Delhi District Court
Malkhan Singh vs Dhan Singh on 9 February, 2024
IN THE COURT OF SH. DEEPAK VATS, ADDL. SENIOR CIVIL
JUDGECUM JUDGE SMALL CAUSE COURTCUM
GUARDIAN JUDGE, DISTRICT: SOUTH, NEW DELHI
CS SCJ 755/22
MALKHAN SINGH,
S/o Late Likkhi Ram,
R/o H. No. 6246, Third Floor,
Dakshinpuri Extension,
New Delhi110062 ..........................PLAINTIFF
VERSUS
1. Sh. Dhan Singh,
S/o Sh. Malkhan Singh,
R/o H. No. 6/246, IInd Floor,
Dakshinpuri Extension,
New Delhi110062
2. Smt. Usha,
W/o Sh. Dhan Singh,
R/o H. No. 6/246, IInd Floor,
Dakshinpuri Extension,
New Delhi110062 .........................DEFENDANTS
Suit filed on - 18.07.2022
Judgment Reserved on - 06.02.2024
Date of decision - 09.02.2024
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
JUDGMENT: By this judgment I shall dispose of a suit for permanent and CS CSJ 755/22 Malkhan Singh Vs. Dhan Singh & Ors Page1 of 22 mandatory injunction filed by the plaintiff against the defendants. Before adjudicating upon the issues framed in the present suit, I feel it necessary to dwell upon the plethora of pleadings in the present suit.
PLEADINGS OF THE PLAINTIFF :
1. The brief facts of the case are that the plaintiff is owner of the property bearing no. H. No. 6/246, Dakshinpuri Extension, New Delhi62, constructed upto third floor by the hard earned money and savings of the plaintiff, being self acquired property. It is averred that plaintiff is residing at the 3 rd floor of the said property. The defendants are residing on the 2nd floor (2nd floor of the said property is hereinafter referred to as suit property) as a permissive user on humanitarian grounds being the son and daughterinlaw of the plaintiff. It is averred that defendants were married in the year 2000 and after marriage, they lived and resided with the plaintiff for about 34 years and thereafter left the company of the plaintiff and started residing separately.
2. It is averred that plaintiff being father of defendant no. 1, permitted the defendants to reside in the suit property only as a permissive users and licensees. Further that, in spite of looking after the plaintiff, defendants started harassing him and making unwarranted pressure upon him to transfer the suit property in their name. The defendants used to quarrel with the plaintiff and sometimes used to beat him demanding that the plaintiff transfers suit property in their favour. It is alleged that the defendants do not take care of the plaintiff and do not even provide food to him. Also that they do not contribute in day to day necessities of the plaintiff and would take rent of the properties forcefully from the tenants. Further that the defendants would not clear the electricity and water charges as per their consumption.
CS CSJ 755/22 Malkhan Singh Vs. Dhan Singh & Ors Page2 of 22
3. Due to the said conduct of the defendants, the plaintiff debarred them from all his properties, movable or immovable, through publication in newspaper "The Indian Express" dated 18.07.2018. It is alleged that despite the misdeeds of the defendants, the plaintiff did not file any complaint to save the dignity of the family and hoped that the defendants would mend their ways but to no avail. It is further alleged that the defendants have been continuously harassing the plaintiff and subjecting him to cruel behavior. Hence, the present suit has been filed seeking the following reliefs:
a) a decree of mandatory injunction directing the defendants to deliver the peaceful and vacant physical possession of the suit property i.e. Second Floor of H. No. 6/246, Dakshinpuri Extension, New Delhi62.
b) a decree of permanent injunction directing the defendants not to create any third party interest in the suit property i.e. Second Floor of H. No. 6/246, Dakshinpuri Extension, New Delhi62.
c) a decree of permanent and mandatory injunction directing the defendants not to create nuisance and to restrain the defendants from interfering in the peaceful possession and enjoyment of the property of the plaintiff i.e. H. No. 6/246, Dakshinpuri Extension, New Delhi62.
4. WS OF DEFENDANTS Subsequently, WS was filed by the defendants in which certain preliminary objections were taken, namely, the present suit is not maintainable as the plaintiff has concealed material facts from the court; the suit is barred for non impleadment of necessary parties i.e. Delhi Government/DDA which allotted the property in question in favour of the plaintiff; there is no cause of action in filing the present case and the suit has not been valued properly.
