Delhi District Court
Ms Amar Nath Camp vs Sur Gyan on 2 November, 2023
IN THE COURT OF MS. DHANASHREE DEKA
ACJ-CCJ-ARC-NORTH ROHINI COURTS, DELHI
CS SCJ No. 35499/16
M/S Amar Nath Camp
Jhuggi Jhopri, Raksha Samiti,
Civil Lines, Delhi (Regd.)
Through its General Secretary,
Naresh Kumar
Registered Office at-
D-878, Jahangir Puri, Delhi
Also at-D-886, Jahangir Puri, Delhi
......Plaintiff
Versus
Sh. Sur Gyan @ Maliram Durgapathee
S/o Late Sh. Jawala Prasad
R/o D-886, Jahangir Puri, Delhi - 33
Also at- D-885, Jahangir Puri
Delhi - 33
.....Defendant
Date of institution of the case : 20.01.2014
Date on which Judgment reserved : 25.10.2023
Date of Judgment pronounced : 02.11.2023
JUDGMENT
1. Vide this judgment, I shall decide the present suit for mandatory and permanent injunction and for damage /mense profit filed by the plaintiff against the defendant.
2. Brief facts of the case, as per plaint, are as follows:
(a) Plaintiff society is a registered body, which has CS SCJ No. 35499/16 Amar Nath Camp Vs. Sur Gyan Page No. 1/22 primarily been created for performing religious functions and welfare of Jhuggi Jhopri residents. The office bearers of the society are elected as per norms, rules and by-laws of the society. Sh. Naresh Kumar is the current Secretary, who is duly authorized to file the present suit on behalf of the plaintiff.
(b) Plaintiff is the sole and absolute owner of the built-up premises i.e. temple at ground floor and Dharamshala at first & second floor at D-886, Jahangir Puri, Delhi - 33 (hereinafter referred to as "suit property") more clearly shown in the site plan attached with the plaint. Defendant was appointed as Pujari in 2004 to perform pooja ceremony and to look after the temple.
(c) The plaintiff society i.e. M/S Amar Nath Camp Jhuggi Jhopri Raksha Samiti is registered with the Registrar of Society and was functioning from its office at Nala Niklson Road, Jhuggi No. 13A but in the year 1976 the said jhuggi Jhopri cluster was demolished and under the resettlement scheme, plot bearing no. D-886, Jahangir Puri, Delhi - 33 i.e. suit property was allotted in the name of the plaintiff society for the purpose of establishing a temple. On the possession slip issued to the plaintiff, name of the plaintiff was written as Jhuggi Jhopri Raksha Samiti registered in short.
(d) After said allotment, the then Pardhan of the plaintiff society i.e. Sh. Mohan Chand Joshi established a Shiv Hanuman Mandir in the suit property, which was initially in proper form having a dome, but with passage of time, it was modified and it now consists of a temple at ground floor and Dharamshala at first and second floor.
(e) In 2004, electricity connection was installed at the suit CS SCJ No. 35499/16 Amar Nath Camp Vs. Sur Gyan Page No. 2/22 property by the plaintiff and in said process, an affidavit was sworn by its member/Sh. Radhe Shyam Shukla before the electricity department.
(f) In 2004, defendant approached the then Pradhan of the plaintiff i.e. Sh. Mohan Chand Joshi to be appointed as Pujari of the temple and plaintiff appointed the defendant as pujari in said temple.
At that time, defendant was residing in Jahangir Puri, Delhi - 33 and sometime in 2007, defendant had purchased nearby property no. D- 885, Jahangir Puri, Delhi and his entire family was residing there.
(g) Defendant then requested to shift his family to the first and second floor of the suit property for a short period stating that he had to do some construction/modification in his house i.e. D-885, Jahangir Puri, Delhi and plaintiff allowed him to do so.
(h) After some time, defendant started misusing the suit property by performing various Tantra Vidaya, child marriages etc.
(i) Defendant is receiving rent from his own property bearing no. D-885, Jahangir Puri, Delhi and is using the first and second floor of the suit property for the residence of his family, which can fetch monthly rent of more than Rs. 10,000/-.
