Delhi District Court
Smt. Phoolwati W/O Sh. Hazari Lal vs Sh. Ghanshyam S/O Sh. Hira Singh on 23 May, 2013
1
IN THE COURT OF SH. S. K. SARVARIA,
DISTRICT & SESSIONS JUDGE (NW),
DISTRICT COURTS ROHINI, DELHI
C.S No.413/2010/2009
Smt. Phoolwati W/o Sh. Hazari Lal,
R/o B-34, Mangolpuri, New Delhi-110083. ...... Plaintiff
VERSUS
1. Sh. Ghanshyam S/o Sh. Hira Singh
R/o H.No. 109-B/1, Kh. No. 39/18, 19, 20, 21, 22, 23,
Rama Vihar, Vill. Mohamdpur Mairi, Delhi
2. Om Parkash S/o Sh. Mool Chand,
R/o M-809, Mangolpuri, Delhi.
3. Sh. Ram Narain S/o Sh. Kedar Nath,
R/o Y-541-42, J.J. Colony, Nangloi, Delhi.
4. Phoolwati W/o Nafe Singh
R/o Vill. Mohdpur Mairi, Delhi. .... Defendants
Date of institution: 10.12.2009
Date when arguments were heard: 15.05.2013
Date of Judgment : 23.05.2013
:JUDGMENT:
1. This suit for possession, declaration, measne profit and permanent injunction is field by plaintiff against four defendants. Defendant no.2 was avoiding service and so was served by substituted service by publication in the newspaper Statesman dated 01.12.2010 but he failed to appear before this court on 15.12.2010 so defendant no.2 was proceeded with ex-parte. The defendant no.4 initially filed written statement thereafter she abstained from proceedings and was proceeded with ex-parte on 10.11.2010.
Phoolwati Vs Ghanshyam and others 2 Plaintiff's Case :
2. The case of the plaintiff, in brief, is that plaintiff is the owner of the house/plot No. 107-B/1, 108/B-1, 109/B-1, out of Khasra No. 39/18 to 20, 21/2, 22 and 23 total measuring 250 sq. yards situated in Revenue Estate of Village Mohmadpur Majri, Colony known as Ram Vihar, Block-R, Delhi (in short suit property). The suit property is bounded as under:-
North: Gali 9' wide, South: Road 20' wide, East: Road 25' wide West: Others plot.
The suit property is shown in red colour in the site plan filed along with the plaint.
3. The plaintiff has alleged that she has purchased plot of the suit property from Sh. Om Parkash, defendant no.2 vide general power of attorney, agreement to sell, registered will all dated 17.08.1992. After purchase of the said plot and taking its possession, the plaintiff raised construction on the same. As the plaintiff was/is residing in Mangolpuri, Delhi, she locked the suit property.
4. The plaintiff has stated that on 13.03.2009, defendant no.1 along with his associates, Babu Lal, Verinder, Hira Singh etc tried to break open the locks of the suit premises to take its forcible possession. The plaintiff filed a suit for permanent injunction against them titled Smt. Phoolwati Vs Babu Lal and others bearing Suit No. 257/2009. The plaintiff has alleged that defendant no.1 Ghanshyam and his associates Verinder, Babu Lal and Hira Singh who tried to take possession of suit property filed written statement in the court alleging that present defendant no.2 Om Parkash purchased the plot from Smt. Phoolwati wife of Nafe Singh i.e present defendant no.4. They also alleged that Om Parkash, the defendant no.2 sold the same to defendant no. 3 Sh. Ram Narain and Sh. Ram Narain sold the suit property to defendant no. 1 Ghanshyam. The original of the documents seem to be with present Phoolwati Vs Ghanshyam and others 3 defendant no.1 who alleges himself to be owner of suit property and claims that he is in its possession. During the pendency of said civil suit for permanent injunction, defendant no.1 broke open the lock of suit property and took its possession illegally in the first week of November 2009. Therefore, plaintiff withdrew her civil suit on 18.11.2009.
