Delhi District Court
Suit No.5/14 Chottey Lal vs . Sunita Gangwal on 13 February, 2015
Suit No.5/14 Chottey Lal Vs. Sunita Gangwal
IN THE COURT OF SH. NAVEEN ARORA
ADJ06: SOUTH DISTRICT: NEW DELHI
Suit No. : 5/14
Sh. Chottey Lal
S/o Late Sh. Kanha Ram
R/o H. No.I2/182183 & 205,
Madangir, New Delhi62 .................. Plaintiff
V E R S U S
Smt. Sunita Gangwal
W/o Sh. Sanjay Gangwal
R/o H. No.I2/182183,
Madangir, New Delhi62
Also At :
H. No.B181, Gali No.18,
Amritpuri,Garhi,
East of Kailash, New Delhi .................. Defendant
Date of institution of Suit : 31.05.2013
Date on which order was reserved : 06.02.2015
Date of Judgment : 13.02.2015
SUIT FOR POSSESSION, MESNE PROFITS AND PERMANENT INJUNCTION
JUDGMENT
1. As per the case of the plaintiff, plaintiff is the exclusive owner of H. No.I2/182 and 183 Madangir, New Delhi constructed upon third floor besides one small room on top floor(hereinafter referred as Suit Property). Plaintiff is also owner of property bearing No. I2/205,Madangir, New Delhi. It is stated that plaintiff purchased the malba/plot of the abovesaid properties vide agreement to sell, GPA, receipts etc as the properties in the said area are not transferable being allotted under the Scheme of Jhuggi Jhonpadi Nirman Yojna. It is stated that plaintiff 1 Suit No.5/14 Chottey Lal Vs. Sunita Gangwal married his son Sanjay to defendant on 15.02.2002 and they started living in the suit property, however, they could not adjust themselves due to the cruelties of defendant. It is stated that on 03.02.2004 the parents and other family members of defendant came to the house of plaintiff and instigated the son of plaintiff to get separated from his father and one house be transferred in defendant's name and also started hurling abuses at plaintiff's son and other family member, however with the intervention of neighbours, the situated was controlled and a Biradari Panchayat was held and it was decided that son of the plaintiff should live separately with defendant. On the same day, defendant left with her parents to their houses with all jewellary, valuable cloths etc. however, son of the plaintiff started living separately from his parents on rented accommodation. It is stated that due to mental tortures given by defendant, the plaintiff disowned his son and defendant from his properties by publication dated 14.04.2004 in daily newspapers "Rashtiya Shahara". It is stated that defendant joined the company of son of plaintiff in the rented house on 17.07.2004 but since then could not adjust herself with her husband and left the company of son of plaintiff on 24.07.2004. It is stated that thereafter on 27.09.2006 she filed a false complaint against the plaintiff and his family members before CAW Cell where son of plaintiff gave in writing, offering defendant to join his company in rented house and matter was adjourned for 24.10.2006 but on 22.10.2006 defendant alongwith her family members came and broke open the door and forcibly entered into the ground floor of suit property and started quarreling with plaintiff and his family members. The son of the plaintiff was informed who came at the spot and PCR was called and proceedings U/Sec. 107/151 Cr. P.C. was initiated and son of plaintiff and brother of defendant remained in lockup also. On the next day, again defendant caused injuries to wife of plaintiff who was taken to the hospital where she remained for about 23 days. It is stated that plaintiff made complaints dated 22.10.2006 and 23.10.2006 to local police and DCP but no action was taken and plaintiff filed a complaint U/Sec.
