Delhi District Court
Suit No.8901/16 Hazi Achhey Mian & Anr. vs . Mohd. Shahid & Ors. on 27 July, 2018
Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
IN THE COURT OF SH. MUNEESH GARG, CIVIL JUDGE
(EAST) KARKARDOOMA COURTS, DELHI
Suit No.:8901/16
In the matter of--
1.Hazi Achhey Mian
s/o Late Mohd. Habib Ahmed
2.Sugra Begum
w/o Late Mohd. Habib Ahmad,
both r/o 278 (Old No. 48),
Khureji Kahs, Delhi110051
.......PLAINTIFFS
Versus
1.Mohd. Shahid,
s/o Late Sh. Rafiq Ahmad,
r/o A118, (New No. C11),
Opposite, Dairy, Gali No.9,
Radhey Shyam Park Extension,
Delhi110051
2. Mohd. Javed
s/o Late Sh. Rafiq Ahmad,
r/o H. No.61, New Ganesh Park,
Behind Jal Board,
Near Masjid, Delhi
3. Nasruddin
s/o Sh. Bhure Khan,
Page No. 1/30
Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
4. Rehana
w/o Sh. Nasruddin
both r/o 278, Khureji Khas,
Delhi110051
Also at:
282, Khureji Khas,
Delhi110051
......DEFENDANTS
Date of Institution of suit:30.05.2008
Date of reservation of judgment:01.06.2018
Date of pronouncement of judgment:27.07.2018
JUDGMENT:
1. This is a suit for recovery of possession under section 6 of Specific Relief Act, declaration, mandatory injunction and damages/mesne profits.
2. In brief, facts of the case are that defendant no. 1 and 2 are cousins of plaintiff no.1 and nephew of plaintiff no.2, whereas defendant no.3 and 4 are unlawful occupiers/trespassers of a portion of property no. 278 (old no. 48), Khureji Khas, Delhi (hereinafter called as the Suit Property) which is shown in red colour in the site plan. It is the claim of the plaintiffs that the property no. 278 (old no. 48), Khureji Khas, Delhi is the ancestral property of plaintiffs and was adversely possessed, occupied and acquired by late Habib Ahmad, father of plaintiff Page No. 2/30 Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
no.1 and husband of plaintiff no.2, about fifty years back. During his life time, Late Sh. Habib Ahmad orally permitted his brother Sh. Rafiq Ahmad to live in a portion of above mentioned property admeasuring about 50 sq. yards out of love and affection without charging any rent/user charges or license fee with the condition to leave and vacate the premises as and when required by him or his family. Late Sh. Habib Ahmad and his family including plaintiffs had been residing in the remaining portion of admeasuring about 50 sq. yards and a portion of about 50 sq. yards was let out to M/s Om Bakery. Plaintiffs got vacated the same from tenant few years back by taking over the possession.
3. It is further the case of the plaintiffs that after the death of Sh. Rafiq Ahmad, father of defendant no. 1 and defendant no. 2 along with his family had been residing in their licensed premises and plaintiffs never objected to it, being in cordial relations. In November 2007, the plaintiffs were in bonafide need of the portion occupied by defendant no. 1 and defendant no. 2, due to extension of their family and to extend their business of bakery. Hence, plaintiffs revoked and terminated the license and demanded vacant possession from defendant no. 1 and 2, to which the defendants reluctantly agreed and sought time unto the end of December 2007 from the plaintiffs to shift in their other own property. In the first week of December 2007, plaintiffs again demanded the possession of the licensed portion from defendant no. 1 and 2 but the defendants again sought time for one month stating that they Page No. 3/30 Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
will shift to their property after renovation, to which the plaintiffs permitted.
4. It is further the case of the plaintiffs that plaintiff no. 1 met with a serious road accident at Meerut (UP) on 07.12.2007. The defendants, taking benefit and undue advantage of the accident of plaintiff no. 1 and business of other family members of plaintiffs, conspired together and in collusion with their mother Smt. Hasmi Begum planned to part with the possession of their occupied portion to some third person. When plaintiffs came to know about the mala fide intention of defendant no. 1 and 2 through some neighbour and local estate agent, the plaintiffs immediately asked for vacant possession of their portion but the defendants assured they are not going to part with the possession or creating third party interest and they will vacate the portion very soon.
5. It is further the case of the plaintiffs that in the end of March, when plaintiff no. 1 was on bed due to his accident, he learnt that defendant no. 1 and 2 had received some advance amount from defendant no. 3 for transferring the possession of their portion in his favour in an unlawful manner, without having any right, title or interest, on the basis of false and fabricated documents. Thereafter, plaintiffs got issued a legal notice upon the defendant no. 1 and 2 on 24.03.2008 through their counsel but defendant did not bother about the same despite receiving the notice and entered into false, fabricated and void sale transaction, which is liable to be cancelled.