(j) Plaintiff issued legal notice dated 09.10.2013 to the defendant to vacate the suit property but defendant has failed to do so.
In this background, plaintiff filed the present suit against the defendant seeking permanent injunction thereby restraining him from preventing the plaintiff from entering the temple and performing pooja therein as well as restraining the defendant from creating any third party interest in the suit property, decree of CS SCJ No. 35499/16 Amar Nath Camp Vs. Sur Gyan Page No. 3/22 mandatory injunction thereby directing the defendant to handover vacant peaceful possession of the suit property to the plaintiff and decree of damages/mesne profit at the rate of Rs. 10,000/- per month along with cost of the suit.
3. Defendant filed WS wherein it is stated that plaintiff has not approached the court with clean hands and has no locus standi to file the present suit. On merit, it is averred that defendant is the landlord and owner of the suit property and that he is residing therein with his family since 1977. It is also averred that 1977 onwards, defendant has gradually built a three-story building structure out of his own fund. It is also averred that on 26.12.2012 at about 8 pm, members of the plaintiff society forcefully entered the suit property, misbehaved with the defendant, threatened to kill the defendant and forcefully obtained the signatures of defendant on some blank papers and that plaintiff once again came to the suit property abused the defendant on 30.01.2013. Alleging that suit of the plaintiff is without merit, defendant prays for dismissal of the same.
4. Plaintiff filed replication to the WS of the defendant whereby he denied the averments in the WS and reiterated the contents of the plaint.
5. After completion of pleadings, following issues were framed:
(i) Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP CS SCJ No. 35499/16 Amar Nath Camp Vs. Sur Gyan Page No. 4/22
(ii) Whether the plaintiff is entitled to decree of mandatory injunction as prayed for? OPP
(iii) Whether the plaintiff is entitled for mesne profit at the rate of Rs. 10,000/- per month? OPP
(iv) Relief
6. Matter was then put up for PE. Sh. Naresh Kumar, General Secretary of plaintiff stepped into the witness box as PW-1 and tendered his evidentiary affidavit as Ex. PW1/A and relied upon the following documents:
(i) Copy of resolution of the society as Ex. PW1/1.
(ii) Authorization letter as Ex. PW1/2.
(iii) Certified copy of registration certificate as Ex. PW1/4
(iv) Certified copy of rules and regulations as Ex. PW1/5
(v) Copy of allotment slip as Ex. PW1/6.
(vi) Photographs of old shape of suit property as Ex. PW1/7.
(vii) Copy of visiting card as Ex. PW1/9
(viii) Copy of complaint to SHO as Ex. PW1/10.
(ix) Copy of complaint to DCP as Ex. PW1/11 (x) Legal notice dated 09.10.2013 as Ex. PW1/12. (xi) Postal receipts as Ex. PW1/13. (x) Site plan as Ex. PW1/14. (xi) Copy of affidavit as Mark A.
PW-1 was cross examined by counsel for defendant and discharged.
7. Sh. Prem Singh, member of the plaintiff was examined CS SCJ No. 35499/16 Amar Nath Camp Vs. Sur Gyan Page No. 5/22 as PW2, who tendered his evidentiary affidavit as PW2/A. Defendant failed to cross examine PW2 despite opportunity being granted.
8. Sh. Vijay Kumar, Section Officer, Legal, District Shalimar Bagh, TPDDL was examined as PW3 who proved electricity bill as Ex.PW3/A, electricity bill in the name of Radhey Shyam as Ex. PW3/B, application form and test notice as Ex. PW3/C, security deposit receipt as Ex. PW3/D, undertaking/application of Sh. Radhey Shyam as Ex. PW3/E, affidavit of Sh. Radhey Shyam Shukla as Ex. PW3/F, DDA possession slip no. 3686 dated 02.11.1976 as Ex. PW1/6, electricity bill for May, 2004 as Ex. PW3/G, copy of meter installation protocol as Ex. PW3/H and undertaking on society letter head as Ex. PW3/I. PW3 was cross examined by counsel for defendant and discharged.
