Delhi District Court
Smt. Angoori Devi vs Sh. Sunder on 23 September, 2016
IN THE COURT OF SH. YOGESH KHANNA,
DISTT. & SESSIONS JUDGE (NORTHWEST)
ROHINI COURTS, DELHI.
CS No. 111/10
Smt. Angoori Devi
w/o late Mam Chand
r/o 474, Nai Basti, Kishan Ganj
Delhi ......Plaintiff
Versus
Sh. Sunder
s/o late Mam Chand
r/o B9/11, Sector18, Rohini
Delhi
Also at :
Khasra No. 47/18
Plot No. SI/62, Village Pooth Kalan
Budh Vihar, PhaseI
Delhi ........Defendant
Date of institution : 27.08.2010
Date of hearing arguments : 21.11.2015
Date of decision : 23.09.2016
JUDGMENT
1.The plaintiff has filed the present suit seeking possession, permanent injunction, mandatory injunction and recovery of damages alleging therein that she is a senior citizen of 68 years of CS No. 111/10 Page 1 of 33 age and is an absolute owner of the property bearing Khasra No. 47/18, Plot No. SI/62, village Poothkalan, Budh Vihar, PhaseI, Delhi, admeasuring 200 sq. yards, (hereinafter referred to as the suit premises) which she had purchased from one Sh. Lakhi Ram vide an agreement to sell, registered GPA, SPA, Will and Receipt dated 22.07.1997, all executed in her favour.
It is further alleged that the suit premises was being used by Sh. Mam Chand i.e. husband of the plaintiff for his business purposes and that in the year 2003 the defendant, a son of the plaintiff, sought permission from the plaintiff and from her husband late Sh. Mam Chand to enter into said business, which they agreed, though on an assurance given by the defendant that soon he would establish his own business and would leave the suit premises. It is further alleged that the defendant then entered the suit premises purely as a licensee. It is further alleged that whole of the business including the machinery and other infrastructure lying in the premises was under the control of the plaintiff and her husband. It is further alleged that in the year 2007, Sh. Mam Chand expired and hence, the plaintiff requested the defendant to remove himself and his goods from the suit premises as she require the said premises for rental purposes for her subsistence, but the defendant time and again, on one pretext or another, sought time to vacate the same. It is further alleged that in the year 2008, the plaintiff again requested the defendant to vacate the suit premises, but the CS No. 111/10 Page 2 of 33 defendant, his wife and his in laws started threatening the plaintiff with dire consequences by asking her to handover the possession of the suit premises to the defendant by executing the documents in his favour. It is further alleged that the plaintiff had also reported the matter to the police many a times, in writing, regarding such wrong and illegal motives of the defendant and his family members, but the police did not take any action against the defendant. It is further alleged that the defendant is in the suit premises only as a licensee and he wants to grab the same with illegal motives. It is further alleged that the plaintiff had only allowed the defendant to use the suit premises and that all the belongings of the plaintiff are still lying inside the premises. Thus finding no other option, the plaintiff served a notice dated 26.07.2010 upon the defendant thereby asking him to vacate the suit premises and to handover the peaceful and vacant possession of the same to the defendant, but the said notice was received back unserved with remarks "defendant is not found at the address".
It is further alleged that in the month of June 2010, as per the knowledge of the plaintiff, the defendant, in collusion with some local property dealers, tried to create a third party interest in the suit premises by selling/parting with the part possession of the same to some unknown person and threatened the defendant to transfer the title of the suit premises in his favour.
CS No. 111/10 Page 3 of 33On these allegations, the plaintiff filed the present suit against the defendant seeking possession, permanent injunction, mandatory injunction and recovery of damages in respect of the suit property. The plaintiff has assessed the damages @ Rs. 10,000/ per month as the market rent, the suit premises could easily fetch.
2. The defendant contested the suit of the plaintiff and filed a written statement stating interalia that the suit property is a Joint Hindu Family property of which his father late Mam Chand Saini was a Karta and that his father i.e. the Karta of Hindu Undivided Family had purchased scores of properties either in his name or in the name of his wife i.e. the plaintiff during his life time and he continued to purchase and dispose of the properties for gain, business and living, besides running a manufacturing and flourishing business of kerosene stoves at 2167/167, GaneshpuraB, Tri Nagar, Delhi.
It is further alleged in the written statement that the value of the suit premises is more than Rs. 45,00,000/ and that the defendant and his brothers are looking after the maintenance of the plaintiff, being her sons, ever since the death of their father and besides this, the plaintiff is getting a rent of Rs. 4500/ per month from a property situated at Shivkunj, Gali No. 83, Sant Nagar, Burari, Delhi and also a rental of Rs. 14,000/ per month from another property viz. 474/1, Kishan Ganj, Delhi.
