Delhi District Court
Krishna Kumar Sharma(Sr. Citizen-72 ... vs Ravi Dutt Sharma And Ans on 19 February, 2025
DLST010094882017
In the Court of Sh. Munish Bansal,
District Judge-03 (South District),
Saket Courts Complex, New Delhi.
CS No.: 1084/2017
In the matter of :-
Sh. Krishna Kumar Sharma,
S/o Late Ram Prasad Sharma,
C/o Aakash Raman Sharma,
B-570, Kendriya Vihar Sector-51,
NOIDA- 201303,
Uttar Pradesh. .......Plaintiff
Versus
1. Sh. Ravi Dutt Sharma,
S/o Late Braham Dutt Sharma,
R/o 48B, DDA Janta Flat, II and IIIrd Floor,
Phase-II, Katwaria Sarai,
New Delhi- 110016.
2. Sh. Ravi Kumar,
R/o 48B, DDA Janta Flat, Ist Floor,
Phase-II, Katwaria Sarai,
New Delhi- 110016.
(Deleted from array of parties
vide order dated 04.08.2018) ......Defendants
Digitally
signed by
MUNISH
Date of institution : 06.12.2017
MUNISH
BANSAL
BANSAL
Date:
2025.02.19
Arguments heard on : 13.02.2025
Date of decision : 19.02.2025
14:30:22
+0530
CS/1084/2017 Page 1 of 38
SUIT FOR EJECTMENT, POSSESSION,
INJUNCTION, ARREARS OF RENT AND MESNE PROFITS
JUDGMENT
1. Facts as averred in the plaint are that Plaintiff while working as LDC with Central Electricity Authority, applied for allotment of DDA residential flat in year 1976 and was declared successful applicant in February, 1977 and was allotted Janta Flat no. 48-B, 1st Floor with terrace rights at Katwaria Sarai, Phase-II, New Delhi -110016 (hereinafter referred to as the suit property). The plaintiff has purchased the suit property on cash-down payment by raising House Building Advance sanctioned by Govt. of India, Ministry of Works and Housing, New Delhi. The plaintiff got possession of suit property measuring 400 sq. feet (37 sq. meters) in September, 1977. The plaintiff acquired unfettered right, title and possession of suit property subsequent to Conveyance Deed executed in his favour on 21.06.1993 duly registered in the Office of Sub Registrar, Delhi vide Document no. 739 in Additional Book no. 1, Volume no. 98 on pages 172 to 173 on 29.06.1993. The plaintiff executed a Special Power of Attorney on 30.03.2000 in the name of his son Aakash Raman Sharma who executed Rent Agreement with Dr. Behari Lal Sharma on 03.04.2000 and let out suit property for three years from April 1, 2000 on rent @ Rs.4,500/- per month. On 07.01.2004, plaintiff's son Aakash Ram Sharma extended tenancy of Dr. Behari Lal Sharma and executed fresh Deed for another two years. Dr. Behari Lal Sharma vacated the premises MUNISH BANSAL Digitally signed by on 31.07.2005. Thereafter, plaintiff and his family shifted to suit MUNISH BANSAL Date: 2025.02.19 14:30:28 +0530 CS/1084/2017 Page 2 of 38 property. In month of April 2008, due to unstable health problems, the plaintiff and his wife shifted from suit property to their son Aakash Raman Sharma, who was residing in Sector 51, Noida, District Gautam Budh Nagar, U.P. 1.1. It is further averred that the plaintiff executed a Gift Deed solely for use and benefit of Smt. Raj Kumari, wife of plaintiff, however, none of her legal heir had any right in the suit property which is evident from the recital of Gift Deed. Relevant clauses of Gift Deed are as under:-
"Smt. Raj Kumari, wife of Sh. Krishna Kumar Sharma, resident of V-194, Sector-12, Noida, U.P., hereinafter called the DONEE."
"Clause 3 - That the Donee will have all the rights absolute and indivisible in the property for use of herself and to erect floors on its terrace for renting to strengthen her financial security as well as social security."
"Clause 6 - That the Donor is the husband of Donee. In case of husband dies earlier to the Donee, this Gift Deed would prove to be a boon to the Donee in her old age survival which is being now executed as per last will of the Donor."
