Delhi District Court
Sh. Kishori Lal vs Smt. Komal on 20 September, 2011
IN THE COURT OF CIVIL JUDGE05 (SOUTH), SAKET
COURTS, NEW DELHI
Presided by: Ms. Manika
CS No. 255/10
Unique Case ID No. 02406C0463342010
1. Sh. Kishori Lal
S/o Late Sh. Sugariya Ram
2. Smt. Mangi Devi
W/o Sh. Kishori Lal
Both r/o A328, 29, 30,
Dr. Ambedkar Nagar,
Khanpur Colony, Khanpur,
New Delhi110062. ...PLAINTIFFS
VERSUS
Smt. Komal
W/o Laxmi Narayan
D/o Laxman Ram
Civil Suit No. 225/10 Page 1 of 35
R/o A370B, New Ranjeet Nagar,
Near Patel Nagar,
New Delhi. ...DEFENDANT
Date of institution : 03.06.2009
Date of reserving : 13.09.2011
Date of pronouncement : 20.09.2011
JUDGMENT
1. This judgment disposes off the plaintiff's suit for possession, mesne profits and permanent injunction with the following prayer:
"...
a. Suit of Plaintiffs for recovery of possession may kindly be decreed in their favour and against Defendant in respect of one room, one kitchen and toilet situated at 3rd floor of joint buildup property bearing No.A328,29,30 Dr. Ambedkar Nagar, Khanpur Colony, Khanpur, New Delhi as shown in red colour in the site plan annexed herewith.
b. The Defendant may kindly be directed to pay to the Plaintiffs a sum of Rs.50,000/ till May 2009 and Rs.2,500/ per month for use and occupation being unauthorized occupant during pendency of suit and till recovery possession of the suit property. c. The Defendant may kindly be restrained from creating any hindrance/obstacle in peaceful enjoyment of Civil Suit No. 225/10 Page 2 of 35 property which are under use & occupation of Plaintiffs and also from transferring, alienating or parting with the possession of property in dispute or any other person. d. Cost of the suit may also be awarded to the Plaintiffs and against the Defendant.
e. The Plaintiffs may kindly be granted to any other or further relief to which they found entitled during facts and circumstances of the case in the interest of justice."
FACTS
2. The facts, as pleaded in the plaint, are that the plaintiffs are husband and wife and are owners of joint built up property bearing No. A328, 329, 330, Dr. Ambedkar Nagar, Khanpur Colony, Khanpur, New Delhi110062 (hereinafter referred to as 'joint builtup property') consisting of ground floor, first floor, second floor and third floor. The defendant is the daughterinlaw of the plaintiffs being the wife of their son Sh. Laxmi Narayan. After her marriage on 13.02.2005, the defendant together with her husband started residing in one room, kitchen and toilet situated at third floor (hereinafter referred to as the 'suit property') of the joint builtup property as shown in red in the site plan. However, after some time the defendant and her husband failed to adjust or cooperate with the plaintiffs. Due to the quarrelsome behaviour of the defendant, the plaintiffs disinherited the defendant, her husband and the daughter of the couple from all their Civil Suit No. 225/10 Page 3 of 35 movable and immovable property and severed all relations with them vide notice published in the newspaper 'Dainik Jagran' on 14.10.2007. Thereafter, while the defendant's husband left the suit property and started residing at a rented accommodation at EII/222, Madangir, New Delhi, the defendant, however, refused to vacate the suit property. Since the defendant used to abuse, beat, quarrel and misbehave with the plaintiffs and threatened them with dire consequences in case they ever asked her to vacate the suit property, the plaintiffs made various complaints, including one dated 04.04.2009, to the police but in vain. After the complaint dated 04.04.2009, the defendant locked the suit property and left for her parental house. However, on 16.05.2009, she visited the suit property, started beating and quarreling with the plaintiffs and threatened to implicate them in a false criminal case. The defendant took 34 big bags of clothes and locked the suit property deliberately leaving behind her household articles in order to retain possession. On 20.05.2009, the defendant came to the suit property along with some unknown person to show the suit property in an attempt to let out the same to them. Despite several requests of the plaintiffs, the defendant has not vacated the suit property and is, therefore, liable to pay damages for unauthorized use and occupation Civil Suit No. 225/10 Page 4 of 35 of the suit property at the rate of Rs.2,500/ per month from 14.10.2007 till the handing over of peaceful physical possession.