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6. It is further the case of the plaintiffs that on 10.05.2008, plaintiffs found that defendant no. 1 and 2 had started removing their households from their portion on the pretext that they are shifting to their own house and gave assurance that they will handover the peaceful and vacant possession to the plaintiffs after its complete vacation. On 20.05.2008, plaintiffs were shocked when they found that defendant no. 3 and 4 were entering and trespassing in the suit property along with their household. When plaintiffs and other family members objected, a hot argument took place between the parties. However, defendant no. 3 and 4 were adamant and forcibly entered into the suit property which exclusively belongs to the plaintiffs and their family members. Plaintiffs rushed to the police station to report the matter and to get restored the peaceful possession of the suit property. However, police did not take any action and asked the plaintiffs to move to the Court of law as the dispute is civil in nature.
7. It is the case of the plaintiffs that defendants have no documents of their right, title or interest with respect to the suit property and if any, those might have been procured in connivance with some staff of Subregistrar Office during the recovery period of plaintiff no. 1 and have no value in the eyes of law and are liable to be declared as null and void. It is also the case of the plaintiffs that they have apprehension that the trespassers i.e. defendant no. 3 and 4 may create any further third party interest or illegally let out any portion to defeat the rights of plaintiffs as threatened by them. Finding no other Page No. 5/30 Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
equally efficacious remedy, plaintiffs filed the present suit to protect their rights and possession.
8. The plaintiffs have claimed a decree for restoration of possession u/s 6 of Specific Relief Act or under any other provision of law of the suit property bearing no. 278 (old no.
48), Khureji Khas, Delhi11005, admeasuring 100 sq. yards, as shown in red in the site plan. Plaintiffs have further claimed a decree for declaration to declare the documents, if any prepared and executed by the defendants, as null and void. The plaintiffs have further claimed a mandatory injunction directing the defendants no. 3 and 4 to deexecute and cancel the documents, if any executed and also remove their goods and household articles and locks from the suit property. The plaintiffs have further claimed a decree for mesne profits and damages @ Rs. 10,000/ per month for the unlawful occupation and trespassing in the suit property till its peaceful vacation.
9. The defendants appeared pursuant to service of summons and contested the suit by filing their written statement. Written Statement of defendant no. 1 and 2 :
10.Defendant no.1 and 2 filed joint written statement and took the following preliminary objections:
(a) that the plaintiffs have no locus standi to file the present suit against them and hence suit is liable to be dismissed;
(b) that the plaintiffs have concealed material and relevant facts and not approached the court with clean hands;Page No. 6/30
Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
(c) that there is no cause of action in favour of plaintiffs and against the defendants;
(d) that the plaintiffs have no personal right, title or interest in the suit property and no relief of injunction can be granted as per section 41 (j) of the Specific Relief Act;
(e) that the suit of the plaintiffs is not maintainable u/s 6 of the Specific Relief Act, as there is no dispossession and is liable to be dismissed;
(f) that the suit of the plaintiffs neither has been properly valued for the purpose of court fees and jurisdiction nor proper and requisite Court fees has been paid;
(g) that the suit is bad for nonjoinder and misjoinder of proper and necessary parties and therefore, the suit is liable to be dismissed.
(h) that the plaintiffs have concealed material facts. It is submitted that the father of defendant no.1 and 2 and the father of the plaintiff were the cosharer of the property bearing no. 278 (old no. 48), Khajuri Khas, Delhi admeasuring 200 sq yards. The father of plaintiffs and father of defendant no.1 and 2, both were the coowner of 100 sq. yards each, out of total area of 200 sq. yards as the property was ancestral property and the property of 200 sq. yards had already been divided in equal share between the father of plaintiffs and father of the defendant no.1 and 2 after the death of their father. It is further submitted that defendant no.1 and 2 have already sold their share of the suit property i.e. 100 sq. yards to defendant no.4 on 21.01.2008 through registered sale deed and now defendant Page No. 7/30 Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
no.4 along with her husband i.e. defendant no.3 is living in the suit property.
11.On merits, defendants no.1 and 2 while denying the contents and averments of the plaint, stated that they sold the area of 100 sq. yards to defendant no. 4 being the owner of 50 sq. yards. Defendant no.1 and 2 denied that the property bearing no. 278, (old no. 48), Khureji Khas, Delhi (Suit Property) was ancestral property of the plaintiffs and same was adversary possessed, occupied and acquired by late Habib Ahmed father of plaintiff no. 1 and husband of plaintiff no. 2, about fifty years back. It is stated that grand father late Ahmed Baks of defendant no.1 and 2 and the plaintiffs was the owner of the aforesaid property measuring 200 sq. yards and he died intestate and the property became ancestral property. Therefore, late Sh. Habib Ahmed, who is the father of the plaintiffs and late Sh. Rafiq, who was the father of defendant no.1 and 2 became the cosharer of the aforesaid property. It has been further stated that partition took place between late Sh. Habib Ahmed and Rafiq Ahmed long back and the aforesaid property was divided between them equally and each of them became the owner of 100 sq. yards out of 200 sq. yards in the aforesaid property. It has been denied that during his lifetime late Sh. Habib Ahmed had orally permitted his brother Sh. Rafiq Ahmed to live in portion of abovesaid property measuring about 50 sq. yards out of love and affection without charging any rent or licence fee. It has been stated that suit property i.e. 100 sq. yards came into the share of father of Page No. 8/30 Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
defendant no.1 and 2 after partition between Sh. Habib Ahmed and Sh. Rafiq Ahmed and the defendant no.1 and 2 are in possession of 100 sq yards of the suit property after the death of their father and the electricity connection is in the name of father of defendant no.1 and 2. It is also submitted that house tax and water connection are also in the name of father of defendant no.1 and 2 of the suit property. It is denied by the defendant no.1 and 2 that late Sh. Habib Ahmed and his family including plaintiffs had been residing peacefully in the portion of 150 sq. yards of aforesaid property and a portion of 50 sq. yards was let out to M/s Omkar Bakary in the year 197980 by late Sh. Habib Ahmed, which was got vacated by the plaintiffs from the tenant few years back by taking the possession of the same.