5. It is contended that the suit property was allotted to the plaintiff by CS CSJ 755/22 Malkhan Singh Vs. Dhan Singh & Ors Page3 of 22 Delhi Government/DDA under the J.J Resettlement Scheme in the year 1996 and since then the defendant no. 1 being a part of the family of plaintiff has been residing in the same. It is alleged that the brothers of the plaintiff namely Charan Singh (elder brother) and Jai Kishan (younger brother) wish to sell the property in question and to misappropriate the sale consideration. Hence, the present suit has been filed to pressurize the defendants and to defeat their valuable right to reside in the suit property.
6. It is contended that in the year 199394, the plaintiff constructed the 1st floor and 2nd floor of the property in question and borrowed a sum of Rs. 80,000/ from a lady who was the owner of Kothi/House no. D/43, G.KII, New Delhi. The plaintiff could not repay the said borrowed amount and in order to repay the same, the plaintiff offered the services of defendant no. 1 as servant in the said house for about three years for a monthly salary of Rs. 2,000/. The defendant no. 1 worked as attendant/servant in the said house from 199698 and all his salary was adjusted in the aforesaid debt. Due to the said loan, the defendant no. 1 could not also pursue his education. It is averred that by so working as a servant, the defendant no. 1 has contributed in the construction of the said property. It is further alleged that the defendant no. 1 has also contributed to the construction of 3rd floor of the suit property by handing over his salary to the plaintiff. It is thus, contended that since the defendant no. 1 has contributed a huge sum in construction of the property in question, he has a right/interest in the same and he cannot be evicted from the same.
7. It is averred that in the year 2000, defendant no. 1 married defendant no. 2 and the defendant no. 2 entered the property in question i.e. the house of the plaintiff wherein the plaintiff, his wife, defendant no. 1 and his two brothers used to reside as a joint and undivided family. The meals of the family were cooked CS CSJ 755/22 Malkhan Singh Vs. Dhan Singh & Ors Page4 of 22 jointly and their name were mentioned in one and same Ration Card. Thus, the property in question comprising the suit property is a 'shared household' of defendant no. 2 and defendant no. 2 has a right to reside in the same and thus she cannot be evicted from the suit property. It is further contended that after the marriage of Sh. Jai Kishan, the number of family members increased and it was orally decided between the family members in the year 2001 that the ground floor of the house would be given to the Sh. Charan Singh, 1 st floor and 3rd floor to Sh. Jai Kishan and 2nd floor to the defendants wherein the defendants had a separate kitchen. It is averred that despite having a separate kitchen, the defendant no. 1 still took care of the plaintiff and used to pay Rs. 1,000/ to Rs. 1,500/ per month to him as per his demands.
8. The allegations of maltreatment and misconduct by the defendants have been denied. It is further contended that the defendant no. 1 took care of medical needs of the plaintiff and provided treatment to him amounting to Rs. 9,00,000/ for his heart ailment under his (defendant no. 1's) ESIC Scheme. The allegations of non payment of electricity and water charges have also been denied by the defendants. It is alleged that the plaintiff wants to evict the defendants from the suit property because the defendants have three daughters and no son. It is alleged that the plaintiff has been doing the same at the behest of his other sons.
9. It is further contended that in the year 2018, the plaintiff filed a false case against the defendants dated 24.08.2018 bearing dairy no. 38499 before the D.M, M.B.Road, Saket under Maintenance and Welfare of Parents and Senior Citizen Act, 2007 (hereinafter referred to as "MWPSC Act"). After appearance of the defendants, the said complaint was dismissed by the Tribunal, vide order dated 02.01.2021 passed by the District Magistrate (South), New Delhi. It is contended that the against the said order dated 02.01.2021 the plaintiff again filed CS CSJ 755/22 Malkhan Singh Vs. Dhan Singh & Ors Page5 of 22 appeal before the Appellate Authority, but the same was also dismissed.
10. It is further contended that the suit is not maintainable as the suit property has been alloted to the plaintiff only as a licensee by DDA/Delhi Government and DDA/Delhi Government have not been impleaded. In their absence, the suit is barred for nonimpleadment of necessary parties. On the aforesaid pleadings, the defendants have stated that suit of the plaintiff is without any merits and same be dismissed.
11. REPLICATION Replication was filed by the plaintiff to the WS of defendants, in which all the averments made in the WS were denied and those made in the plaint were reaffirmed.