1.2. It is averred that as per the terms of Gift Deed, it is evident that same was executed for love, affection, social and financial security of Smt. Raj Kumari and same is not binding on the legal heirs, successors etc. and that Smt. Raj Kumari never got the suit property mutated in her name in the records of MCD and other authorities. Later on, the said Gift Deed was cancelled Digitally as per procedure.
signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.02.19 14:30:33 +0530 CS/1084/2017 Page 3 of 38 1.3. It is further stated that after their shifting to Noida, a new tenant namely Sh. Praveen Kumar stayed in suit property till 31.03.2011. In the month of August 2008, the plaintiff raised two floors with temporary roof in the suit property so that plaintiff could get good rental income to maintain social and financial security. The defendant no.1, a distant relative of plaintiff's wife, approached the plaintiff in December, 2010 and expressed his dire need to reside in 2 nd floor of suit property for academic session of his children, however, the plaintiff informed defendant no.1 that premises was not vacant since tenants were residing.
The defendant no.1 visited the plaintiff's house number of times in first couple of months in year 2011 and expressed his problem and offered to pay prevailing rent of Rs.10,000/- per month for 2nd floor of suit property to the plaintiff besides electricity and water consumption bills, however, the plaintiff informed that premises was not vacant. In March, 2011, the defendant no.1 again requested plaintiff's wife and prayed that he may require to vacate his government quarter soon. On 31.03.2011, the tenant who was in occupation of 2nd floor of suit property, vacated the tenanted premises. On 02.04.2011, plaintiff's wife Smt. Raj Kumari handed over keys of 2nd floor of suit property, under undue influence being distant relative of defendant no.1, as defendant no.1 all of a sudden had reached with his family in truck loaded with households. The Defendant no.1 thereafter, unloaded the truck, shifted his households in 2nd floor and locked the premises and returned on 20.04.2011 with their remaining household items to live in. Smt. Raj Kumari, accommodated Digitally defendant no.1 in the property for one year under undue signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.02.19 14:30:39 +0530 CS/1084/2017 Page 4 of 38 influence without any monetary consideration though the said favour defeated the cause of Smt. Raj Kumari's financial security. It is further stated that Smt. Raj Kumari was suffering from many medical ailments including hypertension, blood pressure and blood sugar which were developed as she felt cheated by defendant no.1.
1.4. It is further averred that after expiry of one year in April, 2012, the defendant no.1 sought more time till September, 2012 by stating that due to some personal reason, he has surrendered his government quarter and for the time being, he is facing major personal personal but soon he will purchase his own house and would shift there and requested for rent free stay on 2nd floor of suit property and added that in case he stay beyond September, 2012, he would pay rent @ Rs.10,000/- per month in addition to electricity and water consumption charges. It is further submitted that the defendant no.1 never disclosed that he was evicted from his government quarter after departmental inquiry as a punishment for sub-letting. Since the circumstances of plaintiff did not allow any confrontation, the plaintiff agreed for unpaid stay of defendant no.1 in the 2nd floor of suit property for six months. After lapse of said six months, the defendant no.1 was inducted as a tenant in the 2 nd floor comprising of two rooms with toilet-bath, kitchen fitted with water connection, electricity etc. for a period of 11 months w.e.f. 01.10.2012 on rent @ Rs.10,000/- per month. It is stated that tenancy of the defendant no.1 is month to month tenancy. On 01.10.2012, when plaintiff Digitally signed by and his wife Smt. Raj Kumari approached defendant no. 1 for MUNISH MUNISH BANSAL BANSAL Date:
2025.02.19 14:30:45 +0530 CS/1084/2017 Page 5 of 38 rent, defendant no.1 and his family members misbehaved and abused and caused harassment upon which wife of plaintiff stated that she was cheated and fell down on earth and seeing this, the defendant no.1 paid rent of Rs.10,000/- then and there in cash and continued giving rent in advance till 01.02.2014 in addition to electricity and water charges.