12.It is further stated that father of defendant no.1 and 2 has executed a Will on 02.09.1997 in favour of Sh. Anees Ahmed (elder brother of defendant no.1 and 2), defendant no.1 and 2 and his daughter namely Shama Praveen and wife Mst. Hashmi Begum regarding the aforesaid property and other properties). It is further stated that defendant no.1 and 2 and Shama Praveen executed a registered relinquishment deed in favour of Smt. Hashmi Begum on 21.11.2007 and the eldest brother of defendant no.1 and 2 orally left his share in favour of his mother and the mother of defendant no.1 and 2 became the absolute owner of the suit property. It is further submitted that Smt. Hashmi Begum had executed a gift deed alongwith affidavit in favour of defendant no.1 and 2 for area measuring Page No. 9/30 Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
50 sq. yards each in the aforesaid suit property. Thereafter defendant no.1 and 2 became the exclusive owner of the suit property. It is stated that the defendant no.1 and 2 were in exclusive possession of 50 sq. yards each out of area measuring 100 sq. yards and defendant no.2 let out ground floor of his portion area measuring 50 sq. yards to Sh. Taslim Ahmed in the year 2004.
13.Defendant no.1 and 2 denied that after the death of Sh. Rafiq Ahmed, they alongwith their mother and other brother and sister had been residing in their licenced portion and submitted that father of defendant no.1 was the exclusive cosharer of the property. Defendant no.1 and 2 denied that plaintiffs terminated the licence and demanded vacant peaceful possession from defendant no.1 and 2 in the month of November 2007. They denied that plaintiff again demanded the possession of licenced portion from defendant no.1 and 2 in the first week of December 2007. It is stated that defendant no.1 and 2 were the exclusive owners of the suit property, therefore, no occasion had arisen for the plaintiffs to ask the defendant no.1 and 2 to vacate the suit property. It is stated that defendant no.1 and 2 sold the suit property to defendant no.4 by virtue of registered sale deed after obtaining no objection certificate from the concerned authority. Defendant n.1 and 2 denied that plaintiff got issued a legal notice upon defendant no.1 to 3 on 24.03.2008 and no such alleged notice was ever received by defendant no.1 and 2. Defendant no.1 and 2 denied that on 10.05.2008, plaintiffs found defendant no.1 and 2 removing Page No. 10/30 Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
their households from their portion. Defendant no.1 and 2 also denied that on 20.05.2018, plaintiffs were shocked when they found defendant no.3 and 4 entering and trespassing in the suit property alongwith their households to which the plaintiffs and other family members objected and hot arguments took place between the parties and defendant no.3 and 4 forcibly entered in the suit property. It is stated that defendant no.1 and 2 sold their respective share measuring 100 sq. yards i.e. the suit property to defendant no.4 and defendant no.3 and 4 are living over the suit property with their family and now defendant no.1 and 2 have no concern with the suit property. Defendant no.1 and 2 denied the other averments of the plaint and sought dismissal of the suit with exemplary cost.
Written statement of defendant no. 3 and 4:
14.Defendant no. 3 and 4 filed their joint written statement and mainly took the similar preliminary objections as taken by defendant no. 1 and 2, therefore, the same are not repeated here for the sake of brevity. It is contended on behalf of defendant no.3 and 4 that defendant no.4 is bonafide purchaser of the property in question. It is stated that defendant no.4 had purchased the property area measuring 50 sq. yards from defendant no.1 vide registered sale deed dated 21.01.2008 and she purchased remaining portion of 50 sq. yards from defendant no.2 vide registered sale deed dated 07.04.2008 and since then, defendant no.3 and 4 are in peaceful possession of the aforesaid property. It is further contended that plaintiff no.1 Page No. 11/30 Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
and 2 were neither in possession of the abovesaid property nor they have been dispossessed from the abovesaid property. Therefore, present suit filed by plaintiffs under Section 6 of the Specific Relief Act is not maintainable and liable to be dismissed.