9. Sh. Narender Pal Malik, UDC, Delhi Urban Shelter Improvement Board, Jahangir Puri Zone, Sarai Pipal Thala, Delhi - 33 was examined as PW4, who proved the possession slip issued by DDA as Ex. PW4/1. Defendant did not cross examine PW4 despite opportunity being given.
10. Sh. Rakesh Kumar, Naib Tehsildar, Dariyaganj, Delhi was examined as PW5, who proved the registration certificate of the plaintiff in Ex. PW1/4 and the rules and regulations of plaintiff society in Ex. PW1/5. He proved the letter of the CS SCJ No. 35499/16 Amar Nath Camp Vs. Sur Gyan Page No. 6/22 plaintiff society and copy of RTI application as Ex. PW5/1.
PW5 was cross examined by counsel for the defendant and discharged. Thereafter PE was closed.
11. Matter was then put up for DE. Defendant stepped into the witness box as DW1 and tendered his evidentiary affidavit as Ex. DW1/A and relied upon the following documents.
(a) Site plan as Ex. DW1/1 (b) Ration card as Ex. DW1/2 (c) Voter card as Ex. DW1/3 (d) PAN Card as Ex.DW1/4 (e) Electricity bill as Mark A
(f) Telephone bill and LIC certificate as Ex. DW1/6
(g) Police complaint dated 27.12.2012 as Ex. DW1/7
(h) Bill dated 10.07.2004 as Ex.DW1/8
(i) Bill dated 27.12.2004 as Ex.DW1/9
(j) Bill dated 22.07.2005 as Ex.DW1/10
(k) Bill dated 13.04.2005 as Ex.DW1/11
(l) Bill dated 28.07.2005 as Ex.DW1/12
(m) Bill dated 17.01.2006 as Ex.DW1/13
(n) Bill dated 31.01.2006 as Ex.DW1/14
(o) Bill dated 01.02.2006 as Ex.DW1/15
(p) Bill dated 07.03.2007 as Ex.DW1/16
(q) Bill dated 06.07.2007 as Ex.DW1/17
(r) Bill dated 23.11.2007 as Ex.DW1/18
(s) Bill dated 08.08.2007 as Ex.DW1/19
(t) Bill dated 15.10.2012 as Ex.DW1/20
CS SCJ No. 35499/16 Amar Nath Camp Vs. Sur Gyan Page No. 7/22
(u) Bill dated 24.12.2012 as Ex.DW1/21
(v) Bill dated 24.12.2012 as Ex.DW1/22.
DW1 was cross examined by counsel for plaintiff and discharged.
12. Sh. Manak, who is the neighbour of the defendant was examined as DW2, who tendered his evidentiary affidavit as Ex. DW2/A. DW2 was cross examined by counsel for plaintiff and discharged. Thereafter, on separate statement of the defendant, DE was closed.
13. Final arguments heard. Record perused.
14. My issue-wise finding are as under-
For sake of reasoned flow of the judgment, issue no. 2 which pertains to handing over possession of the suit property to the plaintiff is taken up prior to issue no. 1, which pertains to non creation of third party interest in the suit property by the defendant.
Issue no. 2 - Whether the plaintiff is entitled to decree of mandatory injunction as prayed for? OPP
15. Onus of proving this issue is upon the plaintiff. Plaintiff has sought injunction to the effect that defendant be directed to hand over vacant physical possession of the suit property to the plaintiff. Case of plaintiff is that it is the owner of the suit property and that it had allowed the defendant to work as Pujari in the temple at ground floor and had also permitted the defendant & his family members to CS SCJ No. 35499/16 Amar Nath Camp Vs. Sur Gyan Page No. 8/22 temporarily reside in the first & second floor of the suit property. Subsequently, plaintiff called upon the defendant to vacate the suit property but defendant has not vacated the same. Per contra, defendant claims that he is the owner of the suit property, he has constructed the temple in the suit property out of his own fund and that he is residing therein in the capacity of owner thereof.
