Delhi District Court
Sh. Parveen Chawla vs Sh. Kalyan Dass on 16 May, 2013
IN THE COURT OF SH. CHANDER SHEKHAR,
DISTT. & SESSIONS JUDGE (NORTH)
ROHINI COURTS, DELHI.
CS No. 355/10
Counter Claim No. 633/10
Sh. Parveen Chawla
s/o Late Sh. Ladha Ram
r/o B25A, Vijay Nagar
Delhi ......Plaintiff
Versus
Sh. Kalyan Dass
s/o Late Sh. Gela Ram
r/o B25A, Single Storey
Vijay Nagar, Delhi ........Defendant / Counter Claimant
Date of institution : 02.07.2010
Date of hearing arguments : 25.04.2013
Date of decision : 16.05.2013
JUDGMENT
1. The plaintiff has filed the present suit for possession, mesne profits/damages and permanent injunction against the defendant averring therein that the plaintiff is the absolute owner of premises CS No. 355/10 & Counter Claim No. 633/10 Page 1 of 46 bearing no. B25A, Vijay Nagar, Delhi - 110009 (herein after referred to as suit property), measuring area 100 sq. yards. The defendant is the real uncle of the plaintiff being real brother of late Sh. Ladha Ram (father of the plaintiff). It is further averred that as the defendant was not having any property to live in, hence, was allowed by Sh. Ladha Ram to use the part of the property, as shown in red colour in the site plan, without any license or lease amount.
2. It is further averred that because of his good relations with the defendant and having faith in him, the plaintiff also allowed him to live in the portion measuring 15'x22' on the front side of the premises and executed a registered Will dated 24.09.1996 in favour of the defendant. The plaintiff further executed an Agreement with the defendant to use the property for himself till the defendant get the alternative accommodation or till the defendant is alive and after his death, the legal heirs of the defendant will have got no right, title or interest in the said portion of the suit property. The plaintiff also handed over the said portion on the same terms & conditions i.e. without any rent or lease amount. It is further averred that the plaintiff gave the portion to the defendant on license but because of close family relation, no license fees was fixed or demanded by the CS No. 355/10 & Counter Claim No. 633/10 Page 2 of 46 plaintiff from the defendant.
3. It is further averred that the defendant has now purchased his own flat bearing House No. 100, Sector14, Koshambhi, Neelam Vihar, Ghaziabad, UP, measuring about 70 sq. feet consisting of three bed room duplex and also has shifted there for the last about 6 years, but the defendant has violated the terms & conditions of the Agreement dated 24.09.1996 as the defendant has refused to handover the peaceful and lawful possession of the portion of the suit premises to the plaintiff, rather the defendant has handed over the possession of the said portion to his younger son namely Gulshan.
4. It is further averred that, thereafter, the defendant filed a suit against the plaintiff bearing no. 558/09 for permanent injunction in the Court of Sh. D.K. Sharma, ACJ/ARC, Rohini Court, Delhi, wherein the defendant (plaintiff in that suit) prayed for restraining the plaintiff (defendant in that suit) from illegally and unlawfully dispossessing the defendant from the property in dispute on the basis of Will and the Agreement dated 24.09.1996. The plaintiff filed his written statement on 30.09.2009 in that suit of the defendant. Thereafter, the defendant (plaintiff in that suit) filed an CS No. 355/10 & Counter Claim No. 633/10 Page 3 of 46 application under Order VI Rule 17 r/w Sec. 151 CPC on 20.04.2010 wherein he sought amendments in para no. 6, 19 & 20 of his plaint with the prayer to declare the defendant (plaintiff in that suit) as the owner of the portion under his possession, but the said application was dismissed by the Court of Sh. D.K. Sharma, ACJ cum ARC (NorthWest), Rohini Courts, Delhi, on 20.04.2010. It is further averred that because of the behaviour of the defendant, the plaintiff as such cancelled his last Will dated 24.09.1996 vide Deed of Cancellation of Will dated 08.07.2009 duly registered with the O/o SubRegistrar - I bearing registration no. 3281, Addl. Book No. 4, Vol. No. 2645 on pages 152 to 153 dated 09.07.2009. Thereafter, the plaintiff sent a legal notice dated 16.07.2009 to the defendant through his Counsel.
5. It is further averred that because of illegal and unlawful act of the defendant, the plaintiff also cancelled his license vide legal notice dated 03.05.2010 sent through registered AD/UPC with the direction to handover the peaceful and lawful possession of the portion in occupation of the defendant by 30.05.2010 upon which date, his license was cancelled and that notice was duly served upon the defendant.
CS No. 355/10 & Counter Claim No. 633/10 Page 4 of 46
6. It is further averred that after filing of the present suit, the defendant has now again shifted to the property in dispute so as to save himself from any legal proceedings.
7. It is further averred that the defendant is in unlawful occupation of the suit property and his status is that of an unauthorized occupant, as even receipt of the legal notice dated 30.05.2010, he did not comply the same and accordingly, he is liable to pay mesne profits from 01.06.2010 i.e. from the date of termination of the tenancy @ Rs. 25,000/ per month which is prevailing rate of licensee fees of a similarly situated premises like the suit premises till the date of handing over the actual and physical possession of the tenanted premises i.e. the suit property along with pendente lite and future interest @ 24% p.a. which is the prevailing market rate of interest as per market, trade, custom and usage.
8. It is further averred in the plaint that the plaintiff is apprehensive that the defendant may try to sell or create any third party interest in the suit premises with a view to deprive the plaintiff of his lawful claim as the in last week of May 2010, certain property dealers visited the suit property and made inquiry about the same. As such the plaintiff has no option but to approach this Court. CS No. 355/10 & Counter Claim No. 633/10 Page 5 of 46 Hence, the present suit.