15.On merits, defendant no.3 and 4 denied the contents of the plaint as wrong and false and sought dismissal of the suit with exemplary cost.
16.Replication to the written statement of defendants was filed by the plaintiffs, wherein they refuted the allegations levelled by defendants in their written statements and plaintiffs reaffirmed the averments and allegations of plaint as true and correct.
Issues:
17.After completion of pleadings, following issues were framed:
1. Whether the plaintiff is entitled to the relief of possession?
OPP
2. Whether the plaintiff is entitled to the relief of declaration as prayed for ? OPP
3. Whether the plaintiff is entitled to the relief of mandatory injunction? OPP
4. Whether the plaintiff is entitled to the damages and mesne profits? OPP
5. Whether the present suit has not been properly valued for the purpose of court fees and jurisdiction?
6. Relief.
Evidence of the plaintiff: Page No. 12/30 Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
18.Plaintiff examined himself as PW1 and he has tendered his evidence by way of affidavit as Ex. PW1/A and relied upon documents as under: Ex. PW1/1 Site plan Ex. PW1/2 Copy of house tax assessment Ex. PW1/3 (dexihibited) House Tax receipt Ex. PW1/4 Letter by SDM Ex. PW1/5 Copy of objection letter to House Tax Department Ex. PW1/6 Copy of summons to late Habib Ahmad Ex. PW1/7 Copy of notice by MCD Ex. PW1/8 Copy of MCD receipt of House Tax Ex. PW1/9 Copy of certificate dated 30.04.1965 Ex. PW1/10 (colly) Medical papers and Xray reports Mark A Photocopy of electricity bills Ex. PW1/11 (Colly) (de Copy of sales tax record and exhbited) bakery bills Ex. PW1/12 Legal notice
19.Plaintiff examined Sh. Rakesh Kumar as PW2. He has tendered his evidence by way of affidavit Ex. PW2/1 and relied upon the following documents: Ex. PW2/1 to Ex. PW2/7 Original receipts Ex. PW2/8 to Ex. PW2/13 Original acknowledgment receipts Ex. PW2/14 Receipts of Sales Tax office Ex. PW2/15 Letter of income tax office Ex. PW2/1 to Ex. PW2/7 Original receipts Page No. 13/30 Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
20.Evidence of the plaintiff was closed on 06.11.2013. Evidence of the defendants:
21.Defendant No.1 examined himself as DW1 and he has tendered his evidence by way of affidavit as Ex. DW1/1 and relied upon documents as under: Mark D1 to Mark D2 Receipt of house tax.
Mark D6 (colly) Watter Bill
Mark D5 (colly) The electricity bill in the name of
Rafiq Ahmed
Ex. DW1/D1 to Ex. Original electricity bills
DW1/D3
Ex. DW1/D4 Original electricity bill dated
28.09.1997
Mark A Relinquishment deed dated
21.11.2007
Ex. DW1/F and Ex. Agreement to gift and affidavit
DW1/G (OSR)
Ex. DW1/H to Ex. DW1/I Agreement to gift and affidavit (OSR) Ex. DW1/K (OSR) Sale deed dated 21.01.2008 and sale deed dated 07.04.2007 Ex. PW1/Y Will dated 02.09.1997 Ex. DW1/K (OSR) Sale deed dated 21.01.2008 and sale deed dated 07.04.2007 Ex. PW1/Y Will dated 02.09.1997
22.Defendant no.3 examined himself as DW2. He has tendered his evidence by way of affidavit as Ex. DW2/1 and relied upon documents which are already exhibited as Ex. DW1/J, PW1/DZ and Ex. DW1/K. Page No. 14/30 Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
23.Defendants examined Sh. Nazar Mohammad as DW3. He has tendered his evidence by way of affidavit as Ex. DW3/A.
24.Defendants examined Sh. Anzar Ahmed as DW4. He has tendered his evidence by way of affidavit Ex. DW4/A.
25.Defendant no.2 examined himself as DW2 and relied upon documents which are already exhibited as Ex. DW1/A1 to Ex. DW1/A2 i.e. House tax receipt, Mark D1 to Mark D2, Ex. DW1/B1 to Ex. DW1/B4 i.e. Water bills, Ex. DW1/C1 to Ex. DW1/C9 i.e. Electricity bills, Ex. PW1/Y i.e. Will, Mark A i.e. relinquishment deed, Ex. DW1/F i.e. Gift deed, Ex. DW1/G i.e. affidavit, Ex. DW1/H i.e. Gift deed, Ex. DW1/I i.e. Affidavit, Ex. DW1/J and Ex. DW1/K i.e. Sales Deeds, GPA dated 22.11.2007 executed by Smt. Hashmi Begum in his favour as Ex. DW5/A and the GPA dated 02.11.2007 executed by Smt. Hashmi Begum in fabour of Sh. Mohd. Shahid Ex. DW5/B.
26.Evidence of the defendants was closed on 28.11.2016.