3. The defendant has contested the suit by filing written statement. She has raised preliminary objections that the plaintiff has not approached the Court with clean hands and has suppressed material facts; that the suit is not maintainable for nonjoinder of necessary parties; and that the suit is without any cause of action. On merits, the defendant has denied that the plaintiffs are owners of the joint builtup property. It is contended that the defendant is in lawful possession of the suit property. She has denied that she ever abused, beat or misbehaved with the plaintiffs or threatened them. Instead, she has alleged that the plaintiffs as well as the defendant's husband treated her with cruelty and demanded dowry. It is alleged that it was when the defendant resisted the same and made a written complaint against the plaintiffs and her husband before the CAW Cell on 21.06.2007, that in order to save themselves the plaintiffs concocted the story of disowning their son along with the defendant and her daughter. She has contended that the plaintiffs have not severed relations with the defendant's husband, who is still residing in the suit property along with the plaintiffs. She has denied that she had locked the suit Civil Suit No. 225/10 Page 5 of 35 property as alleged by the plaintiffs. She has denied that she visited the suit property on 16.05.2009 and beat or quarrelled with the plaintiffs or threatened to implicate them in a criminal case. She has denied the incident of 20.05.2009 as alleged in paragraph 12 of the plaint. The defendant has asserted that being the wife of the son of the plaintiffs, she has every right, title and interest in the suit property and is not a trespasser or unauthorized occupant as alleged.
4. The plaintiff has filed replication to the written statement reiterating the contents of the plaint and traversing the averments made by the defendant in her written statement. COURT PROCEEDINGS
5. The plaintiffs' application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure was allowed vide order dated 19.05.2010 passed by the learned predecessor of this Court on the basis of the defendant's statement, whereby she undertook not to create any obstacle in the peaceful enjoyment of the property under use of the plaintiffs and not to transfer, alienate or part with the possession of the property in dispute to any other person till disposal of the suit.
6. The suit was received by way of transfer by this Court on Civil Suit No. 225/10 Page 6 of 35 26.10.2010.
ISSUES
7. The following issues were framed vide order dated 07.09.2010 passed by the learned predecessor of this Court: "1. Whether plaintiffs are not the owners of the suit property?OPD.
2. Whether the plaintiffs are entitled to decree of possession in respect of the portion mentioned in para 'a' of prayer clause, of suit property? OPP.
3. Whether the plaintiffs are entitled to mesne profits/arrears as prayed in para 'b of prayer clause?OPP.
4. Whether plaintiffs are entitled to relief of injunction as prayed in para 'c' of prayer clause? OPP.
5. Relief."
PLAINTIFF'S EVIDENCE
8. In support of their case, the plaintiffs examined as many as four witnesses. PW1, Sh. Kishori Lal, deposed in line with the plaint and relied on copy of the maafinama Ex.PW1/A, copy of voter identity card Ex.PW1/B1, copy of DDA receipt dated 13.11.1980 in respect of the property bearing No. A329, Dr. Ambedkar Nagar, Khanpur Colony, Khanpur, New Delhi110062 Ex.PW1/B2, copy of MCD receipt dated 16.09.1998 in respect of the aforesaid property Civil Suit No. 225/10 Page 7 of 35 Ex.PW1/B3, copy of MCD receipt dated 04.10.1998 in respect of the aforesaid property Ex.PW1/B4, copy of DDA receipt dated 17.11.1980 in respect of the property bearing No. A330, Khanpur Ex.PW1/C1, copy of general power of attorney in respect of property No. A330, Dr. Ambedkar Nagar, Khanpur Colony, Khanpur, New Delhi110062 Ex.PW1/C2, copy of agreement to sell and purchase in respect of the aforesaid property Ex.PW1/C3, copy of affidavit in respect of property No. A330 Ex.PW1/C4, copy of Will in respect of the aforesaid property Ex.PW1/C5, copy of possession letter in respect of the aforesaid property Ex.PW1/C6, copy of receipt in respect of the aforesaid property Ex.PW1/C7, copy of ration card of the seller Ex.PW1/C8, site plan Ex.PW1/D, copy of cutting of newspaper 'Dainik Jagran' dated 14.10.2007 Ex.PW1/E, copy of FIR No. 840/07 under Section 498A/406/34 IPC, PS: Ambedkar Nagar Ex.PW1/F, copies of complaints dated 26.12.2007, 14.01.2008, 17.01.2008, 18.01.2008, 22.01.2008, 03.08.2008, 05.09.2008 (along with postal receipt to Deputy Commissioner of Police, South District), 05.09.2008 (along with postal receipt to Commissioner of Police), 05.09.2008 (along with postal receipt to Lieutenant Governor), 05.09.2008 (along with postal receipt to SHO PS Ambedkar Nagar) and 04.04.2009 Civil Suit No. 225/10 Page 8 of 35 (along with original postal receipts), all made by the plaintiff No.1, Ex.PW1/G1 to Ex.PW1/G11 respectively, certified copy of complaint under Domestic Violence Act Ex.PW1/H1, certified copy of order dated 24.04.2009 passed by the Court of Ms. Surya Malik Grover, learned Metropolitan Magistrate, Delhi along with documents Ex.PW1/H2 to Ex.PW1/H4 and copy of statement of the defendant dated 16.05.2009 to ASI Babu Ram, PS: Neb Sarai MarkedI.