9. The defendant contested the suit of the plaintiff and filed written statement as well as counter claim. It is stated in the WS that father of the plaintif Late Sh. Ladha Ram being elder and karta of Hindu Undivided Family had been allotted the property no. B25A, measuring an area of 100 sq. yards situated at Vijay Nagar, Delhi, however, instead of giving the half portion of the said property, he gave 15'x22' sq. yards to the defendant for his use and occupation/residence, ignoring 50% share of the property and the defendant agreed upon the same being younger brother. It is further stated in the WS that the defendant is having all legal rights and title over the property which was recognized by the plaintiff and after demise of Sh. Ladha Ram, the plaintiff executed a registered Will dated 24.09.1996, but due to malafide intention and ulterior motive, the plaintiff revoked the said Will which is necessitated the counter claim in the present suit to establish the civil right/title over the property. It is further stated in the WS that the plaintiff has no legal right, title or interest over the portion which was occupied by the defendant since the date of allotment, therefore, the suit is legally not maintainable in the eyes of law and is liable to be dismissed. CS No. 355/10 & Counter Claim No. 633/10 Page 6 of 46
10. It is further stated in the WS that there is no relationship of licensee and licenser, since the exclusive possession of the premises had already been transferred to the defendant being ancestral and younger brother. It is further stated that the agreement cannot be treated as license deed, as such the license deed is being required registration. It is further stated in the WS that the defendant being an illiterate person and for satisfaction of right over the property, had further executed an Agreement dated 24.09.1996, as the property was allotted to the elder brother of the defendant late Sh. Ladha Ram, as he was the head being karta of HUF of the family, hence, the suit of the plaintiff is not maintainable and liable to be dismissed. It is further stated in the WS that the defendant has occupied the suit premises from very beginning from the date of allotment, not from the date of Agreement and Will, therefore, the plaintiff has no right to claim the possession of the suit property and the contention of the plaintiff is barred by the provisions of doctrine of estopple, as nobody can be allowed to take the benefits of his own wrongs, hence, the suit is liable to be dismissed under the provisions of law. It is further stated in the WS that Sh. Ladha Ram, father of the plaintiff, and the defendant started residing CS No. 355/10 & Counter Claim No. 633/10 Page 7 of 46 therein after its allotment and the portion of the suit property constructed an area of 15'x22' was given to the defendant for his residence and for doing the business and the defendant is in exclusive possession of the suit premises since the date of allotment till date without any hindrance/interruption from the side of the plaintiff.
11. It is denied by the defendant in the WS that the defendant has now purchased his own flat bearing no. 100, Sector - 14, Koshambhi, Neelam Vihar, Ghaziabad, UP, as stated in the plaint. It is further denied by the defendant that he has violated the terms & conditions of the Agreement dated 24.09.1996.
12. It is admitted by the defendant in the WS that his application for seeking amendment in the plaint was dismissed by the Court of Sh. D.K. Sharma, ACJ cum ARC (N/W), however, for different reasons.
13. It is further denied in the WS that the notices through registered AD and UPC were duly served upon the defendant. It is further denied that the defendant contacted any property dealer or the portion of the suit premises in occupation of the defendant, was available for letting out in the market.
CS No. 355/10 & Counter Claim No. 633/10 Page 8 of 46
14. It is further submitted in the WS that the defendant is residing in the suit premises and doing his business of fruits and vegetables from the suit property since the date of allotment and is in exclusive possession of the suit premises.
15. In the counter claim filed along with the WS, the defendant stated that the portion of the said property constructed in an area of 15'x22' was given to the defendant for his residence and for doing the business and later on, Sh. Ladha Ram and his legal heirs raised construction over the said property upto three storeyed. The defendant along with his attorney started residing in front portion at ground floor and remaining property remained in the possession of Sh. Ladha Ram and his legal heirs including plaintiff and his family members.
16. It is further submitted in the counter claim that after demise of Sh. Ladha Ram, the plaintiff being his son and in occupation of the remaining portion of the suit property and also recognized the right and occupation of the defendant over his portion, executed an Agreement dated 24.09.1996 and recognized the possession of the plaintiff in an front portion of the said property and allowed to carry on his business in the said portion and the defendant was also CS No. 355/10 & Counter Claim No. 633/10 Page 9 of 46 residing in the said portion after partition till the date of filing of the suit. It is further submitted in the counter claim that the defendant is the rightful owner of the said portion of the suit property, which is occupied by him since the date of allotment and the plaintiff has no legal right, title or interest in the portion occupied by the defendant.
17. It is further submitted in the counter claim that the defendant and his son are in occupation of the suit property from the very beginning without any interruption for and on behalf of Sh. Ladha Ram and after his demise, by his son i.e. the plaintiff. It is further submitted that the defendant has paid the house tax of the said property on 30.06.2010.
18. It is accordingly prayed in the counter claim that the suit of the plaintiff may kindly be dismissed and a decree be passed in favour of the defendant and against the plaintiff thereby declaring the defendant as an owner of the suit property.
19. The plaintiff filed the replication to the WS as well as reply to the counter claim and denied the contentions raised by the defendant in the WS and reaffirmed those as stated in the plaint.
20. Thereafter, the defendant filed replication to the reply/WS of counter claim filed by the plaintiff thereby denying all the contents CS No. 355/10 & Counter Claim No. 633/10 Page 10 of 46 of the same and reaffirmed those as stated in the WS/counter claim.
21. From the pleadings of the parties and documents on record, following issues were framed on 15.03.2011 :
1. Whether the plaintiff is the owner of suit property i.e. bearing no. B25A, Vijay Nagar, Delhi110009, as shown in red colour in site plan annexed with the plaint? OPP.
2. Whether the plaintiff is entitled to a decree of possession of the suit premises as per prayer clause (a) of the plaint? OPP.
3. Whether the plaintiff is entitled to a decree of recover of arrears of license fee amounting to Rs. 25,000/ along with pendente lite and future interest @ 24% p.a. as per prayer clause (b) of the plaint? OPP.
4. Whether the plaintiff is entitled to a decree to recover pendente lite and future damages for use and occupation of suit premises @ Rs.25,000/ per month or at what other rate? OPP.
5. Whether the plaintiff is also entitled to recover interest @ 24% p.a. or at what other rate? OPP.
6. Whether the plaintiff is entitled to a decree of permanent injunction as per prayer clause (e) of the plaint? OPP.
7. Whether the suit is barred by limitation as per PO No. 2 of WS? CS No. 355/10 & Counter Claim No. 633/10 Page 11 of 46
OPD.
8. Whether the suit does not disclose any cause of action and is liable to be rejected under Order VII Rule 11 CPC as per PO No. 1 of WS? OPD.
9. Whether the defendant/counter claimant is entitled to a decree of declaration as owner of the suit property? OPD.
10. Relief.
22. In order to prove his case, the plaintiff examined himself and tendered his affidavit Ex. PW1/A in evidence and his statement was recorded as PW1. The plaintiff also proved various documents on the record in support of his case i.e. Exs. PW1/1 to PW1/16 & PW1/3A. Document Ex.PW1/1 is Lease Deed. Ex.PW1/2 is conveyance deed. Ex.PW1/3 is relinquishment deed in favour of plaintiff. Ex.PW1/3A is site plan. Document Ex.PW1/4 is Will. Ex.PW1/5 is copy of agreement between plaintiff and defendant. Ex.PW1/6 is suit of permanent injection filed by defendant in the court of Sh. D.K. Sharma, Ld. SCJ. Ex.PW1/7 is written statement filed by plaintiff (defendant in above said suit). Ex.PW1/8 is order of ld. SCJ Sh. D.K. Sharma dated 20/4/10. Ex.PW1/9 is cancellation of will. Ex.PW1/10 is the copy of legal notice dated CS No. 355/10 & Counter Claim No. 633/10 Page 12 of 46 16709. Ex.PW1/11 is legal notice. Ex.PW1/12 is UPC receipt. Ex.PW1/13 is AD receipt. Ex.PW1/14 is AD card. Ex.PW1/15 is order passed by Sh. A.R. Malhotra, Settlement Officer dated 751957. Ex.PW1/16 is final assessment letter regarding claim no.P/ML2/RG(95)/31.