12. ISSUES From the pleadings of the parties issues were framed on 09.01.2023 and they are as follows:
(i) Whether plaintiff is entitled to decree of mandatory injunction for directing the defendants to deliver vacant, peaceful, physical possession of suit property to the plaintiff, as prayed for in prayer clause no. (A)? OPP
(ii) Whether the plaintiff is entitled to decree of permanent injunction for restraining the defendants against creating third party interest in the suit property, as prayed for in prayer clause no. (B)? OPP
(iii) Whether the plaintiff is entitled to decree of injunction directing the defendants to not create nuisance and restraining them from creating interference in plaintiff's peaceful use and possession of the suit property, as prayed for in prayer clause no. (C)? OPP CS CSJ 755/22 Malkhan Singh Vs. Dhan Singh & Ors Page6 of 22
(iv) Whether the plaintiff has not approached the court with clean hands and has suppressed the material facts? OPD
(v) Whether present suit is bad for misjoinder and nonjoinder of necessary parties? OPD
(vi) Whether there is no cause of action in favour of plaintiff?OPD
(vii) Whether the present suit has not been properly valued for the purposes of court fee? OPD
(viii) Relief.
ISSUEWISE FINDINGS
13. ISSUE NO. (i), (ii) AND (iii)
(i) Whether plaintiff is entitled to decree of mandatory injunction for directing the defendants to deliver vacant, peaceful, physical possession of suit property to the plaintiff, as prayed for in prayer clause no. (A)? OPP
(ii) Whether the plaintiff is entitled to decree of permanent injunction for restraining the defendants against creating third party interest in the suit property, as prayed for in prayer clause no. (B)? OPP
(iii) Whether the plaintiff is entitled to decree of injunction directing the defendants to not create nuisance and restraining them from creating interference in plaintiff's peaceful use and possession of the suit property, as prayed for in prayer clause no. (C)? OPP
14. Issue no. (i), (ii) and (iii) are taken up together as they involve similar questions of facts and law.
The onus to prove all these issues was upon the plaintiff. The present suit is essentially for mandatory injunction seeking the defendants, who are the son and daughter in law of the plaintiff, to vacate the suit property. The CS CSJ 755/22 Malkhan Singh Vs. Dhan Singh & Ors Page7 of 22 defendants have admitted in their WS that the suit property was alloted to the plaintiff by Delhi Government/DDA in the year 1976. The defendants have further admitted that they have been residing in the suit property as permissive users/licensees with the permission of the plaintiff. This fact has been admitted by the defendants in their WS and their cross examination. It is settled law that the licenser/owner can file a suit for mandatory injunction for eviction of the licensee from a property. In the case of 'Sant Lal Jain Vs. Avtar Singh 1985 AIR SC857', Hon'ble Supreme Court of India observed that:
"After the termination of license, the licensee is under clear obligation to surrender his possession to the owner and if he fails to do so, we do not see any reason why the licensee cannot be compelled to discharge his obligation by way of mandatory injunction u/s 55 of the Specific Relief Act. We might further mention that even under English law, a suit for injunction to evict a licensee has always been held to be maintainable."
15. Hon'ble Supreme Court of India in the aforesaid case has categorically ordained that a licenser/owner can file a suit for mandatory injunction against the licensee/permissive user for possession of the property which is subject matter of license. Therefore, a licensor may terminate the license and file a suit for mandatory injunction for eviction of the licensee.
16. However, before termination of license, the licensee must be put to notice. Here, the plaintiff has placed on record the copy of relevant extract of publication in newspaper "The Indian Express" dated 18.07.2018 Ex. PW1/2 (OSR), as per which the plaintiff has debarred the defendant from all his movable and immovable properties. Also, admittedly, the plaintiff has filed the proceedings for eviction of defendants under MWPSC Act. Both the publication and the proceedings under MWPSC Act can be deemed as sufficient notice to the defendants for revocation of their license. In the case of "Virender Kumar & CS CSJ 755/22 Malkhan Singh Vs. Dhan Singh & Ors Page8 of 22 Anr. Vs. Jaswant Rai & Anr (RSA no. 46/2011, dod 10.03.2011)", Hon'ble High Court of Delhi has held that publication in newspaper is sufficient notice for revocation of license. Moreover, in the case of 'Nopany Investments (P) Ltd. V/s Santokh Singh (HUF), cited as {(2008) 2 SCC 728}', it has been held by Hon'ble Supreme Court of India that the filing of suit may also be treated as the notice for revocation/termination of lease/license. Accordingly, filing of present case may also be treated as notice for revocation of license of the defendants. It is thus established that by the publication in newspaper 'The Indian Express' and also by filing the present case, the license of the defendants stand terminated.
