Delhi District Court
Premwati vs Sunita on 23 September, 2023
IN THE COURT OF MS. DEEPIKA THAKRAN
CIVIL JUDGE-II, SOUTH WEST DISTRICT
DWARKA COURT, DELHI.
CS No. 307/17
CNR No. DLSW03-000622-2017
IN RE:
Premwati
W/o Sh. Chander Bhan,
R/o: H. No. 90, Village Bindapur,
Uttam Nagar, New Delhi. .....Plaintiff
Vs.
Sunita
W/o Late Sh. Ramesh Chander,
R/o: Khasra No. 278, 279, Bhagat Enclave,
Near Nice Foundation School,
Bindapur Matiala Road,
Uttam Nagar, New Delhi-59. .....Defendant
SUIT FOR MANDATORY INJUNCTION, MESNE
PROFITS AND PERMANENT INJUNCTION
Date of Institution : 25.03.2017
Date of reserving judgment : 16.09.2023
Date of judgment : 23.09.2023
Final Judgment : Dismissed.
JUDGMENT
1. The present suit has been filed for mandatory injunction, mesne profits and permanent injunction etc. The facts as could be culled out from the plaint are that defendant is daughter-in-
Suit No. 307/17Premwati Vs. Sunita Page no.1/61 law of plaintiff and widow of her son Sh. Ramesh Chander. Plaintiff claims herself to be actual and rightful owner of the property measuring 750 sq. yds. out of khasra No. 278 and 279, situated in Revenue Estate of Bindapur Colony presently known as Bhagat Enclave, Bindapur, Matiala Road, Bindapur, Uttam Nagar, Delhi-59 (hereinafter referred to as 'suit property'). Site plan annexed. It is averred that plaintiff had purchased the property measuring 2000 sq. yds. (including suit property) on 02.01.1989 from Sh. Suraj Bhan, Sh. Chander Bhan and Sh. Kapoor Chand, all resident of Village Bindapur, Uttam Nagar, Delhi against valuable sale consideration of Rs. 20,000/- against execution of title documents i.e. GPA, Affidavit, Deed of Agreement, Receipt all dated 02.01.1989 in her favour. Further mentioned that out of the abovesaid property plaintiff sold some plots/portions to different persons to meet her bonafide needs. Plaintiff has sold the plot measuring 1350 sq. yds. out of 2,000 sq. yds. to different persons and the remaining portion of the property measuring 750 sq. yds. is owned by the plaintiff. It is mentioned that plaintiff had got constructed 3 rooms in the said property as well as got constructed 15 temporary rooms covered with tin sheds and one pole, to generate the rental income. The plaintiff was getting about Rs. 20,000/- per month from the tenants occupying the said temporary rooms. The plaintiff was having 4 children i.e. two sons namely Sh. Ramesh Chander and Sh. Rakesh Ahlawat and two daughters namely Ms. Sarda and Ms. Mamta. The son of the plaintiff Sh. Ramesh Chander got married with defendant and after marriage, her son requested the plaintiff that he wanted to reside separately and asked for the suit property for residence purpose and assured to vacate the same as Suit No. 307/17 Premwati Vs. Sunita Page no.2/61 and when directed to do so. The plaintiff due to love and affection had permitted her son Sh. Ramesh Chander (now deceased) to use and reside in the suit property on license basis. He started residing in the portion of the suit property. The plaintiff had also let out the portions/temporary sheds to different tenants. That Sh. Ramesh Chander died on 28.04.2005 and after his death, defendant being widow requested the plaintiff to permit her to use and reside in the portion shown in dotted line in red colour in the Site Plan. The plaintiff considering the relations has permitted the defendant to use and reside the said portion shown in red colour in the Site Plan, as a licensee and since then she is residing in the said portion alongwith her children. That since the defendant was a widow, considering the future of her daughter (granddaughter of plaintiff) and to provide financial help to them, plaintiff has also permitted the defendant to collect the rent from the tenants of plaintiff, on her behalf. Thereafter, defendant started collecting the rent from the tenants on behalf of the plaintiff with her permission, the defendant started using the said amount to maintain herself and her daughter. That after sometime, the intention of the defendant became malafide and she started harassing and compelling the plaintiff to transfer the suit property in her name. The defendant in collusion and connivance with her father hatched a conspiracy to grab the property of plaintiff and filed false, frivolous and vague suit against the plaintiff in the year 2009 thereby alleging that the plaintiff is attempting to dispossess her. Plaintiff made statement before the court that she will not dispossess the defendant without following due process of law and the said case was disposed of accordingly vide order dated 02.06.2009. Thereafter, Suit No. 307/17 Premwati Vs. Sunita Page no.3/61 on intervention of respectable members and relatives the dispute between the plaintiff and defendant was settled and it was agreed that after the marriage of the daughter of defendant, the defendant would vacate the suit property. The plaintiff considering the future of her granddaughter and defendant being widow agreed to permit her to reside further on license basis and to provide financial support in education and marriage of her granddaughter. The plaintiff further permitted the defendant to collect the rent from her tenants. That in the month of November 2016 the plaintiff had gone to her elder daughter's house to stay with her and in the month of February, 2017 when she came back she was shocked to see that defendant and her father had demolished the existing structure and raised a new structure in place of old tin sheds and hall which were constructed by the plaintiff, with ulterior motive to grab the suit property owned by the plaintiff. Defendant has completely changed the nature of construction and not only this she has let out the portion/rooms of said property to some strangers only with malafide intention to grab the suit property. On confrontation qua the same defendant and her father threatened the plaintiff with dire consequences in case she claims the property, left with no option, plaintiff lodged a complaint vide DD No. 67A dated 20.02.2017 and to the DCP on 21.07.2017 against the defendant but no action was taken thereon. Copy of complaints annexed. It is averred that without any authority and permission defendant has changed the structure and also raising further construction in the suit property knowing well that she has no right to do so. It is averred that although due to the conduct of the defendant, the license of the defendant had already come to an end on Suit No. 307/17 Premwati Vs. Sunita Page no.4/61 20.02.2017, however to avoid any controversy, plaintiff served a legal notice dated 27.02.2017 through her counsel thereby terminating the license of the defendant to use and occupy the suit property and asked her to vacate and handover its peaceful possession but the defendant intentionally avoided to receive the same and it was returned back to the counsel of the plaintiff. The plaintiff visited the suit property on 10.03.2017 and requested to vacate it and also not to raise any construction therein but the defendant flatly refused for the same and threatened her with dire consequences in case she again comes back to the suit property. The defendant after termination of her license and service of legal notice dated 27.02.2017 has failed to vacate the suit property and she is now a trespasser/unauthorized occupant and hence liable to pay damages for use and occupation of the suit property @ Rs. 10,000/- per day w.e.f. 10.03.2017 till vacation of the suit property and also Rs. 1,50,000/- on account of damages and mesne profits for the same time period. The plaintiff undertakes to pay the court fees on the amount of future damages as per Order XX Rule 12 CPC at the time of passing the decree of mesne profits/damages. On the abovementioned cause of action, the present suit has been filed within the territorial jurisdiction of this court for seeking the decree of of mandatory injunction thereby directing the defendant to handover the peaceful vacant physical possession of the suit property measuring 750 sq. yds, recovery of Rs. 1,50,000/- on account of mesne profits/damages, occupation charges @ Rs. 10,000/- per day from date of filing of the suit till vacant possession is handed over and permanent injunction qua alienation and construction etc. Suit No. 307/17 Premwati Vs. Sunita Page no.5/61
2. On service of summons the defendant has appeared and has filed written statement mentioning therein that the plaintiff has no locus standi. The suit has been filed claiming ownership on the basis of documents i.e. GPA, Agreement to Sell dated 02.01.1989. As per Section 17 of Indian Registration Act, the same has to be via registered sale deed and the agreement to sell cannot be equated with the sale deed for the reason that it is neither registered nor adequately stamped. It is a mere agreement between two person to do certain acts on the basis of certain conditions. Defendant is neither a licensee nor a tenant under the plaintiff. Suit of mandatory injunction can be maintained only when it is an admitted case that the defendant is a tenant or licencee of the plaintiff and in respect of the said issue, there is no dispute between the parties. The defendant did not get the possession of suit property from the plaintiff. The defendant started residing in the suit property which came to be allotted in the share of her husband Late Sh. Ramesh Chander prior to his death in 2005. It is own case of the plaintiff that after the marriage, Sh. Ramesh Chander, husband of the defendant wanted to reside separately and accordingly the suit property was allotted to him. The defendant was married on 20.04.1986. The defendant alongwith her husband started residing in the suit land in the year 1986 itself and raised construction over the suit property out of their own funds as Sh. Ramesh Chander used to deal in sale purchase of the properties. As per plaint, suit land was purchased by the plaintiff on 02.01.1989, so the version of the plaintiff that after the marriage the defendant was allowed to reside therein alongwith her husband by the plaintiff is false. At the time of marriage and after the marriage in 1986, 1987 or Suit No. 307/17 Premwati Vs. Sunita Page no.6/61 1988 the property was not purchased by the plaintiff and therefore, there is no question of letting the defendant with her husband to reside in the suit property at the behest of her husband. It is averred that suit is not maintainable in present form as the plaintiff cannot get physical possession of suit land in the garb of mandatory injunction. There is nothing in the plaint suggesting that defendant has been in physical possession under the permission, consent or at the behest of the plaintiff. The plaintiff doesn't have any legal right to the suit land and the day i.e. year 1986 when defendant alongwith her husband started residing in the suit land the plaintiff has not acquired rights even on the basis of agreement to sell which was executed in 1989 which is also not admitted by the defendant as it is a complete fraud being perpetuated by the plaintiff alongwith her husband Sh. Chander Bhan, her another son Sh. Rakesh and other family members in order to oust the defendant from the suit land who is lone lady. Further averred that suit is barred by limitation. It is submitted that in the year 2009 a suit for injunction was filed by the defendant herein seeking injunction against the plaintiff. The said suit was decided on 02.06.2009 on the statement of the plaintiff and her another son Sh. Rakesh, wherein both had stated that they would not dispossess her without following due process of law. This statement shows that there was already a dispute and the plaintiff wanted to take possession and therefore the suit for mandatory injunction even ought to have been filed within 3 years as per Limitation Act, 1963 from the date of cause of action, however, the suit has been filed in 2017 which is clearly barred by limitation. Also averred that there is no cause of action in favour of the plaintiff. The plaintiff doesn't have title to the Suit No. 307/17 Premwati Vs. Sunita Page no.7/61 suit property and therefore no suit can be maintained. Plaint shows that plaintiff herself has stated that the plaintiff agreed not to take action of dispossession and allow the defendant to reside in the suit land till the marriage of Ms. Bhoomika, daughter of the defendant takes place. Though the said statement in para No. 10 of the plaint is incorrect, the marriage of Ms. Bhoomika, daughter of the defendant tool place on 28.11.2010 and even from that date the present suit is barred by limitation. It is also averred that this court doesn't have the pecuniary jurisdiction as the value of the suit property is at least Rs. 25,000/- per yard as per circle rate. The plaintiff is required to file suit for possession valuing the suit properly as per the market value of the suit property and ad-valorem court fees has not been paid and in the garb of mandatory injunction possession is being sought. It is averred that plaintiff has concealed the material facts from this court. The defendant has been in settled possession of the suit land since 1986. As per revenue record, which is admissible title document, property belong to Sh. Chander Bhan as a co-sharer, in family settlement, this land had fallen in the share of Sh. Chander Bhan. Even Sh. Chander Bhan has also settled with his own two sons and had divided the property. In the year 1986, itself, the suit property was handed over in a family settlement to Sh. Ramesh Chander, husband of defendant and son of plaintiff, so the defendant alongwith her husband came in the suit property as an owner which was received in a family settlement. The suit property is admittedly an ancestral property which was acquired by Sh. Chander Bhan from Sh. Ram Swaroop, his own father which comprised in khasra No. 278, 279 & 280 so far as revenue record is concerned. The defendant is placing on record bill of Suit No. 307/17 Premwati Vs. Sunita Page no.8/61 telephone connection obtained from MTNL, dated 02.01.1998, in the name of the defendant and also electricity bill in the name of the defendant of 2005 & 2007 and in the name of Smt. Bhoomika, daughter of the defendant, for the year 2016 for the same address. Even there is a water connection in the name of defendant in the suit property it is also pertinent to mention that in 1993 even in the service record of defendant, who is serving as a teacher in MCD, Delhi, the address of the defendant was of the suit property. It is denied that plaintiff is the actual and rightful owner of the suit property. Further submitted that the suit property has not been correctly shown in the site plan. It is denied that plaintiff has purchased the property measuring 2000 sq. yds. (including the suit property) on 02.01.1989 from Sh. Suraj Bhan, Sh. Chander Bhan and Sh. Kapoor Chand against sale consideration of Rs. 20,000/- by virtue of GPA etc. The documents placed on record are not registered and no rights flow from those documents. The selling of the plots ad measuring 1350 sq. yds. out of 2000 sq. yds. to different persons and the remaining portion ad measuring 750 sq. yds. being allegedly owned by the plaintiff is denied. It is denied that plaintiff was getting Rs. 20,000/- per month from the tenants occupying the alleged 15 temporary rooms constructed in the suit property or she having raised any construction therein. The hatching of the conspiracy by the defendant in connivance with his father to grab the suit property is categorically denied. The averment qua the defendant being allegedly residing as licensee only is denied. It is submitted that the defendant is the owner of the suit property so the question of terminating her license by way of legal notice dated 27.02.2017 doesn't arise at all. Remaining averments are Suit No. 307/17 Premwati Vs. Sunita Page no.9/61 also denied and with this prayer for dismissal of the suit has been made.