9. PW2, Smt. Mangi Devi, also deposed in line with the plaint. She relied on her voter identity card Ex.PW2/1, copy of agreement to sell dated 17.12.2007 in respect of property bearing No. A328, Dr. Ambedkar Nagar, Khanpur Colony, Khanpur, New Delhi110062 Ex.PW2/2, copy of general power of attorney dated 17.12.2007 in respect of the aforesaid property Ex.PW2/3 and copy of DDA receipt dated 02.03.1994 in respect of the aforesaid property Ex.PW2/4.
10. PW3, Sh. Hanuman, neighbour of the plaintiffs, deposed that the defendant and her husband failed to adjust/cooperate with the plaintiffs and used to quarrel with them on account of which the plaintiffs disowned the defendant, her husband and their daughter from all their movable and immovable property by way of publication in newspaper and severed all ties with them. He deposed that since Civil Suit No. 225/10 Page 9 of 35 2007 the defendant is residing separately from the plaintiffs and is not residing with her husband. He further testified that the defendant is forcefully residing at the suit property. She also supported the testimony of the plaintiffs PW1 and PW2 as regards the incident of 16.05.2009 and testified that on the said day he interrupted the defendant, who misbehaved with him too. He relied on the statement of the defendant MarkedI.
11. PW4, Smt. Kanta, daughterinlaw of the plaintiffs, deposed that the the plaintiffs are owners of and reside at the joint builtup property. She stated that the defendant is residing separately from the plaintiffs and her since 2007 and that the defendant is not residing with her husband and is residing forcefully at the suit property. She supported the testimony of PW1 and PW2 with regard to the incident dated 16.05.2009. She relied on the statement of the defendant MarkedI. DEFENDANT'S EVIDENCE
12. The defendant in support of her case only examined herself as DW1. She deposed that after her marriage, she used to reside along with her husband in the shared household at the joint builtup Civil Suit No. 225/10 Page 10 of 35 property. She stated that the suit property i.e. one room along with latrine and kitchen at the third floor, was especially given to her and her husband by the plaintiffs, who had also given one room set to their sons and daughterinlaw in the same house. She testified that after her marriage, her husband as well as the plaintiffs started demanding a Santro Car and Rs.1,00,000/ in cash as extra dowry, and since their demands could not be fulfilled by her parents, they started to harass the defendant. DW1 stated that the plaintiffs in collusion with her husband merely pretended to have debarred the defendant's husband from their property. She further deposed that her husband is, however, still residing with the plaintiffs and is maintaining relations with them. DW1 deposed that the plaintiffs disconnected the electricity and water supply to the suit property to compel her to vacate the same. She also testified that the plaintiffs have locked the outer entrance of the staircase of the third floor and that they are not allowing her to enter the suit property. She has stated that her household articles i.e. fridge, double bed, T.V., C.D. player, sofa set, washing machine, almirah, table, sewing machine, cooler, gas cylinder and utensils are lying in the suit property. She denied having tortured, harassed or quarrelled with the plaintiffs and her husband. She deposed that the plaintiffs Civil Suit No. 225/10 Page 11 of 35 have on various occasions harassed and tortured her. DW1 stated that she is not an unauthorized occupant in the suit property, which is her matrimonial home having been given to her and her husband to reside therein.
FINDINGS
13. The record has been carefully perused. The respective submissions of Sh. Ajay Kumar, Advocate, learned counsel for the plaintiffs, and Sh. Zubair Ahmed Khan, Advocate, learned counsel for the defendant have been considered.