27.I have heard the Ld. Counsel for the parties and have given due consideration to the rival contentions and carefully perused the record. My issuewise findings are as follows: Issues no.2 Whether the plaintiff is entitled to the relief of declaration as prayed for ? OPP Issue no.3 Whether the plaintiff is entitled to the relief of mandatory injunction? OPP Issue no.4 Whether the plaintiff is entitled to the damages and mesne profits? OPP Page No. 15/30 Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
28.In the instant suit, plaintiffs have claimed the relief of declaration, mandatory injunction and damages and mesne profits apart from the relief of possession under section 6 of the Specific Relief Act. The suit as framed by the plaintiff is primarily a suit under section 6 of the Specific Relief Act. During the arguments, when Courts asked regarding the maintainability of suit for relief of declaration, mandatory injunction and damages and mesne profits, Ld. Counsel for the plaintiffs pressed for the relief of possession under section 6 of the Specific Relief Act. Needless to say that in a suit for possession under section 6 of the Specific Relief Act, no other cause of action can be joined. The object of section 6 of the Specific Relief Act is to provide a summary remedy for the purpose of restoring possession to the plaintiff and it does not provide for joining of other cause of actions or relief. In Nair Service Society Ltd. v. Rev. Father K.C. Alexander and Ors. AIR 1968 SC 1165, it was observed that a suit under section 6 embodies a summary remedy, intended solely at restoration of possession of the plaintiff, desegregating that aspect from the issue of title. The authorities have emphasised upon the summary nature of the proceedings, to say that this is meant to secure swift restitution, leaving the determination of title to regular proceedings. To emphasise that such determinations are to be speedy and would not be subjected to further appeals, Section 6 (3) establishes a bar to appeals..."
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29.In this context reference can be made to judgment titled as Amar Singh v. Ghanshyam, AIR 1998 RAJASTHAN 333 wherein it was held:
" ..........14. Thus the consistent view of different High Court is that a claim for mesne profits cannot be made in a suit under Section 6 of the Specific Relief Act for recovery of possession. It is also clear that if such claim is included in the decree by the trial Court the entire decree cannot be thrown out but the mesne profits' part of the decree can be set aside confirming the possession part of the decree. The view is based on sound principles. After all, remedy under Section 6 of the Specific Relief Act, 1963 is a special remedy providing speedy relief to a person who is thrown out of possession except by following due process of law. It is an exception to general law which requires the plaintiff to prove his right to the property before decreeing possession in his favour. Such a provision has to be construed strictly and not liberally. When the provision does not speak of any other relief than recovery of possession, other reliefs cannot be read into the language. Moreover, mesne profits cannot be said to be claimable as a consequential relief in every case brought under Section 6 of the Specific Relief Act. As pointed out in some of the rulings cited above, since the claim is based on dispossession otherwise than in due course of law, title of the plaintiff to continue in possession is not to be looked into and without looking into it mesne profits cannot be decreed, it is only natural that mesne profits cannot be granted in such an action......."
30.Ld. counsel for the plaintiff placed reliance on the judgments titled as Dina Nath Pandey and Ors. vs. Adya Pandey 2017(3) Page No. 17/30 Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
CLJ 114 Del. (Delhi High Court) and Sri Niwas Gupta vs. Surender Kumar 2016 (4) CLJ 490 Del. (High Court of Delhi) to contend that other reliefs can also be granted in a suit for recovery of possession under Section 6 of the Specific Relief Act. I do not find any such proposition being laid down in the said judgments. None of the judgments are related to the relief of possession under Section 6 of the Specific Relief Act. It has not been laid down in the said judgments that relief of declaration, mandatory injunction and recovery of damages/mesne profits can be granted in a suit under Section 6 of the Specific Relief Act. Therefore, the said judgments are not applicable to the facts and circumstances of the present suit.
31.In view of the aforesaid judgments and discussion, I am of the opinion that the relief of declaration, mandatory injunction and damages and mesne profits cannot be granted in a suit for recovery of possession under section of the Specific Relief Act. Therefore, the plaintiffs are not entitled to the relief of declaration, mandatory injunction and damages and mesne profits as claimed, at the threshold. Accordingly, issue no. 2, 3 and 4 are decided in favour of the defendants and against the plaintiffs.
Issue no. 5: Whether the present suit has not been properly valued for the purpose of court fees and jurisdiction?OPD
32.The onus to prove this issue is on the defendants. This is a suit for recovery of possession under section 6 of the Specific Page No. 18/30 Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
Relief Act and plaintiff has valued the suit for the relief of possession at an amount of Rs. 50,000/. A suit for recovery of possession is to be valued as per section 7(v)(e) of the Court Fees Act on the market value of the suit property as there is a constructed superstructure thereon. Ld. Counsel for the defendants has not made any submission regarding the market value of the suit property. Neither in the written statement nor in evidence, defendants have specified the market value of the suit property. There is nothing in evidence of defendants to suggest that market value of the suit property was more than Rs. 50,000/ on the date of institution of suit. In the absence of any evidence, it cannot be inferred that the plaintiff has incorrectly valued the suit property and paid deficient court fees. Accordingly, this issue is decided in favour of the plaintiffs and against the defendants.