CS No. 111/10 Page 4 of 33It is further alleged in the written statement that the grand father of the defendant namely Jaman Lal Saini s/o Heera Mal Saini was the Karta of the Hindu Undivided Family having several agricultural lands at village Gadamai, Distt. Dosa, Rajasthan and he also purchased several agricultural lands near Nai Basti, Kishanganj, Delhi and that he left behind his widow namely Giyasi Devi; two sons namely Mam Chand Saini aged 14 years & Dham Chand Saini aged 8 years and three daughters namely Chamela Devi, Shanta Devi and Sushila Devi. Sh. Dhan Chand Saini expired in his teenage and hence, Mam Chand Saini, being a Coparcener of HUF was the only surviving male member of the family and an obedient son of his parents, became the Karta of HUF and its properties, assets, business and liabilities by passage of time. It is further alleged that Mam Chand Saini had received a compensation for his ancestral/HUF agricultural land acquired by the Government of Delhi and thereafter he purchased the first property for HUF viz. bearing no. 2167/167, GaneshpuraB, Tri Nagar, Delhi, and he also managed the marriages of his three sisters and also brought his six sons into his HUF business when they grew up. It is further alleged that the defendant was actively associated with his father in his HUF business, ever since the year 198788.
It is further alleged that Sh. Mam Chand Saini had also purchased various other properties for HUF, situated at different places in Delhi such as Utsav Vihar, Nangloi, Kishan Ganj, Budh CS No. 111/10 Page 5 of 33 Vihar, Burari, and that even the suit premises was also purchased by late Sh. Mam Chand Saini in the name of the plaintiff, however, only as a part of HUF.
It is further alleged in the written statement that after the death of their father Mam Chand Saini, one Udai Singh the brother in law of the defendant started having an evil eye over the said HUF properties and he started poisoning the mind of innocent, illiterate and aged mother of the defendant i.e. the plaintiff against all her sons to cause a split in the HUF. It is further alleged that by passage of time, Udai Singh not only succeeded to effect a split in the HUF and siphoned away the entire funds of HUF, kept with the plaintiff as well as the LIC's compensation of more than seven policies of late Mam Chand Saini, but also had ruined the lives of other brothers of the defendant due to his ulterior motives. It further alleged that the plaintiff being an illiterate aged mother of the defendant is only a scapegoat in the hands of Udai Singh i.e. the brother in law of the defendant who is keeping an evil eye on the said HUF properties. It is denied in the written statement that the suit premises was purchased by the plaintiff from her personal savings and deposits. Rest of the contentions as made in the plaint, have also been denied in the written statements and accordingly, the defendant has prayed the suit filed by the plaintiff may be dismissed.
CS No. 111/10 Page 6 of 333. The plaintiff filed a replication to the written statement wherein the story of the alleged HUF has been denied by the plaintiff. It is further denied that late grandfather of the defendant was ever a Karta of any HUF. It is rather admitted that Mam Chand Saini was a self made man and that all his properties were self acquired properties purchased by him from his own income and that late Mam Chand did not inherit any property from his father and hence, there was no question of any HUF business. It is further alleged in the replication that the defendant joined the business of Mam Chand, the husband of the plaintiff only in the year 2003 and that too with the consent of the plaintiff and her husband late Mam Chand Saini. It is further alleged the defendant had left this house in the year 199394 and had started living separately, but in the year 2003, he requested the plaintiff and her husband late Mam Chand Saini for joining their business on temporary basis till his own business is established. It is denied that Udai Singh i.e. the brother in law of the defendant has an alleged evil eye over the properties or funds of any alleged HUF.
4. From the pleadings of the parties and documents on record, following issues were framed on 09.12.2010 by my Ld. Predecessor:
i) Whether the plaintiff is an owner of the suit premises as alleged in para no. 1 of the plaint? OPP.
CS No. 111/10 Page 7 of 33ii) Whether this Court has no pecuniary jurisdiction to entertain and try this suit as alleged in preliminary objection no. 3 in the WS? OPD.
iii) Whether the plaintiff is only one of the beneficiary under Hindu Undivided Family Law as alleged in preliminary objection no. 1 in the WS? OPD.
iv) Whether the suit premises and other properties were purchased by the father of the defendant in the name of the plaintiff only as a part of HUF property, if so to what effect? OPD.
v) Whether the plaintiff is entitled for a decree of possession as prayed? OPP.
vi) Whether the plaintiff is entitled to a decree of permanent injunction as prayed? OPP
vii) Whether the plaintiff is entitled to a decree of mandatory injunction as prayed? OPP.
viii) Relief.
Further two following additional issues were framed on 25.01.2016 :
(A) Whether the plaintiff is entitle to mesne profits/damages @ Rs. 10,000/ per month, as prayed in prayer clause no. (d) of the plait? OPP.
(B) Whether the plaintiff is entitle to interest on the mesne profits/damages, if so, then at what rate? OPP.
5. In order to prove her case, the plaintiff examined herself as PW1 and tendered her affidavit in evidence as Ex. P1 wherein she CS No. 111/10 Page 8 of 33 reiterated almost all the contents of her plaint. PW1 deposed that the defendant was in some other business and was practically earning nothing and hence, sought permission from her and her late husband Mam Chand to enter into their business for a short period in the year 2003.
