Delhi District Court
Jagwati vs . Yogender @ Bhim & Ors. on 22 July, 2023
1
JAGWATI VS. YOGENDER @ BHIM & ORS.
IN THE COURT OF VIVEK KUMAR AGARWAL, CIVIL JUDGE 03,
SHAHDARA DISTRICT, KKD COURTS, DELHI
Civil Suit No :- 835/2020
Date of Institution: 17.10.2020
Date of Decision : 22.07.2023
SMT. JAGWATI
W/O LATE NEM CHAND
R/O HOUSE NO. 4/2232, STREET NO. 2,
BIHARI COLONY, SHAHDARA, DELHI-110032
EMAIL- [email protected]
...............Plaintiff.
V.s.
1. SH. YOGENDER @ BHIM
S/O LATE NEM CHAND
R/O HOUSE NO. 4/2232
STREET NO. 2, BIHARI COLONY,
SHAHDARA, DELHI-110032
MOB. 8920655279 & 9205970107
2. Ms. Savita Panchal
D/o Sh. Rampal Panchal
R/o H.no. 1/5851, near Shiv Shakti Dharam,
Kanta, East, Rohtas Nagar, Shahdara,
Delhi-32.
Also at- H.no. 4/2232,
Street No.2, Bihari Colony,
Shahdara Delhi-32.
.............Defendants.
SUIT FOR MANDATORY AND PERMANENT INJUCTION, DAMAGES,
AND MESNE PROFITS
Civil Suit No: 835/2020 JAGWATI
Vs.
YOGENDER @ BHIM & ORS (Vivek Kumar Agarwal)
CJ03/KKD/Delhi
2
JAGWATI VS. YOGENDER @ BHIM & ORS.
Present:- None.
JUDGMENT:
1. The present suit has been filed by the plaintiff seeking relief of mandatory injunction, thereby directing the defendants to vacate and hand over physical possession of suit property i.e one room on the ground floor forming part of house No. 4/2232, street no. 2, Bihari Colony Shahdara, Delhi-110032(hereinafter called as suit property), seeking relief for permanent injunction by restraining the defendants, their agents, legal heirs, relative, etc. to create any third party interest in the suit property and directing the defendant to pay damages/mesne profit @ Rs. 10,000/- p.m. from the date of filing of the present suit till handing over the vacant possession of suit property.
PLANTIFF'S CASE:
2. The case of the plaintiff is that plaintiff is lawful and absolute owner of plot no. 3-D, out of Khasra no. 484, having property no. 4/2232 by virtue of registered documents including the GPA, Agreement to Sale, receipts dated 08.02.1984 and duly registered on 28.11.1986. That defendant No. 1, is the younger son of the plaintiff and defendant no. 2 live-in partner of defendant no. 1 and both were residing on the ground floor of the said property. That defendants made the life of plaintiff and her family members miserable for about one year and both of them have been harassing the plaintiff in one way of the other. In the light of the above, the plaintiff and her husband severed all sorts of relations with him and a notice of disownment was published on 17.06.2020 in Rashtriya Sahara. That husband of Civil Suit No: 835/2020 JAGWATI Vs. YOGENDER @ BHIM & ORS (Vivek Kumar Agarwal) CJ03/KKD/Delhi 3 JAGWATI VS. YOGENDER @ BHIM & ORS.
plaintiff also expired meanwhile on 17.08.2020. That despite being debarred by the parents, defendants had not vacated the said suit property. On 28.08.2020,13.09.2020 and 14.09.2020, plaintiff had filed the police complaint against the defendants, as they were trying to create third party interest in the suit property. That plaintiff being left with no other remedy, filed the present suit.
