Delhi District Court
Smt. Snehlata vs Virender Singh on 20 January, 2015
IN THE COURT OF SH. SIDDHARTHA MALIK, CIVIL JUDGE (WEST) III
TIS HAZARI COURTS DELHI
SUIT NO. 98/12
DATE OF INSTITUTION : 04.04.2012
DATE ON WHICH RESERVED : 12.01.2015
DATE OF DISPOSAL : 20.01.2015
SMT. SNEHLATA
W/O LATE SH. BALWAN SINGH LAKRA
R/O G-1/435, DAL MIL ROAD, UTTAM NAGAR
NEW DELHI ...... PLAINTIFF
VS
VIRENDER SINGH
S/O SH. BALBIR SINGH
R/O G-1/435, DAL MIL ROAD
UTTAM NAGAR, NEW DELHI ..... DEFENDANT
-:1:-
SUIT FOR POSSESSION, PERMANENT INJUNCTION & MESNE PROFITS
JUDGMENT
1. The present suit has been filed by the plaintiff seeking possession of part of the property bearing No. G-1/435, Dal Mil Road, Uttam Nagar, New Delhi-18 (hereinafter referred to as 'suit property'), which is under the possession of the defendant.
2. The brief facts of the case are that the plaintiff claims herself to be the owner of the suit property vide a registered sale deed dated 01.03.2012. The plaintiff submits that the defendant is the brother in law of the plaintiff. Plaintiff further submits that the plaintiff and the defendant both are residing in specific portions of the suit property, as shown in the site plan, since 2002.
3. Plaintiff submits that the plaintiff and the defendant were paying rent to the earlier owner of the suit property, Smt. Saroj Devi. Plaintiff further submits that she purchased the suit property from Smt. Saroj Devi, on 23.11.11, after selling her other property situated in Najafgarh. Plaintiff submits that due to her family needs she asked the defendant to vacate the suit property in December 2011, but the defendant refused to vacate the same. Plaintiff submits that when despite repeated requests the defendant did not vacate the premises, the plaintiff was forced to institute the present suit.
4. In his detailed written statement, the defendant submits that the suit instituted by the plaintiff is an abuse of the process of law. Defendant submits that the suit is bad for non-joinder of necessary -:2:- party as the previous owner of the property has not been impleaded as a party.
5. Defendant further submits that he is residing in the suit property since 1998 as owner of the property as he had made payment for purchasing the property to one Sh. Satya Prakash who assured him that the title documents shall be executed in defendant's name.
6. On the basis of the pleadings of the parties following issues were framed on 09.09.2013:-
1 Whether the plaintiff is entitled to the relief of recovery of possession, as prayed?OPP 2 Whether the plaintiff is entitled to the relief of injunction, as prayed?OPP 3 Whether the plaintiff is entitled to the relief of recovery of mesne profit, as prayed?OPP 4 Whether the present suit is bad for non joinder of necessary parties?OPP 5 Relief.
7. In PE plaintiff examined two wittinesses i.e. plaintiff herself as PW-1 and one official witness for production of judicial record as PW-2. The plaintiff deposed on the lines of the plaint. In DE defendant examined himself as DW-1 and reiterated the contents of the written statement. The witnesses examined by the defendant were Sh. Ram Tirath as DW-2, Sh.Ram Pal as DW-3 and Sh.Sham Sunder as DW-4 and all these witnesses deposed on the same lines that the defendant had paid the consideration amount of the suit property to one Sh. Satya Prakash.
-:3:-8. Final arguments were advanced by both the parties. I have heard the arguments and perused the record carefully and my issue-wise findings are as follows:-
Issue No. 11. Whether the plaintiff is entitled to the relief of recovery of possession, as prayed?OPP
9. The case of the plaintiff is that she is the owner of the suit property by way of registered documents in her favour. On the other hand, the defendant has denied the ownership of the plaintiff and asserts that he is the owner as he has paid the sale consideration of one Sh. Satya Prakash.
10. To establish her case the plaintiff has relied upon Ex.PW-1/4 i.e. the sale deed dt. 01.03.2012 vide which the plaintiff became the owner of the suit property. The plaintiff has also relied upon Ex.PW-1/3 (colly) i.e. the agreement to sell, GPA etc. dt. 23.11.2011 between the same parties. Thus, the title of the plaintiff in the suit property was first created on 23.11.2011 and was perfected by a registered sale deed on 01.03.2012 in view of the judgment of Hon'ble Supreme Court in Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana and Anr. 183 (2011) DLT 1 (SC).