2Suit No.5/14 Chottey Lal Vs. Sunita Gangwal 452/324/427/448/506/120B/34 IPC before concerned MM, New Delhi where defendant and here associates were summoned and are facing trial. It is stated that thereafter due to safety reason, the plaintiff alongwith his family members shifted to his other house No. I2/205. It is stated that back portion of both the properties is connected with each other and earlier there was a door between both the houses to have free access internally but due to troubles created by defendant, the plaintiff had raised a wall thus now there is no access. It is stated that remaining floors of suit property are in occupation and possession of the plaintiff. It is stated that the defendant is in unauthorized occupation of the ground floor of the suit property and plaintiff issued a legal notice dated 29.12.2012 upon the defendant which was duly served upon her but she neither replied nor complied the same, hence this suit for possession of the ground floor of suit property alongwith damages/mesne profits @ Rs.5,000/ p.m.
2. Defendant contested the suit by filing her Written Statement wherein it is alleged that suit is liable to be dismissed as all the properties are joint Hindu Family Property. It is stated that inlaws of defendant are having more properties in Rajasthan which are also joint Hindu family properties. It is stated that defendant is legally wedded wife of son of the plaintiff who came in the matrimonial home after marriage and suit property is her matrimonial home and defendant is also a member of joint Hindu Family. It is stated that plaintiff has not valued the suit properly and under assessed the suit and the property. It is stated that the conduct of the plaintiff and his family including the husband of defendant can be gauzed from the fact that on the one hand they trying to become miserable and on the other hand they are installing CCTV camera in the premises to confine the movement of the defendant in one room. It is stated that plaintiff and his sons are well off, earning handsome amount since long, having permanent visa of Gulf Countries, take contracts in India and in Gulf Countries and since long all the members are earning handsome money and out of the common pool purchased properties at various places 3 Suit No.5/14 Chottey Lal Vs. Sunita Gangwal including in their native state Rajasthan. It is stated that suit property is the matrimonial home of defendant. It is stated that plaintiff and husband of defendant are in collusion with each other are defending the petition U/Sec.12 of D V Act together and filed their common reply. Defendant has denied having broke open the doors and forcibly entered into the suit property. It is stated defendant is residing in one room of suit property. On the above mentioned grounds, defendant prayed for dismissal of the suit.
3. Replication was filed on behalf of plaintiff to the WS of defendant wherein contents of WS were denied and contents of plaint were affirmed as correct.
4. From the pleadings of the parties, following issues were framed on 02.06.2014 : (1) Whether the property is joint Hindu family properties? OPD. (2) Whether the plaintiff is entitled for the decree of possession as prayed for? OPP.
(3 Whether the plaintiff is entitled the mesne profit? OPP. (4 Whether the plaintiff is entitled for the decree of permanent injunction? OPP.
(5)Relief.
5. Plaintiff examined himself as PW1 who filed his affidavit in his examinationinchief reiterating the content of the plaint and relied upon following documents : Sl. Documents Exhibit Inference/ remarks No No. 1 Agreement to sell, GPA, PW1/1 Purchased for Rs.13,860/ when his Affidavit and receipt, all to son i.e. husband of defendant was dated 20.06.1981 of PW1/4 around 3 years of age. As per property No. III/182183 documents,when this property was executed by Ram Chand purchased it was a plot with some Verma in favour of malba/ superstructure on it.
plaintiff ( Suit property)
2 GPA, receipt and affidavit PW1/5 Purchased for Rs.22,000/ when his
dt.15.12.1986 of property son i.e. husband of defendant was
No.III/205, Madangir, New around 8 years of age.
4
Suit No.5/14 Chottey Lal Vs. Sunita Gangwal
Delhi measuring 25 sq. yds The purchase of second property
executed by Sh. Mool after 5 years for Rs.22,000/ in the
Chand in favour of year 1986 shows that the plaintiff was
plaintiff. having sufficient earnings and
therefore, he would have definitely
raised construction upon the
property III/182183 before the
purchases of III/205 as in these
documents the defendant is shown
the residence of III/182183.