3. Replication to the written statement has also been filed by the plaintiff reiterating the facts mentioned in the plaint and denying contrary facts averred in the written statement.
4. On the basis of the pleadings following issues were framed on 16.12.2019 which are:-
I). Whether the suit of the plaintiff is not maintainable in the present form, in view of the fact that the plaintiff has averred in the plaint that the construction of the suit property was raised by the defendant? OPD. (this issue already stands decided in favour of the plaintiff vide order dated 02.03.2020). II). Whether the plaintiff is the owner of the suit property? OPP III). Whether the defendant is the owner of the suit property, being co-sharer therein, having inherited the property from Sh. Ramesh Chander?OPD IV) If the issue No. 2 is answered in affirmative, whether the defendant was inducted in the suit property as a licencee by the plaintiff?OPP V) Whether the plaintiff is entitled to a decree of mandatory injunction, as prayed for?OPP VI) Whether the plaintiff is entitled to a decree of recovery of Rs. 1,50,000/- as prayed for? OPP VII) Whether the plaintiff is entitled to a decree of recovery of mesne profits and damages @ Rs. 10,000/- per day, as prayed for? OPP Suit No. 307/17 Premwati Vs. Sunita Page no.10/61 VIII) Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for?OPP IX) Whether the plaintiff is entitled to the costs of the suit?
OPP X) Relief
5. In order to prove the case the plaintiff has examined three witnesses including herself as PW-1.
i) PW-1 is plaintiff herself and she has tendered her evidence by way of affidavit Ex. PW-1/A, bearing her signatures at points A & B and has relied upon the following documents i.e.:-
Sr. Nature of Documents Exhibited As.
No.
1. Site plan. PW1/1.
2. GPA dt.02.01.1989. PW1/2 (OSR).
3. Affidavit dt.02.01.1989. PW1/3 (OSR).
4. Deed of Agreement dt.02.01.1989. PW1/4 (OSR).
5. Receipt. PW1/5 (OSR)
(colly).
6. Certified copy of case titled as Sunita PW1/6 Devi and Ors. Vs. Chander Bhan And Ors. (now deexhibited and exhibited as PW1/6)
7. Complaints filed by plaintiff. PW1/7 (colly).
8. Legal notice, postal receipt and PW1/8 (colly).
envelop. (wrong mentioned as PW1/7 (Colly) in the affidavit, now the same is exhibited as PW1/8 (colly) Objections: Site plan is not as per actual site.
Suit No. 307/17Premwati Vs. Sunita Page no.11/61
Objected to mode of proof: GPA is unstamped and
unregistered.
Deed of agreement.
Affidavit.
During cross-examination stated that her age as on today is around 80 yrs. She has understood each and every document and pleadings placed on record on her behalf. Admitted that her age has been mentioned in para No.1 of evidence by way of affidavit Ex. PW-1/A as 72 yrs, in para No. 2 as 76 yrs, in the plaint filed in 2017 as 73 yrs, in affidavit supporting plaint 72 years, and in complaint dated 20.02.2017 70 yrs. She has not placed on record any document which shows her identity including age and today also she has not brought any such document, volunteered she can produce her Aadhar Card for age and Identity proof, volunteered she is an illiterate person. Denied that her age is not written in pleadings and documents after confirming it from her. The suit property is ad measuring 750 sq. Yds. She is not aware if the suit property is mentioned as measuring 650 sq. Yds in evidence affidavit which is Ex.PW1/A. Admitted that in para No. 3 of her evidence affidavit the suit property is mentioned as 650 sq. Yds. She had purchased 2000 sq. yds from Chander Bhan, Suraj Bhan and Kapoor Chand. Out of which, she had sold all the land except 700 sq. yds. Admitted that in para No. 5 of evidence affidavit it is mentioned that she had sold 1350 sq. yds. Denied that after selling land of 1350 sq. yds. out of 2000 sq. yds, neither 700 sq. yds. nor 750 sq. yds. left. It may be remained 718 sq. yds. after selling out of 2000 sq. Yds land. Admitted that she filed the complaint before the Police and mentioned that she sold 1300 sq. yds. out of 2000 sq. yds. There Suit No. 307/17 Premwati Vs. Sunita Page no.12/61 were 15 tin shade rooms, two pacca rooms, washroom, kitchen, and one big hall were constructed on 700 sq. yds which she constructed after purchasing. The 3 rooms written in her plaint in para No. 5 is wrongly written and statement given today is correct. She had purchased the 2000 sq. yds. in Rs.20,000/-. She had made the payment in cash which she has got from her father. She paid the consideration amount when the execution of the document took place. Admitted that in documents i.e. deed of agreement it is mentioned that the consideration amount was paid in cash in advance by the first party from the second party. Her statement that at the time of execution she paid the consideration amount is correct as no one pays consideration amount before execution of document. She had purchased the property from 03 persons namely Chander Bhan, Suraj Bhan and Kapoor Chand. She had put the cash in the hands of Chander Bhan with instructions to give other sellers their shares. She was having the amount with her own which she got from her father. The amount was given by her father on his retirement but she cannot tell the year in which it was given to her or how many years prior to execution the said amount was given to her. She was not having any bank account at the time when he purchased the above property. All the documents were executed by Chander Bhan, Suraj Bhan and Kapoor Chand on the same day. She does not remember what documents were executed in her favour and how many documents were executed. All the said documents were executed at Kashmiri Gate, Delhi. All the documents were executed at the same place. She does not know whether the documents were executed at the Registrar Office but the place was Kashmiri Gate. She does not know how Suit No. 307/17 Premwati Vs. Sunita Page no.13/61 much land was inherited by Chander Bhan (her husband) from his father Sh. Ramswaroop. The land which was sold by Chander Bhan was inherited from his father. Admitted that Chander Bhan inherited properties other than that which was sold to her. Two houses were inherited by Chander Bhan from his father Sh. Ramswaroop. At the time of demise of Sh. Ramswaroop, most of the land was sold out. The amount which was received by Sh. Ramswaroop by selling his land, were not invested somewhere and instead was spent on family expenditure. She does not remember to whom she sold the part of 2000 sq. Yds. Denied that she had not sold the part of 2000 sq. yds to anyone rather the same are with her and her another son namely Sh. Rakesh. Apart from the suit property, there are 02 houses in which electricity connection is in her name. Again, said she is not sure, it might be in the name of his son. She do not know whether the electricity connections are in her name or in the name of her son on the property which she has stated to have sold out to someone other than her son Sh. Rakesh. Following questions were asked to the witness:-
Q. When you purchased the property 2000 sq. Yds. what was constructed in the portion which is now suit property? A. The suit property was vacant land when I purchased. The entire 2000 sq. Yds was in a single boundary when I purchased.
Q. When you purchased the property 2000 sq. Yds. what was constructed in the portion other than suit property? A. It was also a vacant portion only boundary wall was constructed there.Suit No. 307/17
Premwati Vs. Sunita Page no.14/61 Q. When there is no partition wall between the property sold and unsold out of 2000 sq. Yds then on what basis these two portions are separately identified?
A. I constructed the tin shade in middle of my property. I do not remember when I sold the remaining portion out of 2000 sq. Yds. I sold the property to 4-5 persons. I sold the some part prior to construction of the suit property and some part after that. I constructed the boundary walls of 2000 sq. Yds. after purchasing the same. It is incorrect to say that the boundary wall was already constructed when I purchased the 2000 sq. Yds. Q. The witness is shown the documents Ex.PW1/2, PW1/3 and PW1/4 and asked the statement contained in the document which says tubewell with room, four shops, boundary wall, were already existing in the 2000 sq. Yds property when it was purchased by plaintiff, whereas the witness has stated today that it was a vacant land and boundary was constructed only after purchasing it. Which of two is correct?