11. At this stage it is important to note that the defendant has referred to a Suit No.5/12 disposed off by Ld. Civil Judge-02, West District, Tis Hazari Courts and has alleged that the plaintiff had relied upon the documents dt. 23.11.11 in that suit, whereas in the present suit she is relying upon a registered sale deed.
-:4:-12. As already discussed above, the plaintiff has acted in consonance with the judgment of Hon'ble Supreme Court in Suraj Lamp(supra) and has got a proper sale deed registered in her favour before instituting the present suit. Thus, the plaintiff has rectified the deficiency in her title before instituting the present suit for possession. Moreover, as held by Hon'ble High Court of Delhi in Ramesh Chand v. Suresh Chand RFA No.358/2000 decided on 09.04.2012, in a suit for possession the plaintiff is only required to show a better title as compared to the defendant and not an absolute title as in the case of declaration of ownership rights.
13. The registered sale deed in favour of the plaintiff carries a presumption of genuineness which has to be specifically rebutted by the defendant. However, the defendant has not discharged the said onus and the registered sale deed dt. 01.03.2012 has been duly proved by the plaintiff in her favour.
14. The defendant has averred that he was residing in the suit property as owner since 2002. The fact of the possession of the defendant in the suit property since 2002 has been admitted by the plaintiff. The plaintiff has stated in the plaint that she and the defendant were occupying different portions of the suit property as tenants since 2002.
15. The cause of action in favour of the plaintiff to institute the present suit arose after she acquired ownership right in the property on 01.03.2012 and instituted the suit in April, 2012 after giving due notice to the defendant. Thus, the admitted possession of the defendant since 2002 does not have any bearing on the merits of the present suit. Coming to the aspect of alleged ownership, the -:5:- defendant has claimed that he has given the consideration amount of the property to one Sh.Satya Prakash.
16. It is an admitted case that the defendant has no documents whatsoever in his favour with respect to the suit property, either executed by Sh. Satya Prakash or anyone else for that matter. It is settled law that no person can become owner of an immovable property by an oral agreement or by giving certain consideration amount to a person without execution of title documents. This law has been reaffirmed by Hon'ble Supreme Court in Suraj Lamp(supra). The Hon'ble Apex Court has laid down the law of the land to the effect that except a registered sale deed no other document can confer ownership rights in an immovable property. In the present case, leave alone a registered sale deed, the defendant has not even a single shred to document in his favour and is only relying upon an oral transaction to claim ownership.
17. The defendant has avered that he made the payment to Satya Prakash, and became owner of the suit property. The plaintiff has proved the judicial record of the Suit No.5/12 instituted by the present defendant against the said Sh. Satya Prakash and the plaintiff before Ld. Civil Judge-02, West District, Tis Hazari, vide Ex.PW-2/1 (colly). The Ex.PW-2/1 contains a statement of Sh.Satya Prakash recorded in the Court of Ld. Civil Judge-02, West District, Tis Hazari in which he has categorically stated that he has not concern with the suit property and never received any amount from the defendant.
18. Thus, the defendant cannot claim ownership of an immovable property by allegedly giving certain consideration amount to a -:6:- person who is not even the owner of the property. It is interesting to note that the defendant has not taken any steps to examine the said Sh.Satya Prakash to prove otherwise.
19. All the defendant witnesses i.e. DW-1 to DW-4 have harped upon the same point in their deposition that defendant had given some consideration amount to Sh. Satya Prakash. However, no amount of deposition can counter the law laid down by Hon'ble Supreme Court in Suraj Lamp(supra). No consideration amount, howsoever big, can confer any ownership right in favour of the defendant.
20. Thus, it has been established that the defendant has no ownership right in the suit property. Further, the defendant has denied that he is a tenant in the suit property. Thus, if the defendant is neither the owner nor the tenant in the suit property, he is at best an unauthorized occupant, if not a trespasser in the suit property.
21. Though, the defendant has denied being a tenant in the property, a decree against the defendant can follow based upon the better title established by the plaintiff. The Hon'ble High Court of Delhi in K.Kishore & Construction (HUF) v. Allahabad Bank 1998 RLR 248 referring to a decision of Hon'ble Supreme Court in Srinivas Ram Kumar v. Mahabir Prasad 1951 AIR 177, has held that a decree can be passed on the admissions made by one party even if the said admissions are at variance with the case set up by the other party. It has been held that if in the written statement, the defendant puts forward an admission as an answer to the claim of the plaintiff, there is nothing improper in passing a decree upon the case which the defendant has himself set up.
-:7:-22. Thus, once it has been held that the defendant has no ownership rights in the suit property, a decree against him can follow by considering him as an unauthorized occupant, even though the defendant has disputed the case of the plaintiff of tenancy. In these circumstances, even if the plaintiff does not prove the factum of tenancy of the defendant, the defendant is still liable to be evicted from the property being an unauthorized occupant.