17. In view of above discussion, it can be said that the plaintiff has proved that he is the owner/licenser of the suit property, the defendants are the licensee/permissive users of the same, the defendants have been served the notice of revocation/termination of the license and the license stands terminated. Hence, prima facie, the plaintiff has proved all the ingredients for grant of relief in his favour. The plaintiff has discharged the initial onus lay upon him and now the onus has shifted upon the defendants to disprove the case of plaintiff. The various defences of the defendants are taken up one by one to examine whether they have been able to disprove the case of the plaintiff.
I. CONTRIBUTION BY DEFENDANT NO. 1 IN CONSTRUCTION OF HOUSE
18. The defendants have averred that though the plaintiff is owner/allottee of the land comprising suit property, defendant no. 1 has contributed in construction of superstructure over the same. As discussed earlier, the defendant no. 1 has claimed that he repaid the loan taken by the plaintiff in construction of 1st floor and 2nd floor of the property in question and he also contributed in construction of 3rd floor. Thus, it is claimed that by the aforesaid contribution, the CS CSJ 755/22 Malkhan Singh Vs. Dhan Singh & Ors Page9 of 22 defendant no. 1 has become part owner of the suit property.
19. First of all, let us see whether the defendants have proved the alleged contribution in the construction. Here, it may be noted that the defendants have not stated in the WS the name of person from whom the plaintiff allegedly took loan of Rs. 80,000/. It is only in cross examination that defendant no. 1 has stated that the said lady was wife of one Lala Omkar Nath who was resident of Paranthe Wali Gali, Chandni Chowk. It may be pointed out that in the WS, the address of the said person is stated to be that of GKII, however, in cross examination the address is of Chandni Chowk. The defendants have not clarified as to why two different addresses have been mentioned. Moreover, the said Mr. Lala Omkarnath or his wife have not been examined by the defendants to prove the alleged loan or its repayment. The averments by the defendants to this effect appear only to be bald one without being substantiated by any evidence. It is settled law that the pleadings which are not supported by evidence are not deemed to be proved. The guiding principles in this context were laid down by the Hon'ble Supreme Court of India in UP State Electricity Board & Anr. vs. Aziz Ahmad I (2009) SLT 587. The relevant para i.e. Para17 is quoted here for the sake of clarity: "Pleadings are required to be proved and so long evidence is not led in support of the pleadings no reliance can be placed only on the pleadings without there being any cogent evidence in support of the pleadings. Pleadings are required to be proved by leading evidence.".
20. In view of the above, it is clear that mere bald averments are not accepted on their face value. They have to be proved by cogent evidence. The defendants have not placed on record any proof that the plaintiff had taken such a loan which was repaid by the defendant no. 1. Further, apart from this averment also, the defendants have not placed on record anything to show that the CS CSJ 755/22 Malkhan Singh Vs. Dhan Singh & Ors Page10 of 22 defendant no. 1 has contributed in construction of the superstructure. Thus, the defendants have failed to prove any such contribution.
21. Moreover, even if the version of defendants that defendant no. 1 contributed in construction of suit property is taken to be a gospel truth, the same in itself does not make defendant no. 1 a coowner or does not give any right to defendants to remain in suit property. In the case of Virender Kumar (supra), Hon'ble High Court of Delhi in similar facts held that merely because the son has made contribution in the construction of the superstructure on a land, he is not entitled to remain in possession. Hon'ble High Court of Delhi observed as follows:
"even assuming that the defendant had raised money to construct the rooms on the first floor, it would not by itself give any right to the defendants in the land beneath as raising of the superstructure would not have made him owner in the suit land".
22. In view of the above observations, it is clear that even if defendant no. 1 has contributed in construction of suit property (which the defendants have failed to prove) they cannot be held entitled to remain in possession of the same. Accordingly, the defense of defendants in this regard is liable to be rejected.
II. SUIT PROPERTY SHARED HOUSEHOLD OF DEFENDANT NO. 2.
23. The defendants have contended that the defendant no. 2 got married to defendant no. 1 and came to suit property and remained in the same as a shared household where there was common kitchen and where all the family members of plaintiff including the defendants stayed together. It is thus argued on behalf of defendants that the defendant no. 2 has a right to remain in the suit property u/s 7 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as "DV Act") and thus, the defendants cannot be evicted from the CS CSJ 755/22 Malkhan Singh Vs. Dhan Singh & Ors Page11 of 22 same.