Issue No. 1 Whether the plaintiff is entitled to the relief of possession? OPP
33.PW1 deposed on the lines of the plaint. PW1 has deposed that property no. 278 (Old no. 48), Khureji Khas, Delhi, total area measuring about 200 sq. yards was the ancestral property and was possessed and occupied by his father Late Sh. Habib Ahmad about 50 years back, to the knowledge of all concerned, including defendants. During final arguments, Ld. Counsel for the plaintiff submitted that aforesaid property was the self acquired property of father of plaintiff and the words 'ancestral property' has been mentioned in the plaint due to Page No. 19/30 Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
typographical error. The plea taken by Ld. Counsel for the plaintiff does not hold water since plaintiff has claimed the aforesaid property as ancestral property not only in the plaint but also in the legal notice Ex. PW1/12 as well as his evidence by way of affidavit Ex. PW1/A. Moreover, no amendment has been sought at any stage by the plaintiff to rectify the mistake, if any, during the trial by moving appropriate application in this regard. PW1 further deposed that during his lifetime, his father had orally permitted his brother Sh. Rafiq Ahmad i.e. father of defendant no.1 and 2 to live in a portion of above property measuring about 50 sq. yards out of love and affection without charging any rent/user charges or licence fee with the condition to vacate the premises as and when required by him or his family. PW1 deposed in his crossexamination that defendant no.1 and 2 handed over the possession of the suit property to him on 10.05.2018. PW1 also deposed that portion of about 50 sq. yards out of remaining 150 sq. yards was let out to M/s Omkar Bakeri in the year 197980 by his father which was got vacated by tenant few years back by handing over peaceful possession in favour of the plaintiffs.
34.On the other hand, DW1 deposed that property bearing no. 278B/48A, Khureji Khas Delhi area measuring 200 sq. yards was the ancestral property of DW1 and the plaintiffs and after the demise of grand father of plaintiff no.1 and DW1, the aforesaid property was orally divided in equal share between the father of the plaintiff and father of the DW1 and Page No. 20/30 Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
accordingly both were in possession of their respective shares for more than last 50 years.
35.None of the parties has placed any sale deed of the aforesaid property. Moreover, the question of title is immaterial for adjudicating the issue in question since this is a suit under Section 6 of the Specific Relief Act. Therefore, this court is not required to given any finding on the question of title being raised by the plaintiff and the defendant. The only question for determination in a suit under Section 6 of the Specific Relief Act is whether the plaintiff was in possession within six months prior to the date of the suit and whether the plaintiff has been dispossessed by the defendants, otherwise than in due course of law. Section 6 provides a speedy summary remedy for recovery of possession to a person who has been illegally dispossessed. In a suit under Section 6 of the Specific Relief Act, the plainitff is only required to prove the fact that he was in possession of the suit property at the time of dispossession and he was illegally dispossessed from the suit property within a period of six months prior to the date of institution of the suit. In the judgment titled as Aatma Ram vs. Prabhawati Bai reported as AIR 1971 Bombay, it was held that: "....The only question for determination in a suit under Section 6 is whether the plaintiff was in possession within six months prior to the date of suit and whether the plaintiff has been dispossessed otherwise than in due course of law...."
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36.In the judgment titled as Abdul Rahiman vs. Nalakath Muhammed Hazi reported as AIR 1997 Kerala 23, it was held that: "...Plaintiff must prove his previous possession and dispossession by the defendants otherwise than in due course of law within six months of the suit. The court need not go into the nature of parties' possession. However, it is the person who claims under Section 6 should prove his possession and also the fact that he was dispossessed, within six months from the finding of the suit. The burden of proof is on the plaintiff to prove that he was dispossessed and that the suit was filed within six months from the date of dispossession...."