DEFENDANT'S CASE:
3. Upon notice of the suit being served, both the defendants appeared through their counsel. Later Defendant no.2 stopped appearing before the court and despite court notice defendant no.2 did not appear the court and his defence was struck off vod 06.10.2022. Defendant no.1 has contested the case by filing his WS. In his WS, defendant no.1 had taken preliminary objections regarding the maintainability of the suit and concealment of material facts by the plaintiff. It is stated that plaintiff has not filed the appropriate court fees for relief of possession. It is stated that suit property was purchased by the father of the defendant no.1 in the name of the plaintiff and some portion of the same is also ancerstral property. It is also stated that suit property is ancestral/undivided property and therefore, defendant no.1 has every right to reside in the same and to take his share. That father of defendant no.1 had already expired and since then defendant no.1 started earning for the family and gave his entire earning to plaintiff and had also spent huge amount on construction/renovation of the suit property. In reply on merits, relationship between both the parties is admitted. All the other averments of the plaint are denied and lastly it is prayed that the suit may be dismissed with cost.
Civil Suit No: 835/2020 JAGWATI
Vs.
YOGENDER @ BHIM & ORS (Vivek Kumar Agarwal)
CJ03/KKD/Delhi
4
JAGWATI VS. YOGENDER @ BHIM & ORS.
ISSUES
4. From the pleading of the parties following issues were framed vide order dt. 06.10.2022:-
(i). Whether the plaintiff has no cause of action and suit is not maintainable?
OPD1.
(ii). Whether the property in question was purchased by father of the defendant no.1? OPD1.
(iii). Whether the plaintiff is entitled to decree of mandatory injunction for possession of the suit property from the defendants? OPP
(iv). Whether the plaintiff is entitled to a decree of permanent injunction for staying the defendants from creating any third party interest in the suit property? OPP
(v). Whether the plaintiff is entitled to decree of damages/mesne profits? OPP
(vi). Relief.
PLAINTIFF EVIDENCE:
5. To prove her case, plaintiff examined herself in to the witness box as PW1 by tendering her affidavit as PW-1/A tendered some documents as Ex. PW1/1 to Civil Suit No: 835/2020 JAGWATI Vs. YOGENDER @ BHIM & ORS (Vivek Kumar Agarwal) CJ03/KKD/Delhi 5 JAGWATI VS. YOGENDER @ BHIM & ORS.
Ex.PW1/4, Ex.PW1/10, Ex. PW1/12 and Mark A to Mark F including agreement to sell, cash receipt, GPA, Aadhar card of the plaintiff, site plain of suit property, copy of publication in Rashtriya Sahara dated 17.06.2020, complaint to SHO PS. Farsh Bazar, two complaint to SHO dated 13.09.2020, complaint to SHO dated 14.09.2020, complaint to SDM Vivek Vihar dated 14.09.2020, complaint to CP dated 27.08.2020, complaint to DCP Shalimar Park dated 14.09.2020 and thereafter PW1 was crossed examined by counsel for defendant No. 1. One witness namely Smt. Seema was examined as PW-2 by tendering her affidavit as PW-2/A and thereafter she was crossed examined by counsel for defendant No. 1. Again, another witness namely Ms. Kamal Preet Kaur was examined, cross- examined as PW-3 and thereafter, PE was closed by the plaintiff vide her separate statement dated 30.01.2023.
DEFENDANT EVIDENCE:
6. To prove his case and to counter the claim of plaintiff, defendant examined himself in to the witness box as DW1 by tendering her affidavit as DW-1/A and thereafter DW1 crossed examined by counsel for Plaintiff. Thereafter, DE was closed by the defendant vide separate statement dated 07.03.2023.
FINDINGS ISSUE NO.1 & 2:-
7. Both the issues being inter related are taken together for consideration. The burden to prove these issues was upon the defendant no.1 only. It has been argued Civil Suit No: 835/2020 JAGWATI Vs. YOGENDER @ BHIM & ORS (Vivek Kumar Agarwal) CJ03/KKD/Delhi 6 JAGWATI VS. YOGENDER @ BHIM & ORS.
by ld. LAC for defendant no.1 that the plaintiff has failed to prove the ownership in the suit property. That she has relied upon the documents Ex.PW1/1, including the GPA, agreement to sell and receipt. That the date of the GPA, agreement to sell is 08.02.1984, whereas, the receipt is dated 28.11.1986. That these documents do not bear the signature of plaintiff herself. That again, these documents were not registered and accordingly, it is contented that said documents cannot be relied upon by the plaintiff to prove her ownership and accordingly, the plaintiff has no cause of action and suit filed on the basis of ownership is not maintainable. On the other hand, it is argued by ld. counsel for plaintiff that defendants being the son and daughter in law of the plaintiff are licensee/permissive users of the suit property and after their license has been terminated, they have no right to retain the possession of the suit property. That plaintiff has valid documents of suit property executed in her favor and in any case, she has better title on the suit property than the defendants.