5. On 23.11.2009, the plaintiff went to suit property and asked the defendant no.1 to vacate her house and hand over peaceful possession of suit property and get the documents of suit property in his possession cancelled but defendant no.1 threatened her to face dire consequences and also that he would sell the suit property to someone very soon.
6. The plaintiff went to police station to lodge the report but in vain. The plaintiff has alleged that defendant no.1 is in unauthorized possession of suit property and is liable to pay occupation charges/measne profit of Rs. 5,000/- p.m which is equivalent to the rate of rent of the suit property prevailing in the market.
7. The plaintiff has prayed for decree of possession of suit property in her favour and against the defendant no.1. She has claimed the decree for declaration declaring her to be owner of suit property and also for declaration that GPA, agreement, affidavit, receipt etc dated 18.01.1999 allegedly executed by defendant no.2 Sh. Om Parkash in favour of defendant no.3 Sh. Ram Narain and similar documents dated 29.12.2000 allegedly executed by defendant no.3 in favour of defendant no.1 in respect of suit property are null and void and have no value in the eyes of law.
8. The plaintiff has also claimed a decree for permanent injunction in her favour and against defendant no.1 thereby restraining defendant no.1, his agents, servants, associates etc from illegally, selling, transferring, parting with possession, making additions, alteration, creating third party interest in Phoolwati Vs Ghanshyam and others 4 the suit property. In addition, a decree for mesne profit is also claimed by plaintiff against defendant no.1 directing defendant no.1 to pay mesne profit/ use and occupation charges at the rate of Rs 5,000/- p.m in respect of suit property. The plaintiff has also requested that any other relief which this court may deem fit and property may also be granted in favour of plaintiff and against defendant.
Defendant's Case :-
9. The defendant nos. 1 and 3 contested the suit and filed joint written statement taking preliminary objections regarding locus standi, cause of action of plaintiff and that plaintiff has not come to the court with clean hands so suit is not maintainable.
10. On merits, the defendant nos. 1 and 3 have denied that plaintiff is owner of the suit property. They have alleged that Sh. Ghanshyam, the defendant no.1 is owner in possession of the suit property in terms of documents of sale/title duly registered on 29.12.2000 executed by defendant no.3 Sh. Ram Narain against valuable consideration. They also alleged that defendant no.1 is also subscriber of K No. 41205217556. They denied that plaintiff has purchased the plot of the suit property from Sh. Om Parkash vide documents alleged in the plaint. They also denied that after alleged purchase of plot, plaintiff raised construction on it. They denied that on 13.03.2009 defendant no.1 along with his associates Babu Lal, Verinder, Hira Lal etc tried to break open locks of the suit property and submitted that defendant no.1 is owner in peaceful possession of suit property since the date of its purchase. The filing of civil suit for injunction bearing no. 257/2009 is not disputed by the defendant nos. 1 and 3 but they have alleged that the suit is filed on the basis of false and fabricated documents and was without any cause of action.
11. The defendant nos. 1 and 3 have specifically denied that during the pendency of suit for injunction, the defendant no.1 broke open the locks of Phoolwati Vs Ghanshyam and others 5 suit property and had taken its possession in the first week of November 2009. According to defendant nos. 1 and 3, defendant no.1 is owner in possession of suit property since the date of its purchase. They denied that on 23.11.2009, plaintiff went to the suit property and asked defendant no.1 to vacate it and hand over its peaceful possession to her. The defendant nos. 1 and 3 have denied the other averments made in the plaint and have prayed for dismissal of the suit with heavy cost in favour of defendant nos. 1 and 3 and against the plaintiff.
12. The defendant no.4 has also contested the suit and filed written statement taking preliminary objections regarding want of cause of action of plaintiff and want of maintainability of suit against defendant no.4.
13. On merits, the defendant no.4 submitted that she had sold the land measuring 1 acre approximately to defendant no.2 way back in 1992 and defendant no.2 had paid the entire consideration amount to defendant no.4 and after that defendant no.2 is left with no claim, right, title or interest in the land. The defendant no.4 has denied other facts stated in the plaint for want of knowledge or otherwise and has prayed for dismissal of the suit against defendant no.4. The defendant no.4 after filing of the written statement has abstained from the proceedings on 20.10.2010 and 10.11.2010 so was proceeded with ex-parte.