37.In the instant suit, it is incumbent upon the plaintiff to prove that he was in possession of the suit property and defendants dispossessed him from the suit property otherwise than in due course of law and he has filed the suit within six months from the date of dispossession. PW1 has deposed that his father had orally permitted his brother Sh. Rafiq Ahmad i.e. defendant no.1 and 2 to live in a portion of 50 sq. yards of abovesaid property without charging any rent/user charges. PW1 has further deposed that after the death of Sh. Rafiq Ahmad, defendants alongwith their mother Mst. Hasmi Begum and other brothers and sisters had been residing in the licenced portion, to which they did not object having cordial relations Page No. 22/30 Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
with them at that time. PW1 has further deposed that in November 2007, they were in bonafide need of the portion occupied by defendant no.1 and 2 due to extension of their family and in order to extend their business of bakery. Therefore, they revoked and terminated the licence of defendant no.1 and 2 and demanded vacant possession from them. Defendants agreed and sought time to shift in their own property by the end of December 2007. PW1 further deposed that in the first week of December 2007, they demanded the possession of licensed portion i.e. suit property from the defendants but they again sought time of one month on the ground that they will shift into their other property after renovation. PW1 further deposed that in the meanwhile he met with a serious road accident on 07.12.2007 and sustained multiple injuries and fracture. Then defendant no.1 and 2, taking benefit and undue advantage of his accident and business of other family members, conspired and in collusion planned to part with the possession of their occupant portion to some third person. PW1 further deposed that after knowing about the malafide intentions of defendants no.1 and 2 through some neighbours and some local estate agent, they immediately asked for vacant possession of their portion but defendants assured that they are going to part with the same and they will vacate the same soon. PW1 further deposed in the end of March 2008, he learnt that defendant no.1 and 2 had received some advance amount/token money from defendant no.3 for transferring the possession of occupied portion in an unlawful Page No. 23/30 Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
manner on the basis of false and fabricated documents. He issued a legal notice Ex. PW1/12 to the defendants on 22.03.2008 through his counsel but the defendants did not bother and entered into false transaction and execution of documents which have no value in the eyes of law. PW1 has further deposed that on 10.05.2008, he found that defendant no.1 and 2 had started removing their households from licenced portion of 50 sq. yards for shifting to their own house and they assured that they will hand over the possession after complete vacation and accordingly they (plaintiffs) can possess suit property thereafter. PW1 further deposed that on 20.05.2008 his mother and other family members and he were shocked when they found that defendant no.3 and 4 were entering and trespassing in the suit property measuring 100 sq yards as shown in red colour in site plan Ex. PW1/1 alongwith their households, to which they objected and hot arguments took place between the parties but they were adamant and forcibly and unlawful entered in the suit property which exclusively belongs to PW1 and his family. PW1 deposed that they rushed to the local police station to report the matter and to get restored the peaceful possession of the suit property but the police, being in collusion with the defendants, did not take any action and asked him to approach the court of law as the same is a civil dispute.
38.PW1 stated in his crossexamination that Hashmi Begum alongwith defendant no. 1 and 2 had handed over the possession of the suit property to him on 10.05.2008. However, Page No. 24/30 Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
PW1 nowhere stated in his plaint as well as his examination inchief that defendant no. 1 and 2 had handed over vacant physical possession of the suit property to them on or before 10.05.2008. PW1 stated in the plaint that "on 10.05.2008, plaintiffs found that defendant no. 1 & 2 started removing their household from their portion on the plea that they are shifting to their own house i.e. present addresses of the defendants and assured that after its complete vacation, they will hand over the vacant possession to the plaintiff." It is a well settled law that a party cannot travel beyond the pleadings. The deposition of PW1 that defendant no.1 and 2 had handed over the possession of the suit property to him on 10.05.2008 is not supported by his own pleadings. There is nothing on record to suggest that defendant no. 1 and 2 had actually handed over the possession of the portion of the property in their occupation on 10.05.2008 or thereafter at any point of time. No independent witness has been examined to prove that defendant no.1 and 2 had given actual and physical vacant possession of the suit property in possession of defendant no.1 and 2 on 10.05.2008. PW1 stated in his crossexamination that defendant no.3 had thrown his articles out from the suit property. However, no list of such articles has been placed on record. No photograph of the articles thrown out from the suit property has been filed on record. PW1 admitted in his crossexamination that he have no proof in respect of thrown articles as well as photographs of the articles. A suggestion was given to PW1 that his articles were not thrown out by defendant no. 3 and 4, therefore, he had Page No. 25/30 Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
not prepared the list of articles or placed on record photographs, which he denied. Thus, there is nothing on record, except the oral testimony of PW1 to prove that he was in possession of the suit property within six months prior to the date of suit and he was dispossessed from the suit property without following the due course of law.
39.Ld. Counsel for the plaintiff relied upon copy of Housetax assessment of MCD in favour of Late Habib Ahmad Ex. PW 1/2, letter by SDM Ex. PW1/4, copy of objection letter to HouseTax Department Ex. PW1/5, copy of summons to Late Habib Ahmad Ex. PW1/6, Copy of notice by MCD Ex. PW 1/7, copy of MCD receipt of house tax Ex. PW1/8, copy of issuance certificate dated 30.04.1965 of controlled cement bags by Government for construction of suit property Ex. PW1/9. It is incomprehensible as to how these documents establishes the possession of the plaintiff in respect of the portion whose possession is sought to be recovered in the present suit. It cannot be inferred from the aforesaid documents that plaintiff was in possession of the entire suit property at the time of alleged dispossession. Neither the aforesaid documents were pertaining to the relevant period nor those documents had any reference of the area in possession of the father of plaintiff since the portion of the property in possession of plaintiff and portion of property in possession of defendants is having the common house number and common description area and locality. There is no other document on record to establish that plaintiff was in actual physical possession of the property as Page No. 26/30 Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
shown in red colour in the site plan Ex. PW1/1 at the time of alleged dispossession.