23. PW1 was duly cross examined by Counsel for the defendant.
24. On the other hand, the defendant examined six witnesses in order to support his case out of which five witnesses tendered their affidavits in evidence as Exs. DW1/A to DW5/A and their statements were recorded as DW1 to DW5 respectively. One witness was a summoned witness who brought the summoned record and his statement was recorded as DW6. The details all the DWs are as under :
DW1 Sh. Kalyan Dass i.e. the defendant himself.
DW2 Sh. Gulshan Kumar, son of the defendant.
DW3 Sh. S.K. Chawla, brother of the plaintiff.
DW4 Ms. Sudershan Gambhir, sister of the plaintiff.
DW5 Sh. Sunil Chawla, son of the defendant.
DW6 Ms. Sudha Saini, UDC, L&DO, Nirman Bhawan, New
Delhi, who was a summoned witness.
25. The defendant i.e. DW1 also proved various documents i.e. Exs.
DW1 to DW1/8 on the record in support of his case. Document Ex. CS No. 355/10 & Counter Claim No. 633/10 Page 13 of 46 DW1/1 is the certified copy of site plan. Ex. DW1/2 is the certified copy of Spl. Power of Attorney. Ex. DW1/3 is the certified copy of Agreement dated 24.09.1996. Ex. DW1/4 is the certified copy of Will dated 24.09.1996. Ex. DW1/5 (colly) are the certified copies of his ration card and voter card. Ex. DW1/6 (colly 2) are the certified copy of water connection bills. Ex. DW1/7 is the certified copy of license issued by MCD. Ex. DW1/8 is the certified copy of Certificate of Verification issued by GNCTD.
26. DW6 i.e. Ms. Sudha Saini who was a summoned witness brought the summoned record i.e. the conveyance deed dated 25.08.1999, in the name of Parveen Chawla of property bearing no. B25 (A), Vijay Nagar, Delhi. The Lease deed which was executed in the name of Sh. Ladha Ram s/o Sh. Gela Ram r/o B25 (A), Vijay Nagar, Delhi. Photocopy of the allotment card issued by the Ministry of Rehabilitation dated 25.06.1950 is Ex.DW6/A.
27. DW1 to DW5 were duly cross examined by Counsel for the plaintiff whereas DW6 was cross examined in a single line.
28. I have heard Ld. Counsels for both the parties and have gone through the entire record carefully.
29. Considering the pleadings, the issues framed, evidence led and CS No. 355/10 & Counter Claim No. 633/10 Page 14 of 46 arguments addressed by both the parties, the issuewise findings are as under : ISSUE No. 8 :
Whether the suit does not disclose any cause of action and is liable to be rejected under Order VII Rule 11 CPC as per PO No. 1 of WS? OPD.
30. This issue has been taken up first since its adjudication shall affect the determination of other issues.
31. Onus to Prove this issue is upon the defendant/counter claimant.
32. Order VII Rule 11 CPC deals with the rejection of plaint. The plaint cannot be rejected on the basis of allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read entire plaint as a whole to find out whether it discloses cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order VII Rule 11 of the Code. Essentially, whether the plaint discloses cause of action, is a question of fact which has to be gathered on the basis of averments made in the plaint in its entirety taking those averments to be correct. Reliance is placed upon the matter of Mayar (H.K.) Ltd. & Ors. vs. Owners and Parties, Vessel M.V. CS No. 355/10 & Counter Claim No. 633/10 Page 15 of 46 Fortune Express & Ors., reported in AIR 2006 SC 1828. It is well settled proposition of law that cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, willful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the Court, mere fact that in the opinion of the Judge, the plaintiff may not succeed cannot be a ground for rejection of the plaint; see Mayar (HK) Ltd. Supra. The plaintiff has filed the suit for possession, mesne profits/damages and permanent injunction against the defendant averring himself to be the owner of the premises bearing no. B25A, Vijay Nagar, Delhi110009, measuring an area of 100 sq. yards vide lease and conveyance deed and has also averred that his father Sh. Ladha Ram expired on 25.10.1977 and all the remaining legal heirs of late Sh. Ladha Ram executed registered Relinquishment Deed earlier in favour of the plaintiff. It is also averred that the plaintiff executed a registered Will dated 24.09.1996 and an agreement with the defendant to use the property for himself till the defendant get the CS No. 355/10 & Counter Claim No. 633/10 Page 16 of 46 alternative accommodation or till the defendant is alive and after his death, the legal heirs of the defendant will have got no right, title or interest in the said portion of the suit property. It is further averred that the defendant has now purchased his own flat. It is further averred that the plaintiff served a legal notice dated 03.05.2010 upon the defendant thereby cancelling the license deed of the defendant. After reading the entire plaint as a whole, I am of the opinion that the averments made in the plaint in its entirely, discloses cause of action in favour of the plaintiff and against the defendant to file the present suit. However, in view of issue no. 8 as framed by my Ld. Predecessor, this Court has also to see whether the plaint is liable to be rejected under Order VII Rule 11 CPC under preliminary objection no. 1 of the WS. Though it is a settled law that the plaint cannot be rejected on the basis of allegations made by the defendant in his written statement, but taking into consideration the issue as framed, let us see what is stated in para no. 1 of the WS, which is reproduced hereasunder :
"That the suit does not disclose any cause of action, hence the same is liable to be rejected under Order VII Rule 11 CPC. It is submitted that the father of the plaintiff late Sh. Ladha Ram being elder and karta of Hindu Undivided Family had been allotted the property CS No. 355/10 & Counter Claim No. 633/10 Page 17 of 46 no. B25A, measuring an area of 100 sq. yards, situated at Vijay Nagar, Delhi. It is further submitted that instead of giving the half portion of the said property, gave 15'x22' sq. yards to the defendant for his use and occupation/residence, ignoring 50% share of the property and the defendant agreed upon the same being younger brother. It is submitted that the defendant having all legal rights, title over the property which was recognized by the plaintiff and after demise of the father, the plaintiff has executed a registered Will dated 24.09.1996, but due to malafide intention and ulterior motive, the plaintiff revoked the Will which is necessitated the counter claim in the present suit to establish the civil right/title over the property. It is further submitted that the plaintiff has no legal right, title or interest over the portion, which was occupied by the defendant since the date of allotment, therefore, the suit of the plaintiff is legally not maintainable in the eyes of law and the same is liable to be dismissed.