3 Site plan of suit property PW1/6
4 ID card of plaintiff and his PW1/7 & Showing their age of 55 and 59 years as
wife PW1/8 on 01.01.2008 ( Irrelevant )
5 Water and Electricity bills PW1/9 In the name of plaintiff.
of suit property Colly
6 Copy of application written PW1/11 It is a letter signed by the defendant,
to Chowki Incharge by her father and the plaintiff also in the
father of defendant on form of settlement, wherein the father
03.02.2004. of the defendant is mentioning that he
is taking his daughter i.e. defendant
with him. No cross examination was
done on this document.
7 Medical record of wife of PW1/12 This document was proved in order to
plaintiff of Saferjung prove the incident of 22.10.2006 when
Hospital dt.23.10.2006 with defendant allegedly forcibly entered
the history of assault on into the suit property. No cross
abdomen and chest at 9 examination was done on this
a.m. document.
8 Copies of complaint lodged PW1/13 It mentions about the incident of
by the plaintiff dated 22.10.2006 when defendant and his
22.10.06 made to SHO PS brother Virender allegedly entered
Ambedkar Nagar forcibly into the suit property.
9 Copies of complaint lodged PW1/14 It mentions that because of
by the plaintiff dated defendant's quarrel some nature, the
23.10.06 made to SHO PS biradhari had separated them and
Ambedkar Nagar and DCP they started living separately on first,
second 262 Madangir on rent. It also
mentioned about the incident of
22.10.2006 when she allegedly forcibly
5
Suit No.5/14 Chottey Lal Vs. Sunita Gangwal
entered into the suit property.
10 Certified copy of PW1/15
summoning order of
defendant in complaint
case filed by the plaintiff
11 Copy of Complaint dt. PW1/16 It mentions about the incident of
31.10.2006 made to SHO PS 22.10.2006 when defendant and his
Ambedkar Nagar brother Virender entered forcibly into
the suit property. It is signed by 30
neighbourers.
12 Copy of interim protection PW1/17
of Ld. ASJ, New Delhi
13 Copy of discharged PW1/18 Irrelevant
summary medical record of
plaintiff of Batra Hospital
dt.08.11.2012 i.e. after 2
days of his admission.
14 Copy of Newspaper dated PW1/19 Vide which the plaintiff disowned his
14.04.2004 "Rashtriya son Sanjay and his wife Sunita i.e.
Sahara" defendant from his estates/
15 Copy of divorce petition PW1/20 Irrelevant
pending between
defendant and son of
plaintiff
16 Copy of legal notice dt. PW1/21
29.12.2012 alongwith to
postal receipts, courier PW1/24
receipt and AD card
17 Copies of complaints made PW1/25 It is about the incident of 27.04.2008
to SHO and Commission of colly
Police by plaintiff on
28.04.2008 against
defendant's
6. During his cross examination, he admitted that he does not have the registered sale deeds of the suit properties. He deposed that he purchased the property on the basis of GPA, Agreement to Sell, Will etc. He admitted that both the 6 Suit No.5/14 Chottey Lal Vs. Sunita Gangwal properties belong to MCD Slum Department and they are not capable of being sold. He stated that defendant after marriage came to the suit property. He is admitted that all his family members are having a common counsel in the criminal case including his son Sanjay. He deposed that he did not sent any communication to Sanjay and his wife regarding disowning. He volunteered that he orally informed both of them as they were residing 45 houses away from his residence. He deposed that he does not have any document to show that the suit properties were constructed by him. He volunteered that he had constructed them in piecemeal and still some part is not complete. He admitted that he has not file any document in the present case to show that the defendant took all her belongings in the year 2004.
7. Sh. Ashok Kumar, son of plaintiff was examined as PW2 who filed his affidavit in his examinationinchief stating that it was his father Chottey Lal who is exclusive owner of the suit property and it was him who purchased the suit property and constructed the same. During his cross examined he remained stick to his stand and denied that suit property was purchased from the common funds of the family.