24. Here, though the defendant no. 2 has claimed that the entire property including suit property is her shared household within the meaning of Section 2
(s), DV Act, the defendants have themselves admitted that after 34 years of their marriage, the defendants started staying separately from the plaintiff and had their own separate kitchen. The same has been categorically admitted by defendant no. 2 in her cross examination. Since the defendant no. 2 has admitted that she and defendant no.1 had separated from the plaintiff, the right of defendant no. 2 to remain in shared household, if at all she has any such right, is against defendant no. 1 and not against the plaintiff. Since, defendant no. 2 has admittedly been living separately from the plaintiff, she does not have any right of residence under DV Act against the plaintiff. It is settled law that the right of a daughterinlaw to remain in property of her fatherinlaw is not indefeasible. It depends on the facts and circumstances of the case as to whether the father in law has duty to provide residence to his daughter in law under DV Act. In the case of "Shuchi Goel Versus Shashi Goel and Others 2023 SCC OnLine Del 2141 : (2023) 302 DLT 62", Hon'ble High court of Delhi has held as follows:
"30. The present clearly is a case, which is covered by the recent orders of this Court in Kartika Grover v. State of NCT of Delhi being W.P.(C) 17386/2022 dated 20th December, 2022. In the said decision, the Court has considered the judgments of the Supreme Court in Satish Chand Ahuja (supra) and S. Vanitha (supra) and has concluded as under:
"13. The rights of the daughterinlaw and the senior citizens who are inlaws, have been the subject matter of several decisions of the Supreme Court and of this Court. The latest decision of the Supreme Court in this regard is S. Vanitha v. The Deputy Commissioner, Bengaluru Urban District, (2020) 14 Scale 210, wherein the overlap between the two statutes i.e., the DVA and the MWSCPA has been considered and the Supreme Court has held that the CS CSJ 755/22 Malkhan Singh Vs. Dhan Singh & Ors Page12 of 22 provisions of the two statutes need to be construed harmoniously. In that case, disputes arose between both the inlaws on the one hand, and the daughterinlaw, on the other. The inlaws had preferred an application under the MWSCPA and obtained orders for eviction of their daughter inlaw and granddaughter. This was upheld by the ld. Division Bench of the Karnataka High Court, which held that the remedy of the daughterinlaw to seek maintenance and shelter, lies only against the husband i.e., the son, and accordingly the eviction order was valid. This judgment of the Karnataka High Court was challenged before the Supreme Court. The Supreme Court considered the right of residence given to the daughterinlaw under the DVA, as also the relevance of the provisions of the MWSCPA, holding that the intention of the legislators would be to read the said two legislations harmoniously, as both deal with the salutary aspects of public welfare and interest. It held that the MWSCPA cannot have an overriding effect in all situations irrespective of competing entitlements of a woman in a "shared household", as the same would defeat the purpose of the DVA. The provisions of both the statutes cannot be ignored and have to be harmoniously construed. The relevant observations of the Supreme Court are as under: "... The law protecting the interest of senior citizens is intended to ensure that they are not left destitute, or at the mercy of their children or relatives. Equally, the purpose of the PWDV Act, 2005 cannot be ignored by a sleight of statutory interpretation. Both sets of legislations have to be harmoniously construed. Hence the right of a woman to secure a residence order in respect of a shared household cannot be defeated by the simple expedient of securing an order of eviction by adopting the summary procedure under the Senior Citizens Act, 2007."
14. This issue has also been considered previously in Satish Chandra Ahuja v. Sneha Ahuja, (2020) 11 Scale 476 wherein the Supreme Court was dealing with a dispute between inlaws and son on the one hand, and the daughter inlaw on the other hand. A suit for injunction was filed by the fatherinlaw against the daughterin law without impleading the son. The daughterinlaw, who was having marital disputes with her husband, had in her defence claimed that the New Friends Colony residence, which was CS CSJ 755/22 Malkhan Singh Vs. Dhan Singh & Ors Page13 of 22 her matrimonial home, would be a "shared household" in terms of Section 2(s) of the DVA, and accordingly she could not be evicted from the same. The Trial Court had passed a decree of eviction under Order 12 Rule 6 of CPC, against the daughterinlaw, in the said suit. The High Court had set aside the decree passed by the Trial Court and remanded the matter for fresh adjudication. The said decision of the High Court was challenged before the Supreme Court. The Supreme Court, in this background, held that the right to residence, as provided to the daughterinlaw under Section 19 of the DVA, is not an indefeasible right, and hence the Court has to balance the rights of the parties. The observations of the Supreme Court are as under:
"83. Before we close our discussion on Section 2(s), we need to observe that the right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughterinlaw is pitted against aged fatherinlaw and motherinlaw. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughter inlaw. While granting relief both in application under Section 12 of Act, 2005 or in any civil proceedings, the Court has to balance the rights of both the parties. The directions issued by High court in paragraph 56 adequately balances the rights of both the parties."