33. The defendant has stated in para no. 1 of the preliminary objections of WS that the suit does not disclose any cause of action, hence, the same is liable to be dismissed under provisions of Order VII Rule 11 CPC. It is further stated therein that father of the plaintiff Late Sh. Ladha Ram being elder and karta of HUF had been allotted the property bearing no. B25A, measuring an area of 100 sq. yards, situated at Vijay Nagar, Delhi, however, instead of CS No. 355/10 & Counter Claim No. 633/10 Page 18 of 46 giving the half portion of the said property, he gave 15'x22' sq. yards to the defendant for his use and occupation/residence, ignoring 50% share of the property and the defendant agreed upon the same being younger brother. It is stated in the counter claim that during the partition Late Sh. Ladha Ram and the defendant came to India and the property bearing no. B25A, Vijay Nagar, Delhi110009 constructed in an area of 100 sq. yards was allotted to Sh. Ladha Ram being the elder brother of the defendant and the defendant along with Sh. Ladha Ram and his family members started residing therein and the portion of the said property constructed in an area of 15'x22' was given to the defendant for his residence and for doing the business and later on Sh. Ladha Ram and his legal heirs raised construction over the said property upto three storeyes. The defendant along with his attorney started residing in front portion at ground floor and remaining property remained in the possession of Sh. Ladha Ram and his legal heirs including plaintiff and his family members. It is further stated in the counter claim that during the lifetime of Late Sh. Ladha Ram, the relations between Ladha Ram and the defendant were very cordial being real brothers, therefore, the portion in which the defendant CS No. 355/10 & Counter Claim No. 633/10 Page 19 of 46 was residing and doing his business, was occupied and possessed by the defendant without any intervention, therefore, no document was executed in this regard.
34. It is submitted in the suit filed by the defendant against the plaintiff in the Court of Sr. Civil Judge for permanent injunction copy of which is Ex. PW1/6 that after demise of late Sh. Ladha Ram, the plaintiff (defendant in that suit) being a son and in occupation of the remaining portion of said property and also recognized the right and occupation of the defendant (plaintiff in that suit) over his portion, had executed an Agreement on 24.09.1996 in Delhi and recognized the possession of the defendant (plaintiff in that suit) in a front portion of the said property and allowed to carry on his business in the said portion and the defendant (plaintiff in that suit) was also residing in the said portion after partition till the date of filing of the suit. It is also stated in that plaint that the plaintiff (defendant in that suit) also executed a registered Will in favour of the defendant (plaintiff in that suit) regarding the said portion in which the defendant (plaintiff in that suit) is residing and doing his business.
35. The plaintiff contested that case filed by the defendant (plaintiff CS No. 355/10 & Counter Claim No. 633/10 Page 20 of 46 in that suit) and filed his WS in that Court. The defendant (plaintiff in that suit) thereafter moved an application under Order VI Rule 17 r/w Sec. 151 CPC wherein the defendant (plaintiff in that suit) sought amendment in para nos. 6, 19 & 20 of that plaint which are as under :
Proposed amendment in Para No. 6 : That the defendant (plaintiff in that suit) is the rightful owner of the portion of the property which is marked red in the site plan already on record. It was further submitted in the application that the father of the defendant (plaintiff in that suit) Late Sh. Ladha Ram being elder brother and karta of HUF had been allotted the property bearing no. BA25, measuring an area of 100 sq. yards, situated at Vijay Nagar, Delhi, and instead of giving the half portion of the said property only gave 15'x22' sq. feet to the defendant (plaintiff in that suit) for his use and occupation/residence, ignoring 50% share of the defendant (plaintiff in that suit) and defendant (plaintiff in that suit) agreed upon the same being younger brother of the plaintiff (defendant in that suit). That the defendant (plaintiff in that suit) is the rightful owner having all legal rights and title of the said portion which was recognized by the plaintiff (defendant in that suit) and after the demise of his father, the plaintiff (defendant in that CS No. 355/10 & Counter Claim No. 633/10 Page 21 of 46 suit) executed a registered Will dated 24.09.1996 and due to malafide intention of the plaintiff (defendant in that suit), revoked the Will which necessitated the amendment of the suit to avoid the multiplicity of the litigation and to establish the civil right over the property as there is no equal and efficious remedy available to the defendant (plaintiff in that suit). The plaintiff (defendant in that suit) has no legal right, title or interest over the portion in occupation of the defendant (plaintiff in that suit).
Proposed amendment in Para No. 19 : Cause of action further arose on 16.07.2009 when the defendant (plaintiff in that suit) received a legal notice regarding the revocation of the Will dated 08.07.2009 and the cause of action still subsisting and continuing one, hence, the present suit has been filed before this Hon'ble Court. Proposed amendment in Para No. 20 : That the suit is further valued for the purpose of court fees and jurisdiction for the relief of declaration is Rs. 200/ on which requisite court fees of Rs. 20/ has been paid. Thus the total value of the suit for the purpose of court fees and the jurisdiction is Rs. 330/ on which, requisite court fees of Rs. 33/ has been paid.
36. However, this application was dismissed by the Court of Sh. CS No. 355/10 & Counter Claim No. 633/10 Page 22 of 46 D.K. Sharma, ACJ cum ARC (N/W), Rohini Courts, Delhi, vide order dated 20.04.2010 holding therein that by way of the present application, the defendant (plaintiff in that suit) wants to change the relief and now he is seeking relief of declaration by amending para nos. 6, 19 & 20 and prayer clause of the plaint to declare the defendant (plaintiff in that suit) owner of the portion under his possession though there has been agreement between the parties dated 24.09.1996 with the stipulation that the defendant (plaintiff in that suit) will not claim any right, title or interest in the suit property except his possession during his lifetime and defendant (plaintiff in that suit) in para no. 5 of the original plaint has relied upon the aforesaid agreement and no reason has been mentioned as to why the present application has not been filed before framing of the issues when the defendant (plaintiff in that suit) was having knowledge of revocation of Will by the father prior to framing of issues and now the defendant (plaintiff in that suit) cannot be allowed to change the nature of the suit by claiming the ownership right instead of the possessory rights as claimed by the defendant (plaintiff in that suit) earlier and otherwise also, no amended plaint has been filed along with the present application and it appears that CS No. 355/10 & Counter Claim No. 633/10 Page 23 of 46 the present application has been filed with a view to delay the trial of the matter, hence, the application in hand is dismissed with costs of Rs. 2000/.