16. In support of its case, PW1 proved the authority letter in Ex. PW1/2, whereby he was authorized by the plaintiff society to pursue the present matter on behalf of the plaintiff. As per the plaint, the suit property was allotted to plaintiff by the DDA vide slip in Ex. PW1/6. Defendant had objected to the mode of proof of the possession slip in Ex. PW1/6. However, plaintiff subsequently summoned official from Delhi Urban Shelter Improvement Board as PW4 and PW4 proved the aforesaid possession slip issued by DDA as Ex. PW4/1. Thus, aforesaid possession slip is found to be duly proved by PW4 and court now reads the same in evidence. Perusal of the said possession slip reveals that same was issued by DDA on 02.11.1976 in favour of Jhuggi Jhopri Raksha Samiti (Rd) (Temple) qua the suit property. Defendant did not cross examine PW4 despite opportunity being given and as such, the genuineness of the possession slip in Ex. PW1/6 (proved by PW4 as Ex. PW4/1) has not been disputed. During course of final arguments, counsel for defendant argued that the said possession slip, which was relied upon by the plaintiff, is issued in the name of 'Jhuggi Jhopri Raksha Samiti' only whereas the name of the plaintiff society is 'Amar Nath Camp Jhuggi Jhopri Raksha Samiti'. It is correct that the term CS SCJ No. 35499/16 Amar Nath Camp Vs. Sur Gyan Page No. 9/22 'Amar Nath Camp' is not mentioned in the possession slip in Ex. PW4/1. Plaintiff has explained omission of the said word in para no. 3 of the plaint wherein it is averred that the name of the plaintiff society was mentioned in short as 'Jhuggi Jhopri Raksha Samiti' in the aforesaid possession slip. It is not the case of the defendant that the term 'Jhuggi Jhopri Raksha Samiti (Rd)' mentioned in aforesaid possession slip refers to some other entity. Defendant has also not brought any material on record to show that there is any other society/entity by the name of Jhuggi Jhopri Raksha Samiti to whom the said possession slip pertains to. Even during the cross- examination of PW1, no suggestion was put to PW1 to the effect that some other entity with the name 'Jhuggi Jhopri Raksha Samiti' exists or that possession slip in Ex.PW1/4 pertains to such other entity and not to the plaintiff society. The explanation of the plaintiff that the term 'Amar Nath Camp' was not mentioned in the possession slip as the name of the plaintiff society was mentioned in brief appears to be plausible. To summarize the same, Ex.PW1/4 is found to pertain to the plaintiff society as firstly, there is no contradiction per se in the name of the plaintiff society mentioned in the possession slip in Ex.PW1/4 and the name is mentioned in the plaint. Secondly, there is only omission of term 'Amarnath Camp' in the possession slip in Ex.PW1/4, which is duly explained by the plaintiff in the plaint stating that name of the plaintiff society was mentioned in brief in Ex.PW1/4 and PW1 was not cross-examined by the defendant on this point. Thirdly, defendant has neither averred nor proved existence of any other entity by the name of 'Jhuggi Jhopri Raksha Samiti' nor it is the case of the defendant that CS SCJ No. 35499/16 Amar Nath Camp Vs. Sur Gyan Page No. 10/22 Ex.PW1/4 pertains to some other entity apart from the plaintiff. On the basis of above discussion and on the standard of preponderance of probabilities, possession slip in Ex.PW1/4 issued qua the suit property is found to pertain to the plaintiff society.
17. Defendant claims to be owner of the suit property but nowhere in the WS, defendant has explained as to how he became owner of the same. During the course of final arguments, counsel for defendant argued that defendant derives his title to the suit property from the possession slip in Ex.PW1/4 filed by the plaintiff. In other words, claim of the defendant is that aforesaid possession slip in Ex.PW1/4 was issued to the plaintiff vide which suit property was conveyed to the defendant and that said slip was never issued to the plaintiff. Aforesaid claim of defendant is found to be devoid of merits for reasons that firstly, the said possession slip in Ex.PW1/4 was filed by the defendant and defendant nowhere explains as to why same was not filed by him. Secondly, nothing in the aforesaid possession slip is found to make any reference whatsoever to the defendant as neither the name of defendant nor any other detail of the defendant is mentioned therein. Thirdly, as per copy of PAN Card of the defendant in Ex.DW1/4 filed by the defendant himself, date of birth of defendant is 02.07.1965 and as such, defendant was only about 8 years of age at the time of issuance of possession slip in Ex.PW1/4 which is dated 18.12.1973. Defendant has not explained as to how suit property was allotted to him vide Ex.PW1/4, as claimed, when he was a minor at that point of time.