8. Heard. File perused. It is observed that in the WS, defendant no.1 has taken the plea that the property in question was purchased by the father of defendant in the name of the plaintiff and therefore, suit property is joint family property. It is observed that on the one hand, defendant no.1 himself has relied upon the documents executed in favor of plaintiff, though plea has been taken that consideration was paid by his father; on the other hand, during the arguments, counsel for defendant no.1 has raised the question on the validity of these documents. The defendant cannot be allowed to blow hot and cold at the same time. Once the defendant has admitted the said documents in his pleadings, the execution of same cannot be challenged on behalf of defendant at the stage of final Civil Suit No: 835/2020 JAGWATI Vs. YOGENDER @ BHIM & ORS (Vivek Kumar Agarwal) CJ03/KKD/Delhi 7 JAGWATI VS. YOGENDER @ BHIM & ORS.
arguments. Now, regarding the plea of consideration being paid by his father, defendant has failed to lead any evidence and moreover, said plea does not hold any water in terms of Section 14 of Hindu Succession Act as well as in terms of the provisions of Prohibition of Benami Transactions Act.
9. Going one step further, it is observed that undoubtedly, the documents Ex.PW1/1 including the GPA, agreement to sell and receipt of money do not convey the absolute ownership of the suit property in favor of plaintiff, as they are not registered documents in terms of Section 54 of TPA. However, at the same time, these documents provide better title in the suit property to the plaintiff than the defendants, who have no document pertaining to the property in their favor. In this regard, reliance is also placed upon the judgment of Hon'ble High Court of Delhi titled as 'Shri Ramesh Chand vs Suresh Chand & Anr.' dated 9 April, 2012, in which the observations are made with respect to the effect of these documents after deliberating the landmark judgment of the Hon'ble Supreme Court titled as 'Suraj Lamp & Industries (P) vs State Of Haryana & Anr' dated 11 October, 2011'.
10. It is further observed that admittedly the defendant no1 is the son of the plaintiff and defendant no.2 is the daughter in law of the plaintiff and they are stated to be the licensee of the plaintiff. It is observed that a licence‟s possession is only permissive and he can be thrown out at any time. (See Sultan Begum versus Prem Chand Jain: AIR 1997 SC 1006). As per Section 52 of the Indian Evidence Act, 1882, License is defined as under:-
Civil Suit No: 835/2020 JAGWATI
Vs.
YOGENDER @ BHIM & ORS (Vivek Kumar Agarwal)
CJ03/KKD/Delhi
8
JAGWATI VS. YOGENDER @ BHIM & ORS.
"52. "Licence" defined.- Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence.
11. In case of Virender Kumar & Anr. vs Jaswant Rai & Anr. on 10 March, 2011, Hon'ble High Court of Delhi discussed the law pertaining to the similar facts of the present case. It was observed as follows:-
Concept of permissive possession is different from concept of a licensor. A child lives with his parents in the house of the parents under a permissive possession and not strictly as a licensee. No rights akin to the rights of a licensee are available to a child. (Ramesh Kumar Handoo Vs. Binay Kumar Basu: RSA 286/07 dated 19.11.2007).
35. Therefore, even if a son contributes in the construction of part of property owned by his father it cannot be said that the son acting upon the license has executed a work of permanent character and incurred expenses with the execution.
The defendant has admitted that the plaintiffs are the owners of the suit property; there is no dispute that the only authorization of the defendants to occupy the suit property was in his capacity as son of the plaintiffs. It was a permissive user granted by the plaintiffs to the defendants.
Civil Suit No: 835/2020 JAGWATI
Vs.
