Delhi District Court
Smt. Sharda Devi vs Shri Om Parkash on 22 November, 2012
1
In the court of Sh. Vivek Kumar Gulia
Commercial Civil Judge cum ARC (North District)
Tis Hazari Courts, Delhi.
Suit No. 407/05
Unique I.D. No. 02401C0965442005
In the matter of :
Smt. Sharda Devi
W/o Late Raj Kumar
R/o MU12, Ground Floor, Pitampura,
Delhi110088. .............Plaintiff
Versus
Shri Om Parkash
S/o Shri Shambhu Dayal
R/o MU12, First Floor, Pitampura,
Delhi110088.
Also at :
Asstt. Accounts Officer,
Office of Executive Engineer (Elec.)
N.D.M.C. Vidyut Bhawan,
Aurangzeb Road, New Delhi. ..........Defendant
Page 1 of 22 Suit no. 407/05
2
SUIT FOR RECOVERY OF POSSESSION WITH MESNE PROFITS
Date of Institution: 22.10.2005
Final arguments heard/case reserved for Judgment: 20.10.2012
Date of Judgment: 22.11.2012
Decision: Decreed
JUDGMENT:
1. The important facts of the case, as averred in the plaint, are that the late Sh. Raj Kumar, husband of the plaintiff, was the allotted a property bearing no. MU12, Pitampura, Delhi, [in short 'said plot'] under Low Income Scheme of DDA in the year 1980 and thereafter, he raised construction over the said plot out of his own funds and savings for his residence. Further, it is mentioned that husband of plaintiff died on 14.10.1995 and thereafter, plaintiff stepped into the shoes of her deceased husband and the said property devolved upon her by virtue of law of inheritance. Further, it is stated that the property was also mutated in her name in the record of DDA and as per policy of DDA plaintiff applied for conversion of property from lease hold to freehold and a conveyance deed dated 05.11.1998 was executed and registered in her favour and the defendant became witness of it. Further, it is mentioned Page 2 of 22 Suit no. 407/05 3 that the husband of the plaintiff suffered a heart attack in 1984 and therefore, he allowed his real brother/defendant to stay on the first floor of the property bearing no. MU12, Pitampura, Delhi, consisting of two rooms, one kitchen with common use of latrine and bathroom, as shown in red colour in the site plan filed alongwith the plaint (hereinafter referred to as the 'suit premises') for a temporary period without any money consideration and defendant assured that he would vacate the suit premises as and when required by them. Further, it is mentioned that by passage of time, the children of plaintiff grew up and the necessity of more space arose and as such plaintiff asked the defendant to vacate the suit premises but he avoided on one pretext or the other. Further, it is mentioned that a legal notice dated 19.09.2005 was sent to the defendant and thereby the permission to stay was terminated w.e.f. 15.10.2005 and it was replied falsely by the defendant vide his reply dated 10.10.2005. Further, it is mentioned that the defendant is in illegal and unauthorized use and occupation of the suit premises w.e.f. 16.10.2005 and since similar accommodation in the vicinity would fetch rent @ Rs. 4,000/ per month, the defendant is liable to pay damages at the same rate w.e.f. 16.10.2005. In view of above, the plaintiff prayed for recovery of possession of the suit premises alongwith damages @ Rs. 4,000/ p.m. from from date of institution of suit till delivery of Page 3 of 22 Suit no. 407/05 4 possession.