Replication :
14. In the replication to the written statement of defendant nos. 1 and 3, the plaintiff denied the averments made therein and has reiterated the facts stated in the plaint.
Issues :
15. The controversies between the parties in the pleadings and documents led this court to frame the following issues on 06.01.2011:-
Phoolwati Vs Ghanshyam and others 6
1. Whether the plaintiff is owner of suit property as alleged in para nos. 1 and 2 of the plaint? OPP
2. Whether the defendant no.1 is owner and in possession of suit property? OPD
3. Whether the plaintiff is entitled to decree of possession as prayed? OPP
4. Whether the plaintiff is entitled to decree of declaration as prayed? OPP
5. Whether the plaintiff is entitled to decree of permanent injunction, as prayed? OPP
6. To what amount of pendente lite damages, if any, is the plaintiff entitled from the defendant? OPP.
7. Relief.
Evidence:
16. For expeditious disposal of the case, the cross-examination of witnesses and parties were got recorded through Local Commissioner by invoking Order 18 Rule 4 CPC. In support of her case, the plaintiff has examined herself as PW-1. She has also produced PW-2 Inderwati, PW-3 Smt. Santosh and PW-4 Sh. Sunil Kumar, UDC from the office of Sub Registrar, Kashmiri Gate, Delhi. They were cross-examined before Ld Local Commissioner. Thereafter plaintiff's evidence was closed.
17. The defendant no.1 has examined himself as DW-1. Defendant nos. 1 and 3 produced DW-2 Sh. Balbir, DW-3 Sh. Rajender, DW-4 Sh. Devender Singh and DW-5 Rajender and thereafter defendants also closed their evidence.
Arguments and Findings :
18. I have heard Ld. counsel for plaintiff, ld counsel for defendant nos. 1 and 3 and have gone through the written arguments filed by them, the Phoolwati Vs Ghanshyam and others 7 record of the case and the relevant provisions of law. My findings on the issues framed are as under.
ISSUE NO.1 :-
19. The plaintiff has relied upon the following documents to claim the ownership of suit property:-
a). General Power of Attorney executed by defendant no.2 Sh. Om Parkash in favour of the plaintiff Ex PW 1/ 2.
b). Receipt issued by defendant no.2 Om Parkash to the plaintiff in the sum of Rs 45,000/- Ex PW 1/6.
c). Agreement to sell executed by defendant no.2 Sh. Om Parkash in favour of plaintiff on 17.08.1992 Ex PW 1/3.
d). Affidavit of defendant no.2 Sh. Om Parkash stating that he has sold the land of the suit property to the plaintiff Ex PW 1/ 4.
e). The registered will executed by defendant no.2 Sh. Om Parkash in favour of plaintiff on 17.08.1992 Ex PW 1/5.
f). Membership fee of Resident Welfare Association of Rama Vihar registered society Ex PW 1/7.
20. The plaintiff has not produced any registered sale deed executed in her favour with regard to suit land or suit property. The obvious question is whether on the strength of above documents, she can claim ownership of the land in question and the house constructed on it or of both. This leads us to the next inevitable question as to whether the transfer of immovable property by way of documents like general power of attorney, agreement to sell, will, Phoolwati Vs Ghanshyam and others 8 receipt, affidavit etc confers ownership rights to the buyer of the immovable property. The Hon'ble Supreme Court in Suraj Lamp and Industries Pvt Ltd Vs State of Haryana and another 2011 (126) DRJ 209 (SC) has made the following observations:
"It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.
12. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter."
It was further observed as follows:-
"16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance.
Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do Phoolwati Vs Ghanshyam and others 9 not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property.
The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act.
Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property.
A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales."
21. There is no evidence led by the plaintiff to show that Municipal Corporation of Delhi or DDA has mutated her name with regard to suit property in its record. Therefore, in the light of Suraj Lamp's case (Supra) the documents like general power of attorney, will, agreement to sell etc cannot confer the title of the immovable property upon the vendee. Nor any amount of oral evidence produced by plaintiff can confer ownership rights on the plaintiff with regard to suit property.