15. The dispute between inlaws and children has repeatedly been faced by this Court as well. In the judgment of Vinay Verma v. Kanika Pasricha, (2019) 265 DLT 211, which has also been relied upon by the ld. Divisional Commissioner in the impugned order, the following guidelines were given by this Court:
"46. However, later decisions of various High Courts have, while giving divergent opinions on the concept of 'shared household', followed one uniform pattern in order to protect the daughterinlaw and to provide for a dignified roof/shelter for her.
The question then arises as to whether the obligation of providing the shelter or roof is upon the inlaws or upon the husband of the daughterinlaw i.e., the son. Some broad guidelines as set out below, can be followed by Courts in order to strike a balance between the PSC Act and the DV Act:
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1. The court/tribunal has to first ascertain the nature of the relationship between the parties and the son's/daughter's family.
2. If the case involves eviction of a daughter in law, the court has to also ascertain whether the daughterinlaw was living as part of a joint family.
3. If the relationship is acrimonious, then the parents ought to be permitted to seek eviction of the son/daughterinlaw or daughter/soninlaw from their premises. In such circumstances, the obligation of the husband to maintain the wife would continue in terms of the principles under the DV Act.
4. If the relationship between the parents and the son are peaceful or if the parents are seen colluding with their son, then, an obligation to maintain and to provide for the shelter for the daughterinlaw would remain both upon the in laws and the husband especially if they were living as part of a joint family. In such a situation, while parents would be entitled to seek eviction of the daughterinlaw from their property, an alternative reasonable accommodation would have to be provided to her.
5. In case the son or his family is illtreating the parents then the parents would be entitled to seek unconditional eviction from their property so that they can live a peaceful life and also put the property to use for their generating income and for their own expenses for daily living.
6. If the son has abandoned both the parents and his own wife/children, then if the son's family was living as part of a joint family prior to the breakdown of relationships, the parents would be entitled to seek possession from their daughterinlaw, however, for a reasonable period they would have to provide some shelter to the daughterinlaw during which time she is able to seek her remedies against her husband."
16. This Court has subsequently considered the two statutes and relied upon Vinay Verma (supra) to decide another case being Aarti Sharma v. Ganga Saran [RSA 14/2021, decided on 24th August, 2021], where the husband and wife were not estranged from each other. In the said decision, this Court had upheld the eviction of the daughterinlaw and husband.
17. Thus, the settled position is that the DVA and the MWSCPA must be construed harmoniously, and the CS CSJ 755/22 Malkhan Singh Vs. Dhan Singh & Ors Page15 of 22 relationship between the son and daughterinlaw must also be considered, among other factors, while deciding the dispute".(Emphasis supplied).
25. The above case clarifies that whether the parentsinlaw have a right to evict the daughterinlaw depends on the facts and circumstance of the present case. The prime responsibility to provide residence to a married female is that of her husband. The duty of the parentsinlaw arises only where the property in question is being occupied as a shared household and/or the parentsinlaw seek eviction of daughterinlaw in collusion with their son.
26. Applying the above principle to the present case, the court finds that the plaintiff has no responsibility to provide residence to the defendants including defendant no. 2. There is no averment or proof of any discord between the defendant no.1 and defendant no.2 or collusion between plaintiff and defendant no. 1. The defendants have been residing separately from the plaintiff. The present is not a case where the son is made a defendant only to defeat the rights of defendant no. 2. In these circumstances, the responsibility to provide residence to defendant no. 2 is that of defendant no. 1 and not of plaintiff. The plaintiff cannot be expected to give up on his rental earning from the suit property at advanced stage of his life only to provide accommodation to the defendants when he has no other source of livelihood. Accordingly, in the peculiar facts and circumstances of this case, the defendant no. 2 does not have right to remain in possession of suit property being her shared household. The defence of defendants is liable to fail on this ground too.