14. The issuewise findings are as under: Issue No.1: Whether plaintiffs are not the owners of the suit property?
15. The onus of proof qua this issue was on the defendant. However, while addressing final arguments, learned counsel for the defendant did not press this issue.
Issue No.2: Whether the plaintiffs are entitled to decree of possession in respect of the portion, mentioned in para 'a' of Civil Suit No. 225/10 Page 12 of 35 prayer clause, of suit property?
16. The onus of proof with respect to this issue was on the plaintiff.
17. Re: Ownership of the suit property A. PW1, in his affidavit Ex.PW1, which was tendered in evidence, deposed that he and his wife (plaintiff No.2) are the lawful owners of the joint builtup property as the property bearing No. A329 was allotted to him by the Delhi Development Authority under Jhuggi Jhopri Removal Scheme, property bearing No. A330 was purchased by him and property bearing No. A328 was purchased by the plaintiff No.2.
B. As proof of ownership of the property bearing No. A329, Dr. Ambedkar Nagar, Khanpur Colony, Khanpur, New Delhi110062, PW1 relied upon the copy of the DDA receipt Ex.PW1/B2 and copy of MCD receipts Ex.PW1/B3 and Ex.PW1/B4. Firstly, the said documents merely reflect payment of certain charges and are not documents of title. Secondly, the same have not been duly proved as the originals thereof were not Civil Suit No. 225/10 Page 13 of 35 produced.
C. As proof of ownership of the property bearing No.A330, Dr. Ambedkar Nagar, Khanpur Colony, Khanpur, New Delhi110062, PW1 relied upon the copy of DDA receipt Ex.PW1/C1, copy of general power of attorney Ex.PW1/C2, copy of agreement to sell Ex.PW1/C3, copy of affidavit Ex.PW1/C4, copy of Will Ex.PW1/C5, copy of possession letter Ex.PW1/C6 and copy of receipt Ex.PW1/C7. The document Ex.PW1/C1 is a mere receipt in respect of payment of certain charges and is, therefore, not a document of title. The documents Ex.PW1/C2 to Ex.PW1/C7 are notarized, however, unregistered documents and, therefore, in view of Section 54 of the Transfer of Property Act, 1882, do not result in the transfer of any right, title or interest in the property in question in favour of the plaintiff No.1. Moreover, the documents Ex.PW1/C1 to Ex.PW1/C7 have not been duly proved for want of the originals thereof having been produced.
D. In her affidavit Ex.PW2 tendered in evidence, PW2 Civil Suit No. 225/10 Page 14 of 35 testified that she and her husband (plaintiff No.1) are lawful owners of the joint builtup property as property No. A328 was purchased by her from Smt. Tarawati, property No. A329 was alloted to her husband by the DDA under Jhuggi Jhopri Removal Scheme and property No. A330 was purchased by her husband.
E. In proof of her ownership of the property bearing No. A328, Dr. Ambedkar Nagar, Khanpur Colony, Khanpur, New Delhi110062, PW2 relied upon copy of agreement to sell Ex.PW2/2, copy of general power of attorney Ex.PW2/3 and copy of DDA receipt Ex.PW2/4. The document Ex.PW2/4 is a mere receipt issued by the DDA in respect of payment of licence fee by Smt. Tarawati and is, therefore, not a document of title in favour of the plaintiff No.2. The documents Ex.PW2/2 and Ex.PW2/3 are notarized, however, unregistered documents and, therefore, in view of Section 54 of the Transfer of Property Act, 1882, do not result in the transfer of any right, title or interest in the property in question in favour of the plaintiff No.2. Moreover, the Civil Suit No. 225/10 Page 15 of 35 documents Ex.PW2/2 to Ex.PW2/4 have not been duly proved for want of the originals thereof having been produced.
F. Thus, the plaintiffs have not sufficiently proved the documents filed in support of their claim of ownership of the joint builtup property. However, although in paragraphs 2, 6 and 11 of the parawise reply in her written statement, the defendant has disputed the ownership of the plaintiffs qua the joint builtup property, in the crossexamination of PW1 and PW2, their claim as to ownership of joint builtup property has not been questioned. Rather, in the crossexamination dated 21.02.2011 of PW1, while PW1 had stated that in total he and his wife are owners of property admeasuring 75 sq. yards comprising of A328, A329 and A330, a suggestion was put to him that he is owner of property admeasuring 200 sq. yards. The defendant has failed to even make a single suggestion to PW1 and PW2 that they were not owners of the joint builtup property. Thus, the testimonies of PW1 and PW2 to the extent that they Civil Suit No. 225/10 Page 16 of 35 are owners of the joint builtup property has gone unrebutted and unchallenged.