22. Therefore, the above documents relied upon on behalf of plaintiff are unable to confer ownership right of the land of the suit property upon the plaintiff.
23. It is also to be noted that a person may not the owner of the land but Phoolwati Vs Ghanshyam and others 10 he may have raised construction on such a land to become owner of the superstructure on the land not owned by him/her. In the present case, the plaintiff has alleged that after purchase of the plot from defendant no.2 Om Parkash on 17.08.1992 she had raised construction on the same. As she was/is residing in Mangolpuri, she locked the premises. The defendant nos.1 and 3 have denied these facts that the plaintiff has raised construction in the plot in question. It is not disputed that the suit property consists of suit land measuring 250 sq yards and construction raised on it. The site plan of the suit property Ex PW 1/1 shows three rooms construction in the suit property at the ground floor. The defendant no.1 and 3 in the joint written statement has not alleged that they have raised construction in the suit property. The set of documents relied upon by the defendant no.1 & 3 and chain of earlier documents relied upon by them i.e Ex DW 1/B to DW 1/B4, Ex DW 1/C to Ex DW 1/C5 and the documents Ex DW 1/D to Ex DW 1/D3 show that the defendant no.1 has purchased the plot and not a constructed house. In the joint written statement of defendant nos. 1 and 3 or written statement of defendant no.4, these defendants have not alleged that either of defendants has raised construction on the plot in question. The documents relied upon by defendant nos.1 and 3 do not indicate that any construction exists in the plot in question and these chain of documents pertain to purchase of plot only and not superstructure on it and, therefore, negate the inference that either of the defendants has raised construction in the plot in question. In this view of the matter, although the plaintiff has relied upon her oral statement in the affidavit in evidence in support of her pleadings that construction on the suit plot was got done by her and she has made wavering statements in the cross- examination about this construction raised by her but the inference can be drawn that the construction existing on the plot in question was raised by her she having alleged that she occupied the plot in question after purchasing in 17.08.1992 i.e a lot before its alleged purchase by defendant no.1 on 29.12.2000. Further, the evidence of DW-5 Rajender in his affidavit in evidence that the defendant no.1 Ghanshyam had developed the earlier Phoolwati Vs Ghanshyam and others 11 D.P.C to a wall upto 6 ft and constructed one additional room and toilet and bathroom in the plot in question needs to be discarded as it is beyond pleadings of defendant no.1 in the joint written statement of defendant nos. 1 and 3.
24. In view of the above, I hold that although plaintiff cannot be held to be owner of the suit plot in question of suit property in the light of Suraj Lamp's case (Supra) but she is owner of the superstructure on it as shown in the site plan Ex PW 1/1.
ISSUE NO.2
25. In the joint written statement of defendant nos.1 and 3, they have claimed the defendant no.1 is owner and is in possession of the suit property. The fact that defendant no.1 is in possession of suit property today and was in its possession at the time of filing of the suit is not disputed. But, ownership of defendant no.1 is disputed.