III. HARDSHIP TO THE DEFENDANTS
27. The defendants have contended that they have three daughters and if they are evicted from suit property, they shall face grave hardships and it shall be very difficult for the defendant no. 1 and 2 to provide shelter to their daughter. In CS CSJ 755/22 Malkhan Singh Vs. Dhan Singh & Ors Page16 of 22 the considered opinion of this court, hardship to the defendants is not at all a ground to not order eviction of the defendants. The plaintiff has proved that he is the owner/allottee of the suit property and defendants are the permissive users and they are liable to vacate the suit property as per wishes of the plaintiff. Thus, hardship to the defendants is immaterial.
IV. PLAINTIFF FILING THE PRESENT SUIT AT BEHEST OF BROTHER OF DEFENDANT NO. 1.
28. The defendants have also claimed that the plaintiff has filed the present suit at the behest of Sh. Charan Singh and thus, this suit is liable to be dismissed. This ground of defence is also standing on a very weak footing. The plaintiff has himself stood in the witness box and deposed that he wishes to evict the defendants from the suit property. The role of the brother of plaintiff, if any, is also immaterial because it is the plaintiff who has filed the present case and who has prayed for eviction of the defendants and thus, the suit cannot be dismissed on this court either.
V. THE DISMISSAL OF APPLICATION FILED BY PLAINTIFF BEFORE SDM
29. The defendants have also claimed that similar application filed by the plaintiff before the SDM under MWPSC Act has been dismissed and thus, the present suit should also be dismissed. This ground also does not hold much water. All the plaintiff was required to prove is that he has a right for mandatory injunction against the defendants and as discussed above, the plaintiff has already proved the same. Thus, dismissal of a similar application before the SDM on different grounds/law is inconsequential.
30. The defendants have not raised any other ground, apart from the ones CS CSJ 755/22 Malkhan Singh Vs. Dhan Singh & Ors Page17 of 22 discussed above, strong enough to allow the dismissal of the present case. Accordingly, the defendants have failed to discharge the onus that shifted upon them. Hence, the defendants are liable to vacate the suit property. The defendants are also liable to be restrained from creating any third party interest in the suit property. The defendants are also liable to be restrained from creating any nuisance or interference of peaceful possession of the plaintiff of the entire property comprising suit property. Accordingly, issue no. (i), (ii) and (iii) are decided in favour of plaintiff and against the defendants.
31. ISSUE NO. (iv).
(iv) Whether the plaintiff has not approached the court with clean hands and has suppressed the material facts? OPD.
32. The onus to prove this issue was upon the defendants. So far as this issue is concerned, the defendants have not placed on record any evidence to suggest or prove that the plaintiff has not approached the court with clean hands and has suppressed material facts. All the facts which were required to obtain relief in the present case have been pleaded and proved by the plaintiff. Accordingly, the defendants have failed to prove this issue. The present issue is decided against the defendants and in favour of plaintiff.
33. ISSUE NO. (v).
(v) Whether present suit is bad for misjoinder and nonjoinder of necessary parties? OPD
34. The onus to prove this issue was upon the defendants. The defendants have claimed that property in question including the suit property has been allotted to the plaintiff by DDA/Delhi Government on license basis and the suit is barred without impleading DDA/Delhi Government as they are necessary party to the present suit.
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35. In the case of "Kanaiya Lal & Anr. Vs. Natthi Lal (RSA no. 27/2017 decided on 16.02.2017), Hon'ble High Court of Delhi in a similar case held that DDA/Delhi Government had no role to be impleaded as a party. Hon'ble High Court of Delhi observed as follows:
"At the outset, I deal with the contention raised by learned counsel for the appellant that Urban Shelter Board was not a necessary party. In a suit for mandatory injunction filed by father against his son and daughterinlaw after the allotment of the plot, DDA/Urban Shelter Board has hardly any role so as to be impleaded as a party".
36. After observing as above, Hon'ble High Court of Delhi rejected the contention of the appellant that the suit was barred for non impleadment of DDA/Delhi Government. On similar grounds, on the basis of aforesaid judgment, it may be held that the license was between the plaintiff and the defendants and thus, DDA/Delhi Government is not a necessary party and their non impleadment does not bar the present suit. Accordingly, issue no. 5 stands decided against the defendants and in favour of plaintiff.
37. ISSUE NO. (vi).
(vi) Whether there is no cause of action in favour of plaintiff?OPD
38. The onus to prove this issue was upon the defendants. The defendants have not placed on record anything to prove that the plaintiff has no cause of action in the present case. Moreover, it has already been found that the plaintiff has proved his right to evict the defendants and thus, the plaintiff can be said to have a cause of action in his favour. Accordingly, the present issue is decided against the defendants and in favour of plaintiff.