CS SCJ No. 35499/16 Amar Nath Camp Vs. Sur Gyan Page No. 11/22Thus, Ex.PW1/4 do not advance the claim of the defendant that he is owner of the suit property in anyway.
18. Further, defendant claims to be owner of the suit property but he has not filed any title document in support of the same. Thus, the plea of the defendant that he is the owner of the suit property and that he is residing therein on his own rights is a bare averment, uncorroborated by any material on record. It may be mentioned here that defendant has relied upon his ration card in Ex. DW1/2, voter card in Ex. DW1/3, PAN card in Ex.DW1/4, electricity bill in Mark A, telephone bill and LIC certificate in Ex. DW1/6 in support of his claim that he is the owner of the suit property. Perusal of aforesaid documents reveals that ration card in Ex.DW1/2 is dated 07.02.2007, voter card in Ex. DW1/3 is dated 19.09.2005, electricity bill in Mark A is dated 23.02.2006, telephone bill & LIC Policy in Ex.DW1/6 are dated 11.01.2006 & 28.12.2004 respectively. None of the aforesaid documents qualify as title document of the suit property as transfer of title of an immovable property is not possible by way of aforesaid documents. Although said documents in Ex.DW1/2 to Ex.DW1/4, Mark A & Ex.DW1/6, are issued in the name of the defendant and they bear the address of the suit property, but those documents at best, show that defendant was in possession of the suit property at the time when said documents were issued in his name. It is noticed that all the aforesaid documents were issued to the defendant on or after the year 2004. Thus, said documents merely shows that defendant is in possession of the suit property since 2004. However, plaintiff itself admits the possession of the CS SCJ No. 35499/16 Amar Nath Camp Vs. Sur Gyan Page No. 12/22 defendant in the suit property since 2004 as it is specifically averred in the plaint that plaintiff society had inducted the defendant as pujari in the suit property sometime in 2004. Defendant claims to be residing in the suit property since 1977 in the capacity of owner thereof but defendant has not brought any material on record to show his possession in the suit property prior to 2004. During his cross-examination, defendant also admits that he has no proof of residence/identity card issued to him in Delhi prior to the year 2004. It may be mention here that DW2 has testified that defendant is the owner of the suit property and that he is residing therein since 1977 in the capacity of owner of the same. However, in the considered opinion of the court, aforesaid testimony of DW2 is of no aid to the defendant as ownership over immovable property can only be established by way of documentary evidence and no oral testimony can establish ownership of any person over any immovable property. In view of above discussion, court is of considered opinion that defendant has failed to establish that he is owner of the suit property. Plaintiff, on the other hand is found to have right, title or interest in the suit property by virtue of the possession slip in Ex. PW4/1.
19. At this juncture, it may be mentioned that counsel for defendant had argued that the suit in its present form is not maintainable as defendant had sought possession of the suit property in the garb of injunction. Counsel for defendant had argued that since defendant also claims ownership over the suit property, cloud is created over the title of the plaintiff qua the suit property and thus, CS SCJ No. 35499/16 Amar Nath Camp Vs. Sur Gyan Page No. 13/22 plaintiff was required to file suit for possession. It is correct that defendant claims to be owners of the suit property but as already mentioned above, defendant has not filed any material on record in support of his aforesaid claim. Defendant claims to have derived his title to the suit property vide possession slip in Ex.PW1/4 but said claim has already been found to be devoid of merit for reasons detailed above. In nutshell, the claim of the defendant that he is owner of the suit property is found to be a bald averment, unsubstantiated by any material on record. Thus, it cannot be said that defendant has been able to create any cloud over the title of the plaintiff society qua the suit property. Further, as per the plaint, plaintiff had permitted the defendant to work as Pujari and to reside temporarily in the suit property. As such, defendant is stated only to be a permissive user of the suit property. For above reasons, court is of the considered opinion that a suit for injunction seeking vacant possession of the suit property is maintainable against the defendant, who has failed to raise any cloud over the title of the plaintiff and who is stated merely to be a permissive user of the suit property.