40.Plaintiffs also claimed that his father let out portion of 50 sq. yards of the suit property to M/s Omkar Bakery in the year 197980 which was vacated by the tenant few years back and handed over peaceful possession to the plaintiffs. Plaintiffs also examined PW2 Sh. Rakesh Kumar, son of the proprietor of M/s Om Bakery to prove that proprietor of the M/s Om Bakery handed over the possession of the 50 sq. yards portion of the suit property to them. However, in my opinion, plaintiffs also failed to prove their physical possession even over 50 sq. yards portion of the suit property. No rent agreement has been placed on record to prove that father of the plaintiff no. 1 had given 50 sq. yards portion of the suit property to proprietor of the M/s Om Bakery. Neither the plaintiffs nor PW2 disclosed the date, month or year of handing over of possession of the said tenanted premises to the plaintiffs. PW2 deposed that plaintiffs occupied the tenanted premises by keeping their households. However, PW1 did not depose anything in this regard. Nothing has been mentioned in the plaint as well as evidence as to whether plaintiffs used the premises after alleged getting of possession of tenanted premises for residential purpose or for commercial purpose. No categorical averment is made regarding alleged dispossession from the 50 sq. yards portion. Plaintiffs have not clearly demonstrated in the plaint as to how defendants no. 3 and 4 dispossessed them from 50 sq yards portion which was earlier in possession of Page No. 27/30 Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
defendant no.1 and 2 as claimed and 50 sq. yards portion in their possession as claimed by them. PW2 had not deposed anything to establish that Plaintiffs were in possession at the time of alleged dispossession from the suit property.
41.Further, PW1 deposed that he, his mother and other family members were shocked when they found defendant no.3 and 4 entering and trespassing into the suit property, admeasuring 100 sq. yards alongwith their households. PW1 also deposed that they objected and hot arguments took place between them but defendants were adamant and forcibly entered in the suit property. PW1 nowhere deposed that their households articles were thrown out by defendant no.3 and 4 from the suit property. While PW1 deposed in his evidence by way of affidavit that they found defendant no.3 and 4 entering and trespassing into the suit property on 20.05.2008, he deposed during his crossexamination to the contrary that he has never seen defendant no.4 at any point of time in his life till today i.e. date of deposition 04.10.12. PW1 was shown the photograph of defendant no. 4 in the original sale deed and he could not recognize her. Then how it was possible that defendant no. 3 and 4 committed trespass in the suit property and how far the story of alleged dispossession be believed as PW1 is himself making two mutually exclusive statements which cannot stand together. Further, PW1 deposed in his crossexamination that he has no knowledge whether defendant no.4 had taken the possession of 50 sq. yards of suit property as mentioned in the sale deed dated 21.01.2008 from defendant no.2. Further, PW Page No. 28/30 Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
1 deposed in his crossexamination that he has no knowledge whether defendant no.4 had taken the possession of remaining portion of suit property as mentioned in the sale deed dated 07.04.2008 from defendant no. 1. It is strange that PW1 did not deny that no possession had been taken by defendant no.4 on 21.01.2008 as well as on 07.04.2008 of respective portions of suit property. Nothing came on to reconcile these material contradictory facts which are destructive to the alleged claim of forcibly dispossession of plaintiffs from the suit property by defendant no.3 and 3 on 20.05.2008.
42.Further, no police complaint was made by the plaintiffs to show that they had been dispossessed from the suit property on 20.05.2008. PW1 deposed in his crossexamination that he did not call PCR by dialling 100 number. He voluntarily stated that he went to concerned police station and reported the matter but no action was taken. However, nothing has been brought on record to prove that he approached the police after the alleged incident of dispossession. PW1 stated in his crossexamination that he has no proof of approaching the police. He also deposed that he did not approach the higher authorities of the police against the police officials who had not taken action on his complaint. Thus, there is no documentary evidence to prove that plaintiffs were in possession of suit property as shown in red colour in the site plan and were illegally dispossessed from the suit property on 20.05.2008.
43.In view of the aforesaid discussion, I am of the opinion that the plaintiffs have failed to prove that they were in possession of Page No. 29/30 Suit no.8901/16 Hazi Achhey Mian & Anr. vs. Mohd. Shahid & Ors.
the suit property and were illegally dispossessed from the suit property by defendants on 20.05.2008 i.e. within a period of six months prior to the institution of this suit. Therefore, plaintiffs are not entitled to recover possession of the suit property under the provisions of section 6 of Specific Relief Act. Accordingly, issue no. 1 is decided against the plaintiffs and in favour of the defendants.
Relief
44.In view of the aforesaid discussion, the plaintiffs are not entitled for the reliefs claimed. Accordingly, suit of the plaintiffs is dismissed. No order as to costs. Let a decree sheet be prepared in the aforesaid terms. All pending applications, if any, are disposed off. File be consigned to record room.
Judgment is dictated directly and
Announced in Open Court
on 27.07.2018 Muneesh Garg
CJ/East/Karkardooma
27.07.2018
Digitally signed by
MUNEESH GARG
MUNEESH Location:
Karkardooma
GARG Courts, Delhi
Date: 2018.07.28
15:33:23 +0530
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