8. Thereafter PE was closed.
9. In Defence Evidence, defendant examined herself as DW1 who filed her affidavit in her examinationinchief reiterating the contents of the WS and relied upon copies of proceedings of petition filed U/Sec. 12 DV Act as EX.DW1/A (colly) and copies of proceedings of Criminal Court as EX.DW1/B (colly) initiated by the plaintiff against her. It is pertinent to mention here that in EX.DW1/B, there is a statement of plaintiff recorded in Pre Charge Evidence wherein a suggestion was put to him by the counsel for the accused (defendant herein) which is reproduced as follows : Q. I put it to you who told you or informed you that accused Sunita had left the abovesaid house III/262, Madangir, New Delhi and had gone to reside with the parents?
Ans. Nobody told me about the abovesaid 7 Suit No.5/14 Chottey Lal Vs. Sunita Gangwal development. It was after 2 2 ½ years when Sunita came to our house and quarrelled with us that I came to know that she had come from her parents house.
I had not given any complaints to the police against Sunita or her parents before 22.10.2006. It is correct that on 19.10.2006 I had attended the office of Women Cell, Amar Colony as I was summoned on the complaint of Sunita. ....
It is correct that accused Sunita after getting married with my son Sanjay had come to reside in our house at H. No.III/182, Madangir, New Delhi and till date she is residing there as my daughterinlaw.
10. During her cross examination she stated that her husband told her that all of them had contributed money for the construction of the house. She stated that she is living in portion shown in red and green color as shown in the site plan. She admitted that she had filed a complaint dt. 19.09.2006 before CAW Cell against plaintiff and his family members and copy of the same was proved as EX.DW1/XP1.
11. Thereafter, Defence Evidence was closed.
12. It is argued on behalf of plaintiff that plaintiff has successfully proved his case by establishing his title over the suit property. It is stated that even otherwise admittedly the status of the defendant in the suit property was of licencee and later on of an unauthorized occupant when she reentered into the premises on 22.10.2006 after vacating it once. In view of Section 116 of Indian Evidence Act, a licencee has no right to challenge the title of licencor and the licencee can be evicted by the licencor without proving his title even, if the defendant is claiming herself to be the licencee and she is disputing the episode of vacating and reentering into the suit premises. And if she is not disputing the same, her status is of unauthorized occupant and the suit for possession can be maintained by the plaintiff on the basis 8 Suit No.5/14 Chottey Lal Vs. Sunita Gangwal of his title/ previous possession, hence the suit is liable to be decreed. Plaintiff in support of his allegations has relied upon the following judgments :
1. S.R. Batra Vs.Taruna Batra, 136 (2007) DLT 1 SCC
2. Sardar Sadhu Singh Vs. Narender Kaur, 60(1995) DLT 638
3. Sardar Malkiyat Singh Vs. Kanwal Jit Kaur 168(2010) DLT 521
4. Shumita Didi Sandhu Vs. Sanjay Singh Sandhu, 174 (2010) DLT 79 DB.
5. Neetu Mittal Vs. Kanta Mittal, 152(2008) DLT 691
6. Pamela Sharda Vs. Rama Sharda, 186(2012) DLT 138
7. Kavita Chaudhary Vs. Eveneet Singh, 202(2013) DLT 538
8. Barun Kumar Nahar Vs. Parul Nahar, 199(2013) DLT 1
9. Sudha Mishra Vs. Surya Chander Mishra, in RAF no.299/14 decided on 25.07.2014 I have perused all the above mentioned judgments, the crux of all the above mentioned judgments is as follows : " that the daughterinlaw has no right to claim maintenance including the rights of residence from the separate/ exclusive properties of inlaws which is their self acquired properties wherein her husband has no interest/ right/ title. The wife only has the right to maintenance including the right of residence against her husband and not against her fatherinlaw or motherinlaw and she can claim here residence only in her matrimonial home where her husband has right/ interest such as Joint Hindu Family Property / ancestral property etc."