G. Further, even in her affidavit Ex.DW1/A, the defendant/DW1 has not denied that the plaintiffs are owners of the joint builtup property. Although during her crossexamination, no suggestion as to the plaintiffs being owners of the aforesaid property was made to DW1, upon being asked as to who was the owner thereof, she merely stated, "I do not know as to who is the owner of the property bearing No. A328329330, Dr. Ambedkar Nagar, Khanpur, New Delhi.". She did not even volunteer that the plaintiffs were not the owners thereof.
H. Although the documents relied upon by the plaintiffs as proof of ownership of the joint builtup property have not been duly proved and do not qualify to be called documents of title, in view of the fact that the testimony of PW1 and PW2 to the extent of their claim of ownership of the joint builtup property has remained unchallenged and the said claim has also not been denied Civil Suit No. 225/10 Page 17 of 35 by DW1 in her examination, the said claim is deemed to have been admitted by the defendant.
I. The suit property is admittedly a part of the joint builtup property and, therefore, the claim of ownership of the plaintiffs qua the suit property is also deemed to have been admitted by the defendant.
J. Further, while addressing final arguments, learned counsel for the defendant did not press issue No.1 stating that the defendant does not dispute the plaintiffs' title qua the suit property.
18. Re: Right of the defendant to remain in possession A. The factum of ownership of the plaintiffs qua the suit property having been admitted by the defendant, the only question that remains for adjudication of the present issue is as to whether the defendant has any right to continue in possession of the suit property.
B. The crux of the defence taken by the defendant is that the suit property is her matrimonial home and, therefore, she has every right to reside therein. Per contra, the plaintiffs Civil Suit No. 225/10 Page 18 of 35 have contended that the defendant and her husband having been disowned by the plaintiffs, the defendant has no right to reside in or retain possession of the suit property, which exclusively belongs to the plaintiffs. C. The plaintiffs have alleged that on account of the quarrelsome behaviour of the defendant and her husband, the plaintiffs debarred the defendant, her husband and their daughter from all their immovable and movable property. In support thereof, the plaintiffs have relied upon copy of an extract of a newspaper purporting to contain the public notice issued by the plaintiff No.1 as Ex.PW1/E, which has not been proved for want of the original issue of the newspaper having been produced. However, while, in paragraph 5 of the parawise reply in her written statement, the defendant has alleged that the act of debarring the defendant and her husband and daughter was a mere eyewash, she has not disputed that the plaintiffs did issue a public notice debarring her and her husband from all their properties.
D. It is the defendant's case that her husband namely Civil Suit No. 225/10 Page 19 of 35 Sh. Laxmi Narayan is still residing along with the plaintiffs and is maintaining relations with them. While in paragraphs 5 and 6 of the parawise reply in her written statement, the defendant has stated that her husband is still residing in the suit property, in paragraph 5 of her affidavit Ex.DW1/A, the defendant/DW1 has merely stated, "In fact, my husband is still residing with the plaintiff Nos.1 and 2 and they are still maintaining their relations amongst them.", without specifying as to whether he is residing in the suit property, in the remaining portion of the joint builtup property or in some other property. Rather, in her crossexamination, DW1 has admitted that on 16.05.2009 she left the suit property after locking the same. Thus, since the suit property is admittedly lying locked, the defendant's claim in the written statement that her husband is still residing there is falsified.
E. The plaintiffs have, on the other hand, claimed that the defendant's husband is residing in a rented accommodation at EII/222, Madangir, New Delhi. PW1 Civil Suit No. 225/10 Page 20 of 35 and PW2 have deposed to the aforesaid effect in paragraphs 6 of their respective affidavits in evidence. Although a suggestion was made to PW1 that he continues to economically support the husband of the defendant, the testimonies of PW1 and PW2 to the effect that the defendant's husband is residing in the aforesaid rented accommodation have not been challenged in their crossexamination. Thus, it stands proved that the husband of the defendant is neither residing in the suit property nor in the remaining portion of the joint builtup property and rather resides in a rented accommodation i.e. EII/222, Madangir, New Delhi.