2. Summons was served on defendant and he opted to contest the case. Defendant filed written statement taking preliminary objections that the plaintiff has not disclosed the true and correct facts and is withholding the material particulars of this case; that all the legal heirs of late Sh. Raj Kumar have not been impleaded and as such, the suit is bad for nonjoinder of necessary parties; that no cause of action ever arose against the defendant as the defendant is one of the coowners of the suit premises and moreover, the defendant has become the sole owner of the suit premises on account of adverse possession. On merits, it is mentioned that though the said plot was alloted in the name of late Sh. Raj Kumar but the same is jointly owned by him and late Sh. Raj Kumar. Further, it is mentioned that at the time of allotment, his family and family of Raj Kumar were living together at house no. 124, Jatwara, Pull Mithai, Delhi, and when the said plot was purchased, it was mutually agreed by both the brothers that the property would be purchased and constructed jointly and they would share the property accordingly. In view of this understanding the defendant contributed a sum of Rs. 4,000/ for purchase of the said plot and paid it in cash in the year 1980. Further, it is mentioned that after allotment late Sh. Raj Kumar and Page 4 of 22 Suit no. 407/05 5 defendant contributed equally in raising construction on the said plot and the defendant invested a sum of Rs. 1,52,900/ from his personal savings, from the savings of his wife and through other sources and borrowings. Further, it is mentioned that it was also mutually agreed that the defendant would occupy the first floor and Raj Kumar would occupy ground floor. It is further mentioned that defendant is in use and occupation of the suit premises in his own rights being the coowner of the property without any interruption and interference from Raj Kumar or his family members. Further, it is mentioned that the husband of the plaintiff died leaving behind the plaintiff and an adopted son and after the death of husband of the plaintiff, no one raised any objection till 2005 in respect of suit premises and even family members, near relatives and friends advised plaintiff several times not to take false stand for getting the suit premises vacated. It is also mentioned that even all the ceremonies right from the Bhumi Poojan till Garh Parvesh have been performed jointly and invitation card of Garh Parvesh ceremony was in joint name. Further, it is mentioned that because of the understanding between the brothers, the defendant did not raise any objection with DDA with regard to the mutation of the property in the name of the plaintiff. In view of above, defendant prayed for the dismissal of suit with heavy costs.
Page 5 of 22 Suit no. 407/05 6
3. The plaintiff filed replication to the written statement of the defendant mentioning that defendant is only in permissive possession of the suit property. Further, it is mentioned that the construction at the said plot was completed in 1985 and in 1987, the husband of the plaintiff permitted defendant to reside in the suit premises with a view of taking his help in difficult time. Further, it is mentioned that the vacant plot was alloted in the name of husband of the plaintiff in the year 1980 and the cost of the said plot was Rs. 8,075/ and it was paid by husband of the plaintiff out of his personal savings by way of Demand Draft when he was an employee in Northern Railways. It is also mentioned that he sought permission from his department for purchase of said plot and construction thereon and he borrowed a loan of Rs. 32,000/ from his department in 1982. It is further mentioned that father of the plaintiff Sh. Madan Lal Sharma was employed in Post & Telegraph Department and after his death in February, 1978, his service dues were paid by department to his heirs and thus, a sum of Rs. 35,000/ (approx.) had come to the share of plaintiff. Further, it is mentioned that with cost of Rs. 1,02,600/, the construction over said plot was completed in 1985. Further, it is mentioned that the defendant was merely a clerk at the time of construction and he was having a meagre salary and thus, was not in a position to contribute any amount. Further, it is mentioned that out of Page 6 of 22 Suit no. 407/05 7 his savings, the defendant had invested in a plot measuring 150 sq. yds. in Saraswati Kunj Coop. Society, Gurgaon (Haryana). Other contentions raised by the defendant are denied by the plaintiff and she reasserted the facts mentioned in the plaint.
4. On the basis of the pleading of the parties, following issues were framed by Ld. Predecessor of this court vide order dated 01.05.2006 :
i). Whether the suit is not maintainable in the present form and is lacking material particulars as per preliminary objection no. 1? OPD
ii). Whether the suit is not maintainable for nonjoinder of all the legal heirs of Sh. Raj Kumar as per preliminary objection no.2? OPD
iii). Whether the suit is without cause of action as per preliminary objection no.3? OPD
iv). Whether the defendant has become the owner of the suit property by way of adverse possession as per preliminary objection No. 4? OPD
v). Whether the plaintiff is entitled for decree of possession of suit premises as prayed for? OPP
vi). Whether the plaintiff is entitled for damages/mesne profits? If so, at what rate and for what period? OPP
vii).Relief.