26. Like the plaintiff, the case of defendant no.1 also suffers from the same infirmity regarding alleged documents of title. The case of defendant nos. 1 and 3 is that defendant no.4 has sold the suit plot to defendant no.2 on 17.08.1992 vide documents Ex DW 1/D to Ex DW 1/D3 and defendant no.2 has sold it to defendant no.3 on 18.01.1999 vide documents Ex DW 1/C to Ex DW 1/C5 and defendant no.3 has sold it to defendant no.1 on 29.12.2000 vide documents Ex DW 1/B to Ex DW 1/B4. The chain of documents relied upon with regard to transactions of sale of plot between defendant no.2 and defendant no.3 and between defendant no.3 and defendant no.1 consists of the documents i.e General Power of Attorney, agreement to sell, receipt, will, like the of plaintiff. Therefore, the documents relied upon by defendants are also directly covered by Suraj Lamp's case (Supra) like the documents of plaintiff. On parity of reasoning these documents are unable to confer right of ownership of the suit plot upon the defendant no.1 in 2000. There is one more Phoolwati Vs Ghanshyam and others 12 reason which makes these documents a waste paper. The defendant no.2 who seems to be the real culprit has allegedly entered into sale transaction with the plaintiff on 17.08.1992 on the basis of documents Ex PW 1/ 2 to Ex PW 1/6. He subsequently by executing similar documents Ex DW 1/C to Ex DW 1/C5 in favour of defendant no.3 on 18.01.1999 i.e about 7 years after the transaction with the plaintiff. The defendant no.3 subsequently on 29.12.2000 executed similar documents in favour of defendant no.1 on 29.12.2000. The documents of plaintiff and documents of alleged sale transaction in favour of defendant no.3 originate from the same source i.e defendant no.2 who undisputedly had earlier purchased the plot in question from Smt. Phoolwati. Therefore, the right under Section 53A of the Transfer of Property Act for execution of registered sale deed can be exercised by the plaintiff against the defendant no.2 and not the subsequent purchasers defendant no.3 against defendant no.2 or next purchaser defendant no.1 against defendant no.3 as these documents were executed subsequent to the transaction between defendant no.2 and the plaintiff on 17.08.1992 i.e the same day on which defendant no.2 purchased the larger land from defendant no.4 of which the suit plot is a part of as per the admissions made by defendant no.4 in the WS. Hence, the defendant no.1 cannot be said to be owner of the plot underneath the suit property in the light of Suraj Lamp's case (Supra) and is also not entitled to exercise any right under Section 53A of Transfer of Property Act. As already discussed in deciding Issue no.1, the plaintiff has raised construction over the plot in question and is owner of superstructure of this plot. The defendant no.1 or any other defendant was not named at all in the pleadings of defendant nos.1 & 3 or defendant no.4 that the superstructure was raised by either of the defendants. Hence, the defendant no.1 is neither owner of the plot in question nor owner of the superstructure in the suit property. However, he is in possession of the suit property which fact is admitted, therefore, the Issue is partially decided in favour of defendant no.1 regarding his possession of the suit property and regarding ownership of plot and superstructure on it, the Issue no.2 is Phoolwati Vs Ghanshyam and others 13 decided in favour of plaintiff and against defendant no.1.
ISSUE NO.3
27. A better title either as to ownership or possessory of the plaintiff against the defendants entitles the plaintiff a decree of possession against the defendants. As regards, the claim of possession by plaintiff on the basis of her dispossession by defendants from the suit property in the first week of November 2009 she has in support of this plea has relied upon the earlier suit for permanent injunction titled Smt. Phoolwati Vs Babu Lal and others bearing Suit No. 257/2009 filed by her against defendants from restraining them from taking forcible possession of the suit property but according to her during the pendency of the said suit, the defendant no.1 forcibly occupied the suit property in the first week of November 2009 so the plaintiff had to withdraw her suit for injunction on 18.11.2009. She has proved the membership receipt dated 24.12.2007 Ex PW 1/7 issued to her by Residents Welfare Associates Rama Vihar (Regd) to show that she was in occupation of suit property on 24.12.2007. The present suit is filed by her on 10.12.2009 and is filed within six months of her dispossession from the suit property, therefore, the plaintiff is entitled to regain possession of the suit property from the defendant no.1 on the basis of her earlier possession/possessory title obtained by her from defendant no.2 on the basis of documents executed by defendant no.2 in her favour on 17.08.1992. These documents and subsequent civil suit for injunction filed by her leads to the presumption that she was in possession of the suit property from 17.08.1992 till first week of November 2009 after which she was dispossessed unlawfully by defendant no.1.
28. The possession on the basis of title also needs to be analyzed as the plaintiff has also relied upon documents alleging her ownership of the suit property. In the light of my findings on Issue nos. 1 and 2 above, the plaintiff being owner of superstructure on the suit property shown in the site plan Ex PW 1/1 besides a right u/S 53A of Transfer of Property Act for getting the sale Phoolwati Vs Ghanshyam and others 14 deed executed in her favour from defendant no.2 on the strength of documents Ex PW 1/ 2 to Ex PW 1/6 relied upon by her is entitled to decree of possession in her favour and against defendant no.1 as prayed by her.