13. In reply to the arguments of the plaintiff, it is argued on behalf of defendant plaintiff has not valued the suit property as per law as the property falls in Madangir area which is falling in Category G and its circle rate is Rs.31,250/ per sq. meters and for 50 sq.yds/ 40.5 sq. meters its valuation comes to Rs.12,65,625/ on which a court fees of Rs.14,739/ was liable to be affixed, though the plaintiff has 9 Suit No.5/14 Chottey Lal Vs. Sunita Gangwal valued the suit at the rate of Rs.3 lacs and paid court fees of Rs.9,000/ only. It is further argued that plaintiff has no locus to file the present suit as he is not the title holder of the suit property as per his own case as property belongs to MCD Slum Department and was allotted under Jhuggi Jhopari Scheme which is in alienable and the documents like GPA and agreement to Sell are not the title documents. It is stated that suit of the plaintiff is not based upon the concept of licencee where the possession with the licencor. In the same breath, it is submitted that plaintiff has not explained as to how the relationship of licencee or licencor was terminated with his son who was not impleaded as party in this suit. It is stated that plaintiff failed to give account as to how he constructed and developed the suit property. In her written arguments, the defendant has reiterated some portion of evidence of plaintiff in some other matter which is in my opinion cannot be considered at this stage as it is not a part of record and was never confronted to the witness during his evidence.
14. It is further argued that there is no denial by the plaintiff that he is Karta of the family and it can be assumed that every members contributed his earning into the joint family pool and it is almost impossible for every members of joint family to account for as to how much money was spent on floor on estate development and the burden was upon the plaintiff to rebut the same and PW1 also admitted that they have ancestral land in Rajasthan. It is submitted that there is no evidence to show that suit property is self acquired property of the plaintiff. Defendant relied upon the following judgments :
1. AIR 1963 Patna 308 Jagdish Chander Ghose Vs. Basant Kumar Bose wherein it was held that in a suit for possession against a licencee after the termination of his licence, it has to be valued as per Section 7(V)(e) of Court Fees Act i.e. at the market value. Court Observation : ( It is pertinent to mention here that no issue w.r.t. valuation of the property was framed in the present case and no evidence was led by the defendant regarding valuation of the suit property, hence this judgment is not relevant in the present case).
10Suit No.5/14 Chottey Lal Vs. Sunita Gangwal
2. AIR 2005 SC439 Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd wherein it was held that a power of attorney cannot depose in place of principal. Court Observation : ( In the present case the plaintiff has filed the present suit in his own right and not as a attorney of some one else, hence this judgment is not applicable).
3. Manoj Godha Vs. Subhash Barjatiya, RFA 674/05 decided on 22.09.2008, DHC wherein it was held that a licencor has to value the suit property at market price in a suit for possession against licencee. Court Observation : ( It is pertinent to mention here that no issue w.r.t. valuation of the property was framed in the present case and no evidence was led by the defendant regarding valuation of the suit property, hence this judgment is not relevant in the present case).
4. Manji Bhai Jetha Bahi Vs. Popatlal Shree Raj & Ors. AIR 1932 Bombay 367 wherein it was held that plaint signed by a special power of attorney is not properly signed plaint and it is plaintiff himself or somebody holding GPA on his behalf should have signed the plaint. Court Observation : ( In the present case the plaintiff has filed the present suit in his own right and not as a attorney of some one else, hence this judgment is not applicable).
5. AIR 1917 All. 90 Ramanlaji Vs. Gokul Nathji wherein it was held that it is the duty of the court to check and decide as to whether plaintiff has the locus or not.
6. AIR 1927 Bombay 240 Janardhan Mahadeo Bhasi Vs. Ram Chander Mahadeo Bhasi wherein it was held that in a partition suit between two brothers with well given to one while the other a house without well.. later allowed by partition deed to take water out of brotherly affection... right acquired by him is not an easement but an irrevocable licence in terms Section 52 and 60 of Indian Easement Act. Court Observation : ( In the present case this judgment has no application).