Page 7 of 22 Suit no. 407/05 8
5. In support of her case, plaintiff produced three witnesses. 5A. Plaintiff Smt. Sharda Devi stepped into the witness box as PW1 and deposed on the lines of plaint and further she proved the following documents:
a) Allotment letter dt.28.10.1980 : Ex. PW1/1
b) Conveyance Deed dt. 05.11.1998 : Ex. PW1/2
c) House tax payment receipt : Ex. PW1/3
d) Site plan of suit property : Ex. PW1/4
e) Legal notice dt. 19.09.2005 : Ex. PW1/5
f) Postal Receipts, UPC and AD Card : Ex. PW1/6 to PW1/8
g) Reply to legal notice dt. 10.10.2005 : Ex. PW1/9
h) Valuation Report dated 07.03.1988 : Ex. PW1/10
i) Letter dt. 19.05.1976 sent to DDA : Ex. PW1/11
j) Letter dt. 09.02.1982 sent to office : Ex. PW1/12
k) Letter dt.15.11.1980 for change of address : Ex. PW1/13
l) Mortgage deed dt. 19.03.1982 for loan : Ex. PW1/14 m) Bank Pass Book : Ex. PW1/15
n) Letter of mutation dt. 10.02.1997 : Ex. PW1/16
o) Valuation Report dt. 15.10.2005 : Ex. PW1/17 5B. PW2, Suraj Prakash, Dealing Assistant, DDA, Vikas Sadan, Delhi, produced the record of Conveyance Deed Ex. PW3/1. Further, he mentioned that perpetual lease was executed on 19.03.1982 in favour of Sh. Raj Kumar in respect of property no. MU12, Pitampura, Delhi and in the Conveyance Deed, defendant Om Prakash was attesting witness. Page 8 of 22 Suit no. 407/05 9 5C. PW3, R.K. Sapra, testified that he is Deed Writer by profession and resides in the vicinity of Pitampura, Delhi. Further, he mentioned that any property with the size of suit property can easily fetch a rent not less than Rs. 4,000/ per month exclusive of other charges as this rate of rent is prevailing in the area where the suit premises is situated.
6. The defendant also examined four witnesses in his evidence. 6A. Defendant himself testified as DW1 on the lines of his written statement and proved the following documents: a) Invitation Card : Ex. DW1/1
b) Documents like gas connection, report : Ex. DW1/2 to DW1/4 card of children and ration card bearing the and DW1/6 address of suit premises
c) Bank Pass Books showing withdrawal of : Ex. DW1/7 to DW1/9 amount for construction purposes 6B. DW2, Ram Avtar Sharma, and DW3, Ramesh Chand Sharma, had testified that they are residing at Hari Nagar, New Delhi64 and they personally know late Smt. Rampyari Devi, Raj Kumar and Om Prakash for the last 3040 years. It is also mentioned that both the brothers, late Sh. Raj Kumar and Om Prakash, used to consult them frequently about their family matters and about the joint construction over the said plot. Page 9 of 22 Suit no. 407/05 10 They also deposed that they were told by late Smt. Rampyari Devi, late Sh. Raj Kumar and Sh. Om Prakash that property bearing no. MU12, Pitampura, Delhi has been constructed by both the brothers with their joint funds in the year 198485 and it was constructed with clear understanding between both the brothers that they will occupy jointly as none of them has enough funds to invest in the property individually. They also mentioned that they joined in the Muharat Ceremony of the house of parties in this case.
6C. DW4, S.L. Dhir, filed his valuation report dated 07.10.2010 Ex. PW4/A in respect of suit premises.
7. I have heard the final arguments advanced by Ld. Counsel for the plaintiff Sh. Subhash Chand and Ld. Counsel for the defendant Sh. Surender Goel. Record is also gone through. My issuewise findings are as under: Issue no. i): Whether the suit is not maintainable in the present form and is lacking material particulars as per preliminary objection no. 1? OPD Page 10 of 22 Suit no. 407/05 11
8. Onus of this issue was on the defendant. However, the defendant has not led any evidence in this regard. It has been argued on behalf of the defendant that the plaintiff has concealed material facts that the property was purchased and constructed with joint funds of late Sh. Raj Kumar and the defendant and it was mutually agreed between them that they will reside in this property at different floors as joint owners. These facts have been categorically disputed by the plaintiff side. In such circumstances, the plaintiff has claimed the appropriate relief of possession and mesne profits. As such, this issue is decided in favour of the plaintiff and against the defendant.