Besides her affidavit in evidence, the plaintiff has also relied upon various documents viz. the original GPA Ex.PW1/A; Spl. Power of Attorney Ex. PW1/B; Will Ex. PW1/C; receipt Ex. PW1/D showing herself to be an owner of the suit premises which she had purchased from her personal savings and deposits in the year 1997 from one Lekhi Ram. Further she proved site plan as Ex. PW1/E; police complaints Exs. PW1/F & PW1/G; copy of legal notice as Ex. PW1/H; registered AD slips as Exs. PW1/I1 & PW1/I2 and returned envelops as Exs. PW1/J1 & PW1/J2. The plaintiff (PW1) was cross examined by the learned counsel for the defendant and during her cross examination, she deposed that she can read her own name and she knows the contents of the present suit and that she has been doing the work of weaving and stitching from her home for the outsiders. PW1 further deposed that she has been filing income tax returns, but she could not give such details. PW1 further deposed that she is having a saving account with Punjab National Bank, Nai Basti, Padam Nagar, Delhi. PW1 further deposed that at present the market value of the suit CS No. 111/10 Page 9 of 33 premises is Rs. 6 to 7 lacs, but the same was purchased by her for Rs. 25,000/.
PW1 admitted that Jaman Lal Saini was her father in law and he used to do farming and that her husband was also a farmer, but he left farming about 2022 years ago. PW1 further deposed that her husband was a peasant and used to work on agricultural land of others at Kishan Ganj, Delhi and that her husband never gave her any money to run household expenses as he used to give his entire earning to his own mother.
PW1 could not tell if her husband had got any compensation from the Government with regard to any agricultural land, but added that had any compensation being given, her husband might have purchased a house at Kanhaiya Nagar. PW1 could not tell if her parents in law belong to Gadamai Distt. Dosa, Rajasthan, as she had never visited that place. PW1 further deposed that she was married in Delhi and that she never heard if her inlaws had any agricultural land at Rajasthan. Rather she denied such suggestion.
PW1 further deposed that her father in law had an agricultural land, but voluntarily added that the said land belong to some other person and he used to do farming on it. PW1 admitted that her husband Mam Chand Saini, being a responsible head of the family, had managed the marriage of his three sisters and that they CS No. 111/10 Page 10 of 33 used to tilt the land of one baniya, but she could not tell the name of such baniya.
PW1 further admitted that her husband had purchased a property bearing no. 2167/167, Ganesh Pura, Tri Nagar, Delhi. PW1 denied the suggestion that all her sons were associated in the business of her husband, as they all used to live separately. PW1 further deposed that her eldest son namely Nand Kishore has been living separately from her for the last 1617 years and that her second son is Chander Mohan. PW1 further deposed that all her sons have been living separately for the last 1718 years. PW1 further deposed that her husband used to run a factory for 2025 years for making plastic dana at Kanhaiya Nagar and 56 labours used to work in the said factory. PW1 further deposed that none of her sons joined in the said factory of her husband after leaving their school. PW1 admitted that her husband also used to run a kerosene stove manufacturing factory from the same premises i.e. bearing no. 2167/167, Ganesh Pura B, Tri Nagar, Delhi. PW1 further deposed that the defendant never worked with his father in any stove factory or in other business and that whatever property her husband had purchased, he had purchased in his name by his own funds, earned by him only.
PW1 denied the suggestion that she had filed the present suit at the instance of her son in law Udai Singh. She further denied CS No. 111/10 Page 11 of 33 the suggestion that she ever received any insurance amount after the death of her husband. PW1 admitted that she is getting Rs. 10,000/ to 12,000/ per month as rent from all her properties. PW1 further deposed that none of her son(s) is giving her any money as she has never asked for the same. PW1 categorically deposed that her husband Mam Chand Saini had never purchased any property in her name and rather she bought the properties out of her own earnings from stitching work. PW1 denied the suggestion that her husband made any payment to Sh. Lakhi Ram i.e. the erstwhile owner of the suit premises and she rather deposed that she had made the payment of sale consideration of Rs. 20,000/. PW1 voluntarily added that her husband had constructed the suit premises. PW1 denied the suggestion that her husband had asked Lakhi Ram to execute the title documents in her name. She deposed that she had purchased it herself out of her own funds. PW1 admitted that the defendant joined her husband in the suit premises, initially for a short period, but then he continued, as her husband got ill and was not able to work.
PW1 proved the income tax returns for the last 3 assessment years i.e. 200708, 200809 and 200910, which are Exs. PW1/K1 to PW1/K3. PW1 admitted that her husband was the karta dharta of her family consisting of herself, six sons and two daughters. PW1 further admitted that till date no partition of the CS No. 111/10 Page 12 of 33 properties has taken place in their family.