1.5. It is further averred that Smt. Raj Kumari remained in depression on account of cheating by defendant no.1 and passed away on 26.02.2014. Thereafter, the defendant no.1 developed illegal intention of grabbing the suit property. The plaintiff asked defendant no.1 to execute a rent agreement for 2 nd floor from 01.03.2014 onward, however, the defendant no.1 deferred the matter and even stopped paying rent of premises. On 30.08.2016 at around 08:00 a.m., the plaintiff visited 1 st floor of the property to bring his family belongings where he found that some stranger had occupied the said 1 st floor and upon inquiry, the said stranger stated that he was the tenant of defendant no.1.
Upon inquiry from defendant no.1 about the belongings of plaintiff viz. Steel almirah containing original file and documents, the defendant no.1 stated that all the households belonged to him so he acquired and shifted that to his premises at 2nd floor. The plaintiff also visited President of RWA, Janta Flats Phase-II, Katwaria Sarai, who cautioned plaintiff to be careful as wife of defendant no.1 had lodged a police complaint against plaintiff for harassment. Thereafter, plaintiff also lodged a police complaint but plaintiff was advised to file a suit for eviction. Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.02.19 14:30:51 +0530 CS/1084/2017 Page 6 of 38 1.6. It is stated that after family discussion, it was decided that plaintiff would reside in suit property, therefore, the plaintiff sent notice dated 03.09.2016 to the defendants requesting them to vacate the suit property in their occupation and hand over the vacant and peaceful possession of the same.
The defendant no.1 replied to said legal notice vide letter dispatched on 15.09.2016 which shows that defendants are not willing to vacate the suit property. On 18.05.2017, the plaintiff served notice to defendant no.1 to substantiate his claim of ownership with valid documents. It is stated that the plaintiff served a notice to defendant erroneously with Ravi Dutt Sharma together with copy of police verification made to identify his character antecedents but no reply was received from the defendant. On 06.06.2017, the plaintiff sent reminders and asked the defendants to handover possession of suit property and also the possession of family belongings grabbed by them from 1 st and 3rd floor but no reply to said notice was given. Again on 28.06.2017, a notice u/s 106 of T.P. Act was sent to defendants. It is averred that while terminating the tenancy of defendants, the plaintiff made it clear that in case, they fail to vacate and handover the possession of rented premises by 30.09.2017, the defendants would be liable to pay rent @ Rs.20,000/- per month w.e.f. 01.10.2017, which is the prevailing rent of similar properties in the vicinity.
1.7. It is further averred that the plaintiff paid property tax of the suit property upto year 2017-18 as per MCD Digitally signed by MUNISH regulations. However, the electricity and water bills due to be MUNISH BANSAL BANSAL Date:
2025.02.19 14:30:57 +0530 CS/1084/2017 Page 7 of 38 paid by the defendants are still outstanding, therefore, notices were sent by Delhi Jal Board on 22.06.2017 and by BSES Rajdhani Power Ltd. on 13.07.2017 for disconnection.
On these grounds, the Plaintiff has filed the present suit seeking possession of suit property bearing no. 48B, DDA Janta Flat, 1st, 2nd and 3rd floor, Phase-II, Katwaria Sarai, New Delhi-110016 alongwith roof. The plaintiff is also seeking injunction against the defendants thereby restraining them, their associates etc. from transferring or creating any third party right in the suit property. The plaintiff is also seeking recovery of Rs.4,30,000/- against defendant no.1 qua arrears of rent alongwith interest @ 12% p.a. The plaintiff is also seeking recovery of Rs.1,30,000/- from defendant no.2 qua arrears of rent alongwith interest @ 12% p.a. The plaintiff is further seeking mesne profits @ Rs.20,000/- p.m. since 01.10.2017 onward with interest @12% p.a.. Hence, this suit.