A. The contents mentioned in my documents are true and correct. Admitted that she has filed complaint case u/s 200 CrPC r/w Section 156 CrPC in which the defendant and her father and daughter were summoned. Admitted that Hon'ble Court of ASJ was pleased to discharge Sunita (defendant), her father and daughter. Admitted that she had not filed any appeal against the order of ASJ. Denied that she had not filed any appeal against the said order because she had filed a false complaint to humiliate and harass the defendant, her daughter and her father. Admitted that the land which she purchased was not mutated in the Revenue Record. Denied that the lands were not recorded in her name because she never purchased the same and the Suit No. 307/17 Premwati Vs. Sunita Page no.15/61 documents she claim do not confer any title to her in the suit property. The property is in her name as she purchased the same. She does not know if her name is recorded qua the suit property in revenue record. She does not remember that how many years after from date of purchase she sold the remaining portion of 2000 sq. Yds. She constructed the property prior to selling the same. Prior to selling the remaining portion, she had constructed a hall and shops. No written/oral agreement was entered between her and defendant for payment of rent @ Rs.10,000/- per day w.e.f. 10.03.2017 as written in prayer clause of her application u/o 39 Rule 10 r/w Section 151 CPC at page No. 17 of the application/plaint. She does not remember whether she got any notice served to defendant prior to filing of suit. Admitted that Sunita had filed a suit for permanent injunction against her in the year 2009. She does not know why Sunita had filed the suit against her. She remembers that she had filed a suit in which it was agreed before the Court that she will not dispossess her without due process of law. She gave that concession as her daughter was tender age. Denied that her daughter was minor and instead she got married in the year 2010. She does not know whether defendant's daughter got married in the year 2010 as she was not invited or not attended the marriage. She filed the suit in 2017 only because defendant started creating troubles when her son in law (Damaad) expired in January 2017 and she had not condoned to her and her daughter and instead enjoyed the same. She does not remember the year in which her deceased son (Ramesh Chand) got married to defendant. She had attended the marriage of her deceased son. Her deceased son separated from them after 2-3 yrs of his Suit No. 307/17 Premwati Vs. Sunita Page no.16/61 marriage. The share was given in the suit property to her deceased son to reside separately alongwith his wife after constructed his portion. She does not remember the year when she constructed the residential portion in the suit property to her deceased son and when she constructed the tin sheds. She does not remember anything as to how many years after purchasing the same she constructed tin shed etc. in the property. She cannot say that it is correct or incorrect that the defendant got married with her deceased son in the year 1986 as she does not remember now. Denied that soon after getting married, the defendant and her deceased son residing in the suit property. Chander Bhan had divided some part of ancestral property between his two sons. The land was given only residential purpose to deceased Ramesh Chand. Asked 'whether Sh.Chander Bhan during his life time given the suit property to Sh.Ramesh Chand for his separate residence, to which witness replied - It is incorrect. Admitted that Sh. Chander Bhan had given some portion (i.e. two rooms, one kitchen, washroom and one gallery) of suit property for separate residential property. Denied that the entire suit property comprising 718 sq. Yds. was given by Sh. Chander Bhan to Sh. Ramesh Chand during his life time just soon after his marriage in the year 1986 for separate residence as per family understanding. Rakesh was residing with them. Nothing was given to Rakesh as he was residing with them. Rakesh is having some property out of property inherited by Chandar Bhan i.e having the residential house. She does not know who is having the electricity meter of residential house. Rakesh is residing in house where she is residing and another house is given on rent. Admitted that she constructed the tin Suit No. 307/17 Premwati Vs. Sunita Page no.17/61 shed, hall, rooms in suit property. She has not taken any electricity connection, gas connection, water connection in her name in the suit property. After death of her son, she visited twice or thrice in the suit property. There was electricity connection in the suit property. Denied that there was water connection in the suit property when she visited. Electricity connection, water connection, telephone connection, gas connection may be in the name of Sunita and her daughter in the suit property but she never permitted them to take connections, how they obtained the same on which basis. No one else other than the defendant and her family members ever resided in the suit property. She never inducted any tenant in the suit property rather same were always let out by the defendant and she was collecting the rent from them. Denied that she never inducted any tenant and never collected rent because ever since the marriage of defendant with her deceased son, the property was given to her deceased son as exclusive residence and she or anyone else was not having any right in the same. Sh. Ramswaroop was son of Sh. Deshram. Admitted that Khasra No. 278 and 279 was comprising 2 Bigha 3 Biswa and 4 Bigha 9 Biswa respectively which comes to 2150 sq. Yds and 4450 sq. Yds. Admitted that the property which was sold to her by Chander Bhan and Suraj Bhan S/o Ramswaroop and Kapoor Chand S/o Sheo Ram. She does not know if lands of Ramswaroop and Shiv Ram were partitioned between them. She does not know if share of 3 vendors is mentioned in documents Ex.PW1/2 to Ex.PW1/5. Admitted that there is no site plan annexed with the document which were executed by vendor in her favour to show that which portions out of total 2 Bigha 3 Suit No. 307/17 Premwati Vs. Sunita Page no.18/61 Biswa and 4 Bigha 9 Biswa respectively which comes to 2150 sq. Yds and 4450 sq. Yds. Admitted that documents were executed in the year 1989. Admitted that thereafter she had not insisted the vendor to execute the registered sale deed or ever asked. Out of three vendors, two persons namely Chander Bhan and Kapoor Chand had expired in the year 2019 and 2020 respectively and Suraj Bhan is alive. She does not know that after executing the agreement to sell, GPA, receipt, affidavit, the vendee has to get registered agreement to sell done in their favour so as to confer title on the vendee. Denied that the document executed in her favour do not confer any title on her. She had not served any notice or request to vendor to register sale deed. Admitted that she allowed the defendant to take the rent to assist her financially. Denied that the defendant is a govt. Teacher and she was not in need of any such financial assistance. Denied that no suit was filed by her to evict the defendant from the suit property as per due process of law because the property belonged to defendant and she accepted the same. She signed the evidence affidavit in Dwarka courts. She will see the consequences if her evidence by way of affidavit is not as per law as the same is not sworn by the Oath Commissioner. Admitted that the documents were executed before the Notary and receipt was executed before the Sub Registrar and both the documents were not executed at the same place. She do not remember whether she signed or put her thumb impression on the documents executed by Chander Bhan, Suraj Bhan and Kapoor Chand. She do not remember if any other person has put the signatures. This is her true and voluntary statement. Admitted that Sh. Ramesh Chander (her son) had separated from the family during the lifetime of her Suit No. 307/17 Premwati Vs. Sunita Page no.19/61 husband. Admitted that Sh. Ramesh Chander alongwith his family resided in the suit property till he died. Admitted that suit property was given to Sh. Ramesh Chander by her husband to reside. After marriage of her son Ramesh Chander, he resided with her for 1 or 2 months and thereafter, Sunita left for her parental home. After that Sunita as well as Ramesh Chander were not residing with her, Sunita left for her parental home and Ramesh Chander used to roam around in drunken state here and there. Admitted that till the time defendant and her husband resided in the suit property it was in joint possession of all of them with others. She is not aware whether Suraj Bhan has given statement that Chander Bhan had no share in the suit property.
Denied that Kapoor Chand was not owner of any part of the property measuring 2000 sq. yds. which include suit property. Denied that she did not equally distributed the amount of Rs. 20,000/- to Suraj Bhan, Kapoor Chand and Chander Bhan, volunteered she had kept the said amount as it is for all of them. She is not aware whether she had taken any receipt from them or not. Denied that she had not given any amount to anyone qua the suit property. Asked 'as you have mentioned in your plaint, out of the total 2,000 sq. yds. what area of the property has been given by you to your younger son Rakesh, to which witness replied - Nothing has been given. Rakesh my younger son is not in possession of any part of the property measuring 2000 sq. yds. At this stage, witness is put with the site plan Ex. PW-1/1, to which witness states that she is not literate and cannot peruse the same. As to site plan she only know that the same was got drafted. On the one side of the suit property there is property of Suraj Bhan and on one side there is Matiala Road, on one side Suit No. 307/17 Premwati Vs. Sunita Page no.20/61 there is a colony. Adjacent to the property of Suraj Bhan her property is situated. The said remaining property situated adjacent to the property of Suraj Bhan lying with her is the property which is left over after selling some area of the total area of 2000 sq. yds, volunteered it is around 700-750 sq. yds. The said property is constructed however presently she is not aware of the present status of construction therein, volunteered earlier there were 15 constructed rooms (which had shed) and three other rooms. Asked 'can she tell to the northern and western side of the suit property, whose property lies', to which witness replied she do not know about the directions. The said property is her. Denied that her relation with defendant are not cordial and she is in dispute with the defendant. Denied that she did not purchased any part of suit property vide documents dated 02.01.1989. Denied that the documents dated 02.01.1989 were created by her in collusion with Suraj Bhan in order to grab the property under the possession of defendant. Denied that defendant has been in possession of the property in her all capacity and not as her licensee. Denied that defendant alongwith her late husband and daughter Bhumika resided in the suit property which was given to late Sh. Ramesh Chander in a family settlement. Denied deposing falsely.
ii) PW-2 is Suraj Bhan. He has tendered his evidence by way of affidavit Ex. PW-2/A, bearing his signature at point A & B. During cross-examination stated that he has seen the property in dispute. He can identify the property in the site plan if shown to him. Admitted that to the East side to the property in dispute, his property lies. Denied that towards West of the suit property, there is a property of Sh. Rakesh, volunteered there is a road. When he Suit No. 307/17 Premwati Vs. Sunita Page no.21/61 sold the property he had seen the property and thereafter to whom it has been sold off he do not know. He resides in Bindapur village. The distance between the suit property and his house is around 750 meters. He do not remember as to when lastly he had seen the suit property. He keep visiting my property lying to the East of suit property. He do not know that as on date to the West side of the suit property, property of Mr. Rakesh s/o Premwati (plaintiff) is existing. To the West side of the suit property, it is the property of Premwati/plaintiff. He had sold 2000 sq. yards to the plaintiff. Denied that Mr. Kapoor Chand was not owner of any part of the property ad measuring 2,000 sq. yards as mentioned in the deed of agreement dated 02.01.1989. He do not know have any proof at present as to the ownership of Mr. Kapoor Chand as to the suit property previously. There were total have co-sharers/co-owners of the land comprising khasra No. 278 and 279 as on 02.01.1989. The names of those co-owners are Kapoor Chand, Suraj Bhan, Balwan Singh, Roop Chand and Sahab Singh. He do not know what was the share of Ram Swaroop (his father) in the suit property. Following questions were asked to the witness:-
Ques. Can you tell your share and share of your brother Chander Bhan in khasra no. 278 and 279 as on 02.01.1989? Ans. Chander Bhan had no share in these two khasra no. on the said date. My share in these two khasra no's was 3,000 sq. yards.
It is incorrect to suggest that his share in these two khasras was not 3,000 sq. Yards.
Ques. Do you had and have any map of partition of khasra no. 278 & 279 among co-sharers as on 02.01.1989 indicating that Suit No. 307/17 Premwati Vs. Sunita Page no.22/61 land measuring 2,000 sq. Yards had come in share of you, Chander Bhan and Kapoor Chand?
Ans. I do not had and have any such site plan.
Neither any site plan was prepared nor was annexed with the documents dated 02.01.1989. On 02.01.1989, there was boundary wall around this suit property and it had one tubewell.
Ques. What was the need of selling a property by the husband to his wife, in the present suit by Chander Bhan to Premwati? Ans. I do not know about the same. I do not know whether Chander Bhan had sold the property to Premwati or not.