20. PW1 proved the registration certificate of the plaintiff society in Ex. PW1/4 and rules and regulations of the plaintiff society in Ex. PW1/5. Objections as to mode of proof of aforesaid documents were raised by the counsel for defendant. However, plaintiff subsequently summoned Sh. Rakesh Kumar, Naib Tehsildar, Dariyaganj, Delhi as PW5, who proved the registration certificate in Ex. PW1/4 and rules and regulations in Ex. PW1/5 of the plaintiff society. During cross examination of PW5, no contradiction could be brought out in his CS SCJ No. 35499/16 Amar Nath Camp Vs. Sur Gyan Page No. 14/22 testimony so as to show that documents in Ex.PW1/4 and Ex.PW1/5 are not genuine. Thus, plaintiff society is found to be a registered society vide registration certificate in Ex. PW1/4.
21. Another defence of the defendant is that the temple in the suit property was constructed by him out of his own funds and in support of the same, defendant has relied upon various bills in Ex. DW1/8 to Ex. DW1/20 and transport receipts in Ex. DW1/21 and Ex. DW1/22. Perusal of the bills in Ex. DW1/8 to Ex. DW1/20 reveals that certain materials, namely, iron, bricks, cement etc. were purchased by the defendant vide said bills. Perusal of the transport receipt in Ex. DW1/21 and Ex. DW1/22 reveals that marble tiles were supplied to the suit property vide aforesaid receipts. However, aforesaid bills and receipts in Ex. DW1/8 to Ex. DW1/22 merely show that materials mentioned in said bills were purchased by the defendant and that marble tiles were supplied to the suit property. However, nothing in aforesaid bills/receipts in Ex. DW1/8 to Ex. DW1/22 go on to show that aforesaid materials were indeed used for construction of temple in the suit property. Issuance of aforesaid bills in the name of the defendant also do not necessarily indicate that materials mentioned therein were purchased by the own fund of the defendant. This is more so in view of the fact that in certain bills i.e. bill in Ex.DW1/17, name of Radhey Shyam, who is stated to be the member of the plaintiff society, is also found to be mentioned. Be that as it may. Even if it is assumed that materials as mentioned in aforesaid bills were purchased by the defendant from his own fund and that said materials were indeed used for CS SCJ No. 35499/16 Amar Nath Camp Vs. Sur Gyan Page No. 15/22 construction of the temple in the suit property, even then, defendant will not become owner of the suit property by merely having constructed the temple therein. To successfully establish title over an immovable property, one is required to show title documents qua the property concerned and in the present matter, defendant has failed to bring on record any material reflecting his title to the suit property. It may be mentioned here that DW2, who is stated to be a neighbour of the defendant, testified vide his evidentiary affidavit Ex.DW2/A, that defendant had constructed a temple in the suit property out of his own fund. However, during his cross- examination, DW2 deposed that he is in knowledge of aforesaid fact as the same was told to him by his mother. As such, the above testimony of DW2 to the effect that defendant had constructed the temple in the suit property out of his fund is nothing but hearsay, and therefore, court refrains from placing any reliance upon the same. The testimony of DW2 that tile work of the floor of the second storey of the building in the suit property was constructed by the defendant is also of no aid to the defendant as DW2 has also not explained the source of fund of the defendant out of which he has made aforesaid construction.