Issue no. ii) : Whether the suit is not maintainable for nonjoinder of all the legal heirs of Sh. Raj Kumar as per preliminary objection no.2? OPD
9. The onus of this issue was on the defendant. It was argued by Ld. Counsel for the defendant that adopted son of late Sh. Raj Kumar is also his legal heir and as such he should have been impleaded as a party in this case and since he was the necessary party, the suit is liable to be dismissed for nonjoinder of necessary party as per Order 1 Rule 9 CPC. On this issue, Ld. Counsel for the plaintiff has argued that it is admitted Page 11 of 22 Suit no. 407/05 12 fact that late Sh. Raj Kumar has two legal heirs, i.e., plaintiff and their adopted son but since adopted son of late Sh. Raj Kumar had executed a relinquishment deed dated 09.09.1996 (Ex. PW1/D2) in favour of his mother, i.e., the plaintiff in respect of property no. MU12, Pitampura, Delhi, he had left with no rights in the said property. It is also mentioned that thereafter the property was mutated in favour of the plaintiff vide letter dated 10.02.1997 Ex. PW1/16 issued by DDA and therefore, the son of plaintiff was not required to be impleaded as a party in this case. It is observed that the said document Ex. PW1/D2 was produced by defendant only during crossexamination of PW1 and therefore, there has been no challenge to this document. Moreover, the conveyance deed Ex. PW1/2 executed in favour of plaintiff only is also an admitted document. In view of above, there remains no doubt that the plaintiff was well within her rights to file this suit independently against the defendant in respect of suit premises and therefore, this issue is decided against the defendant and in favour of the plaintiff.
Issue no. iii): Whether the suit is without cause of action as per preliminary objection no.3? OPD Page 12 of 22 Suit no. 407/05 13
10. Onus of this issue was on defendant. However, defendant side has not led any evidence in this regard. Though, it has been argued that the plaintiff was not having any cause of action to file the present suit against the defendant as defendant is coowner in the said property but the right of ownership of defendant in the suit property has been challenged by the plaintiff. The plaintiff has filed this suit claiming to be absolute owner of suit property. Further, the rights of both the sides in respect of suit property would be discussed in subsequent paragraphs while giving findings on issues no. (iv) and (v). In my view, primafacie, plaint discloses valid cause of action. Hence, this issue is also decided in favour of the plaintiff and against the defendant. Issue no. iv): Whether the defendant has become the owner of the suit property by way of adverse possession as per preliminary objection No. 4? OPD
11. Onus of this issue was placed on the defendant. It was mentioned in the written statement that since defendant is in use and occupation of the suit premises for the last 20 years without any interruption and objections from the plaintiff, her late husband and other family members, he has become the absolute owner of the suit premises on account of Page 13 of 22 Suit no. 407/05 14 adverse possession. For establishing ownership right on the basis of adverse possession, the claimant is required to prove that possession is in form of nonpermissive use of land with a claim of right when that use is continuous, exclusive, hostile, open and notorious. It is observed that defendant has not taken plea of adverse possession during his deposition. Further, it is evident that defendant has not claimed that his possession was nonpermissive, rather it is put on record that he was residing in the suit property on account of mutual understanding. Further, it is not the case of defendant that his possession has been hostile or notorious. Thus, the plea of adverse possession raised by defendant is liable to be rejected. Hence, this issue is decided against the defendant and in favour of the plaintiff.
Issue no. v) : Whether the plaintiff is entitled for decree of possession of suit premises as prayed for? OPP
12. Onus of this issue was placed on the plaintiff. The plaintiff has deposed that the said plot was allotted by DDA in the name of her husband and the entire costs of that land was paid by her husband from his savings whereas the defendant has claimed that he contributed Page 14 of 22 Suit no. 407/05 15 equally against allotment amount. In this regard, the plaintiff has placed on record Allotment Letter dated 28.10.1980 Ex. PW1/1 and letter dated 09.02.1982 Ex. PW1/12. It is admitted fact that the said property was alloted in the name of late Sh. Raj Kumar, husband of the plaintiff on perpetual lease hold basis on payment of premium of Rs. 8,064/. The letter dated 09.02.1982 (Ex. PW1/12) written by late husband of the plaintiff to his department is very significant. Vide this letter, the husband of the plaintiff has clearly mentioned that he had paid the entire allotment amount from his personal savings from his Saving Bank Account no. C5928, S.B.I., Sadar Bazar Branch, Delhi06, by way of a Demand Draft. This document has not been challenged by the defendant side. Though, the defendant has alleged that he had paid Rs. 4,000/ from his pocket to contribute in purchasing the said plot at the time of allotment but he has not placed on record any material to substantiate his plea. Moreover, DW3 has conceded in his crossexamination that price of plot was paid by Sh. Raj Kumar. Therefore, there remains no doubt that the entire premium/allotment amount was paid by husband of the plaintiff from his savings and the defendant did not contribute in it.