Out of the total area of 2,000 sq. yards as mentioned in the document dated 02.01.1989, 1,000 sq. yards belonged to him of which he was the owner and the remaining 1,000 sq. Yards was in the name of Kapoor Chand. He had received Rs. 20,000/- in total after selling the said 2,000 sq. yards, out of which he had given Rs. 10,000/- to Kapoor Chand. The said amount of Rs. 20,000/- was given to him at his residence. Document regarding receipt of payment of Rs. 20,000/- was executed at Registrar Office, Kashmere Gate and same had his signatures also. He do not remember whether there was any witness qua receiving of the said amount or not. Denied that no receipt was executed in respect of consideration of sale amount. Denied that the receipt signed by him has nothing to do and is not in the relation to consideration amount of the sale of suit property. Denied that he did not execute any document of sale in favour of Premwati in respect of suit land. Denied that in order to deprive the defendant of her legal rights in the suit land, Suit No. 307/17 Premwati Vs. Sunita Page no.23/61 he alongwith Premwati have manufactured the documents. Denied deposing falsely.
iii) PW-3 is Mukul Kumar Sharma. He had visited at the suit property situated at 46, Bhagat Enclave, Bindapur. He prepared the site plan already Ex. PW1/1 bearing his signatures and his stamp at point A. During cross-examination stated that he is not an architect. He is a drafts man. He has an ITI Diploma Certificate in Drafts Man from Chobsingh, ITI, Ancharu Kalan, Buland Shahar, U.P. The site map already Ex.PW1/1 is not on scale. He ascertained the directions through a compass on the spot. There is no mention on the site plan as to he having used compass on the spot. He had visited the suit property / spot on his own where he met only one person namely Shubham. Plaintiff was not present at the spot when he visited the suit property. He had not entered into the property to see the internal structure and drafted the site plan on being told by plaintiff in court complex. He had prepared the site plan Ex. PW1/1 on 22.03.2017. He had met the plaintiff 2-3 days prior to preparing the site plan. He do not remember if plaintiff was accompanied by anyone including Shubham on the said date. Admitted that in the site plan Ex. PW1/1 he has not shown surrounding properties as those were not disclosed by the plaintiff. He had asked her the surrounding properties on which she had only told other properties. He can not admit or deny that she had purposefully not disclosed the name of surrounding properties. He had specifically enquired from Shubham present on the spot about name of owners of surrounding properties. However, he only mentioned others properties and did not disclosed name of owners of the surrounding properties. Denied that despite being Suit No. 307/17 Premwati Vs. Sunita Page no.24/61 knowing and disclosed about the surrounding properties and the owners thereof he deliberately did not mentioned the same while preparing the site plan. He do not know that on the west side of the suit property is the property of Shubham whom he met. He did not enquired about the father's name of Shubham or his connection with the suit property or the present case. He has prepared the site plan on the instructions of plaintiff and not on the instructions of Shubham, Shubham only identified the suit property. Admitted that he has prepared the site plan on being identified by a person (Shubham) whom he do not know personally or his father's name or his connection with the present case or the suit property, volunteered he was calling plaintiff as dadi but he is not certain whether she is the real grandmother or not. Denied that he is aware that on the North side of the suit property, property of plaintiff as well as her son Rakesh is situated. Denied that he is aware that on the East side of the suit property, property of Suraj Bhan who is brother in law (dewar) of Premwati is situated. On three sides of the suit property it is a built up area and on the one side (South side) there is a public road. He do not remember whether there is any gap between the walls of surrounding property and walls of suit property. From outside the property he failed to ascertain whether the suit property or surrounding property were having common separation wall or separate wall. Denied that just because he did not noticed whether there are joint / adjacent wall attached with each other or separate wall with the surrounding property he could not have ascertained the area of the suit property, volunteered construction work was going on and rest plaintiff had instructed him and on the basis of the same Suit No. 307/17 Premwati Vs. Sunita Page no.25/61 he prepared the site plan. Plaintiff told him that the construction is going on only on the suit property. He saw the suit property from front and behind. He saw the suit property from behind from a street which was behind the house located behind the suit property. Denied that he did not visited the suit property and prepared the site plan as per the wishes and directions of the plaintiff. Admitted that he has not mentioned on the site plan as to the date of preparing the same, volunteered there were three copies and may be mistakenly he forgot to mention the date on this site plan. Denied that he is not competent to prepare the site plan. Denied that it is necessary to show the surrounding properties while preparing the site plan of specific property and he has not prepared site plan as per the standards and requirements. Denied deposing falsely at the instance of the plaintiff.
6. In order to rebut the case of plaintiff, defendant has examined four witnesses.
i) DW-1 is defendant herself and she has tendered her evidence by way of affidavit Ex. DW-1/A and has relied upon the following documents i.e.:-
S. Documents Exhibited as
No.
1 Aadhar Card DW-1/1 (OSR)
2 Election ID card DW-1/2 (OSR)
3 Employment ID card DW-1/X (OSR)
4 Letter to Assistant Education Officer DW1/3 (OSR)
dated 01/03/1997
5 Aadhar Card of Ms. Bhumika Ahlawat DW1/4
6 Election ID card of Ms. Bhumika DW1/5
Suit No. 307/17
Premwati Vs. Sunita Page no.26/61
Ahlawat
7 Ration Card no.570227 DW1/6
(O.S.R.)
8 Khasra/ Khatoni for year 1950-51 DW1/7 (03
pages)
9 Copy of Khatoni/ revenue record for the DW1/8 (06
year 1978-1979 pages)
10 Copy of Aks-sizra DW1/9
11 Copy of Khatoni/ revenue record for the DW1/10 (02
year 2001-2002 pages)
12 Original Site Plan DW1/11
13 MTNL Landline in the name of Sunita DW1/19
Devi (OSR)
14 Electricity connection application in the DW1/21 03
name of Sunita Devi pages)(OSR)
(Counsel for the plaintiff has objected
the same as the document related to
meter change report is not for electricity
connection application)
15 Electricity Bill in the name of Bhumika DW1/22 (03
Ahlawat pages)(ORS)
16 Water Connection in the name of Sunita DW1/23
Devi (OSR)
17 Gas Connection records in the name of DW1/24
Sunita Devi (OSR)
18 Gas complaint memo in the name of DW1/25
sunita Devi (OSR)
During cross-examination stated that her address mentioned in her evidence affidavit is true and correct of suit property. Asked 'I put to you that Ex. DW-1/1 to Ex. DW-1/6, Ex. DW-1/19, Ex. DW-1/21 to Ex. DW-1/23 are not having the address of suit property as mentioned in your evidence affidavit', to which witness replied it is wrong, in the documents stated above address of suit property is mentioned, volunteered Khasra No. is not mentioned. After going through the file witness stated that Suit No. 307/17 Premwati Vs. Sunita Page no.27/61 address of suit property mentioned in her evidence affidavit is not mentioned in the documents i.e. Ex. DW-1/1 to Ex. DW-1/6, Ex. DW-1/19, Ex. DW-1/21 to Ex. DW-1/23, volunteered khasra No. is not mentioned, rest of the address is same. Property No. is mentioned in her evidence affidavit i.e. 279, 279, volunteered she is confused and she thought the same has been wrongly mentioned. After reading and going through with her evidence affidavit as the same having been explained to her by her counsel she has filed her evidence affidavit. Admitted that in certain documents Roop Nagar is mentioned and in certain documents Bhagat Enclave is mentioned, volunteered the name of Roop Nagar was later on changed to Bhagat Enclave. She has not filed any document to the effect that when and by whom the name of Roop Nagar was changed to Bhagat Enclave. Denied that Nice Foundation Public School is situated at Q-46, Bhagat Enclave, Bindapur and same is running since 1990. Admitted that suit property is situated in khasra No. 278, 279. She do not know if Kapoor Chand, Suraj Bhan and Chander Bhan were owner of the suit property, volunteered her father-in-law namely Mr. Chander Bhan gave the suit property to her. She had not filed any documents to show that Mr. Chander Bhan had given the suit property to her, volunteered it was verbally given by her father-in-law. She has not annexed any NOC at the time of applying for electricity connection, water connection and for MTNL connection, volunteered it was not asked from her. Denied that NOC was demanded by the department. At the time of applying for electricity connection she had provided her Aadhar Card, documents qua change of her address etc. She do not remember other documents. Denied that prior to obtaining the Suit No. 307/17 Premwati Vs. Sunita Page no.28/61 electricity connection, water connection etc. her address in all documents was of her parental house i.e. Bakarwala village. Denied that at the time of her joining of her job in MCD School as primary teacher she was residing in Bakarwala village, volunteered her husband had advised her to keep the address of Bakarwala village in the records but she was residing in Bhagat Enclave, Bindapur i.e. at the address of suit property. She do not have any document to show that in 1997 she was residing in the suit property, volunteered her husband had asked her that gradually documents would be prepared. Denied that she never resided in the suit property in the year 1997. Denied that in the month of May and June only after the death of her husband on 28.04.2005 she and her brother started obtaining documents qua the suit property, volunteered she had obtained the documents and not her brother. The reason was that her mother-in-law and other family member started harassing her. DW-1 was then shown a document Ex. PW-1/9 i.e. document aks-sizara and is asked that this document has been obtained by Mr. Manoj Kumar S/o Sh. Phool Singh, Village Bakarwala on dated 26.05.2005, to which witness replied she herself went to obtain the documents initially and later on her brother Mr. Manoj went to obtain the same. Denied that her husband was a drug addict. Denied that plaintiff had got her husband admitted in Nasa Mukti Kender (Rehabilitation centre), volunteered she had got admitted her husband admitted there. She has no documents to show that she had got him admitted. She do not remember the name of Rehabilitation Center. Denied that she never reside with her husband so she does not know the name of the Rehabilitation Center in which her husband got admitted. Denied that as she Suit No. 307/17 Premwati Vs. Sunita Page no.29/61 never got him admitted in Rehabilitation Center so she has no documents. Denied that the expenses of her husband's operation of his leg thumb was borne by his brother and the plaintiff, volunteered the expenses were borne by her and her husband. Admitted that she was not present when her husband expired, volunteered she was on duty. Denied that at the time of death of her husband she was residing at Bakarwala. Admitted that she was posted in Bakarwala School. Admitted that last rites of her husband were performed from H. No. 90, village Bindapur, volunteered her husband expired in her house however her in- laws family member had taken him from her house to H. No. 90, village Bindapur when she was on duty. Admitted that plaintiff, her brother-in-law, her father-in-law or sister-in-laws were not having her phone number at the time of death of her husband, volunteered they were not in talking terms. She does not know any person namely Surat Singh, Mange Ram, Baljeet or Bhim Singh who were having land in her parental village. Denied that messenger visited at her parental home to convey the message of death of her husband. Denied that after the last rites of her husband she did not even stayed for 13 days at H. No. 90, Village Bindapur, volunteered at the time of death she was at work she was informed about the death of her husband by Mr. Tejvir. Denied that Tejvir never informed her about the death of her husband telephonically. She has not placed on record any documents to the effect that her husband expired due to heart failure. She had a landline MTNL connection at home and her husband did not have any mobile number. She was using mobile in 2005 but she do not remember the number thereof presently. Witness was shown a document Ex. DW-1/X and asked that this Suit No. 307/17 Premwati Vs. Sunita Page no.30/61 document does not bear the signatures of Director of Education of MCD, to which witness replied it bears signature of head master. Witness was shown the original ID Card which bears signatures of head master and Director. It is noticed that the document on record Ex. DW-1/X is not much legible. Denied that she prepared the forged ID of the address of Q-46, Roop Nagar only to grab the suit property. Denied that documents i.e. Ex. DW-1/1 to Ex. DW-1/6, Ex. DW-1/19, Ex. DW-1/21 to Ex. DW- 1/23 were prepared by her without having any knowledge of suit property so they are having different address. Admitted that the above said documents having no address of suit property, volunteered address of suit property is mentioned. Admitted that date of year of birth of Bhumika is 1989. Admitted that the document Ex. DW-1/4 is not having date and month of birth in Aadhar Card, volunteered her husband has prepared an affidavit and changed the D.O.B of her daughter i.e. 1991. Denied that her husband has never changed D.O.B of his daughter. She knows Smt. Raj Rani. Admitted that the adjacent property is of Raj Rani on the left side and in the right side there is property of her brother-in-law. Denied that in right side there is no property belong to her brother-in-law. Denied that the property on the right side has been purchased by 2-3 other persons and it doesn't belong to her brother-in-law, volunteered they sold the property to their relatives. She receives letters/correspondences on her address of suit property, volunteered inadvertently the khasra no. has been wrongly mentioned as 279, 279, the correct No. is 279,