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39. ISSUE NO. (vii).
(vii) Whether the present suit has not been properly valued for the purposes of court fee? OPD
40. The onus to prove this issue was upon the defendants. The defendants have not led any evidence to prove this issue. As already discussed, while deciding issue no. (i), (ii) and (iii), a suit for mandatory injunction is maintainable to evict the licensee/permissive user on the basis of judgment passed by Hon'ble Supreme Court of India in the case of "Sant Lal Jain Vs. Avtar Singh (supra)". The present suit is for mandatory injunction and permanent injunction. As per Section 7 (iv) (d) of Court Fees Act, 1870, providing that the plaintiff has the liberty to value the relief of injunction as per his discretion. The plaintiff has valued the reliefs of permanent injunction and mandatory injunction @ Rs. 130/ each and has paid the court fees on the same. In the opinion of this court, the plaintiff has valued the suit correctly. In the case of "Padmavati Mahajan vs Yogender Mahajan & Another 2008 SCC Online Delhi 982", the Hon'ble High Court of Delhi observed as follows"
"30.The second contention of the defendant no.1 on valuation and payment of Court fee is also liable to be rejected. A suit for permanent and mandatory injunction can be valued by the plaintiff in his/her discretion subject to the discretion not being whimsical. Suit is not required to be valued at the market value of the Property. Reference in this regard can be made to the decision of this Court in the case of Oriental Trading Corporation versus Punjab Spin Trading Company reported in 1976 RLR 650 wherein it was observed as under: "(2) The law on the subject is well settled. Under Section 7(iv)(d) of the Court Fees Act in a suit to obtain injunction, discretion is given to the plaintiff to value the relief and pay the court fees accordingly and a local amendment made in the law has provided that the court fees paid in such a suit shall be not less than Rs. 13. On the other hand, in suits for possession of land and houses, the court fee is to be paid on CS CSJ 755/22 Malkhan Singh Vs. Dhan Singh & Ors Page20 of 22 the market value as provided in subclause (c) of clause (v) of Section 7 of the Court Fees Act. In Sathapana Chettiar v.
Ramanathan, AIR 1958 SC 245, the Supreme Court laid down that the question of court fees must be considered in the light of the allegations made in the plaint and this decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. A Full Bench of the Circuit Bench of the Punjab High Court at Delhi in Jai Krishna Dass v. Babu Ram, 1967 PLR 52, observed that it was settled law that for deciding the question relating to the amount of court fee payable on a plaint, not only have the averments in the plaint alone to be taken into account but the said allegations are to be assumed to be correct and the decision can neither depend on the maintainability of the suit as framed nor upon the assumption that the court must somehow spell out of the plaint such a claim which is ultimately capable of being decreed and the Court has to take the plaint as it is without omitting anything material and without reading in it by implication what is not stated therein".
In view of the above pronouncement of Hon'ble High Court of Delhi, it is clear that the plaintiff may value as the suit for injunction as per his discretion. The court does not find anything to hold that the suit has not been valued property. Accordingly, the present issue decided against the defendants and in favour of plaintiff.
41. RELIEF In view of findings qua issue no. (i), (ii) and (iii), suit of the plaintiff is decreed and following reliefs are granted to the plaintiff:
a)decree of mandatory injunction in favour of plaintiff and against the defendants, their successors, associates, agents, servants etc. to deliver vacant, peaceful, physical possession of suit property i.e. Second Floor of H. No. 6/246, Dakshinpuri Extn. New Delhi62 to the plaintiff,
b) decree of permanent injunction in favour of plaintiff and CS CSJ 755/22 Malkhan Singh Vs. Dhan Singh & Ors Page21 of 22 against the defendants, their successors, associates, agents, servants etc. not to create any third party interest in the suit property bearing no. Second Floor of H. No. 6/246, Dakshinpuri Extn. New Delhi-62 and,
c) decree of permanent injunction in favour of plaintiff and against the defendants thereby restraining the defendants from interfering in peaceful possession and enjoyment of plaintiff of residential property bearing H. No. 6/246, Dakshinpuri Extn. New Delhi62. No order as to cost.
Applications, if any, which are pending in the present judicial file and have not been pressed for by the parties are also disposed of as dismissed as not pressed.
Decree sheet be prepared accordingly. File be consigned to record room after completing the necessary formalities.
(DEEPAK VATS) ASCJcumJSCCCUMG (South) Saket Courts, New Delhi Pronounced in the open court on 09.02.2024.
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