The plaintiff examined one more witness namely Sh. Chander Mohan i.e. her son, who stepped into the witness box as PW2 and filed his affidavit in evidence as Ex. PW2/A. PW2 deposed that his father had never received any compensation from the Government in respect of any land and that there was no ancestral or parental agricultural land near Nai Basti, Kishan Ganj, Delhi. PW2 further deposed that after leaving his college, he worked with his father for some time in his plastic dana factory at Tri Nagar, Delhi and that his father bought him an auto rickshaw and even arranged the finances for functions of all his sons and grandsons as and when the occasion arose. PW2 further deposed that, in fact, his father incurred all the expenses of the family at that time.
PW2 further deposed that whatever properties his father had purchased, he had purchased with his own income. PW2 further deposed that his father used to give money to his mother i.e. the plaintiff to run the household expenses only and that the plaintiff also used to do stitching work. PW2 could not tell as to how much amount his father used to earn from his plastic dana factory or from his kerosene oil stove factory in the year 1997. PW2 deposed that his father was the karta dharta of his family upto the year 1991 and thereafter he separated all his sons. PW2 further CS No. 111/10 Page 13 of 33 deposed that his father did not give any property to any of his sons. PW2 denied the suggestion that his father was a Karta of any HUF or that the impugned premises was one of the HUF properties. At the later stage, the plaintiff examined one more witness namely Sh. Ravi i.e. a Data Entry Operator from the O/o Sub Registrar VIC, Rohini, Delhi, who appeared in the witness box as PW3 and proved two documents viz. certified copy of lease deed dated 25.08.2009 as Ex. PW3/1 and certified copy of lease deed dated 18.02.2011 as Ex. PW3/2. Both these lease deeds are in respect of similar located premises in the said area. The defendant examined, in all five witnesses, to support his case viz. :
DW1 The defendant himself;
DW2 Sh. Vijay Kumar, brother of the defendant;
DW3 Sh. Inder Kumar, an employee of Punjab
National Bank;
DW4 Sh. H.S. Bhist, Manager of Canara Bank;
DW5 Sh. Permanand, Peon/Daftari, PNB.
The defendant appeared in the witness box as DW1 and tendered his affidavit in evidence as Ex. DW1/A. DW1 also relied upon the document marked as Mark A i.e. the letter written by his mother for withdrawing the complaint. In his affidavit Ex. DW1/A, CS No. 111/10 Page 14 of 33 DW1 reiterated almost all the contents as stated in the written statement.
DW1 was duly cross examined by the learned Counsel for the plaintiff and during his cross examination, DW1 admitted that he had not filed any document to prove that the suit premises is a HUF property. DW1 rather deposed that the suit premises or any other property was never shown as HUF property, before any authority, either by him or by his father or by any other member of his family. DW1 further deposed that no property or no income has ever been assessed in the name of HUF by the Income Tax Deptt and rather deposed that he has not filed any document which could show that the suit premises was purchased from the funds of HUF.
DW1 further deposed that he has not filed any valuation report in respect of the suit premises. DW1 further deposed that he never visited Rajasthan to the native village of his grandfather. DW1 further deposed that he has not filed any document regarding the properties, assets, business and liabilities of HUF, as claimed by him and that he has not filed any document showing that his father late Mam Chand Saini had ever received any compensation from any government authority. DW1 further deposed that he does not have any document to show that his father had received any alleged compensation. DW1 further deposed that the document Ex.
CS No. 111/10 Page 15 of 33DW1/P1 bears his signatures at point A and that it pertains to a loan of Rs. 30,000/ which he had taken from his father for his personal requirement.
DW1 further deposed that the house no. B9/11, Sector18, Rohini, was in his name and the same was purchased jointly by him and by his father in the year 1996 for a total sum of Rs. 1,65,000/, out of which his father had contributed an amount of Rs. 1,00,000/ and he had contributed the remaining amount of Rs. 65,000/ and that he had sold the said house in the year 2005 for Rs. 3,50,000/ with the permission of his father and that he had given the entire amount to his father, but he has no proof regarding the same. DW1 further deposed that his elder brother namely Nand Kishore is running his own general store and that Nand Kishore has a separate mess from his parents for the last 34 years. DW1 further deposed that the kitchen expenses of all his brothers are separate and that his brother Chander Mohan runs his auto rickshaw and bears his own expenses from the same and that his another brother namely Vijay is in the business of supplying of "kuber namkeen"
and is managing his own affairs. DW1 further deposed that his another brother namely Surender was doing a job at Karol Bagh, but he could not tell when Surender left that job. DW1 further deposed that his father started the stove business somewhere in the year 1982 and he was the proprietor of CS No. 111/10 Page 16 of 33 M/s Saini Stove and that the plastic dana business was also in the same name. DW1 further deposed that his father was also a proprietor of such plastic dana business and that no books of accounts were ever maintained of such stove business, but the books of accounts of plastic dana business were maintained. DW1 admitted that though he used to work with his father, but has not filed any document to show if there was any income from agricultural land allegedly situated at Rajasthan. DW1 further deposed that his mother never asked him to vacate the premises as he used to give money to her. DW1 further deposed that some properties are in the name of his father and some are in the name of his mother i.e. the plaintiff. DW1 further deposed that he does not have any documentary proof to show that these are the HUF properties. DW1 further deposed that his brother in law Udai Singh work in Delhi Metro and resides at Shastri Park, Delhi, but he does not have good relations with him. DW1 further deposed that the suit premises was purchased in the year 1997 and that he shifted there in the year 2005.