280. Witness was shown an envelope Ex. D-1 whereupon the address mentioned is 278-279, Bhagat Enclave near Nice Foundation School, Bindapur Matiala Road, New Delhi-59, to Suit No. 307/17 Premwati Vs. Sunita Page no.31/61 which witness replied that she is confused with the khasra No. Denied that she had received legal notice Ex. PW-1/8 which mentions the address to be khasra No. 278, 279, Bhagat Enclave, Bindapur. She had not replied to this legal notice. Admitted that Premwati is having two daughters and two sons. Admitted that husband of Shardha expired in 2017. Again said it came to her knowledge after a long time, may be one or two month later. Denied that when Premwati had gone to the house of her daughter when the husband of her daughter expired, behind her back fresh construction was started by her, volunteered that the construction was going on even in presence of Premwati and she was aware about the same. Admitted that earlier the rooms in the property were tin shed rooms and later on lanter was put by her, volunteered the construction started in the month of September 2016 and got completed in April 2017. Admitted that she was receiving rent from the suit property. Asked 'what amount was received towards rent by her from the suit property in the year 2017 and presently also', to which witness replied at times the rooms were vacant and at times the same were occupied and the rent was about Rs. 30 to 40 thousand per year. At present, she is receiving around Rs. 60 thousand as rent from the suit property per year. Denied that she is collecting the rent of Rs. 70 to 80 thousand per month from the suit property. She has not placed on record any document to the effect that the suit property was in the name of her husband, volunteered it was in the name of her father-in-law. She is not aware who all were co-sharers in khasra No. 279, 278 i.e. khasra no. of suit property. She only knew the name of Mr. Suraj Bhan and Mr. Chander Bhan. She does not know if Suraj Bhan, Suit No. 307/17 Premwati Vs. Sunita Page no.32/61 Chander Bhan and Kapoor Chand sold the suit property to Premwati in the year 1989, volunteered nothing happened in her presence. Denied that she has no right in the suit property. Denied that suit property is self-acquired property of plaintiff. Denied that suit property was given as a licensee to her husband. Denied that after the death of her husband she obtained the electricity meter, water connection on the basis of giving false address of suit property i.e. Q-46, Bhagat Enclave, Bindapur. She has mentioned the address of adjacent property, allegedly to be of her brother-in-law Rakesh, as mentioned in para 14 of my affidavit i.e. 99, 23, 24, 25, 26, 27, 46, 46A and pole No. 10, volunteered in evidence affidavit it is not mentioned that the said property is situated adjacent to the suit property. Denied that contents of para 1 to 19 of her affidavit are false, wrong and incorrect. Denied that she has not vacated the suit property intentionally even after receiving the legal notice from the plaintiff and is illegally occupying the same despite her license having been terminated by the plaintiff. Denied that only to grab the property she obtained the electricity meter in my daughter's name. Denied that she sub-let the suit property without having any authority to do the same and collecting the rent from the suit property. Denied that plaintiff had given the suit property to her husband as a licensee. Asked 'in Para No.13 of her evidence affidavit she has mentioned that at the time of her marriage property was used as Gher and having electricity meter in the name of Rakesh bearing H. No. 99. To whom this property belongs and in whose possession it is lying presently, to which witness replied property bearing No. 99 is in possession of Rakesh at present also. It is not adjacent to the suit property and Suit No. 307/17 Premwati Vs. Sunita Page no.33/61 is located at some distance. She is not aware whether there was any electricity meter in the property ad measuring 2000 sq. yds. in 1986, volunteered there was no meter in the area occupied by her at that time. Admitted that the property ad measuring 2000 sq. yds. had the construction of 4 shops and there was one tube well in the year 1989, volunteered the share which was given to her had no construction at all. Asked 'if her this statement is correct that there was no construction in the area which was given to her then where she started residing, to which witness replied after her marriage her mother-in-law was not happy and issues cropped up, her father-in-law called her father and told him that he is giving this share for residence of her husband and for her and now either her husband should construct the same or her father, her father-in-law further said he has no concern with the construction. Denied that she had given birth to her daughter Ms. Bhumika in H. No. 90, Village Bindapur in the year 1989, volunteered at that time of birth of her daughter she was residing at Q-46, Bhagat Enclave, Bindapur, earlier it was known as Roop Nagar. She has not placed on record any document as proof to that effect, volunteered at the time when she was taken to hospital and was admitted there, she does not know who had given the address of the H. No. 90, Village Bindapur. She does not remember in which year the marriage of her sister-in-law Mamta was solemnized. Denied that the marriage function of Mamta was organized at this property of 2000 sq. yds, volunteered it was at the property of Raj Rani. She has filed site plan of the suit property alongwith her plaint. She does not know whether the adjacent properties has been shown in the site plan or not. Denied that her father-in-law was never in possession of Suit No. 307/17 Premwati Vs. Sunita Page no.34/61 the suit property. Denied that the suit property exclusively belongs to the plaintiff and it is her self-acquired property which is illegally occupied by defendant. Denied deposing falsely.
ii) DW-2 is Mr. Phool Singh. He is father of the defendant. He has tendered his evidence by way of affidavit Ex. DW-2/1 bearing his signatures at points A and B. During cross- examination stated that in the year 1986 his daughter was residing separately from her-in-laws. Sunita was residing separately in Bindapur Village in his matrimonial house in the year 1986. He do not know the address where his daughter was residing in the year 1986. His daughter never made any complaint against her-in-laws. His daughter never resided with him in parental home. The inquiry regarding verification of residence was conducted at Bindapur. Denied that no inquiry regarding verification of residence was conducted at Bindapur as she was residing at Bakarwala in the year 1997. Admitted that Mr. Suraj Bhan and Mr. Chander Bhan are real brother, volunteered the partition had happened qua the open plots. She do not know any Mr. Kapoor Chand. She know only Mr. Chander Bhan and Mr. Suraj Bhan. She do not know if Premwati had purchased the suit property from Mr. Suraj Bhan and Mr. Kapoor Chand. She mentions name of all the children of plaintiff in her evidence affidavit Ex. DW-2/1. Denied that he had not mentioned the name of all the children of plaintiff in her evidence affidavit. Admitted that plaintiff having two daughters namely Smt. Shardha and Smt. Mamta, volunteered she is also having one son. Admitted that he has not placed any document with his evidence affidavit to show that the suit property belongs to Mr. Chander Bhan. He does not know whether he filed the Suit No. 307/17 Premwati Vs. Sunita Page no.35/61 documents that the suit property measuring 718 sq. yds. was handed over to his daughter or his deceased son-in-law (Ramesh Chand) and the same may be filed by his counsel. He had given the documents which was executed by Mr. Chander Bhan to hand over the suit property to his daughter-in-law. Denied that Mr. Chander Bhan was never owner or occupant of the suit property. Denied that Mr. Chander Bhan never executed any documents regarding the handing over of the suit property. The contents of his affidavit were narrated by him to his counsel. Admitted that in his evidence affidavit name of plaintiff's daughters are not mentioned anywhere. Denied that contents of para No. 1 & 2 of his evidence affidavit are wrong and incorrect. Admitted that marriage of Ms. Bhumika was solemnized at Bakarwala Village the parental home of defendant No. 1, volunteered since Sunita was residing separately that was the reason for solemnization of marriage of Bhumika at Bakarwala village and she used to bear the expenses. Denied that Sunita was not residing in the suit property and she resides at her parental home at Bakarwala, volunteered he had borne her education expenses also. He cannot say whether his son-in-law was into habit of drinking or substance abuse. He do not know whether the husband of the daughter of plaintiff expired in the year 2017 and plaintiff went to house of her daughter for residing there. Denied that behind the back of the plaintiff the defendant illegally occupied the property and took control over it. Denied that in the year 2017 there were tin shed rooms constructed in the suit property, volunteered it was vacant plot. Again said he got it constructed and he has all the receipts in this regard. Denied that without the consent of the plaintiff the Suit No. 307/17 Premwati Vs. Sunita Page no.36/61 defendant has illegally occupied the property and is in possession. Denied that the suit property belongs to the plaintiff as the same was purchased by her. Denied deposing falsely.
iii) DW-3 is Mr. Ashwani Kumar, Patwari in the Revenue Department, District South West, Sector-10, Dwarka. He has brought the summoned record i.e. original khatoni register of year 2001-2002, village Bindapur and copy of which is already Ex. DW-1/10 and aks sizra of village Bindapur, Hadbast No. 198 of year 1961-62 already Ex. PW-1/9, however, the khatoni paimaish is not available with office of the Revenue Department, Dwarka and same may be available in the office of SDM, Najafgarh, Record Room. During cross-examination admitted that Sh. Suraj Bhan, Sh. Chander Bhan and Sh. Kawal singh are the recorded owner in the khasras, khatoni of khasra No. 278 and 279 which is already Ex. DW-1/10.
iv) DW-4 is Mr. Prakash Gupta. (Employee Code - 41001388), Senior Supervisor in BSES Rajdhani Power Limited, Division Uttam Nagar, Delhi. He has brought the summed record i.e. record of electricity connections bearing CA Nos. 103070551, 103070604, 103086558, 103199213, 103077022, 103210787 and the same are Ex. DW-4/1 (colly). During cross-examination admitted that he has not brought the record of CA No. 103283923, 151037645, 151037576, 1032292194, 1030644339. Admitted that he has not brought original documents of CA bearing Nos. 103070551, 103070604, 103086558, 103199213, 103077022, 103210787. ID of the witness seen and return.
7. Both the Ld. Counsels have argued their case and I have perused the record carefully.
Suit No. 307/17Premwati Vs. Sunita Page no.37/61 8. Issue No. II, IV TO IX.
All these issues are taken up together as being interconnected. The present suit has been filed by the plaintiff for seeking the decree of mandatory injunction against the defendant thereby directing the defendant to handover the peaceful and physical possession of the suit property and also for recovery of ₹ 1,50,000 as mesne profits/damages, for the relief of future mesne profits and occupation charges at the rate of 10,000 per day and the consequential relief of permanent injunction thereby restraining the defendant from selling, letting out or her parting with the possession or creating any third party interest over the suit property and also from raising any construction in any portion of the suit property.