37. It is a fact that the defendant (plaintiff in that suit) has never challenged the above Order of Ld. ACJ cum ARC (N/W), Rohini Courts, Delhi, and that Order is final as on date. It is a well settled proposition that if a matter of question is decided in an earlier suit and is not appealed against and has become final, then the same is binding on the parties. The principles of estopple and res judicata are based on the principles of public policy and justice. Latter prevents the parties from second determination even if the first is demonstrably wrong. When earlier proceedings had obtained finality, parties are bound by the same and are estopped from questioning the same. The Rule of constructive res judicata is also bases on the same principle. Hence, in view of above findings in suit no. 558/09 on the amendment application which were not challenged and have become final as on date, the parties are bound by the same and are estopped from wriggle out of the same for any reason whatsoever. The parties are bound even by the principles of estoppal apart from the res judicata to allow or to prove otherwise CS No. 355/10 & Counter Claim No. 633/10 Page 24 of 46 from what is stated and claimed by the defendant (plaintiff therein) in that suit regarding his right qua the property.
38. Now in view of the above findings of Ld. ACJ cum ARC (N/W) vide his Order dated 20.04.2010 and averments made in that plaint Ex. PW1/6, the defendant (plaintiff in that suit) in para no. 5 of that plaint has relied upon the agreement dated 24.09.1996 is estopped from raising the plea that father of the plaintiff being elder and karta of HUF had been allotted the property bearing no. B25A, Vijay Nagar, Delhi, and instead of giving the half portion of the said property, he gave 15'x22' sq. yards to the defendant for his use and occupation/residence, ignoring 50% share of the property and the defendant agreed upon the same being younger brother and that the plaintiff has no legal right, title or interest over the portion which was occupied by the defendant since the date of allotment. Even otherwise, I do not agree with the contentions of the defendant that the defendant is the owner of the suit property or that the plaintiff has no legal right, title or interest in the suit property in view of the documents and evidence on record.
39. The defendant has himself admitted about the execution of registered Will and Agreement Ex. PW1/5 which was also exhibited CS No. 355/10 & Counter Claim No. 633/10 Page 25 of 46 as Ex. DW1/3. It is specifically stated in the Agreement Ex. PW1/5 that the plaintiff is the owner/lessee of the property bearing no. B25A, area measuring 100 sq. yards, situated at Vijay Nagar, Delhi. The defendant has, in this agreement, categorically and specifically admitted that the plaintiff is the owner/lessee of the said property. The defendant in view of his own admissions and execution of Agreement Ex. PW1/5 has now estopped from wriggle out from his own admission. Agreement Ex. PW1/5 was executed on 24.09.1996 i.e. after almost more than 25 years by the defendant from the date of possession of the property bearing no. B25A, Vijay Nagar, Delhi. The execution of Ex. PW1/5 i.e. the Agreement dated 24.09.1996 itself demonstrates that the defendant has himself admitted that the plaintiff is the owner/lessee of the said property. Even otherwise, there is no document, on the record, proved by the defendant proving that the impugned property was allotted to Sh. Ladha Ram being karta of HUF. There is also absolutely no cogent evidence on the record that there ever existed HUF as is legally known between the parties. Hence, the defendant is having no right, title or interest in the suit property.
40. The defendant has also relied upon the following authorities in CS No. 355/10 & Counter Claim No. 633/10 Page 26 of 46 support of his case :
(i) V.N. Sarin, appellant vs. Majoz Ajit Kumar Poplai & Anr. Reported in AIR 1965 Punjab 1950 (V 52 C 144).
(ii) Smt. Inde Kaur vs. Chief Settlement Commissioner, Punjab, Rehabilitation Deptt Jullundur & Ors, reported in AIR 1971 Punjab & Haryana 256.
(iii) Section 46 of The Administration of Evacuee Property Act, 1950.
41. However, none of the above authorities is of the help to the case of the defendant.
42. Hence, in view of the above discussions, it is held that the plaint/suit discloses cause of action and is not liable to be rejected under provisions of Order VII Rule 11 CPC as per preliminary objection no. 1 of the WS. This issue is, accordingly, decided against the defendant and in favour of the plaintiff. ISSUE NO. 7 :
Whether the suit is barred by limitation as per PO No. 2 of WS? OPD.
43. The Onus To Prove this issue is upon the defendant / counter claimant.
44. No arguments have been specifically addressed regarding this issue on behalf of the defendant/counter claimant. However, taking CS No. 355/10 & Counter Claim No. 633/10 Page 27 of 46 into consideration the Agreement Ex. PW1/5 executed between the parties and cancellation thereof vide legal notice Ex. PW1/11, I do not find that the suit is barred by time. No such limitation can be inferred from any of the facts alleged in the WS which may attract the provisions of Limitation Act or bar the present suit by limitation. Accordingly, I have no hesitation to hold that the present suit is not barred by time. Accordingly, this issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO. 1 :
Whether the plaintiff is the owner of suit property i.e. bearing no. B25A, Vijay Nagar, Delhi110009, as shown in red colour in site plan annexed with the plaint? OPP.
45. The Onus To Prove this issue is upon the plaintiff.
46. The plaintiff has averred that he is the absolute owner of the suit premises bearing no. B25A, Vijay Nagar, Delhi, and has proved the lease deed, conveyance deed and relinquishment deed Exs. PW1/1 to PW1/3 respectively on the record in his favour which prove that the plaintiff is the owner of the suit property. Even otherwise, the defendant has himself admitted, as discussed herein above while adjudicating issue no. 8, that plaintiff is the owner of the suit CS No. 355/10 & Counter Claim No. 633/10 Page 28 of 46 property. The defendant has also failed to prove that the suit property was purchased or allotted against the left over property in Pakistan, by any tangible evidence.
47. It is pertinent to mention here in para no. 21 of the WS, the defendant has stated that after the demise of Sh. Ladha Ram, the plaintiff being a son and in occupation of the remaining portion of the said property and also recognized the right and occupation of the defendant over his portion, had executed an agreement on 24.09.1996 in Delhi and recognized the possession of the plaintiff in an front portion of the said property and allowed to carry on his business in the said portion and the defendant was also residing in the said portion after partition till the date of filing of the suit. Assuming but not admitting and only for the sake of arguments, if the defendant is the owner of the said portion, then why he will seek permission of the plaintiff to allow him to carry on his business in the portion under possession of the defendant.
48. During course of the arguments, Counsel for the plaintiff further submitted that in the meantime, the defendant filed a suit for permanent injunction against the plaintiff bearing no. 558/09 in the Court of Sh. D.K. Sharma, Ld. ACJ/ARC (N/W), Rohini Courts, CS No. 355/10 & Counter Claim No. 633/10 Page 29 of 46 Delhi, but in that suit the defendant nowhere mentioned that he is coowner of the suit property. At the later stage, the defendant moved an application under Order VI Rule 17 r/w Sec. 151 CPC before that Court, which was dismissed on merits by the said Court.