In reply to a question as to if the suit premises is assessed in the individual name of the plaintiff, DW1 did not admit or deny.
DW1 admitted, apart from his oral statement, that he does not have any proof in support of his claim that the suit premises is CS No. 111/10 Page 17 of 33 HUF or was purchased from the funds of HUF. DW1 further admitted that he has no proof as to if his grandfather had any property in his name or in the name of HUF.
In the later part of his cross examination, DW1 deposed that he does not know that his mother/plaintiff had purchased the suit premises from Lekhi Ram. DW1 further admitted that his father used to do the business and all machinery equipments are lying in the suit premises.
DW2 also tendered in evidence his affidavit as Ex. DW2/A and was also duly cross examined by the learned Counsel for the plaintiff. During his cross examination, DW2 deposed in the lines of his brother DW1. DW2 admitted that he does not have any document/papers pertaining to any alleged compensation of Rs. 3,00,000/ in respect of any acquired agricultural land, if was ever received by his father. DW2 further deposed that he does not have any document pertaining to receipt of any compensation in the ratio of 40:60 in favour of Sh. Hari Shankar Gupta or legal representatives of his grandfather. DW2 further deposed that after leaving his father's business in the year 2004, he remained idle for 45 months and then joined a private service as a salesman. DW2 admitted that he has never done any separate business. DW2 also admitted the document Ex. DW2/P1 bearing his signatures at point A, but voluntarily added that he was forced to sign this document.CS No. 111/10 Page 18 of 33
DW2 further admitted that his father had a bank account in his own name. DW2 further deposed that accordingly to his knowledge, 'karta' means a person who is "kartadharta" of his family and runs the family. DW2 further admitted that whenever he needed any financial help, he takes the financial help of his inlaws or defendant no. 1 i.e his brother.
DW3 Sh. Inder Kumar, an employee of PNB at Shakti Nagar Branch, Delhi, deposed that the plaintiff or her husband did not have any account in his branch.
DW4 Sh. H.S. Bhist, Manager of the Canara Bank at Tota Ram Bazar, Tri Nagar, Delhi, deposed that Mam Chand was having an account bearing no. 2024101057823 in his branch and the same is Ex. PW4/1 (3 pages).
DW5 Sh. Permanand, Peon/Daftari, Punjab National Bank, Kishan Ganj Branch, Delhi, brought the record pertaining to the FDRs and saving account standing in the name of the plaintiff, which are Exs. PW5/1 and PW5/2 (3 pages). DW5 further deposed that there is no account in the name of Mam Chand in the said branch of PNB.
6. I have heard Ld. Counsels for both the parties and have gone through the entire record carefully.
Considering the pleadings, issues framed, evidence led and arguments addressed by both the parties, my issuewise finding is as CS No. 111/10 Page 19 of 33 under : ISSUE Nos. (i), (iii) & (iv) :
(i) Whether the plaintiff is an owner of the suit premises as alleged in para no. 1 of the plaint? OPP.
(iii)Whether the plaintiff is only one of the beneficiary under Hindu Undivided Family Law as alleged in preliminary objection no. 1 in the WS? OPD.
iv) Whether the suit premises and other properties were purchased by the father of the defendant in the name of the plaintiff only as a part of HUF property, if so to what effect? OPD.
All these issues are interconnected but I take issue no. (i) first as it will effect the determination, adjudication and outcome of other issues too.
The onus to prove issue no. (i) is upon the plaintiff, whereas the onus to prove issues nos. (iii) & (iv) is upon the defendant.
It is alleged in the plaint by the plaintiff that she is an absolute owner of the suit premises, having purchased it from her own earnings which she had been saving from her stitching work. Even in her affidavit in evidence Ex. P1, she has reiterated this fact. She has deposed that she had purchased the suit premises in the year 1997 from Sh. Lekhi Ram for a sum of Rs. 25,000/ and that said Lekhi Ram had executed various documents viz. GPA, SPA, Will, receipt etc. all dated 22.07.1997 in her name and that her CS No. 111/10 Page 20 of 33 husband namely Mam Chand, since deceased, had not contributed a single penny in purchasing of the impugned property. I would like to refer to the depositions of the plaintiff (PW1) wherein she has stated that her father in law as also her husband used to work as peasants/farmers in the land of one baniya person and that her husband used to give the money to his mother and he had married his three sisters and that she (PW1) also used to do the work of stitching to earn her livelihood. It is further deposed by the plaintiff (PW1) that she had a saving account in which she had an amount of Rs. 25,000/, out of which, she had purchased the suit premises from Lekhi Ram.