9. The relationship between the plaintiff and the defendant is that of mother-in-law and daughter-in-law. The defendant got married with the elder son of the plaintiff Sh. Ramesh in the year 1986. On one side the plaintiff is claiming her ownership over the suit property on the basis of GPA Documents and avers the defendant to be mere licensee and she having terminated her license by sending legal notice and also by filing the present suit and on the other side the defendant is the daughter-in-law of the plaintiff, who not only denies her title but claims ownership as well as possession over the suit property on the basis of family settlement and she and her husband (now deceased) having been given the suit property by her father-in-law Sh. Chander Bhan and the other son Sh. Rakesh having been given the remaining properties other than the suit property.
Suit No. 307/17Premwati Vs. Sunita Page no.38/61
10. Before going into the merits of the case it is necessary to discuss here briefly the preliminary objections taken by the defendant in her written statement:-
Objection qua limitation The defendant has taken the objection that the suit filed by the plaintiff is barred by limitation in view of the fact that earlier a civil suit in the year 2009 was filed by the defendant seeking a permanent prohibitory injunction order against the plaintiff herein against forcible dispossession, in the said suit statement was given by the plaintiff herein that she will not dispossess the defendant from the suit property without following the due process of law and the case was disposed of accordingly vide order dated 02.06.2009. Copy of the plaint Ex-PW1/6 has been filed along with the copy of the order. In the written statement it is mentioned further that there existed already a dispute and the plaintiff wanted to take possession and therefore the present suit seeking mandatory injunction ought to have been filed within three years as per The Limitation Act, 1963 from the date of cause of action however now in the year 2017 the same has been filed. It is worth mentioning here that the present suit has been filed on the fresh cause of action which is said to have arose in the year 2017 when the defendant allegedly started raising construction in the suit property. On every fresh cause of action a fresh suit can be filed. The plaintiff in her plaint has mentioned that she had extended the license of the defendant in order to support her as well as her daughter Ms. Bhoomika and also allowed the defendant to collect the rent from the tenants for their financial assistance. Therefore, in view of above pleadings, it cannot be said that the suit filed by the plaintiff is strictly Suit No. 307/17 Premwati Vs. Sunita Page no.39/61 barred by the law of limitation as a fresh cause of action has been clearly disclosed in para No. 19 of the plaint.
Objection qua Court fees Now coming to the objection of court fees, defendant has taken a preliminary objection that this court does not have the pecuniary jurisdiction to try and adjudicate the present case as the market value of the suit property is at least ₹ 25,000 sq. yds. as per the circle rate. Hence the plaintiff is required to file the suit for possession valuing the suit as per the value of the suit property which has not been done in the instant case and also in the garb of mandatory injunction the plaintiff is seeking possession of the suit property and therefore ad-valorem court fees has not been paid. The market value of immovable property involved in litigation might have its relevance depending on nature of relief claimed but ultimately, valuation of any particular suit has to be decided primarily with reference to the relief/s claimed. It remains trite that it is nature of relief claimed in plaint which is decisive of question of suit valuation. As a necessary corollary, market value does not become decisive of suit valuation merely because an immovable property is the subject-matter of litigation. Reliance placed upon Bharat Bhushan Gupta Vs Pratap Narain Verma, (2022) 8 SCC 333. In the case in hand, it has been argued that the defendant was allowed to reside in the suit property on license basis only and now her license has been terminated hence recovery of possession has been sought. There is slight difference between permissive possession and license. Here the possession of the defendant cannot be said to be strictly on license basis and can Suit No. 307/17 Premwati Vs. Sunita Page no.40/61 be said to be a permissive possession, since license has been pleaded and on termination thereof recovery of possession is sought, therefore in view of the facts pleaded the objection taken by the defendant qua pecuniary jurisdiction is not tenable.
11. Issues on merits The claim of the plaintiff as also argued by the ld. Counsel for the plaintiff is that the plaintiff is the actual and rightful owner of the suit property having purchased the same from Sh. Suraj Bhan, Shri Chander Bhan, Sh. Kapoor Chand against a valuable sale consideration of ₹ 20,000 wide GPA, agreement, Receipt etc dated 02.01.1989. In this regard the plaintiff has filed the GPA set Ex. PW-1/2(OSR), on perusal of the said GPA set it is revealed that total area measuring 2000 sq. yds. out of Khasra No. 278, 279 is stated to have been transferred in favour of the plaintiff. Ld. counsel for the defendant has argued that the GPA set as put forth by the plaintiff is forged and fabricated document and no such transaction ever took place and the same has been fabricated with malafide intention to deprive the defendant of her right. Counsel has argued that firstly as per the revenue record the property never stood in the name of Kapoor Chand as averred by the plaintiff. Further the facts mentioned in the plaint and those deposed by the plaintiff during her cross-examination are contrary to the pleadings, further PW-2 Suraj Bhan has not even supported the version of the plaintiff qua consideration or ownership of Sh. Kapoor Chand and even Sh. Chander Bhan. The testimony of both the witnesses are contradictory and even the plaintiff is not even aware as to the actual area of the suit land. Further she never remained in possession thereof and it Suit No. 307/17 Premwati Vs. Sunita Page no.41/61 was constructed by the defendant and her husband and since inception they are in possession of the suit property they having received the same in a family settlement and put in possession by the father-in-law of the defendant after their marriage.
12. Now I shall delve upon each and every aspect of the said GPA set:-
Area of suit property:
As per Order VII Rule 3 CPC, when the subject-matter of the suit is an immovable property, it is mandatory to mention the details of the suit property for its proper identification, if the subject-matter of the suit property is not properly identifiable then such a decree cannot be executed. In the plaint the description of the suit property has been properly mentioned but as far as the area of the suit property is concerned, in the plaint it is mentioned to be 750 sq. yds. Plaintiff claims that vide GPA dated 02/01/1989 a total area of 2000 sq. yds. was bought from the sellers and out of that 1350 sq. yds. was sold out to different persons and the remaining leftover 750 sq. yds. still belongs to the plaintiff and she is owner thereof. If the statement of the plaintiff is taken as true on its face value, the leftover property comes to be 650 sq. yds. Not even a single document has been produced as to the 1350 sq. yds. having been sold to different persons by the plaintiff at any point of time. Per contra, defendant claims the area of the suit property to be 718 sq. yds. and site plan Ex-DW1/11 has been filed. In this regard the ld. counsel for the defendant has also argued that plaintiff is not aware about the exact area of the suit land reason being she never owned or possessed the same. In the cross-examination Suit No. 307/17 Premwati Vs. Sunita Page no.42/61 also the plaintiff could not testify clearly as to the exact area of the suit land and during course of arguments also Ld. counsel for the plaintiff argued that the area of 750 sq. yds. as mentioned in the plaint is a clerical error, if that be so it was incumbent on the plaintiff to amend the suit accordingly as it is a material thing which the plaintiff has failed to amend. Instead of amending the suit to that effect the plaintiff examined the draughtsman (civil) Mr. Mukul Sharma/PW-3 who had prepared the said site plan Ex-PW1/1 relied upon by the plaintiff. During his evidence he admitted that he had prepared the site plan on being identified by a person namely Shubam whom he did not know personally and even did not know his father's name or his connection with the present suit or the suit property. He has further testified that he had seen the suit property from front and behind. PW-3 testified that at the time of his visit plaintiff was not present at spot and also he had not entered the suit property to see the internal structure. If site plan Ex-PW1/1 is carefully seen, numerous rooms has been shown therein. Such a site plan which has been prepared without entering into the suit property and also not prepared at the instance of the plaintiff cannot be relied upon and said to be correct. This conduct of not amending the suit qua the exact area of the suit land goes against the plaintiff only.
Derivation of Title/its Basis:
The person who claims himself to be owner of an immovable property must show/prove his title. It is settled law that a person cannot transfer a better title than what he himself has. This principle is enshrined in the Latin Maxim, nemo dat quod non Suit No. 307/17 Premwati Vs. Sunita Page no.43/61 habet and nemo plus iuris ad alium transferre potest quam ipse habet which means that no one can give what he does not have or transfer to another more rights than he has. In the instant suit the plaintiff in her pleading claims that she has purchased the area of 2000 sq. yds. including the suit property from Sh. Suraj Bhan, Sh. Chander Bhan and Sh. Kapoor Chand against a valuable sale consideration. The Onus to prove the same was on plaintiff. It is pertinent here to mention that apart from the GPA, affidavit, agreement deed dated 02.01.1989 Ex-PW1/2 (OSR) no chain of documents has been filed. It was incumbent on the plaintiff to prove her valid title especially when there is denial of title by the other side as she claims recovery of possession of suit property who is admittedly in possession of suit property from last more than 30 years. Plaintiff has led no evidence in this regard except the GPA set. To the contrary, the defendant filed Khatoni of the year 1950-50, 1960-61, 1978-79, 2001-02. On perusal thereof it is transpired that the name of Sh. Kapoor Chand is not mentioned in the same at all, meaning thereby Sh. Kapoor Chand was never owner in possession of the suit property as per revenue record. There is mention of one Kanwal Singh s/o Sh. Sheo Ram in the aforesaid Khatoni, but there is no pleading or argument from the side of the plaintiff that name of Sh. Kapoor Chand has been wrongly mentioned or otherwise. Then the question arises how Sh. Kapoor Chand can transfer the suit property in the name of the plaintiff by executing any GPA set when his name is not mentioned in the reveune record. In this regard the testimony of PW-2 if seen, in cross-examination Sh. Suraj Bhan, who is stated to be one of the sellers in the aforesaid GPA set, has stated that that he do not have any proof Suit No. 307/17 Premwati Vs. Sunita Page no.44/61 as to the ownership of Sh. Kapoor Chand as to the suit property previously. On specifically being asked whether he can tell his share and share of his brother Sh. Chander Bhan in Khasra No. 278 and 279 as on 02/01/1989, he stated that Sh. Chandrabhan had no share in these two Khasra numbers on the said date and his own share in those two Khasra numbers was 3000 sq. yds.
On further cross-examination he stated that out of total area of 2000sq. yds., 1000 sq. yds. belong to him of which he was the owner and the remaining 1000 sq. yds. was in the name of Sh. Kapoor Chand. It is necessary here to mention that one of the alleged co-sellers in Sh. Chander Bhan who is husband of the plaintiff, when PW-2 was asked what was the need of selling a property by a husband to his wife, PW-2 stated that he do not know and in same breath he further stated that he do not know whether Chander Bhan had sold the property to Premwati or not. The version of the PW-2 firstly does not support the claim of the plaintiff and secondly his statement qua the ownership or previous title of other co-sellers in itself is self-contradictory. It is also relevant here to mention that in the written statement filed to the suit filed by defendant herein in the year 2009 Ex- PW1/6, in its written statement plaintiff nowhere mentioned specifically in her entire pleading that she had purchased the suit property from Sh. Suraj Bhan, Sh. Chander Bhan and Sh. Kapoor Chand. The reason thereof has not been explained by the plaintiff herein as to why a purchaser will withheld the most material details qua his/her ownership from the court when she claims title thereof. In her evidence as to execution of GPA set, PW-1 could not even testify as to whether she had put signatures on the said GPA Documents or her thumb impressions allegedly Suit No. 307/17 Premwati Vs. Sunita Page no.45/61 executed by sellers, she further stated that she do not remember whether if any other person had put the signatures or not. Plaintiff has failed to show any previous title of Sh. Kapoor Chand qua the suit property. Rather, it is observed that the defendant has taken all the pain in obtaining the revenue record in proving the same before the court which was otherwise the duty or onus of the plaintiff. In this regard the defendant also examined DW3 Mr. Ashwini, Patwari posted in the revenue office of District South-West. He had brought the record of original Khatoni register of the year 2001-2002 of village Bindapur, copy thereof is Ex-DW1/10 and Aks Sizra of village Bindapur is Ex-PW-1/9. This inaction of plaintiff of not discharging her onus of proving her title goes against her.