22. Plaintiff has also relied upon electricity bills which were produced and proved by summoned witness Sh. Vijay Kumar from TPDDL, Delhi/PW3. PW3 filed on record the application form whereby one Radhey Shyam Shukla had applied for electricity connection qua the suit property. Aforesaid Radhey Shyam Shukla is stated to be member of the plaintiff society and same has not CS SCJ No. 35499/16 Amar Nath Camp Vs. Sur Gyan Page No. 16/22 disputed by the defendant. PW3 also proved the copy of the application/undertaking in Ex.PW3/E and Ex.PW3/I, perusal of which reveals that said undertakings were given by the aforesaid Radhey Shyam Shukla for obtaining electricity connection in the suit property, in his capacity as Pradhan of the plaintiff society. Further, the application for electricity connection in the suit property was also made by Radhey Shyam Shukla in his capacity as Pradhan of the plaintiff society. From perusal of the documents in Ex.PW3/A to Ex.PW3/I, it is found that all formalities/execution of documents for obtaining electricity connection in the suit property was done by Radhey Shyam Shukla in his capacity as Pradhan of the plaintiff society. This also go on to show that electricity connection was provided in the suit property at the behest of the plaintiff society. During the cross-examination of the defendant/DW1, he admitted that he has not filed any complaint or case against aforesaid Sh. Radhey Shyam Shukla. This lends further corroboration to the case of the plaintiff that right, title and interest qua the suit property vests with the plaintiff society.
23. Defendant claims that he had constructed the Mandir in the suit property, which is a Kali Mandir and in support of the same, defendant has relied upon a visiting card of the defendant mentioning said Kali Mandir in Ex.DW1/9. Per contra, case of the plaintiff is that there is a Shiv Hanuman Mandir in the suit property. It is noticed that the electricity bill in Mark A filed by the defendant himself, is issued in the name of Shiv Hanuman Mandir. Defendant has not explained as to why the name of the temple in Mark A, CS SCJ No. 35499/16 Amar Nath Camp Vs. Sur Gyan Page No. 17/22 which is filed by defendant himself, is mentioned as Shiv Hanuman Mandir and not as Kali Mandir. Thus, the testimony of PW3 and the documents proved by him in Ex.PW3/A to Ex.PW3/I as well as Mark A filed by the defendant go on to substantiate the claim of the plaintiff that plaintiff has right, title and interest over the suit property and that electricity connection in the same was also obtained at the behest of the plaintiff society.
24. PW1 deposed that legal notice dated 09.10.2013 in Ex.PW1/12 was issued upon the defendant whereby defendant was called upon to vacate the suit property and that same was duly served upon the defendant vide receipt in Ex.PW1/13. Defendant has not categorically denied the receipt of the aforesaid notice. Even otherwise, it is not the case of the defendant that the legal notice in Ex.1/12 does not bear his correct address. Thus, as per Section 27 of General Clauses Act, the legal notice in Ex.PW1/12 is deemed to have been served upon the defendant in due course. As per the discussion above, plaintiff has successfully established that it has right, title and interest over the suit property and that defendant is only a permissive user in the suit property. Said permission given by the plaintiff is terminable at will. Aforesaid permission stood duly terminated when the legal notice dated 09.10.2013 in Ex.PW1/12 was served upon the defendant. Since the said legal notice was dispatched to address of the defendant which is within Delhi, it may be reasonably assumed that said notice was delivered in three days' time i.e. 12.10.2013. Vide aforesaid notice, plaintiff had given one months' time to the defendant to vacate the suit property. As such, CS SCJ No. 35499/16 Amar Nath Camp Vs. Sur Gyan Page No. 18/22 defendant was liable to vacate the suit property by 12.11.2013. After such termination w.e.f. 12.11.2013, defendant has no right to continue to occupy the suit property and he is liable to hand over vacant physical possession of the suit property to the plaintiff. Accordingly, a decree is passed in favour of the plaintiff and against the defendant, thereby directing the defendant to hand over vacant physical possession of the suit property to the plaintiff. Thus, present issue is decided in favour of the plaintiff and against the defendant.
Issue No. 1. Whether the plaintiff is entitled to decree of permanent injunction as prayed for?