11Suit No.5/14 Chottey Lal Vs. Sunita Gangwal
7. AIR 1927 Oudh 206 Thakur Parsad Vs. J. Thomkinson. I have perused the judgment and it is no where relevant to the present case. Counsel for the defendant has highlighted the following portion of the judgment :
(c) Easement Act Section 60(b) Katacha thatched house can be one of permanent character. Building of mud walls and thatched roof built for the purpose of school and which were in existence and kept under regular repair for about 30 years were held to be an work of a permanent character.
8. AIR 1925 Allahabad 203 Amjad Khan & Ors. Vs. Shafiuddin Khan & Ors.
Wherein it was held that "(b) Easement Act, Sec.60 (b) Denial of licensor's title is no ground for forfeiture or revocation where licensee had executed a work of a permanent character Thatched house may be a work for permanent character. A License cannot be revoked, it the licensee acting upon the license has executed a work of a permanent character. Court Observation : ( In the present case this judgment has no application).
9. AIR 204 Karnataka 433 Venkataramana Vs. Ganpathi & Ors wherein it was held that reunion of the family after partition of the family w.r.t. joint family properties need not be compulsory registered and reunion amounts to revival of joint status, though the divided estate of the members remains separate property and does not become a joint family property ipso facto by the fact of reunion unless there is bending of their properties after reunion to make it a joint family property and it is not uncommon to the members of joint family to own separate and individual properties. The existence of joint status does not give rights of presumption of law that the properties held by members of joint family are joint family properties. Court Observation : ( In the present case this judgment has no application).
10.Kavita Gambir Vs. Hari Chand Gambir, RFA No.179/08 decided on 07.09.2009 by DHC . In this case the property in the name of inlaws of appellant was held to be joint family property, in the absence of any evidence by the inlaws to 12 Suit No.5/14 Chottey Lal Vs. Sunita Gangwal show it to be a self acquired property and only a bald allegation was made to this effect and in this case PW1 i.e. fatherinlaw who was only examined as a plaintiff witness in his cross examination admitted that " before the construction of the suit property he was residing in a house in Gurgaon which belonged to his father and he also stated that it was the only house which he father had left. He further stated that he and his brothers and sisters had given that house to the widow of one of their brothers". These fact emerging out in the cross examination of the plaintiff shows that when the suit plot was acquired the plaintiff no.1 was in possession of some property which was ancestral in his hands as well as in the hands of his brothers and sisters. So, existence of that ancestral property in the facts of this case did constitute the joint family nucleus which in my view was sufficient to shift the burden to the plaintiffs to show by adducing sufficient evidence, which could not only in their special knowledge, that the suit property was purchased and constructed with the personal money of plaintiff No.1 Hari Chand Gambhir, wherein plaintiff failed as they could not show sufficient earnings/ savings in their hands and the relevant time of construction of the suit property as no evidence was led on their behalf. It was further held that if the plaintiffs are not asking their son to move out from the house, then they cannot simply asked their daughterinlaw alone to move out of their house and if actually plaintiffs have revoked their the permission/ licence to their sons to stay in their house, then they have to obtain a decree of possession against their son because of his failure to surrender vacant possession of the property in his occupation and only in that way they can get their son's family also evicted. Unless the plaintiffs get a declaration against their own son Anil Gambhir that he having failed to put them in possession of their property by moving out of the first floor of their property alongwith his family despite revocation of the permission which they had given to him to stay on the first floor they were 13 Suit No.5/14 Chottey Lal Vs. Sunita Gangwal entitled to get him and his family evicted through a decree of the court they cannot claim that the occupation of their daughterinlaw Kavita Gambhir was unauthorized. Now, whether the plaintiffs son was living there as a tenant or as a licencee or in any other capacity could be known only if he had been impleaded in the suit by the plaintiffs and in whatever capacity their son was permitted by them to occupy the first floor of 'privity' was between them and their son and not between them and their daughterinlaw and the husband was a necessary party and suit should have filed only against him and in the absence of any pleadings that occupation of their son was only permissive and which have been revoked the suit is not maintainable against daughterinlaw. It is further held that it is not necessary the possession of both husband and wife was actual. It can be constructive also.