F. In paragraphs 6 of their respective affidavits, PW1 and PW2 have categorically stated that after the publication dated 14.10.2007 and registration of FIR No. 840/07 under Section 498A/406/34 Indian Penal Code PS: Ambedkar Nagar upon the complaint of the defendant, while the defendant's husband left the suit property permanently and started residing at the aforesaid Civil Suit No. 225/10 Page 21 of 35 rented accommodation, the defendant, however, refused to vacate the suit property. Their testimonies to the aforesaid effect have also remained unrebutted. Thus, it stands proved that despite the fact that her husband had shifted out of the suit property, the defendant did not join him in the rented accommodation and continued to reside at the suit property.
G. In her crossexamination, DW1 has admitted that on 16.05.2009 she locked the suit property and left after taking away the clothes of her daughter and herself. In paragraphs 6 and 7 of her affidavit Ex.DW1/A, the defendant has stated that the plaintiffs compelled her to leave the suit property by disconnecting the electricity and water supply to the suit property and that they have also locked the outer entrance of the staircase to the third floor not allowing the defendant to enter the suit property. The said stand of the defendant is clearly an afterthought as she never made a whisper in that regard in her written statement. The same cannot be looked into being beyond her pleading.
Civil Suit No. 225/10 Page 22 of 35 H. It is in the aforesaid context that this Court shall examine the defence that the suit property is the matrimonial home of the defendant, who is, therefore, entitled to reside therein. The concept of "matrimonial home" has been elucidated in various judgments of the Hon'ble Supreme Court of India as well as the Hon'ble High Court of Delhi. 'Matrimonial home' refers to a place, which is used for dwelling of both husband and wife, or a place, which was being used by the husband and wife as the family residence and is not necessarily the house of the parents of the husband; it is a household that a woman shares with her husband whether it is rented, officially provided or owned by the plaintiff or his relatives. I. In S.R. Batra and Anr. v. Taruna Batra (Smt.), (2007) 3 SCC 169 it has been held as under: "17. There is no such law in India like the British Matrimonial Homes Act, 1967, and in any case, the rights which may be available under any law can only be as against the husband and not against the fatherinlaw or motherinlaw.
18. Here, the house in question belongs to Civil Suit No. 225/10 Page 23 of 35 the motherinlaw of Smt Taruna Batra and it does not belong to her husband Amit Batra.
Hence, Smt Taruna Batra cannot claim any right to live in the said house.
...
24. Learned counsel for the respondent Smt Taruna Batra stated that the definition of shared household includes a household where the person aggrieved lives or at any stage had lived in a domestic relationship. He contended that since admittedly the respondent had lived in the property in question in the past, hence the said property is her shared household.
25. We cannot agree with this submission.
26. If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband's father, husband's paternal grandparents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces, etc. If the interpretation canvassed by the learned counsel for the respondent is accepted, all these houses of the husband's relatives will be shared households and the wife can well insist in living in all these houses of her husband's relatives merely because she had Civil Suit No. 225/10 Page 24 of 35 stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd.
...
29. ... in our opinion the wife is only entitled to claim a right to residence in a shared household, and a shared household would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member."
J. Though the aforesaid observations were made by the Hon'ble Apex Court in the context of the Protection of Women from Domestic Violence Act, 2005, the same hold good in cases like the present one as well, where the issue that directly arises is the right of a daughterinlaw in the property of the parentsinlaw. In the instant case, the suit property being neither a property owned by the defendant's husband nor one taken on rent by him nor one belonging to a joint family of which the defendant's husband is a member, cannot be termed as a 'shared household' qua which the defendant may claim a right to residence.
Civil Suit No. 225/10 Page 25 of 35 K. The Hon'ble High Court of Delhi in Shumita Didi Sandhu v. Sanjay Singh Sandhu & Ors., 2007 (96) DRJ 697, it was held as under:
"9. There is no dispute that the suit property belongs to the defendant Nos.2 and 3. The plaintiff's husband, namely, the defendant No. 1 has no share and/or interest in the same. ... The question for prima facie consideration is as to whether the plaintiff has any right to stay in the suit property in which her husband has no right, interest or share and belongs to her fatherinlaw and motherinlaw. Incidental question for determination is as to whether it could be treated as matrimonial home of the plaintiff?
...