25. Onus to prove this issue is upon the plaintiff. It is alleged by the plaintiff that the defendant is preventing the members of plaintiff society from entering the temple and performing Puja/other religious activities therein. From the discussion held above, it is already established that the plaintiff has right, title and interest in the suit property, being an allottee of the DDA qua the same. Defendant has failed to show that he has any right, title or interest in the suit property. It has also been found in the discussion above that permission given to the defendant by the plaintiff to reside/occupy the suit property stood terminated vide legal notice in Ex.PW1/12. In such scenario, defendant cannot be said to have any right to prevent the members of the plaintiff society from entering the temple and performing Puja/other religious activities therein. Accordingly, a decree of permanent injunction is issued in favour of CS SCJ No. 35499/16 Amar Nath Camp Vs. Sur Gyan Page No. 19/22 the plaintiff and against the defendant, thereby preventing the defendant from restraining the members of the plaintiff society from entering the temple and performing Puja/other religious activities therein. For same reasons and also in view of the fact that defendant has failed to show that he has any right, title or interest in the suit property, defendant is also restrained from creating any third party interest in the suit property. Thus, present issue is decided in favour of the plaintiff and against the defendant.
Issue No. 3. Whether the plaintiff is entitled for mesne profit at the rate of Rs. 10,000/- per month?
26. Plaintiff has sought damages/mesne profit @ Rs. 10,000/- per month for unauthorized use of the suit property by the defendant. From the discussion above, plaintiff has successfully established that it had inducted the defendant into the suit property and that plaintiff had subsequently terminated the said permission vide legal notice in Ex.PW1/12. Vide aforesaid notice in Ex.PW1/12, plaintiff had called upon the defendant to vacate the suit property within a month of receipt of said notice. The said notice dt. 09.10.2013 which was dispatched to an address within Delhi may be reasonably deemed to be served within the period of three days i.e. by 12.10.2013. Thus, calculating a period of one month from 12.10.2013, it is deduced that permission given to defendant to occupy the suit property stood revoked w.e.f. 12.11.2013.
CS SCJ No. 35499/16 Amar Nath Camp Vs. Sur Gyan Page No. 20/2227. Since defendant has continued to occupy the suit property even after 12.11.2013, he is liable to pay damages/mesne profit to the plaintiff in lieu of the same. The question now is regarding the quantum of damages/mesne profit to be paid by the defendant to the plaintiff. Vide aforesaid legal notice Ex.PW1/12, plaintiff had intimated to the defendant that defendant is liable to pay mesne profit as the suit property can fetch rental of Rs. 10,000/- per month. Defendant has not countered the same by way of reply to legal notice. PW1 has also been cross-examined on the point that suit property can fetch aforesaid rental amount. Therefore, said claim of the plaintiff has remained uncontroverted. Thus, plaintiff is found entitled to mesne profit @ Rs. 10,000/- per month w.e.f. 12.11.2013 till vacant physical possession of the suit property is handed over to it by the defendant. Thus, present issue is decided in favour of the plaintiff and against the defendant.
Relief
28. In view of the above discussion, suit is decreed in favour of the plaintiff and against the defendant. A decree of mandatory injunction is passed in favour of the plaintiff and against the defendant, thereby directing the defendant to hand over the vacant physical possession of the suit property to the plaintiff. A decree of permanent injunction is passed in favour of the plaintiff, preventing the defendant from restraining the members of the plaintiff society from entering the temple and performing Puja/other religious activities therein. A further decree is passed in favour of CS SCJ No. 35499/16 Amar Nath Camp Vs. Sur Gyan Page No. 21/22 the plaintiff, restraining the defendant from creating any third party interest in the suit property. A decree is passed in favour of the plaintiff, directing the defendant to pay damages / mense profit @ Rs. 10,000/- per month with effect from 12.11.2013 till vacant physical possession of the suit property is handed over to the plaintiff.
Cost of the suit is awarded in favour of the plaintiff and decree sheet be prepared accordingly.
File be consigned to record room after due compliance. Announced in the open court on 02.11.2023 (DHANASHREE DEKA) ACJ-CCJ-ARC NORTH DISTRICT, ROHINI COURT, DELHI (This judgment contains 22 pages and each page is signed by me) (DHANASHREE DEKA) ACJ-CCJ-ARC NORTH DISTRICT, ROHINI COURT, DELHI CS SCJ No. 35499/16 Amar Nath Camp Vs. Sur Gyan Page No. 22/22