Construction On perusal of the General Power of Attorney Ex-PW1/2 (OSR) filed by the plaintiff it is transpired that at the time of its transfer the land measuring 2000 sq. yds. consisted of tube-well with room, four shops and boundary walls. In the plaint plaintiff has averred that she has got constructed three rooms it in the suit property as well as got constructed 15 temporary rooms covered with tin-sheds and one hall to generate the rental income and she was receiving ₹ 20,000 per month from the tenants occupying the said temporary rooms. Again the burden to prove the same was on plaintiff. It is astonishing that not even a single documentary evidence has been filed in order to show that any such construction was raised by the plaintiff at any point of time on the suit property. Even the testimony of the plaintiff as to the construction is not consistent. The plaintiff in her cross-
Suit No. 307/17Premwati Vs. Sunita Page no.46/61 examination stated that there were 15 tin-shed rooms, 2 pucca rooms, Washroom, kitchen and one big hall which was constructed by her on 700 sq. yds. after purchasing the property. As to the three rooms mentioned in the plaint she stated that in para 5 of her plaint the same has been wrongly mentioned. When asked specifically as to the nature and extent of construction at the time of its purchase, she stated that it was vacant portion only and there was only boundary wall. She denied there being any boundary wall existing at the time of its purchase, she categorically stated that she constructed a boundary wall of the whole area of 2000 sq. yds. after purchasing the same. She even denied the suggestion put forth by the learned counsel for the defendant that the boundary wall was already constructed when she purchased the 2000 sq. yds. When she was confronted as to her two different statements, she stated that the contents mentioned in documents are true and correct. Not only the plaintiff has failed to lead any evidence qua construction but also, she could not even substantiate her documents by her testimony when cross questioned qua that. As to construction, PW-2 stated that on 02.01.1989 there was boundary wall around the suit property and it had one tube well. There is no mention of construction of any room or four shops by PW-2. The statement of plaintiff and Sh. Suraj Bhan are contradictory to each other and even the statement of the plaintiff in itself is inconsistent, which goes against her and it can be opined therefrom that no construction was raised by the plaintiff in the suit property, had it been so, she could have been able to, if not prove the same by leading documentary evidence, could have at least testified maintaining her same stand Suit No. 307/17 Premwati Vs. Sunita Page no.47/61 throughout her deposition. In this regard when DW-1 was questioned and asked 'if her this statement is correct that there was no construction in the area which was given to her then where she started residing, to which witness replied after her marriage her mother-in-law was not happy and issues cropped up, her father-in-law called her father and told him that he is giving this share for residence of her husband and for her and now either her husband should construct the same or her father, her father-in-law further said he has no concern with the construction. The plaintiff has filed the present suit to seek recovery of possession and it is she who has averred that she raised construction in the suit property from time to time, she has not led any cogent and convincing evidence to that effect and has failed to discharge her burden.
Consideration:
As to the consideration in the receipt filed with the GPA dated 02.01.1989 it is mentioned that the entire consideration of ₹ 20,000 has been received in cash in advance by the first party from the second party. Receipt in this regard is Ex-
PW1/5(OSR), when questioned about the consideration plaintiff testified that she had made the payment of ₹ 20,000 in cash which he had got from her father. As to time of payment he stated that the consideration amount was paid at the time of execution of the document. She stated that she had put the cash in the hands of Chander Bhan with instructions to give it to other sellers also. In her cross-examination she could not even testify as to execution of any receipt of the same, she stated that she is not aware whether she had taken any receipt of the Suit No. 307/17 Premwati Vs. Sunita Page no.48/61 consideration amount from the sellers or not. PW-2, who is one of the sellers, stated that he had received ₹ 20,000 in total after selling the said 2000 sq. yds. out of which he had given ₹ 10,000 to Sh. Kapoor Chand. He stated that the said amount of ₹ 20,000 was given to him at his residence and document that is attested or its payment, was executed at Registrar Office, Kashmiri Gate and it bears his signatures. During his testimony he did not remember whether there was any witness qua the receiving of the aforesaid amount. Now the question arises when there were three sellers of the suit property then why the receipt Ex-PW1/5(OSR) bears the signatures of only one person i.e. Sh. Suraj Bhan and not of the other two sellers. As per testimony of plaintiff Sh. Chander Bhan has expired in 2019 and Sh. Kapoor chand expired in 2020. It has not been explained why the receipt doesn't bear the signatures of all the sellers. Again testimony of the plaintiff and PW-2 are contradictory to each other and the testimony of the plaintiff doesn't support the contents of the receipt Ex-PW1/5(OSR) relied upon by the plaintiff.
Possession:
i) Possession is nine-tenths of law. Possession is the evidence of ownership unless contrary is proved. In the eyes of law, the person who holds possession over material things has got nine points out of ten and he is considered to be owner of that unless someone else proves a better title. The pleading of the plaintiff in the instant suit is that the defendant was put in possession of the suit property by her and the same was a permissive possession/on license basis. In para 6 of her plaint, she mentions that she had allowed that on request of her son Sh. Ramesh Suit No. 307/17 Premwati Vs. Sunita Page no.49/61 Chander and the defendant (his wife) and after the death of her son she allowed the defendant to continue with the possession considering the future of her granddaughter Ms. Bhoomika and to provide financial help to them. Not only she allowed possession of the suit property but also admitted defendant to collect rent from the tenants, on her behalf. She has averred that after some time the intention of the defendant became malafide and she started harassing and compelling the plaintiff to transfer the suit property in her name and for the said purpose he hatched a conspiracy with her father to grab the suit property and to the disadvantage of the plaintiff she filed a civil suit in the year 2009 seeking permanent injunction against the plaintiff herein, not to dispossess her on false allegations. Later on, when the plaintiff herein made a statement before the Court that she will not dispossess the defendant without following the due process of law, the said case was disposed of accordingly vide order dated 02.06.2009.
ii) Plaintiff claims that the possession of the defendant is permissive possession only and the defendant being only a licensee, her license stands terminated by the plaintiff when a legal notice dated to 27/02/2017 has been served upon her. The defendant has denied receiving any such legal notice. Plaintiff has averred that the defendant avoided the legal notice and thereafter plaintiff visited the suit property on 10/03/2017 and asked her to vacate the suit property and returned back the possession and not to raise any construction thereon but the defendant refused the same and threatened the plaintiff with dire consequences.Suit No. 307/17
Premwati Vs. Sunita Page no.50/61
iii) Coming to the issue of possession, plaintiff claims that she had purchased the whole 2000 sq. yds. on 02/01/1989 vide GPA set and she remained in possession of the suit property/left-over property of 700-750 sq. yds. and later on defendant and her husband were allowed to reside therein. As per the said GPA the vacant possession of the property was delivered to the plaintiff on the spot on 02/01/1989. Ld. counsel for defendant in this regard has argued that the plaintiff never remained in possession of the suit property rather the same was in the name of Sh.
Chander Bhan, he having received the same in a family settlement with his brother and Sh. Chander Bhan had divided his properties and in the year 1986 itself the suit property was handed over as per family settlement to Sh. Ramesh Chander, husband of defendant/son of plaintiff. Sh. Chander Bhan had to sons, Sh. Ramesh and Sh. Rakesh. Counsel further argued that the house in which plaintiff is residing has been given to Sh. Rakesh and even 300 sq. yds out of aforesaid 2000 sq. yds is still in possession of Sh. Rakesh. Defendant in her testimony stated that property No. 99 belonging to Rakesh is located at some distance to the suit property. As to it defendant has tendered the electricity bill and has examined DW-4 Sh. Prakash Gupta, official of BSES, who had brought the summoned record of electricity connections bearing CA No. 103199213, 103070604, 103086558, 103199213, 103077022, 103210787 i.e. Ex-DW4/1 (Colly). On perusal thereof it is seen that these electricity connections are in the name of Sh. Rakesh Kumar s/o Sh. Chander Bhan. As to it plaintiff stated that apart from the suit property she has two houses in which electricity connection is in her name. She again stated that she is not sure whether the Suit No. 307/17 Premwati Vs. Sunita Page no.51/61 same is in the name of Sh. Rakesh (her son). Ld. Counsel for defendant also argued that the case filed by the plaintiff is malafide as it has been filed in order to harass the defendant only. There is substance in the said argument as the plaintiff has filed this instant suit to get the property vacated from her daughter-in-law who is a widow and having no other place to reside and sustain herself but on the other side she has given various properties to her other son Rakesh and also residing with him in the same house which belonged to her husband Chander Bhan. Plaintiff in her cross-examination has admitted Rakesh having received some property inherited from Sh. Chander Bhan. She also stated that Rakesh is residing in the residential house inherited by him from his father and the other house has been given on rent. Therefore, malice with which present suit has been filed can be sensed therefrom.
iv) Plaintiff claims that after having purchased the suit property she remained in possession and later, on license basis the suit property was given to the defendant and her husband. It is pertinent here to mention that in the plaint nowhere the year in which the suit property was allegedly given to the defendant by the plaintiff has been mentioned and only it is mentioned that they were permitted to reside on their request and the husband of the defendant assured to vacate the same as and when directed to do so. It is interesting to note that defendant in her cross- examination has stated that the land which was sold by Sh. Chander Bhan was inherited from his father. Two houses were inherited by Sh. Chander Bhan from his father Sh. Ram Swaroop. She further stated that the amount which was received by Sh. Ram Swaroop by selling his land were not invested Suit No. 307/17 Premwati Vs. Sunita Page no.52/61 somewhere and instead it was spent on family expenditure. As to separation she testified that her deceased son (Ramesh) got separated from her after 2-3 years of his marriage. The share was given in the suit property to her deceased son to reside separately along with his wife (defendant) after constructing his portion. She could not testify as to in which year the construction was raised. She denied that soon after the marriage of her elder son and the defendant started residing in the suit property. It is relevant here to mention that she herself in her cross-examination stated that her late husband Sh. Chander Bhan had divided some part of ancestral property between his two sons. On one side she claims her possession and same is so mentioned in the GPA documents and on the other side in her deposition she states that no one else other than the defendant and her family members ever resided in the suit property. The cross-examination of the plaintiff was continued on another date of hearing also, during the testimony the plaintiff has admitted that her elder son Sh. Ramesh had separated from the family during the lifetime of her husband. She admitted that her son along with his family resided in the suit property when he died. She further admitted that the suit property was given to him by her husband to reside. She further stated that after marriage of her son he resided with her for 1-2 months and thereafter defendant left for her parental home, meaning thereby the defendant started residing separately alongwith her husband during the lifetime of Sh. Chander Bhan. Firstly, it is beyond the understanding of this court that why the husband of the plaintiff will sell off his share to his wife against consideration and why the name of Sh. Suraj Bhan only is mentioned on the receipt Suit No. 307/17 Premwati Vs. Sunita Page no.53/61 dated 02.01.1989. Secondly the plaintiff herself has clearly testified that during the lifetime of her husband only defendant and her husband shifted to the suit property and they were allowed to reside therein by Sh. Chander Bhan. In her pleading plaintiff has claimed that it was her who had given possession of the suit property for its permissive use to the defendant and her husband for residential purpose, to the contrary in her evidence she deposed that Sh. Ramesh and defendant was given possession of the suit property by her late husband Sh. Chander Bhan. The plaintiff herself could not support or substantiate her pleading, rather to the contrary has supported the version of the defendant as to she and her husband having been put in possession of the suit property by Sh. Chander Bhan. Not only this she also testified that the properties having come to the hands of Sh. Chander Bhan from his father Sh. Ram Swaroop. The defendant in her evidence has categorically testified that she was put in possession of the suit property by Sh. Chander Bhan but there is no documentary evidence to that effect. To establish her possession defendant has filed her ID proofs and ID proof of her daughter etc, MTNL landline connection in her name Ex- DW1/19 of the year 1998, electricity connection application in her name Ex. DW-1/21 (OSR), electricity bill in the name of Ms. Bhoomika Ahlawat Ex. DW-1/22(OSR), water connection in the name of defendant Ex. DW-1/23(OSR), gas connection records in the name of defendant and gas complaint memo in the name of defendant Ex. DW-1/24(OSR) and Ex. DW-1/25(OSR) respectively.