Now if we examine the deposition of the plaintiff (PW1) she has rather proved her ownership of the impugned property from the documents on record i.e. Ex. PW1/A to PW1/D viz. the title documents showing her to be an owner of the suit premises. Now the learned Counsel for the defendant has challenged the title of the plaintiff alleging interalia that the documents so filed and proved by the plaintiff do not show that she is an owner of the suit premises. Learned Counsel for the defendant further argued that the documents Exs. PW1/A to PW1/D viz. the GPA, SPA, Will and receipt though give certain powers to the plaintiff to execute certain documents or to do certain acts on behalf of the executor, but do not make her an absolute owner of the CS No. 111/10 Page 21 of 33 suit premises and as such she has no right to file a suit for possession. The defendant further argued that per Section 67 of the Indian Evidence Act, the documents can only be proved either by the maker i.e. the person who has signed such documents or by the person in whose presence the same is written. It is further argued by the defendant that the documents Exs. PW1/A to PW1/D were got executed by one Sh. Lakhi Ram who has not been produced by the plaintiff in the witness box. It is further argued that though such documents are registered documents under the Indian Registration Act, but the concerned Sub Registrar was never summoned by the plaintiff for proving such documents. It is further argued by the defendant that there cannot be any presumption with regard to the Power of Attorney, per Section 85 of the Indian Evidence Act.
Though the learned Counsel for the defendant has disputed the title of the plaintiff in respect of the suit premises, but this argument is wholly contrary to the defence he has taken in his written statement. In the written statement, the defendant has taken a defence that the suit premises was rather purchased in the name of his mother/plaintiff, but it was a HUF property. Now where the defendant himself had admitted in his pleading that the suit premises was purchased in the name of his mother i.e. the plaintiff, then can he later change his own version to the prejudice of the CS No. 111/10 Page 22 of 33 plaintiff. Had his defence being that the plaintiff is not an owner of the suit premises, then, of course, the plaintiff could have proved her title documents either by calling the original owner or the record clerk from the Sub Registrar's office for proving the due execution of her title documents. Moreso at the time of exhibition of such documents Exs. PW1/A to PW1/D, no objection qua the mode of proof was ever raised by the defendant. Now can the defendant, at this stage of argument, take the plaintiff by surprise or argue to her prejudice. The answer is certainly 'no' per "Shalimar Chemicals Works Ltd. vs. Surendra Oil & Dal Mills (Refineries) & Ors., Civil Appeal No. 52/2005, wherein it has been held by the Hon'ble Supreme Court that if at the time of proving of any legal/admissible document a party fail to raise any objection qua the mode of proof, then such party is estopped from raising it later.
It is a settled preposition of law that objection qua the legality of the documents can though be taken at any stage, but once the document is legal and the objection qua the mode of proof is not raised at the time of its proving or exhibition, then opposite party is debarred from raising it to the prejudice of the other at a later stage as it takes away an opportunity of the other to correct its mistake, if any. Hence, the defendant now cannot be allowed to challenge the mode of proof of such title documents.
Now at this stage, the learned Counsel for the defendant CS No. 111/10 Page 23 of 33 has referred to "Gela Ram vs Brahm Pal & Ors.", RSA NO. 90/2006 decided on 25.04.2011 by the Hon'ble High Court of Delhi, wherein one of the issues was as to whether on the basis of GPA, receipt and agreement to sell, the plaintiff has become an owner of the suit property and the court held that such documents do not transfer the title.
With respect, I have gone through the Judgment cited by the defendant.. The facts in the cited case are entirely different. In the cited case, the defendant had challenged the lawful title of the suit property and even a receipt Ex. P3 did not mention the consideration to be sale consideration, but whereas in the present case, the ownership of the plaintiff has been admitted by the defendant in his pleadings and even the receipt Ex. PW1/D shows sales consideration. More so, Section 58 of the Indian Evidence Act says that the facts admitted need not be proved. Thus once the defendant has admitted the ownership of the suit premises in the name of the plaintiff, he cannot later reagitate it.
The fact as to if such documents transfer the ownership or not, the defendant himself has not be able to prove that such GPA was ever revoked by Lakhi Ram, the erstwhile owner. Thus in view of my above reasoning, I hold that the plaintiff is an absolute owner of the suit premises which she had purchased from her own earning and the property has been assessed CS No. 111/10 Page 24 of 33 in her name. The plea of the defendant that since the plaintiff is neither the witness nor the executor of the documents Exs. PW1/A to PW1/D so she cannot prove the said documents, is also without any basis, as observed by me earlier. Hence, issue no. (i) is decided in favour of the plaintiff and against the defendant. Now I come to issue nos. (iii) & (iv). The defendant has alleged in his written statement as also in his affidavit in evidence Ex. DW1/A that the suit premises is an HUF property and his grandfather Jaman Lal Saini was an agriculturist having various agricultural land at village Dosa, Rajasthan; that he sold the said agricultural lands and came to Delhi and purchased agricultural lands at Delhi; that he died leaving behind his son Mam Chand to be a Karta of HUF and that in lieu of the acquisition of the said agricultural lands his father Mam Chand had received a compensation from the Delhi Government which he had utilized for purchasing various properties either in his own name or in the name of his wife i.e. the plaintiff.