ISSUE NO.4
29. The suit property has two components i.e land and superstructure on it. In the light of my findings on the above Issues nos. 1 to 3 above, the plaintiff is entitled to decree of declaration that she is owner of superstructure of the suit property as shown in site plan Ex PW 1/1 but she is not entitled to the declaration that she is owner of the suit land underneath the suit property.
30. Regarding the declaration sought by the plaintiff that the GPA Ex DW 1/C, agreement Ex DW 1/C-3, affidavit Ex DW 1/C-3, receipt Ex DW 1/C-2 executed by defendant no.2 Om Parkash in favour of defendant no.3 Ram Narain and GPA Ex DW 1/B, will Ex DW 1/B1, agreement Ex DW 1/B-4, receipt Ex DW 1/B-2 etc dated 29.12.2000 executed by defendant no.3 Ram Narain in favour of defendant no.1 Ghanshyam as null and void deserves to be allowed in view of the fact that documents executed by defendant no.2 in favour of plaintiff were anterior in time being executed on 17.08.1992 than the documents with regard to the same plot of land executed by defendant no.2 Om Parkash in favour of defendant no.3 on 18.01.1999 and similar documents executed by defendant no.3 in favour of defendant no.1 on 29.12.2000. When a set of documents relied upon by plaintiff were executed by defendant no.2 in her favour in 1992, the similar set of documents executed with regard to same suit land subsequently by defendant no.2 after a lapse of about 7 years has got no value and does not confer right, title or interest upon defendant no.3 in the suit land. The consequent documents executed by defendant no.3 in favour of defendant no.1 with regard to same suit land also suffer from same defect as no one can confer a better title upon the other which he himself does not possess, therefore, the plaintiff is entitled to the decree of declaration that the documents in question executed by Phoolwati Vs Ghanshyam and others 15 defendant no.2 in favour of defendant no.3 on 18.01.1999 and by defendant no.3 in favour of defendant no.1 on 29.12.2000 with regard to the same suit land are null and void and liable to be declared as such, as prayed by the plaintiff.
31. In view of the above, the Issue no.4 is partially allowed in favour of plaintiff. It is decided against the plaintiff regarding her alleged ownership with regard to suit property but allowed in her favour with regard to her ownership of superstructure on it. The declaration that the documents executed by defendant no.2 in favour of defendant no.3 and by defendant no.3 in favour of defendant no.1 are null and void also deserved to be made.
ISSUE NO.5
32. The plaintiff has sought permanent injunction restraining defendant no. 1, his agents, servants, associates etc from illegally, selling, transferring, parting with possession, making additions, alteration, creating third party interest in the suit property as shown in red colour in the site plan Ex PW 1/1.
33. In the light of my findings on the above Issues, the plaintiff is owner of the superstructure in the suit property as shown in site plan Ex PW 1/1 and defendant no.1 has no right, title or interest in it and the chain of documents relied upon by defendant no.1 need to be declared null and void. The defendant no.1, therefore, has no legal right to transfer the suit property nor he has any legal right to make any addition or alteration or to create any third party interest in the suit property in any manner. Therefore, the Issue no.5 is decided in favour of plaintiff and against the defendant No.1.
ISSUE NO.6
34. The defendant no.1 admittedly is in possession of suit property in the light of my findings on the above Issues, the plaintiff is owner of superstructure of the suit property as shown in site plan Ex PW 1/1. Although, Phoolwati Vs Ghanshyam and others 16 she is not entitled to ownership of the suit land on the strength of documents relied upon by her which are short of registered sale deed, still, she has a right to get the registered sale deed executed in her favour from defendant no.2 or his predecessor in interest in the suit land. Further, in the light of my findings on Issue no.2 above, the defendant, though in possession of suit property is not its owner and in the light of my findings on Issue no.4 above, the documents relied upon by defendant no.1 in support of his claim over the suit property are liable to be declared as null and void. Therefore, the defendant no.1 is a trespasser qua the plaintiff so he is liable to pay to her use and occupation charges of suit property. The use and occupation charges claimed by her at the rate of Rs. 5000/- p.m for a plot of land of 250 sq yard with construction of three rooms on it as shown in site plan Ex PW 1/1 looks to be appropriate and reasonable. Therefore, the plaintiff is entitled to the pendente lite damages at the rate of Rs. 5000/- p.m from defendant no.1 as claimed by her. The issue is decided in favour of plaintiff and against defendant no.1.