15. In rebuttal, it argued on behalf of plaintiff that at one place the defendant is challenging the title of the plaintiff and on the other hand, she is claiming the suit property to be the joint family property and is relying upon the case law regarding the licencor and licencee relationship. It is submitted that the entire defence of the defendant is based upon contradictory pleas and defendant cannot be allowed to blow hot and cold together.
16. I have heard the arguments and have perused the record including the judgments relied upon by the parties. All the judgments relied upon by the plaintiff are bases upon the settled law of land and need not be further discussed. Though, most of the judgments relied upon by the defendant, seems to be irrelevant to the present case and they have already been discussed above.
14Suit No.5/14 Chottey Lal Vs. Sunita Gangwal
17. I have heard the arguments and perused the record. My issuewise findings are as under :
18. ISSUE NO. 1 : Whether the property is joint Hindu family properties?
OPD.
The burden of proving this issue was upon the defendant.
It is argued on behalf of defendant that the joint nature of the family is to be assumed and the burden was upon the plaintiff to show that he had acquired the suit property from his personal funds and he never had any intention to blend the same into the joint family property in view of the judgment of Kavita Gambhir Vs. Hari Chand Gambhir. Though, in reply it is argued on behalf of plaintiff that the suit property was purchased in the year 1981 i.e. around 34 years back from his personal funds. It is submitted that the date of birth of husband of the defendant is of the year 1978 and it cannot be assumed that at the time of purchase of the property in the year 1981 when he was around 3 years old he would have contributed anything towards the purchase of the same. Therefore, it can be safely assumed that property was purchased by the plaintiff. It is also an admitted fact that defendant got married to the son of the plaintiff in the year 2002 and at that time the property was fully constructed as it is today and the age of her husband was around 24 years and their entire family was living in the said property. The defendant has not led any evidence with respect to the year of construction, though, it can be assumed that property was constructed during the childhood of husband of defendant as there is no evidence that property was constructed when the defendant's husband had attained majority i.e. in the year 1996 and afterward.
The plaintiff has successfully proved the documents through which he purchased the property in question and which has not been challenged in his cross examination by the defendant. Rather the case of the defendant is that all the family members including the husband of defendant contributed towards the construction 15 Suit No.5/14 Chottey Lal Vs. Sunita Gangwal of the suit property, hence the property should be treated as joint Hindu family property. It is also an admitted position that plaintiff's family is residing in the suit property on different floors and the documents proved by him clearly shows that when these properties were purchased the age of the children of the plaintiff were too small that it cannot be assumed that they would have contributed anything towards its consideration. There is no evidence on record to show that defendant's husband contributed anything towards the construction of the suit property anything and most likely as per the facts of the case the property would have been constructed prior to the date of attaining majority of the husband of the defendant. As the financial status of the plaintiff was sound as per the own submissions of the defendant and the same can also be assessed from the facts that he purchased two properties within a span of five years that to in early 80s. Needless to say that no evidence has been led on behalf of defendant to show that suit property is a Joint Hindu property and the allegations of the defendant in this regard proved to be only bald allegations and could not be substantiated by cogent evidence. Hence this issue is decided against the defendant.
19. Issues No.2 to 4 are interconnected to each other, hence they are being decided together.
ISSUE NO.2: Whether the plaintiff is entitled for the decree of possession as prayed for? OPP.
ISSUE NO.3: Whether the plaintiff is entitled the means profit?
OPP.
ISSUE NO.4: Whether the plaintiff is entitled for the decree of permanent injunction? OPP.