49. Hence, in view of aforesaid discussions, I have no hesitation to hold that the plaintiff is the owner of the suit property i.e. B25A, measuring 100 sq. yards, situated at Vijay Nagar, Delhi, as shown in red colour in the site plan. This issue is, accordingly, decided in favour of the plaintiff and against the defendant. ISSUE NO. 2 :
Whether the plaintiff is entitled to a decree of possession of the suit premises as per prayer clause (a) of the plaint? OPP.
50. The Onus To Prove this issue is upon the plaintiff.
51. While adjudicating issue no. 1, this Court has held that plaintiff is the owner of the suit property. The Agreement Ex. PW1/5 demonstrates that the defendant is a licensee in respect of the suit property. The plaintiff in his affidavit Ex. PW1/A in evidence has reiterated the contents of the plaint and has examined himself as PW1. On the other hand, one Sh. Gulshan Kumar appeared in the witness box as DW2 and reiterated the defence of the defendant in CS No. 355/10 & Counter Claim No. 633/10 Page 30 of 46 his affidavit Ex. DW2/A in evidence. DW2 admitted in his cross examination that in Para 5 of Ex. PW1/6, it is mentioned that the defendant is residing in the suit property only on the basis of agreement dated 24.09.1996. DW2 also stated that as he cannot read English language, therefore, he cannot say that it is not mentioned in Ex. PW1/15 that the suit property was a joint property. DW2 voluntarily added that his father (the defendant) had paid half of the share in the suit property, which is quite contrary to the defence of the defendant and cannot be relied upon.
52. The depositions of DW3 & DW4 cannot be relied upon as they seems to have no good relations with the plaintiff and are adversarial interested witnesses. Even DW3 admitted that his affidavit was prepared by Counsel for the defendant at the instance of the defendant.
53. The defendant (DW1) in his cross examination admitted that since the plaintiff became owner of property bearing no. B25A, Single Storey, Vijay Nagar, Delhi110009, he is residing at that property only on the basis of document Ex. DW1/3, which is also exhibited as Ex. PW1/5. DW1 also admitted in his cross examination that in the suit bearing no. 558/09 dated 17.07.09 filed CS No. 355/10 & Counter Claim No. 633/10 Page 31 of 46 before the Court of Sh. D.K. Sharma, Ld. SCJ, he did not mention that he is the owner / coowner of the suit property. It is pertinent to mention here that the defendant in his WS and during course of arguments submitted that instead of giving the half portion of the suit property, the defendant was given 15'x22' sq. yards for his use and occupation/residence, ignoring 50% share of the property and the defendant agreed upon the same being younger brother. It is further submitted in the WS that there is no relationship of licensee and licenser, as such the exclusive possession of the premises had already been transferred to the defendant being ancestral and younger brother. But, however, taking into consideration the suit filed by the defendant before the Court of Ld. ACJ cum ARC (N/W) Ex. PW1/6, it is apparent that such a plea was not taken by the defendant regarding ownership in that case, rather this plea was dismissed by the Court of Ld. ACJ cum ARC (N/W) while deciding the the application under Order VI Rule 17 r/w Sec. 151 CPC. Hence, the defence in the WS, now, is nothing but an afterthought and an improvement which cannot be accepted. However, even otherwise, as discussed herein above, nothing has been proved on the record by the defendant to prove that there existed HUF between CS No. 355/10 & Counter Claim No. 633/10 Page 32 of 46 the parties.
54. The plaintiff has proved the document Ex. PW1/5 i.e. the agreement executed between the parties and tone and tenure of this document itself proves that it is a license agreement.
55. Section 60 of the Indian Easement Act provides as under :
11. Test of irrevocability laid down by Sec. 60 "It is quite clear from the authorities, that subject to any special agreement to the contrary, a licence is revocable, unless (1) it is coupled with a grant or interest or (2) the licensee acting upon the licence has spent money in executing works of a permanent nature. The Indian Easements Act incorporated these principles in a some what restricted form Section 60 runs as follows :
"A licence may be revoked by the grantor, unless
(a) it is coupled with a transfer of property and such transfer is in force;
(b) the licensee, acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution."
The first of the two tests of irrevocability laid down in the section is obviously narrower than the corresponding test laid down in the English cases. In order to be irrevocable under this section the licence has to be coupled with a transfer of property, whereas under
the English cases it is enough if it is coupled with a grant or interest in the nature of profit. It appears that Cl. (a) has adopted the rigid common law rule laid down in Wood v. Leabitter. and therefore in the cases to which the Indian Easements Act applies it may not be possible CS No. 355/10 & Counter Claim No. 633/10 Page 33 of 46 to apply the more liberalized principles adopted by the Courts of Equity and referred to in Hurst v. Picture Theatres Ltd. Be that as it may, the two tests of irrevocability established by the cases and referred to above, or by the Indian Easement Act will, however, give way to the special agreement, if any, of the parties. Thus a licence which is prima facie irrevocable either because it is coupled with a grant or interest or because the licensee has erected works of a permanent nature there is nothing to prevent the parties from agreeing expressly or by necessary implication that the incence nevertheless shall be revocable.
Parties may expressly or by necessary implication, agree to make a licence irrevocable - The position in law seems to be as follows:
"A licence may be of two kinds, namely, a bare licence which is purely a matter of personal privilege, and a licence coupled with a grant or interest. What amounts to a licence coupled with a grant or interest is a matter of some complication."
A licence is revocable unless (1) it is coupled with a grant or interest; or (2) the licensee acting upon the licence has spent money in executing work of a permanent nature.
In the case of Dominion of India vs. Sohan Lal, Das, J., reported in AIR 1950 E.P. 40, states as follows:
"Be that as it may, the two tests of irrevocability, established by the cases and referred to above, or by the Indian Easement Act will, however, give way to the CS No. 355/10 & Counter Claim No. 633/10 Page 34 of 46 special agreement, if any, of the parties, Thus, a license which is prima facie irrevocable, either because it is coupled with a grant or interest or because the licensee has erected works of a permanent nature, there is nothing to prevent the parties from agreeing expressly or by necessary implication that the license nevertheless shall be revocable".
On the same reasoning one should think there will be nothing to prevent the parties from agreeing expressly or impliedly that a license which is prima facie revocable being not within either of the two categories of irrevocable license should, nonetheless, be irrevocable.
It is no doubt true that Sec. 60 mentions only two classes of cases in which the license could be regarded as irrevocable. This means that where a case falls in either of these categories the licence is made irrevocable by operation of law, that is the Easement Act. But apart from the Easement Act, there is the law of contract, and if parties enter into a contract and arrive at a solemn agreement to the effect that the license shall be irrevocable or shall be limited for a particular duration. If authorities were necessary for this proposition, one may refer to the following pasage in Corpus Juris Secundum, Vol. III, pp. 815816.