ISSUE NO.7: RELIEF
35. In the light of my findings on the above Issues, the suit of the plaintiff is decreed. A decree of possession is passed in favour of plaintiff and against defendant no.1 in respect of suit property i.e House on Plot no. 107-B/1, 108/B-1, 109/B-1, out of Khasra No. 39/18 to 20, 21/2, 22 and 23 total measuring 250 sq. yards situated in Revenue Estate of Village Mohmadpur Majri, Colony known as Ram Vihar, Block-R, Delhi as shown in the site plan Ex PW 1/1.
36. A decree of declaration is passed in favour of plaintiff and against defendants declaring that plaintiff is owner of the superstructure on the plot of the suit property bearing plot no. 107-B/1, 108/B-1, 109/B-1, out of Khasra No. 39/18 to 20, 21/2, 22 and 23 total measuring 250 sq. yards situated in Revenue Estate of Village Mohmadpur Majri, Colony known as Ram Vihar, Phoolwati Vs Ghanshyam and others 17 Block-R, Delhi as shown in the site plan Ex PW 1/1. A decree of declaration is also passed in favour of plaintiff and against the defendants that documents GPA Ex DW 1/C, agreement Ex DW 1/C-4, affidavit Ex DW1/C-3, receipt Ex DW 1/C-2 etc dated 18.01.1999 executed by defendant no.2 Om Parkash in favour of defendant no.3 Ram Narain and GPA Ex DW 1/B, will Ex DW 1/B-1, agreement Ex DW 1/B-4, receipt Ex DW 1/B-2 etc dated 29.12.2000 executed by defendant no.3 Ram Narain in favour of defendant no.1 Ghanshyam are null and void and ineffective in the eyes of law.
37. A decree of permanent injunction is also passed in favour of plaintiff restraining defendant no.1, his agents, servants, associates etc from illegally, selling, transferring, parting with possession, making additions, alteration, creating third party interest in the suit property i.e House on Plot no. 107- B/1, 108/B-1, 109/B-1, out of Khasra No. 39/18 to 20, 21/2, 22 and 23 total measuring 250 sq. yards situated in Revenue Estate of Village Mohmadpur Majri, Colony known as Ram Vihar, Block-R, Delhi as shown in the site plan Ex PW 1/1.
38. It is also held that the plaintiff is entitled to pendente lite use and occupation charges, mesne profit against defendant no.1 at the rate of Rs. 5,000/- p.m from date of filing of the suit i.e 10.12.2009 till today amounting to Rs. 1,87,500/-. However, it is clarified that plaintiff is not entitled to decree of declaration of ownership of suit land which is part of suit property. The cost of the suit is also awarded to the plaintiff against the defendants. The decree sheet be drawn accordingly. The judgment be sent to the server (www.delhidistrict courts.nic.in). File be consigned to record room. Announced in the open court on 23rd May 2013 (S. K. SARVARIA) DISTRICT & SESSIONS JUDGE (N/W) ROHINI DISTRICT COURTS, DELHI Phoolwati Vs Ghanshyam and others 18 Phoolwati Vs Ghanshyam 23.05.2013 Present: Proxy counsel for counsel for the parties Vide separate judgment of even date, the suit of the plaintiff is decreed. The decree sheet be drawn accordingly. File be consigned to record room.
(S. K. SARVARIA) DISTRICT & SESSIONS JUDGE (N/W) ROHINI DISTRICT COURTS, DELHI Phoolwati Vs Ghanshyam and others