v) Admittedly the defendant is in possession of the suit property. During the proceedings a Local Commissioner (LC) was also Suit No. 307/17 Premwati Vs. Sunita Page no.54/61 appointed by the Ld. Predecessor of this court, the said LC in his report dated 10.4.2018 also has mentioned about the possession of defendant only and her tenants, same is supported with photographs wherein defendant is depicted. Plaintiff in her plaint has not even bothered to mention the year in which defendant was put in the so-called permissive possession of the suit property by her. Plaintiff has failed to show her possession over the suit property even remotely at any point of time. In the cross-examination suggestion has been put by the plaintiff's counsel that her father-in-law was never in possession of the suit property, which has been answered in negative by the defendant, by putting the said suggestion the plaintiff herself is trying to say that Sh. Chander Bhan from whom the plaintiff is stated to have derived title was never in possession of the suit property, firstly this is beyond the pleading of the plaintiff and secondly this goes against the plaintiff only, the better suggestion would have been that the possession of the suit property was never handed over to the defendant by her father-in-law rather was handed over by her mother-in-law i.e. plaintiff. The plaintiff has failed to show her right as well as possession over the suit property at any point of time. The defendant has been cross examined at length by the plaintiff's counsel but nothing adverse could be extracted therefrom.
vi) The GPA documents Ex-PW1/2(OSR) put forth by the plaintiff also does not seems to be genuine in view of the discussion above, Furthermore, the GPA documents does not amount to transfer, nor can they be recognized as valid mode of transfer of immovable property. As per the judgment of the Hon'ble Apex Court in the case of Suraj Lamp & Industries (P) Suit No. 307/17 Premwati Vs. Sunita Page no.55/61 Ltd. versus State of Haryana and Anr. (decided on 11 October, 2011) it has been held that the transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed), in absence of a deed of conveyance duly stamped and registered as required by law no right, title or interest in and immovable property can be transferred. Any agreement to sell/contract of sale which is not a registered deed of conveyance would fall short of the requirements of section 54 and 55 of Transfer of Property Act and will not confer any title nor transfer any interest in an immovable property except for the limited right granted under Section 53A of Transfer of Property Act.
vii) Ld. counsel for plaintiff has argued that before the amendment of 2001 there was no necessity of the agreement to sell document to be registered. It is relevant here to mention that even if the document relied upon by the plaintiff Ex. PW-1/2 is of 1989, then also the question arises what is intended to be transferred by the Sellers in favour of the plaintiff. The agreement to sell which is discussed in the provision contained in Section 53A of The Transfer of Property Act is the agreement entered into between the parties qua the sale purchase of the immovable property, the agreement is in the nature of setting out terms and conditions as to further entering into the transaction of the actual sale purchase in future against consideration etc., however, here the document in question i.e. general power of attorney, deed of agreement, receipt etc. which pertains to the transfer of immovable property against consideration. The power-of-attorney is creation of an agency whereby the guarantor authorizes the grantee to do the acts specified therein. Section 17 of the registration act provides that the creation of the Suit No. 307/17 Premwati Vs. Sunita Page no.56/61 right, title in an immovable property of the value of Rs. 100/- and upwards has to be compulsorily registered and if not registered, as a consequences thereof as per Section 49 of the Registration Act, it shall not affect any immovable property comprised therein or be received as evidence of any transaction affecting such property. Registration of a document gives notice to the world that such a document has been executed and it provides publicity, safety, security and prevents frauds. Reliance is placed upon the judgment of Hon'ble High Court of Delhi in the case titled North Eastern Publishing & Advertising Co. Ltd. Vs. Nirmal Gupta & Anr. (decided on 09.01.2017).
viii) Further it has been held in the case of Jiwan Dass Rawal Vs. narain Dass AIR 1981 Del. 291, Cement Corporation of India Ltd. Vs. Life Insurance Corporation of India Ltd. (2014) 145 DRJ 148 (DB) and Jagdambey Builders Pvt. Ltd. Vs. JS Vohra 228 (2016) DLT 49 and Abbot India Ltd. Vs. Rajinder Mohindra 208 (2014) DLT 201 that an agreement to purchase an immovable property vest in the agreement purchaser only a right to sue for specific performance of the agreement and doesn't vest in the agreement purchaser any right in the property and doesn't empower the agreement purchaser to exercise any rights in the property, not even till the suit for specific performance is decreed and till the conveyance deed in pursuance thereto is executed. Therefore, firstly the plaintiff has failed to prove the execution of the GPA documents dated 02.01.1989 as discussed supra and secondly such unregistered document vide which the transfer of an immovable property has been effected is not a valid transfer in the eyes of law and as per Section 49 of Registration Act there is no transfer of title as the Suit No. 307/17 Premwati Vs. Sunita Page no.57/61 same being not only unregistered but not in the nature of sale deed as required under the Transfer of Property Act. Not the nomenclature of the document but the nature & extent of the transfer of immovable property vide agreement to sell has to be seen keeping in view the public policy behind the enactment of the said law. Merely because the document has been given the name of agreement deed or agreement to sell, the nature of transaction and rights flowing therefrom has to be looked into carefully as according to law the transfer of the title can be only vide registered sale deed if the value of the property is Rs. 100/- or more.
13. The defendant has been able to show that she is in possession of the suit property since after her marriage and she has stood the test of cross-examination and nothing material / contrary could be extracted from her testimony. Onus was on the plaintiff to prove the averred facts that she herself had got the construction raised and inducted the tenants, plaintiff has not even examined a single witness or tenant who could have testified in her favour that she inducted them at any point of time. Plaintiff in her plaint has mentioned that she inducted the tenants but defendant used to receive rent from them on her behalf. Plaintiff has not shown even a single document as to induction of tenants i.e. rent agreement, receipt or anything. In her cross-examination plaintiff stated that she never inducted any tenant in the suit property rather same were always let out by defendant and defendant was collecting rent from the tenants. She also stated that apart from defendant and her family no one else ever resided in the suit property. No evidence either ocular Suit No. 307/17 Premwati Vs. Sunita Page no.58/61 or documentary has been adduced by the plaintiff to prove her said averments qua induction of tenants etc, which goes against the plaintiff only.
14. Furthermore in order to show that acrimonious relationship between the parties defendant has examined her father also as DW-2 who in his evidence affidavit has has deposed that few days after the marriage of defendant with the son of the plaintiff only the behaviour of the plaintiff towards the defendant changed and there used to be quarrels, in order to resolve the same Sh. Chander Bhan decided to separate Sh. Ramesh alongwith with his wife from his family and it was settled that the suit property be given to Sh. Ramesh and the rest of the area towards West side was given to the other son Sh. Rakesh. He also testified that construction on the property was raised from time to time by the defendant and her husband and in his affidavit Ex-DW-2/1 it is mentioned that the plaintiff wanted the property in her name or to devolve the same after the death of defendant on her another son Sh. Rakesh and to Ms. Bhumika i.e. grand-daughter of plaintiff but defendant did not agree to the unjust demand of the plaintiff and therefore the plaintiff has filed the present suit. DW-2 in his testimony stated that he used to support the defendant from time to time and even the marriage of Ms. Bhoomika was also solemnized at the native village of the defendant and he used to assist defendant financially. In his evidence he also stated that Sh. Suraj Bhan and Sh. Chander Bhan are real brothers, as to the purchase of the suit property by the plaintiff, he testified that he do not know any Kapoor Chand.
Suit No. 307/17Premwati Vs. Sunita Page no.59/61
15. From the above discussion, it is evident that the defendant is in possession of the suit property since inception and the plaintiff herself in her deposition has stated that 2-3 months after the marriage defendant and her husband were shifted to the suit property by Sh. Chander Bhan (husband of plaintiff) during his lifetime. This is the case of the defendant that in family settlement the property was given to Sh. Ramesh by Sh. Chander Bhan for residing separately and other portion/other properties were given to Sh. Rakesh i.e. another son. Plaintiff though claimed herself to be owner of the suit property but has mercilessly failed to prove her title by leading cogent and convincing evidence. Firstly, the execution of the GPA does not confer any title as per law and secondly, she has even failed to prove the said document also. Mere marking a document as exhibit does not make it proved. Therefore, in view of the given facts and circumstances of the case, plaintiff has failed to prove her ownership and therefore held not entitled to the relief of mandatory injunction, permanent injunction, recovery of mesne profits or occupation charges and also to the cost of the suit. Accordingly, issue No. II, IV to IX are decided in negative and against the plaintiff. As far as issue No. III is concerned defendant has shown her possession over the suit property from last more than 30 years, same having been given to her and her husband (now deceased) in a family settlement by the title holder Sh. Chander Bhan, she being wife of Sh. Ramesh Chander S/o Sh. Chander Bhan and one of the legal heir is held to be co-sharer in the suit property. Accordingly, issue No. III is decided in favour of the defendant and against the plaintiff.
Suit No. 307/17Premwati Vs. Sunita Page no.60/61 Hence the suit of the plaintiff is dismissed with above observations.
Relief
16. In view of the aforesaid discussion, the suit of the plaintiff for the relief of mandatory injunction, permanent injunction, recovery of mesne profits or occupation charges and for the cost of the suit is dismissed. The defendant has shown her possession over the suit property from last more than 30 years, same having been given to her and her husband (now deceased) in a family settlement by the title holder Sh. Chander Bhan, she being wife of Sh. Ramesh Chander S/o Sh. Chander Bhan and one of the legal heir is held to be co-sharer in the suit property.
17. Decree sheet be prepared accordingly. No order as to cost.
18. File be consigned to Record Room, after due compliance.
Digitally signed by DEEPIKA THAKRANDEEPIKA Date:
THAKRAN 2023.09.23 16:57:29 +0530 Announced in the Open Court (Deepika Thakran) On 23.09.2023 Civil Judge-II, Dwarka Courts South West District, New Delhi.
23.09.2023.Suit No. 307/17
Premwati Vs. Sunita Page no.61/61