Where a licensee executed a work of a permanent character under a clear understanding that he or his heirs may be called upon after certain time to leave the land, it is not open to him to plead such work as a bar against his eviction on a suit brought by the plaintiff in pursuance of the solemn undertaking given by him. CS No. 355/10 & Counter Claim No. 633/10 Page 35 of 46
Even in such cases there is a grant of a license to do or to continue to do something on the immovable property of the grantor which the grantee could not have otherwise lawfully done. It certainly is a grant within Sec. 52 but then it is coupled with an agreement. In Court's opinion, such a grant coupled with an agreement is always revocable at the will of the grantor.
But Sec. 60 (which lays down a rule of revocability) gives a further right to the grantor to revoke a license at any time even during the periods mentioned unless it is one of the licenses which fall under Cls. (a) and (b) thereof.
A transfer of property in terms of Chapter VI of the Indian Easement Act necessarily refers to transfer of an interest in immovable property. Moreover, giving a right to use the furniture and stockintrade does not amount to transfer. At the most it would be a permission or license to use the furniture and stockintrade. Therefore, it could not be urged that a license could not be revoked because of Cl. (a) of Sec. 60 of the Easement Act.
In England, this is regarded as an interest in land because it is a right to take some profit of the soil for the use of the owner of the right. In India, it is regarded as a benefit that arises out of the land and as such is immovable property.
Section 60(b) does not apply when there is a contract to the contrary It is not disputed that where there is a contract to the contrary, Sec. 60(b) of the Indian Easement Act does not apply.
CS No. 355/10 & Counter Claim No. 633/10 Page 36 of 46 Section 60(b) does not bar termination of license under agreement. Section 60 of the Easement Act, provides that "a license may be revoked by the grantor, unless the license, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution". Therefore, generally, when the licensee has, under the terms of the license, made permanent constructions, the license is irrevocable. But parties may contract otherwise and if the agreement conferring the license provides that the license can be terminated even though the licensee has made permanent constructions, Sec. 60(b) will not be a bar for the licensor to terminate the license in accordance with the agreement. This legal position is supported by authorities. Whether a construction is of permanent character is a question of fact. Whether a particular construction is one of permanent character or not is primarily a question of fact and the finding can be given only in the light of the nature of the construction and other attendant circumstances. There is no hard and fast rule to determine as to what construction would be regarded as a work of permanent character and what construction otherwise than of permanent character.
56. Even otherwise Sec. 64 of the Indian Easement Act provides as under :
64.Licensees rights on eviction Where a license has been granted for a consideration, and the licensee without any fault of his own, is evicted by the grantor before he has fully enjoyed, under the license, the right for which he contracted, he is entitled to recover compensation from grantor.
If the statute applies, it having prescribed a specific CS No. 355/10 & Counter Claim No. 633/10 Page 37 of 46 remedy, no other remedy is available, and in case of revocation of an irrevocable license, theonly remedy is by way of damages.
The remedy of mere licensees whose license has been improperly revoked, lies not in a suit for possession but in a suit for damages as laid down in Sec. 64 as a licensee is a person without any title and has no interest in the land.
Even where the license is revocable, the licensee is entitled to a reasonable notice before the license is revoked. If, however, the license is revoked without reasonable notice the remedy of the licensee is by way of damages and not by way of an injunction, where an interlocutory injunction had been refused. Even if the license is obtained for consideration, yet if it is otherwise revocable and is revoked the remedy of the licensee is damages. The reason is obvious, for to restrain the revocation of a revocable license is to make it irrevocable. If, however, the license is irrevocable and its enjoyment is obstructed by the licensor there is authority that the remedy of the licensee is either by way of injunction or in damages. In the course of its order the Court further observed therein that after revocation of license, the licensee was not entitled to remain in possession of the premises and when he is evicted by the grantor from the property without any fault of his own, the only right conferred by Sec. 64 of the Easement Act on the licensee is one of recovery of compensation from the licensor.
It has so been held in Swarnmoyee Peskar vs. Chunder Kumar Das, reported in 12 C.L.J. 448 : 8 I.C. 793 and some other decisions of Calcutta High Court in Motilal Rai vs. Kalu Mander, reported in 19 C.L.J. 321 : air 1914 Cal. 173, Sulaiman, C.J., in Mathuri vs. CS No. 355/10 & Counter Claim No. 633/10 Page 38 of 46 Bhola Nath, reported in I.L.R. 56 All. 975 : A.I.R. 1934 All. 517, and Tek Chand, J., in Jagat Singh vs. Distt. Board, Amritsar, reported in I.L.R. (1941) 22 Lah. 413 : A.I.R. 1940 Lah. 509 and Srivastava, J., in Shyam Lal vs. Munna, reported in I.L.R. 8 Luck 278 : A.I.R. 1933 Oudh 69 expressed the view that Mookerjee, J., in the two Calcutta cases went a bit too far. But all the same attached important to it.
57. It is a case where I have to keep in mind that here the plaintiff and before that his father held the land. They continued to have an interest in the subject matter of the contract. It is well settled preposition that the fixing of tenure of license by contract, does not make the license irrevocable. It can still be revoked by the licensee/guarantor. In that event, guarantee at best can be entitled to recovery of compensation. The plaintiff has not taken the plea in the pleadings or otherwise in the arguments that he is permanent licensee, therefore, cannot be evicted from the suit property. Though it is apparent from the document Ex. PW1/5, the position is different. It is fact that when a license has been acquired for an agreed term that would not affect the right of the licensor to revoke it at any time where it is only a bare license. In the present case, it is fact that the plaintiff or before that his father had not charged any fees or rent from the defendant and they had only given the possession of the suit property to the defendant. Ex. PW1/5 CS No. 355/10 & Counter Claim No. 633/10 Page 39 of 46 demonstrates that only possession was given to the defendant of the built up portion which was nothing but a bare license to use and occupy the suit premises on license basis. A license to occupy the existing house is only a bare license which can be revoked at the will of the licensor. It is not a case that the defendant had built the house under a grant of land to him. It was a case where the defendant has a possession of built up portion, it is nothing but a bare license which can be revoked at the will of the licensor i.e. the plaintiff, hence, the defendant has no valid defence to the suit. Even otherwise, in order to claim benefits of Sec. 60(a), the license should relate to the property of the licensor and it should also enable the licensee to secure a transfer of the property of the licensor from out of that property to enter upon which the license was granted. There is no force in the contention of Counsel for the defendant/counter claimant that the plaintiff is not entitled for the relief of possession, in view of above discussions. There is also no force in the contention of Counsel for the defendant that the property in question is an HUF property and the defendant is the co owner thereof, in view of above discussions. In view of the later execution of Ex. PW1/6, the status of the defendant is nothing but a CS No. 355/10 & Counter Claim No. 633/10 Page 40 of 46 bare licensee. It is a well settled proposition of law that there is no provisions under the law for issuance of any notice as in the case of leases before a license, can be revoked. However, in this case, the plaintiff has proved the legal notice as Ex. PW1/11, its UPC receipt as Ex. PW1/12, AD receipt as Ex. PW1/13 and AD card as Ex. PW1/14.
