit property at Rs. 4.7 lakhs. No evidence has CS 1156/16 Zahid vs Mohd. Zakir Page 10/19 been led on behalf of defendant regarding the value of the suit property. In the absence of evidence it can not be said that plaintiff has not properly valued the property. Hence issue no. 2 is decided against the defendant.
Issue no. 3 to 5 Issue no. 3 to 5 are decided together being interconnected.
Burden to prove these issues were on the plaintiff. Plaintiff has deposed in his evidence by way of affidavit (Ex PW 1/A) that he is the owner in respect of property bearing no. A228 area measuring 22.5 sq yards situated at old Seema Puri Shahdara Delhi by virtue of Regs. GPA (Ex. PW 1/1) registered on 11.07.2002 agreement to sell (Ex. PW 1/2) , receipt (Ex. PW 1/3) executed by its previous owner Ehvaraddin son of Sh. Diriq Pal and after purchasing the suit property the plaintiff became the absolute owner of the suit property. In the year 2009, the defendant approached the plaintiff being a real brother to provide the ground floor of the suit property bearing no. A228, Old Seemapuri Shahdara, Delhi5, for a period of one year and assured that he will arrange another accommodation as early as possible. On this assurance the plaintiff allowed the defendant to live on the ground floor in the suit property as licensee. He further deposed that after passing one year time when the defendant CS 1156/16 Zahid vs Mohd. Zakir Page 11/19 failed to vacate the house, the plaintiff number of times requested the defendant to vacate the same but every time the defendant lingering the matter on one pretext or the other and being real brother the plaintiff accepted his request. Then the plaintiff visited the defendant on 11.08.2014 and again requested the defendant to hand over the peaceful vacant possession of the portion under his occupation, but this time, defendant changed his tune and clearly told that whenever he will get accommodation he will vacate the same and further asked the plaintiff not to visit again in the house.
Record shows that defendant herein admitted in his cross examination that plaintiff told him to reside in the suit property. In view of the admission of the defendant in his cross examination that he is in permissive possession of the suit property, he is estopped by virtue of section 116 of Indian Evidence Act which debars the tenant/licensee from challenging the title of the lessor/licensor. Hence defendant can not challenge the title of the plaintiff u/S 116 of Indian Evidence Act being a licensee. Once defendant is estopped u/s 116 of Indian Evidence Act to challenge the title of the plaintiff, then the defendant can not set up a case that DUSIB is the owner of the property. Even if, DUSIB is the owner of the suit property, it would be DUSIB who will be entitled to take the possession of the suit property from the CS 1156/16 Zahid vs Mohd. Zakir Page 12/19 plaintiff and it is not open to the defendant in view of admission that he was permitted to reside in the suit property by the plaintiff, to dispute the right of the plaintiff to take possession of the suit property.
There is nothing on record that DUSIB has filed any suit against the plaintiff with regard to the suit property.
This Court has relied upon the case law reported as Laxman Singh & Ors vs. Urmila Devi & Ors MANU/DE/0826/2014 of Hon'ble High Court of Delhi.
The relevant paras of the aforesaid judgment are as under: "12. Section 52 of the Indian Easement Act reads as follows:
52. "Licence" defined.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 an easement or an interest in the property, the right is called a licence.
"13. To elaborate the requirements of the above Statutory provision, reference may be had to the Full Bench judgment of the Bombay High Court in the case of Prabhudas Damodar Kotecha and Anr. v. Smt. Manharbala Jeram Damodar and Ors.MANU/MH/0692/2007MANU/MH/0692/ 2007 where the Court elaborated on the CS 1156/16 Zahid vs Mohd. Zakir Page 13/19 expression 'Licensee' as follows:
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 nonmaterial, 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. The Supreme Court in State of Punjab v. Brig. Sukhjit Singh MANU/SC/0540/1993MANU/SC/0540/1993 :
[1993] 3 SCR 944 has observed that, "payment of license fee is not an essential attribute for subsistence of license".
44. Let us see as to how the expressions "license"
and "licensee" are understood, used and spoken in common parlance. It is often said that a word, apart from having the meaning as defined under different statutes, has ordinary or popular meaning and that a word of everyday usage it must be construed in its popular sense, meaning that sense which people conversant with the subject matter with which the statute is dealing would attribute to it. A "license" is a power or CS 1156/16 Zahid vs Mohd. Zakir Page 14/19 authority to do some act, which, without such authority, could not lawfully be done. In the context of an immovable property a "license" is an authority to do an act which would otherwise be a trespass. It passes no interest, and does not amount to a demise, nor does it give the licensee an exclusive right to use the property. [See Puran Singh Sahani v. Sundari Bhagwandas Kriplani MANU/SC/0541/1991MANU/SC/ 0541/1991 :
[1991] 1 SCR 592]. Barron's Law Dictionary has given the meaning of word "licensee" to mean "the one to whom a license has been granted; in property, one whose presence on the premises is not invited but tolerated. Thus, a licensee is a person who is neither a customer, nor a servant, nor a trespasser, and does not stand in any contractual relation with the owner of the premises, and who is permitted expressly or impliedly to go thereon usually for his own interest, convenience, or gratification". Stroud's Judicial Dictionary of Words and Phrases, Sixth Edition, Vol. 2, provides the meaning of word "licensee" to mean "a licensee is a person who has permission to do an act which without such permission would be unlawful. [See Vaughan C.J., in Thomas v. Sewell Vaugh at page 330 at page 351, quoted by Romour, J, in Frank Warr and Co. v. London County Council (1940) 1 K.B.