However, admittedly, the defendant does not have any documentary proof of his assertions. The defendant rather has admitted, in his cross examination, that he has no record/document to prove as to if his late grandfather Jaman Lal Saini had any agricultural land at village Dosa, Rajasthan, or that his grandfather sold the said agricultural land and came to Delhi or CS No. 111/10 Page 25 of 33 purchased the agricultural lands at Delhi.
The defendant (DW1) further admitted that he has no proof/document to show that the said agricultural land was ever acquired by the Delhi Government or his father late Mam Chand ever received any compensation in this regard. The defendant further admitted that he has no document to show as to if out of the said compensation, his father Mam Chand had ever purchased various properties either in his name or in the name of his wife/plaintiff. The defendant (DW1) even failed to prove that any HUF ever existed either at the time of his grandfather or during the life time of his father late Mam Chand. DW1 was not able to show any single document, either of any business which his father used to allegedly run as a Karta of HUF or any income tax return wherein his father was ever shown as Karta of any alleged HUF. It is admitted by the defendant (DW1) that whatever assertions he has made, he has no documentary proof to support such contentions and all his assertions are oral assertions. The defendant was not able to show any single document to support his contentions he has raised either in his pleadings or in his deposition. The admissions made by the defendant during his cross examination rather clinches the issue.
The defendant (DW1) has admitted that his father was a proprietor of Saini Stove business and even the plastic dana CS No. 111/10 Page 26 of 33 business was also being run by his father as a proprietor. Thus, the defendant has rather supported the case of the plaintiff when she deposes that whatever properties her husband had purchased, were his self acquired properties.
The admission of the defendant qua the proprietorship business of his father rather goes against him. Further it is an admitted fact not only by the defendant (DW1) but also by his brothers DW2 as also by PW2 that after leaving their college they all separated from their father and started doing their own business. Rather the defendant (DW1) has categorically admitted that all his brothers have their separate kitchen and they bear their own kitchen expenses. The defendant has further admitted that some of his brothers have been doing separate business and whereas some were in job. Since the defendant and his brother (DW2) have not been able to show any document on record with regard to the existence of alleged HUF either in Rajasthan or on migration of their family to Delhi, so simply orally saying that there was an HUF, would be a mere assertion.
On the other hand the plaintiff has proved her income tax returns for the assessment years 200708, 200809 and 200910 wherein she has been shown as an exclusive owner of the suit premises. Thus the entire gamut of evidence before the Court conclusively prove that there never was any HUF as alleged by the CS No. 111/10 Page 27 of 33 defendant nor the suit premises is an HUF property nor the plaintiff is only its beneficiary.
In view of the discussions herein above, the defendant has not been able to prove issue nos. (iii) & (iv), hence, both these issues are decided against the defendant and in favour of the plaintiff.
ISSUE No. (ii) : "Whether this Court has no pecuniary jurisdiction to entertain and try this suit, as alleged in preliminary objection no. 3 in the written statement? OPD".
The onus to prove this issue is upon the defendant Though the defendant has taken an objection that the value of the suit premises is about Rs. 45,00,000/, but he has not seriously challenged this issue during the cross examination of the plaintiff. Rather the defendant has neither brought on record the circle rates of the area which were prevalent at the relevant time nor has suggested to the plaintiff during her cross examination that the value of the suit premises was Rs. 45,00,000/ at the time of filing the present suit.
Even in his evidence, the defendant has not been able to bring on record any document/Notification issued from the Delhi Government to disclose the real value of the suit premises. Even otherwise, as per latest Notification of the Hon'ble High Court of Delhi, now this Court has the jurisdiction to try and entertain the CS No. 111/10 Page 28 of 33 cases wherein the value of the properties are worth Rs. 2,00,00,000/. Moreso, the plaintiff has valued the premises at Rs. 8,00,000/, having purchased it for Rs. 25,000/ and she has proved the same vide documents Exs. PW1/A to PW1/D. She has further deposed that the value of the property may be Rs. 6,00,000/. Hence, this issue is also decided against the defendant and in favour of the plaintiff.
ISSUE No. (v) :
"Whether the plaintiff is entitle to decree of possession, as prayed? OPP."
The onus to prove this issue is upon the plaintiff. Since I have held the plaintiff to be an owner of the suit premises and since it is admitted by the defendant in his cross examination that he came in possession of the suit premises only in the year 2005 and since the defendant also admits that he is not paying any rent of the suit premises and claims to be in possession being one of the coparceners of HUF, which has been held to be not in existence, so the status of the defendant in the suit premises is nothing but of a mere licensee, which license has already been revoked by a notice Ex. PW1/H as also by filing this suit. Hence, the plaintiff is entitle to a decree of possession of the suit premises and accordingly the defendant is directed to vacate the suit premises within 30 days from the date of this Judgment. This issue is accordingly decided in favour of the plaintiff and against the CS No. 111/10 Page 29 of 33 defendant.
ISSUE No. (vi) :
"Whether the plaintiff is entitled to a decree of permanent injunction, as prayed? OPP.