13. Further, it is mentioned by plaintiff side that a sum of Rs. 1,02,600/ was spent on the construction of house over the said plot Page 15 of 22 Suit no. 407/05 16 and this entire amount was also paid by late husband of the plaintiff from his own savings and for this purpose, the husband of the plaintiff also got sanctioned a loan of Rs. 32,000/ from his office and moreover, the plaintiff also got a sum of Rs. 35,000/ (approx.) from the service dues released after the death of his father. Further, it has been specifically mentioned that the defendant was not having sufficient finances to contribute in the construction expenses. On the other hand, defendant has deposed that the total cost of construction was Rs. 3,00,000/ (approx.) and he had contributed half of this amount for construction of the house over the said property. In regard to cost of construction, Ld. Counsel for the plaintiff has rightly pointed out that there are number of contradictions in the case of the defendant as DW1 has mentioned in his affidavit that Rs. 3,00,000/ (approx.) was spent on construction whereas in his crossexamination, he mentioned total expenses of construction as Rs. 2,50,000/ and further, DW3 had testified that Rs. 1,00,000/ (approx.) has been spent on construction.
14. It is noteworthy that at the time of construction, the husband of the plaintiff has completed about 20 years in government service and he had taken a loan of Rs. 32,000/ from his department and plaintiff also got a sum of Rs. 35,000/ (approx.) as her share from the service dues of his Page 16 of 22 Suit no. 407/05 17 father after his death. The plaintiff by way of leading cogent evidence has satisfied this court that plaintiff was having sufficient means to arrange a sum of Rs. 1 Lac (approx.) for raising construction on the said plot. Though, the defendant has also claimed that he contributed equally and spent a sum of Rs. 1,52,000/(approx.) for the construction but the evidence produced on record by defendant on this issue is not found to be convincing. In para no. 1 of reply on merits in his written statement, the defendant has furnished the details of amount withdrawn from his saving account from February, 1984 till July, 1985. It is found that the said details are mere reproduction of the saving bank account entries of SBI, Sadar Bazar Branch, Delhi, of defendant and it is noteworthy that the defendant has mentioned each and every entry reflected in a series from March, 1884 till July, 1985. It is important to mention here that reply Ex. PW1/9 of defendant to legal notice of plaintiff only mentions that defendant spent "substantial" amount for construction of house and no figure has been given therein and thus, it appears that so called figure of 1.50 Lacs is nothing but an afterthought of defendant. During cross examination of DW1, it has come on record that defendant was getting a salary of Rs. 8,000/ per month in 1984 and expenses of education of his children were around 4,000/ and other household monthly expenses were also about 4,000/. In such circumstances, the defendant has failed Page 17 of 22 Suit no. 407/05 18 to explain as to how he saved a sum of Rs. 1 Lac (approx.) as claimed by him for making contribution in construction of house. Further, it is pertinent to mention here that the defendant has also claimed that he arranged remaining sum of Rs. 50,000/ from his own sources, borrowings and savings but not an iota of evidence has been led to disclose the details as to how this amount was arranged.
15. Ld. Counsel for the defendant has also argued that the plaintiff (PW1) has admitted in her crossexamination that when her husband suffered heart attack, the defendant helped in construction to some extent. From the entire cross examination of PW1, it becomes clear that she has nowhere admitted that the defendant had ever paid any money to contribute in the construction of said house and her admission has only been in regard to helping the plaintiff in construction work during the time when husband of the plaintiff was bed ridden. Otherwise also, even if it accepted that defendant contributed in construction expenses to some extent, then that would not be sufficient in itself to claim half ownership of said property. Similarly, defendant can not be permitted to claim ownership just because his name was mentioned alongwith Late Sh. Raj Kumar in the invitation card of "grah parvesh" ceremony of newly built house. It is also important to note here that the plaintiff has also Page 18 of 22 Suit no. 407/05 19 mentioned in her replication that defendant has invested in some other property in Gurgaon out of his savings and therefore, it is difficult to accept that the defendant saved so much that he contributed substantially in the construction of the house and subsequently purchased another land at Gurgaon.