18. Legal position which emerges is that the husband has legal and moral obligation to provide residence to his wife. Therefore, wife can claim right of residence against her husband. If the house in question where she lived after marriage belongs to her husband, it would certainly be treated as matrimonial home. Likewise, if the house in question belongs to HUF in which her husband is a coparcener, even that can be termed as matrimonial house. However, where the house belongs to parentsinlaw in which Civil Suit No. 225/10 Page 26 of 35 husband has no right, title or interest and they had allowed their son along with daughterinlaw to stay in the said house, it would be a permissive possession by the daughterinlaw but would not give any right to her to stay in the said house. What would be the position if there is no dispute between the husband and wife but the parents of the husband do not want their son and son's wife to stay in the said house for certain reasons. Obviously, their son, who is only a permissive licencee and staying in the house with his wife cannot claim legal right therein. If son cannot claim any such right against his parents to stay in a house which belongs to his parents, his wife obviously would also have no case to claim such a right. ..." (emphasis supplied) L. In Neetu Mittal v. Kanta Mittal & Ors., 2008 (106) DRJ 623 it was observed as under: "8. ... However, phrase "Matrimonial home"
refers to the place which is dwelling house used by the parties, i.e. husband and wife or a place which was being used by husband and wife as the family residence.
Matrimonial home is not necessarily the house of the parents of the husband. In fact the parents of the husband may allow him to live with them so long as their relations Civil Suit No. 225/10 Page 27 of 35 with the son (husband) are cordial and full of love and affection. But if the relations of the son or daughterinlaw with the parents of husband turn sour and are not cordial, the parents can turn them out of their house. The son can live in the house of parents as a matter of right only if the house is an ancestral house in which the son has a share and and he can enforce the partition. Where the house is selfacquired house of the parents, son, whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow. Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout the life.
9. ... There is no legal liability on the parents to continue to support a disobedient son or a son which becomes liability on them or a son who disrespects or disregards them or becomes a source of nuisance for them or trouble for them. The parents can always forsake such a son and daughterinlaw and tell them to leave their house and lead their own life and let them live in peace. It is because of love, affection, mutual trust, respect and support that Civil Suit No. 225/10 Page 28 of 35 members of a joint family gain from each other that the parents keep supporting their sons and families of sons. In turn, the parents get equal support, love, affection and care. Where this mutual relationship of love, care, trust and support goes, the parents cannot be forced to keep a son or daughter in law with them nor there is any statutory provision which compels parents to suffer because of the acts of residence and his son or daughter in law. A woman has her rights of maintenance against her husband or sons/daughter. She can assert her rights, if any, against the property of her husband, but she cannot thrust herself against the parents of her husband, nor can claim a right to live in the house of parents of her husband, against their consult and wishes." (emphasis supplied) M. Further, in Sardar Malkiat Singh v. Kanwaljit Kaur & Ors., 2010 (116) DRJ 295, it has been held as under: "While the legal position is clear that the husband has a legal and moral obligation to provide residence to his wife, and if the house where the wife lived on being wedded, belongs to her husband, it would certainly be treated as a "shared household"
or a matrimonial home, there is no such obligation on the fatherinlaw or the Civil Suit No. 225/10 Page 29 of 35 mother in law to provide residence to the daughterinlaw" (emphasis supplied) N. In the instant case, it stands proved that the suit property is owned by the plaintiffs and that neither the defendant nor her husband have any right of ownership qua the same. Admittedly, the plaintiffs had given the suit property to the defendant and her husband for the purpose of their residence. Further, it stands proved, as discussed above, that the plaintiffs have debarred the defendant and her husband from all their properties, including the joint builtup property. Also, admittedly, the defendant's husband is not residing at the suit property, which is lying locked. Rather it stands proved that he is residing in a rented accommodation at EII/222, Madangir, New Delhi. As admitted by the defendant/DW1, in her crossexamination, the defendant and her husband are living separately. While, on the one hand, the plaintiffs have alleged harassment and threats etc. on part of the defendant, on the other, the defendant has alleged demand of dowry and harassment on part of the plaintiffs. However, admittedly, the relations between Civil Suit No. 225/10 Page 30 of 35 the parties were and are certainly not cordial as multiple complaints have been lodged on either side and some litigation is also pending between the parties as well as between the defendant and her husband.
O. The defendant has been a permissive user having been so allowed by the plaintiffs, who are her fatherinlaw and motherinlaw. There is sufficient evidence on record to show that the parties do not share a cordial relationship.