The onus to prove this issue is upon the plaintiff. Since I have held the plaintiff to be an owner of the premises in question and since the defendant is held to be a mere licensee, so the defendant, his family members, assignees, successors etc., are hereby restrained from creating any third party interest in the suit premises shown as red in the site plan Ex. PW1/E or parting with the possession of the said premises. This issue accordingly is also decided in favour of the plaintiff and against the defendant.
ISSUE No. (vii) :
"Whether the plaintiff is entitle to a decree of mandatory injunction, as prayed? OPP".
The onus to prove this issue is upon the plaintiff. In view of my findings on the above issues, the plaintiff is also entitle to a decree of mandatory injunction and hence, the defendant, his legal heirs, representatives, officials, employees, servants etc. are directed to remove their goods and to handover the vacant and peaceful possession of the suit premises to the plaintiff. Addl. issues : (A) Whether the plaintiff is entitle to mesne profits/damages @ Rs. 10,000/ per month, as prayed in prayer clause no. (d) of the plait? OPP.
CS No. 111/10 Page 30 of 33(B) Whether the plaintiff is entitle to interest on the mesne profits/damages, if so, then at what rate? OPP.
Both these issues are being taken up together as both are connected with each other.
The onus to prove both these issues is upon the plaintiff. The plaintiff has claimed the mesne profits/damages @ Rs. 10,000/ per month and in support of this contention, she has examined one witness namely Sh. Ravi i.e. a Data Entry Operator from the O/o Sub Registrar VIC, Rohini, Delhi, who appeared in the witness box as PW3 and proved two documents viz. certified copy of lease deed dated 25.08.2009 as Ex. PW3/1 and certified copy of lease deed dated 18.02.2011 as Ex. PW3/2. Both these lease deeds are in respect of similarly located premises in the said area and if one look at the rental, the lease deed Ex. PW3/1 shows the rental of 700 square feet (carpet area) as Rs. 11,000/ per month and whereas lease deed Ex. PW3/2 shows the rental of carpet area of 800 sq. feet to be Rs. 38,000/ per month. The premises as described in the lease deeds Exs. PW3/1 and PW3/2 are the commercial premises and it is an admitted fact that the defendant is also using the impugned premises for commercial as well as for residential purposes. Thus taking into consideration the overall scenario and also the relations between the parties, prevailing rent etc., I feel that the mesne profits/damages to the extent of Rs. 7500/ per month w.e.f. date of filing of the suit till the date of decree along with CS No. 111/10 Page 31 of 33 simple interest @ 9% per annum on the arrears, would serve the purpose. However, the defendant shall pay the damages @ Rs. 10,000/ per month w.e.f. the date of judgment till the handing over of the possession of the suit premises to the plaintiff as the rental has increased manifold in Delhi since the day the suit was filed. Both these issues are decided accordingly.
RELIEF :
In view of my aforesaid discussions, the following reliefs are hereby granted to the plaintiff against the defendant :
(a) a decree for possession in favour of the plaintiff and against the defendant in respect of the premises bearing Khasra No. 47/18, Plot No. SI/62, Village Poothkalan, Budh Vihar, PhaseI, Delhi, more specifically shown in red colour in the site plan Ex. PW1/E, thereby directing the defendant to hand over the vacant and peaceful possession of the same to the plaintiff within 30 days from the date of passing of this judgment;
(b) a decree of permanent injunction in respect of the suit premises in favour of the plaintiff and against the defendant is also passed thereby restraining the defendant, his agents, servants, employees and any other person acting and working on behalf of the defendant, from parting with the possession of the suit premises, as shown in red colour in the site plan Ex. PW1/E, to anyone else than the plaintiff herself;CS No. 111/10 Page 32 of 33
(c) a decree for mandatory injunction is also passed in favour of the plaintiff and against the defendant thereby directing the defendant, his legal heirs, representatives, officials, employees, servants etc. to remove his goods, if any, lying in the suit premises.
(d) a decree qua mesne profis/damages @ Rs. 7500/ per month w.e.f. date of filing of the present suit till the date of this Judgment and further @ Rs. 10,000/ per month from the date of this Judgment till the handing over of the actual vacant and physical possession of the premises in question is also passed in favour of the plaintiff and against the defendant; the plaintiff shall pay the court fees on such mesne profits/damages within a month from today;
(e) the plaintiff is also held entitled to recover simple interest @ 9% per annum on the arrears of rent from the date of filing of the present suit till the realization of the decretal amount, with a further direction to deposit the appropriate court fees for the amount so decreed/recovered, within a month from today;
(f) the cost of the suit is also awarded to the plaintiff.
The defendant is thus granted 30 days time to vacate the suit premises from the date of this Judgment/Decree and till such time, the decree be not executed. Decree sheet be drawn accordingly and file be consigned to Record Room.
Announced in the open Court (YOGESH KHANNA)
today i.e. 23.09.2016 Distt. & Sessions Judge (N/W)
Rohini Courts, Delhi
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