16. The defendant has produced two independent witnesses DW2 & DW3, who had deposed that defendant had contributed equally in the construction of the house and he is joint owner of the property. It is noteworthy that affidavits of both the witnesses are exact copy of each other and moreover, they have clearly mentioned that late Smt. Rampyari Devi, late Raj Kumar and Om Prakash told them that property bearing no. MU12, Pitampura, Delhi has been constructed by both the brothers with their joint funds in the year 198485. Thus, they are giving hearsay evidence and they have no personal knowledge as to who had spent money on the construction of the said house. Furthermore, it is noteworthy that though both the witnesses have claimed that they know all the family members of parties and both the brothers, i.e., late husband of the plaintiff and defendant used to consult them frequently about their family matters and about construction of the property but it is found that DW2 failed to tell as to whether late Sh. Raj Kumar applied for plot of Page 19 of 22 Suit no. 407/05 20 DDA and he was refunded Rs. 4,000/ in 1976; about price of plot purchased by Raj Kumar and about the total money spent by him over the construction of the said plot. Thus, not much importance can be attached to the testimony of both the witnesses and when it has been clearly established on record that the defendant was unable to contribute in the construction cost of the house, their testimony losses significance, if it has any.
17. Thus, it may be concluded that the said property was allotted in the name of late husband of the plaintiff and it was purchased by him from his own funds and subsequently, construction was also raised by late husband of the plaintiff from his own resources. It is also admitted position that the defendant is residing in the suit premises since 1985, without any money consideration and as such, there remains no doubt that he is in permissive possession of the suit premises. Further, the plaintiff has proved on record that vide admitted demand legal notice dated 19.09.2005 Ex. PW1/5, the plaintiff has terminated the permission to stay in the suit premises, as given to the defendant in 1985. In other words, it can be said that the plaintiff has established her absolute ownership over the entire property and now defendant has no right, title Page 20 of 22 Suit no. 407/05 21 or interest in suit property. Therefore, defendant is liable to handover possession of the suit premises to the plaintiff. Accordingly, this issue is decided in favour of the plaintiff and against the defendant. Issue no. vi) : Whether the plaintiff is entitled for damages/mesne profits? If so, at what rate and for what period? OPP
18. Onus of this issue was on the plaintiff. The plaintiff has mentioned that the defendant is in unauthorized and illegal occupation in the suit premises since 16.10.2005 in view of legal notice Ex. PW1/5. The defendant has admitted this notice and he has also sent reply to this notice. Further, plaintiff has claimed that suit premises would fetch rent of Rs. 4,000/ per month and defendant has not disputed this claim. In such circumstances, the plaintiff is also entitled to damages @ Rs. 4,000/ per month from date of filing of suit till delivery of possession as claimed by her. However, the decree qua mesne profits would not be executed if deficient Court fees, if any, is not paid. Hence, this issue is also decided in favour of the plaintiff and against the defendant. Page 21 of 22 Suit no. 407/05 22 RELIEF:
19. For aforesaid reasons, the plaintiff is held entitled for following reliefs:
i). Suit of the plaintiff is decreed in favour of the plaintiff and against the defendant whereby the plaintiff is held entitled for recovery of possession of the suit premises, i.e., first floor of the property bearing no. MU12, Pitampura, Delhi, consisting of two rooms, one kitchen with common use of latrine and bathroom, as shown in red colour in the site plan filed alongwith the plaint from the defendant;
ii). The plaintiff is also held entitled for mesne profits from defendant for his unauthorized use and occupation of the suit premises mentioned above @ Rs. 4,000/ per month from the date of institution of suit till handing over possession to the plaintiff; and
iii). In the facts and circumstances of the case, the costs of the suit is also granted to the plaintiff.
Announced in open Court (Vivek Kumar Gulia) on 22 Day of November, 2012. CCJ cum ARC (North District) nd [This judgment contains 22 pages.] Tis Hazari Courts, Delhi Page 22 of 22 Suit no. 407/05