713." In Black's Law Dictionary, Seventh Edition, the word "license" means "a revocable permission to commit some act that would otherwise be unlawful" and the word "licensee"
means "one to whom a license is granted or one who has permission to enter or use another's CS 1156/16 Zahid vs Mohd. Zakir Page 15/19 premises, but only for one's own purposes and not for the occupier's benefit." Thus, it is seen that even in popular sense the word "license" is not understood to mean it should be on payment of license fee for subsistence of license. It also covers a "gratuitous licensee", that is, a person who is permitted, although not invited, to enter another's property and who provides no consideration in exchange for such permission.
"15. I now deal with the argument about title of the plaintiff to the suit property. Section 116 of the Evidence Act reads as follows:
116. Estoppel of tenant; and of license of person in possession 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 license was given.
"16. In Bansraj Laltaprasad Mishra v. Stanley Parker Jones MANU/ SC/8027/ 2006 MANU /SC/8027/ 2006 : AIR 2006 SC 3569, the Hon'ble Supreme Court in paragraph 14 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 CS 1156/16 Zahid vs Mohd. Zakir Page 16/19 comes upon any immovable 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.
18. In Vishal Builders Pvt. Ltd. vs. Delhi Development Authority (supra), this court held that no person who comes into possession of an immovable property on the basis of license or permission of the person in possession thereof can be permitted to deny that such person had a title to such property when such license was given.
23. Reference may also be had to the judgment in the case of Sant Lal Jain vs. Avtar Singh MANU/SC/0295/ 1985MANU/SC/0295/1985:
(1985) 2 SCC 332 where the Hon'ble Supreme held as follows:
6. ...In Milkha Singh v. Diana, it has been observed that the principle once a licensee always a licensee would apply to all kinds of licences and that it cannot be said that the moment the licence is terminated, the licensee's possession becomes that of a trespasser. In that case, one of us (Murtaza Fazal Ali, J. as he then was) speaking for the Division Bench has observed:
After the termination of licence, the licensee is under a clear obligation to surrender his possession to the owner and if he fails to do so, we do not see any reason why the licensee cannot be compelled to discharge this obligation by way of a mandatory injunction under s. 55 of the Specific Relief Act. We might further mention that even under English law a suit for injunction to evict a CS 1156/16 Zahid vs Mohd. Zakir Page 17/19 licensee has always been held to be maintainable.
Keeping in view the aforesaid discussion as well as in light of aforesaid judgments, it is clear that the defendant is licensee in the property in question. Plaintiff has terminated the licence of the defendant by giving legal notice (Ex. PW 1/10) on 14.08.2014 to hand over the peaceful vacant possession of the suit property. As such defendant became unauthorized occupant in the suit property since 14.08.2014.
As far as quantum of damages are concerned, defendant has admitted in his cross examination that the rate of rent in the same locality in which the suit property is located is about Rs. 1500/ per month to which there is no dispute or denial by the plaintiff. Therefore, damages are ascertained to the tune of Rs. 1500/ per month.
Further, since defendant is in unauthorized possession of the suit property, he is restrained from creating any third party interest in the suit property.
In view of the aforesaid discussions, the issue no. 3 to 5 are decided in favour of the plaintiff and against the defendant.
(Relief) Plaintiff is entitled for decree of possession of the suit property i.e. ground floor of premises no. A228, area CS 1156/16 Zahid vs Mohd. Zakir Page 18/19 measuring 22.5 sq. yards Old Seema Puri, Shahdara, Delhi, (shown in red colour in the site plan). Defendant is directed to hand over peaceful vacant possession of the suit property to the plaintiff. Further, plaintiff is entitled for permanent injunction and defendant is restrained from creating any third party interest in the suit property. Further, plaintiff is entitled for damages to the tune of Rs. 1500/ per month since 14.08.2014 till the handing over of the possession of the suit property.
9. Decree sheet be prepared after depositing of requisite court fee, if any. File be consigned to record room.
(Typed to the dictation directly, corrected and pronounced in the open court on 09.07.2018) (Dr. Hardeep Kaur) ADJ02(SHD)/KKD/Delhi Digitally signed by HARDEEP KAUR HARDEEP Date:
KAUR 2018.07.10
16:10:24
+0530
CS 1156/16
Zahid vs Mohd. Zakir
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