Burden of proving these issues was upon the plaintiff. There is no dispute that the defendant entered into the premises as a daughterinlaw after her marriage 16 Suit No.5/14 Chottey Lal Vs. Sunita Gangwal in 2002. She has not been able to show that her husband had any interest in the suit property, hence the status of the son of the plaintiff and his family including defendant and their children are of licencee in the suit premises and needless to say that the licencee has no right to challenge the title of the licencor in view of Section 116 of Indian Evidence Act. The plaintiff has proved on record the Public Notice given by him in Rashtriya Shahara on 14.04.2004 vide which he disowned the defendant and her husband from his movable and immovable properties. As per the case of the plaintiff, the defendant with her husband had vacated the suit premises on 03.02.2004 and she left with her parents and the son of the plaintiff also started living separately in a rented house where she joined him after few days and thereafter left him also and started living with her parents. He also proved on record EX.PW1/11 i.e. a letter to Chowki Incharge, PS Madangir which bears the signature of defendant and her father of admitting this fact of leaving the house. It is pertinent to mention here that there is no cross examination on this document relied upon by the plaintiff. If we see the document EX.DW1/XP1 i.e. complaint dt.19.09.2006 given by the defendant to Additional Commissioner of Police, CAW Cell, Amar Colony, in her own complaint she had given her address as H. No.181, Gali No.18, AmritpuriB, Garhi, East of Kailash, New Delhi i.e. the address of her father and not of the suit property and if we perused the complaint on page no.6 in 3rd para it read as follows : " that on 19.07.2006 when some respectable and independent persons of the society when to her inlaws house and discussed about her, then her inlaws stated that they would bring defendant but their son Sanjay would live in Rajasthan now and not in Delhi".
The above mentioned allegations shows that at the time of filing this complaint she was not residing at the suit property and she has not explained as to how and when she came back in the suit property as admittedly she was never brought there by her inlaws. It is pertinent to mention here that defendant is claiming here to be in the possession of suit property on 22.10.2006. It is also an 17 Suit No.5/14 Chottey Lal Vs. Sunita Gangwal admitted fact that some altercation took place in the suit property on 22.10.2006. Both the parties are telling different versions but the above mentioned facts if seen in totality shows that the defendant must have reentered into the suit property on 22.10.2006 where she was not residing on 19.09.2006 i.e. on the date of filing the complaint by her. Therefore, after 22.10.2006 the status of the defendant was of a "trespasser" and not of a licencee and needless to say that it was plaintiff who was dispossessed and therefore he can maintain this suit being the owner and even on the basis of his previous settled possession. Accordingly, plaintiff gave legal notice to the defendant to vacate the premises treating her as a trespasser. Hence the plaintiff is entitled to recover the possession of suit property from the defendant.
As far as the mesne profit/ damage is concerned, no evidence has been led in regard to the recovery of damages. In the absence of any evidence, the court can always take judicial notice of the relevant facts for determining the extent of damages such as the area in which the suit property is located, rate of inflation etc. In my opinion the ends of justice would meet if plaintiff is granted damages @ Rs. 2,000/ per months from the date of filing of the suit till the handing over the possession ( as plaintiff has not mentioned in the plaint that since when he is claiming the damages and he even did not pay court fee on it).
In view of above discussions, these issues are decided in favour of plaintiff and against the defendant.
20. RELIEF.
In view of decision of above mentioned issues, suit of the plaintiff is decreed for the relief of possession of suit property i.e. entire ground floor of H. No. I2/182183 Madangir, New Delhi consisting of two rooms, kitchen, bathcumtoilet and open space as shown in red and green color in the site plan EX.PW1/6. Decree of mesne profits/ damages is also passed @ Rs.2,000/ per months from the date of filing of this suit till the handing over the possession and defendant, her relations and associates are restrained from creating any third party interest in the suit 18 Suit No.5/14 Chottey Lal Vs. Sunita Gangwal property. Cost of the suit is also awarded in favour of plaintiff. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in Open Court (NAVEEN ARORA)
on 13th February 2015 ADJ06: SOUTH: SAKET
NEW DELHI.
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