The plaintiffs have, therefore, chosen to turn the defendant out of the suit property. Thus, in view of the aforesaid decisions, neither the husband of the defendant nor the defendant herself have any right to continue in possession of the suit property against the wishes of the plaintiffs, who are owners thereof. The defendant cannot claim the right to live in the house of her parentsinlaw against their consent and wishes. She can only have a claim, if any, against her husband.
19. In view of the above, this issue is decided in favour of the plaintiffs and against the defendant.Civil Suit No. 225/10 Page 31 of 35
Issue No.3: Whether the plaintiffs are entitled to mesne profits/arrears as prayed in para 'b' of prayer clause?
20. Qua this issue, the onus of proof was on the plaintiffs.
21. While in the plaint, the plaintiffs have averred that the defendant is bound to pay mesne profits at the rate of Rs.2,500/ per month for unauthorized use and occupation of the suit property from 14.10.2007 till the handing over of vacant physical and peaceful possession, they have failed to lead any evidence in support of the said averment.
22. Further, while they have also prayed for a sum of Rs.50,000/ till May 2009, the plaintiffs have failed to even ever, let alone prove, as to on what account the said sum has been sought to be recovered.
23. In view of the aforesaid, this issue is decided in favour of the defendant and against the plaintiffs.
Issue No.4: Whether plaintiffs are entitled to relief of injunction as prayed in para 'c' of prayer clause?
24. With respect to this issue, the onus of proof was on the plaintiffs.Civil Suit No. 225/10 Page 32 of 35
25. The prayer in para 'c' of the prayer clause in the plaint is twofold:
i) restraint against creating any hindrance/obstacle in peaceful enjoyment of property under the use and occupation of the plaintiffs; and
ii) restraint against transfer, alienation or parting with the possession of the suit property to any other person.
26. As regard the first limb of the prayer of permanent injunction as aforesaid, the plaintiffs have not specified either in the plaint or even the evidence as to in what manner the defendant has been creating or has threatened to create hindrance/obstacle in peaceful enjoyment of the property under their use and occupation. The allegations in the plaint are to the effect that the defendant quarrelled and misbehaved with the plaintiffs and also threatened to implicate them in false criminal cases if they tried to dispossess her. There is, however, no allegation as to any hindrance/obstacle having been created by the defendant in the peaceful enjoyment of the property under the use and occupation of the plaintiffs. Hence, the plaintiffs are not entitled to the relief of permanent injunction sought in the first limb of para 'c' of the prayer clause in the plaint.
Civil Suit No. 225/10 Page 33 of 35
27. Regarding the second limb of the prayer of permanent injunction as aforesaid, PW1 and PW2, in their affidavits Ex.PW1 and Ex.PW2 respectively, have stated that on 20.05.2009, the defendant came to the suit property along with some unknown persons to show the suit property to them with a view to let out the suit property to them. No questions in this regard have been put to them in their crossexamination. Their testimonies to the aforesaid effect have, therefore, gone unrebutted and unchallenged. Thus, the plaintiffs are entitled to the relief of permanent injunction sought in the second limb of prayer clause 'c' in the plaint.
28. This issue is disposed off accordingly. Issue No.5: Relief.
29. In view of the findings on issue No.2, a decree of possession is passed in favour of the plaintiffs and against the defendant thereby directing the defendant to hand over to the plaintiffs vacant physical and peaceful possession of the suit property being one room, one kitchen and toilet situated on the third floor of joint builtup property bearing No. A328, 329, 330, Dr. Ambedkar Nagar, Khanpur Colony, Khanpur, New Delhi110062 as shown in red in the site plan Civil Suit No. 225/10 Page 34 of 35 Ex.PW1/D.
30. Further, in view of the findings on issue No.4, a decree of permanent injunction is passed in favour of the plaintiffs and against the defendant restraining the defendant from transferring, alienating or parting with the possession of the suit property being one room, one kitchen and toilet situated on the third floor of joint builtup property bearing No. A328, 329, 330, Dr. Ambedkar Nagar, Khanpur Colony, Khanpur, New Delhi110062 as shown in red in the site plan Ex.PW1/D to any other person.
31. In view of the findings on issues No.3 and 4, the plaintiffs are not entitled to any other relief.
32. Decree sheet be drawn up accordingly.
33. File be consigned to record room.
Announced in open Court on 20.09.2011 (MANIKA) Civil Judge05 (South), New Delhi 20.09.2011 Civil Suit No. 225/10 Page 35 of 35