23. During final arguments, the counsel for defendant has argued that the valuation done by the plaintiff for the relief of possession is incorrect as the sale deed of the plaintiff shows that the property costs more than Rs.30 lakhs. A perusal of the plaint shows that the plaintiff has valued the relief of possession at Rs.60,000/-. The said valuation is based upon the annual value of rent claimed by the plaintiff with the averment that the defendant is a tenant. The said valuation is correct as per Suit Valuation Act. Only because the defendant has denied being a tenant, it cannot be held that the valuation is incorrect. The relief has to be valued as per the cause of action disclosed in the plaint and not as per the defense taken by the defendant.
24. A civil suit is decided on the preponderance of probabilities and the balance of probabilities supports the case of the plaintiff in the present suit. The plaintiff has established her title in the suit property. On the other hand, the defendant's case of ownership by paying consideration runs counter to the law of the land and instills no faith.
25. The defendant has tried to rely upon certain discrepancies in the evidence of the plaintiff. However, the said minor discrepancies are -:8:- not fatal to the case of the plaintiff in view of Ramesh Chand (Supra), wherein the Hon'ble High Court of Delhi has held that in a civil case decided on balance of probabilities there may appear inconsistencies in the depositions of witnesses, however, the depositions have to be taken as a whole and minor inconsistencies which do not affect the main substance of the case, are to be taken in correct perspective along with the other evidences, including documentary evidence which is led in the case.
26. In view of the aforesaid, the issue no.1 is decided in favour of the plaintiff for the relief of possession against the defendant.
Issue No.2
2. Whether the plaintiff is entitled to the relief of injunction, as prayed?OPP
27. As already held above, the plaintiff has established her better title in the suit property as compared to the defendant. Further, the plaintiff has been found entitled to recover possession of the property from the defendant.
28. Thus, the defendant has no right to create any sort of third party interest in the suit property and issue no.2 is decided in favour of the plaintiff.
Issue No.3 3 Whether the plaintiff is entitled to the relief of recovery of mesne profit, as prayed?OPP
29. The plaintiff has claimed mesne profits @ Rs.10000/- per month.
-:9:-However, the plaintiff has not led any evidence to show that the prevailing market rent of similar properties in the locality where the suit property is situated is around Rs.10000/- per month.
30. However, the Court can take judicial notice of the prevailing market conditions in the metropolitan of Delhi for the purpose of ascertaining the mesne profits. Admittedly, the defendant is in possession of two floors with toilet and bathroom facility. If the plaintiff had been able to induct a tenant in the said portion, she could have fetched a rent of not less than Rs.1000/- per month for each of the room separately. The unauthorized possession of the defendant prevented the plaintiff from reaping this income from the portion of her property and thus, the entitlement for mesne profits.
31. Considering the aforesaid, the plaintiff is entitled to recover Rs. 2000/- p.m. From 01.04.2012 till recovery of possession of the suit property. The issue no.3 is decided accordingly.
Issue No.4 4 Whether the present suit is bad for non joinder of necessary parties?OPP
32. The onus of proving this issue was upon the defendant but was wrongly recorded due to typographical error as upon the plaintiff. The defendant has failed to show that more persons, apart from the plaintiff and defendant, should have been party to the suit for proper adjudication.
33. The present suit for possession has been instituted against the defendant as the defendant is in possession of a portion of the -:10:- property. Thus, no other person is required to defend the suit except the defendant. The person who allegedly sold the property to the defendant is not necessary party to the suit of the plaintiff seeking possession against the defendant. It was upto the defendant to examine the alleged seller in his evidence but the presence of the alleged seller as a party is completely unnecessary for the present suit. Accordingly, the issue no. 4 is decided against the defendant.
Issue No.5 Relief
34. In view of the aforesaid discussion, the suit of the plaintiff stands decreed against the defendant. The plaintiff is entitled to recover immediate possession of the portion of the Property bearing No. G-1/435, Dal Mil Road, Uttam Nagar, New Delhi-18, under the possession of the defendant as per site plan Ex.PW-1/2. Plaintiff is further entitled to recover Rs.2000/- p.m. from 01.04.2012 till recovery of possession of the suit property alongwith simple interest @ 6% per annum. Defendant and any person claiming through the defendant is restrained from creating any third party interest in the property bearing number G-1/435, Dal Mil Road, Uttam Nagar, New Delhi-18. Decree sheet be prepared after filing of deficit Court Fees. File be consigned to record room.
Announced in the Open Court today i.e. 20.01.2015 (Siddhartha Malik) CJ(West)III,THC/Delhi 20.01.2015 -:11:-