58. DW2 Sh. Gulshan i.e. the son of the defendant admitted in his cross examination that he and the defendant reside under the address mention in Ex. PW1/11. There is presumption under General Clauses Act even or otherwise in view of the AD on the record Ex. PW1/14 and the UPC Ex. PW1/12 that the legal notice was duly served upon the defendant.
59. In the matter of Radhakrishan Temple Trust Maithan, Agra (Shri) vs. M/s Hindco Rotatron Pvt. Ltd. & Ors. 2012 II AD (Delhi) 429, it was held that if a suit for possession is filed without service the notice u/s 106 of the Act, can such a suit decreed - effect of a notice sent during the pendency of the suit by a landlord to a tenant terminating the tenancy and admitting that the earlier notice terminating the tenancy was defective. It was held that even if the notice by which the tenancy is terminated prior to filing of the suit CS No. 355/10 & Counter Claim No. 633/10 Page 41 of 46 is held to be invalid, then, service of summons of the suit for eviction of the tenant showing the categorical intention of the landlord asking the tenant to vacate the tenanted premises, can be taken a notice u/s 106 of the Act r/w Order VII Rule 11 CPC. However, it is further held time and again by the Hon'ble High Court of Delhi, that filing of the suit itself demonstrates intention of the plaintiff to revoke the license and take back the possession of the suit premises from the defendant.
60. In view of above discussions, I am of the opinion that the plaintiff is the owner of the suit property i.e. B25A, Vijay Nagar, Delhi, and is entitled for a decree of possession of the same as shown in red colour in the site plan Ex. PW1/3A. This issue is, accordingly, decided in favour of the plaintiff and against the defendant.
ISSUE NOS. 3 TO 5 :
Issue no. 3 : Whether the plaintiff is entitled to a decree of recover of arrears of license fee amounting to Rs. 25,000/ along with pendente lite and future interest @ 24% p.a. as per prayer clause (b) of the plaint? OPP.
Issue no. 4 : Whether the plaintiff is entitled to a decree to CS No. 355/10 & Counter Claim No. 633/10 Page 42 of 46 recover pendente lite and future damages for use and occupation of suit premises @ Rs.25,000/ per month or at what other rate? OPP.
Issue no. 5 : Whether the plaintiff is also entitled to recover interest @ 24% p.a. or at what other rate? OPP.
61. All these issues are interconnected, hence, are taken up together for adjudication.
62. Onus To Prove all these issues is upon the plaintiff.
63. The plaintiff has prayed that a decree of recovery of arrears of license fee amounting to Rs. 25,000/ along with pendente lite and future interest @ 24% p.a. till realization of the same be awarded in favour of the plaintiff and against the defendant. The plaintiff has stated in the plaint that the defendant is liable to pay mesne profits from 01.06.2010 i.e. from the date of termination of the tenancy @ Rs. 25,000/ pm which is prevailing rate of license fees of a similarly situated premises like the suit premises till the date of handing over the actual and physical possession of the tenanted premises. However, the plaintiff has not adduced any independent evidence to prove that Rs. 25,000/ is the prevailing rate of license fees of a similarly situated premises like the suit premises. CS No. 355/10 & Counter Claim No. 633/10 Page 43 of 46 However, it is a fact that in the city like Delhi, the rate of rent and/or license is increasing day by day and as such taking into consideration the area of the suit premises, locality and judicial notice thereof, the plaintiff is entitled for the damages @ 5000/ per month along with pendente lite and future interest @ 12% p.a. as per market, trade and customs from 01.06.2010 till the delivery of possession of the suit premises by the defendant. All these issues are, accordingly, decided in favour of the plaintiff and against the defendant.
ISSUE NO. 6 :
Whether the plaintiff is entitled to a decree of permanent injunction as per prayer clause (e) of the plaint? OPP.
64. The Onus To Prove this issue is upon the plaintiff.
65. In view of the fact that the plaintiff is held the owner of the suit premises and license of the defendant stands terminated, the defendant, his agents, family members, assignees, representatives etc. are restrained from alienating, transferring, selling. letting out, assigning, parting with or creating any third party interest with respect to the suit property i.e B25A, Vijay Nagar, Delhi, as shown in red colour in the site plan. This issue is, accordingly, decided in CS No. 355/10 & Counter Claim No. 633/10 Page 44 of 46 favour of the plaintiff and against the defendant. ISSUE NO. 9 :
Whether the defendant/counter claimant is entitled to a decree of declaration as owner of the suit property? OPD.
66. The Onus To Prove this issue is upon the defendant.
67. In view of the above discussions, this Court is of the opinion that the defendant/counter claimant is not entitled for a decree of declaration as owner of the suit property. This issue is, accordingly, decided against the defendant and in favour of the plaintiff. RELIEF :
68. In view of my aforesaid discussions, the counter claim filed by the defendant is dismissed and the suit of the plaintiff is decreed. Accordingly, a decree for possession of the suit property bearing no. B25A, Vijay Nagar, Delhi110009, as shown in red colour in the site plan Ex. PW1/3A, is passed in favour of the plaintiff and against the defendant with costs. However, the defendant is granted 90 days time to vacate the suit premises from the date of this Judgment and the decree till then shall not be executed.
69. A decree for damages @ Rs. 5000/ per month along with pendente lite and future interest @ 12% p.a. from 01.06.2010 till the CS No. 355/10 & Counter Claim No. 633/10 Page 45 of 46 delivery of possession of the suit premises to the plaintiff by the defendant, is also passed in favour of the plaintiff, with the further direction to the plaintiff to deposit the appropriate court fees for the balance amount decreed in his favour within one month from today.
70. A decree is also passed in favour of the plaintiff and against the defendant for permanent injunction thereby restraining the defendant, his agents, family members, assignees, representatives etc. from alienating, transferring, selling. letting out, assigning, parting with or creating any third party interest with respect to the suit property i.e B25A, Vijay Nagar, Delhi, as shown in red colour in the site plan Ex. PW1/3A.
Decree sheet be drawn accordingly and file be consigned to Record Room.
Announced in the open Court
today i.e. 16.05.2013 (CHANDER SHEKHAR)
Distt. & Sessions Judge (North)
Rohini Courts, Delhi
CS No. 355/10 & Counter Claim No. 633/10 Page 46 of 46