YOGENDER @ BHIM & ORS (Vivek Kumar Agarwal)
CJ03/KKD/Delhi
9
JAGWATI VS. YOGENDER @ BHIM & ORS.
12. Again, in case of Sachin & Anr vs Jhabbu Lal & Anr on 24 November, 2016, it was observed by Hon'ble High Court of Delhi that 'where the house is self acquired house of the parents, son whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow. Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout his life.'
13. Accordingly, It is concluded that none of the contentions raised on behalf of defendant are sustainable and rather plaintiff has ever cause of action to file the present suit and suit is duly maintainable. Issue No.1 & 2 are decided accordingly against the defendants and in favor of plaintiff.
ISSUE NO.3
14. In view of the findings of Issue no.1, it is clear that defendant no.1 has no right to reside in the suit property against the wishes of the plaintiff. Again, as recorded in the cross-examination of DW1/defendant no.1, defendant no.2 was his friend and she never resided in the suit property with him. Now, defendant no.2 failed to contest the present suit and no WS was filed on her behalf despite appearance being made on her behalf. Accordingly, there is no other reason to disbelieve the version of the plaintiff and defendant no.2 is also liable to vacate the suit property as having no right in the same.
15. It is further observed that plaintiff has not served any notice for termination of license/permissive use of the suit property by the defendants, however, it is a Civil Suit No: 835/2020 JAGWATI Vs. YOGENDER @ BHIM & ORS (Vivek Kumar Agarwal) CJ03/KKD/Delhi 10 JAGWATI VS. YOGENDER @ BHIM & ORS.
matter of legal trite that service of summons in the suit for eviction amounts to termination of the lease/license. In this regard, reliance is also placed upon the judgment of Nopani Investment (P) Ltd. Vs. Santokh Singh (HUF) (2008) 2 SCC 728. Summons in the present case was served upon the defendants on 11.12.2020 and therefore, they became the unauthorized occupant in the suit property with effect from 12.12.2020.
16. In view of the aforesaid discussion, it is concluded that defendants are liable to vacate the suit premises and to hand over the possession of the same to plaintiff. Issue no.3 is decided accordingly in favor of plaintiff and against the defendants.
ISSUE NO.4:-
17. In view of the findings of Issue no.1 and 2, it is clear that plaintiff has better title in the suit property than the defendants and consequently, defendants have no right to create any third party interest in the suit property or to disposses the plaintiff from the auit property. Issue no.4 is decided accordingly in favor of plaintiff and against the defendants.
ISSUE NO.5:-
18. Regarding the relief of damages / mesne profits, it is to observe that the defendant no.1 is the son of the plaintiff and defendant no.2 was residing with him only. Accordingly, in the given facts,I am not inclined to grant the relief of damages/mesne profits to plaintiff. Issue no.5 is disposed off accordingly.
Civil Suit No: 835/2020 JAGWATI
Vs.
YOGENDER @ BHIM & ORS (Vivek Kumar Agarwal)
CJ03/KKD/Delhi
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JAGWATI VS. YOGENDER @ BHIM & ORS.
ISSUE NO.6 RELIEF
19. In view of aforesaid discussion, suit of the plaintiff is hereby partly decreed with costs to the effect that both the defendants are directed to vacate the suit premises and to hand over the vacant and peaceful possession of the same to the plaintiff within one month from date of decree. Again, both the defendants are permanently restrained from creating any third party interest in the suit property or to dispossess the plaintiff from the suit property in any manner. Decree sheet be prepared thereafter only. File be consigned to Record Room after due compliance.
Pronounced in open court: (Vivek Kumar Agarwal)
Dated: 22.07.2023 Civil Judge-03, Shahdara,
KKD Courts, Delhi
Note :- This Judgment contains eleven pages and all the pages have been
checked and signed by me.
(Vivek Kumar Agarwal)
Dated: 22.07.2023 Civil Judge-03, Shahdara,
KKD Courts, Delhi
Civil Suit No: 835/2020 JAGWATI
Vs.
YOGENDER @ BHIM & ORS (Vivek Kumar Agarwal)
CJ03/KKD/Delhi