2. Summons of the suit were issued to the Defendants. The same were duly served upon the defendants upon which the Defendant no. 1 appeared and filed written statement stating in preliminary objections that present suit has been filed just to harass him as plaintiff is habitual of making complaints against the defendant no.1 before the department of defendant no.1 as well as other statutory authorities; that defendant no.2 is lawful tenant of defendant no.1 and has no concern with the present suit; that present suit is not signed, verified and filed as per rules; that present is undervalued for the purposes of court-fees; that the Digitally present suit is filed on false and frivolous grounds in order to signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.02.19 14:31:01 +0530 CS/1084/2017 Page 8 of 38 extort money from defendant no.1; that the plaintiff has concealed material facts from this Court that defendant no.1 is stepson of plaintiff and real son of his deceased wife Late Smt. Raj Kumari and has falsely stated that defendant no.1 is distant relative of his wife; that the present suit is without any cause of action. It is further stated that defendant no.1 is residing in the suit property since December 2004 i.e. more than 14 years and deceased mother of defendant no.1 Smt. Raj Kumari had executed a Will in his favour on 26.04.2008 and also deliberated the possession of first floor of the suit property by signing the Possession Letter dated 26.04.2008 and thereafter, the defendant no.1 constructed the second floor upon the suit property and now defendant no.1 is constructing third floor over the suit property which is still under construction and as such, the defendant no.1 is sole and absolute owner of the suit property and plaintiff is trying to deprive the defendant no.1 from his property. It is stated that plaintiff has shown that suit property is built upto third floor whereas the third floor is still under construction for which SDMC has also issued demolition order on 18.05.2017 and show-cause notice dated 03.07.2017 to the defendant no.1. It is further stated that defendant no.1 alongwith his family is residing in the suit property since 2004 and is regularly paying electricity, water and telephone bills to the concerned departments and that the address of suit property is recorded in the education records / report cards of children of defendant no.1 since 2006-2007.
2.1. It is further stated that plaintiff has also concealed Digitally signed by MUNISH the fact that Late Smt. Raj Kumari was the owner of Flat bearing MUNISH BANSAL BANSAL Date:
2025.02.19 14:31:06 +0530 CS/1084/2017 Page 9 of 38 no. 20/587, Madangir, New Delhi- 110062 and a personal property exchange agreement was executed between the plaintiff and Late Smt. Raj Kumari on 19.05.2005 in the presence of their son Sh. Aakash Raman Sharma, defendant no.1 and other relatives of the parties whereby it was agreed that Late Smt. Raj Kumari will sell her two and half storey of her Flat no. 20/587, Madangir, New Delhi and the plaintiff shall exchange the first floor of the suit property in consideration of the selling amount of said two and half floors and thus, the properties were exchanged between the plaintiff and Smt. Raj Kumari and the said agreement was signed by Sh. Aakash Ram Sharma and other relatives who were present.
2.2. On merits, defendant no.1 has submitted that plaintiff got married with Smt. Raj Kumari (mother of the answering defendant) while she was a widow and was having three children consisting of one son i.e. the defendant no.1 and two daughters namely Praveen Phull and Indira Jyoti, who are the children of Late Sh. Brahm Dutt Sharma and thereafter, one son namely Akash Raman Sharma born from the said wedlock and as such, the plaintiff is the stepfather of the answering defendant. Defendant no.1 has also stated that he is occupying the second floor of the suit property but has denied occupying the same as the tenant of plaintiff. It is further submitted that defendant no.1 has been residing in the suit property as the sole and absolute owner and as such no question arises of paying the rent to anyone and also defendant no.1 has been paying the Digitally signed by electricity and water charges regularly to the departments MUNISH MUNISH BANSAL BANSAL Date:
2025.02.19 14:31:11 +0530 CS/1084/2017 Page 10 of 38 concerned. It is further submitted that notices for the disconnection of electricity and water connections were issued to defendant no.1 but the plaintiff cleverly obtained the copies of the same and now the plaintiff is trying to use the same against defendant no.1. It is further submitted that electricity and water connections are still in the name of the plaintiff and on number of occasions, the defendant no.1 had requested to change/ transfer the same in the name of defendant no.1 but every time plaintiff deferred the issue on one pretext or the other and for ulterior motives. All other contents of the plaint, in essence, are denied and averments made above are reiterated and re-emphasized. It is prayed that present suit be dismissed.
3. Replication to written statement was filed on behalf of the Plaintiff wherein the Plaintiff has denied all the pleadings made in the written statement and has reaffirmed and reiterated the pleadings made in the plaint. It is stated that defendant no.1 is not stepson of plaintiff as alleged by him that Late Smt. Raj Kumari was his real mother. It is rather stated that defendant no.1 is son of Sh. Brahm Dutt Sharma and Smt. Kamla Devi and the Land Record of property inherited by defendant no.1 state that defendant no.1 is son of Brahm Dass and Kamla Devi. It is further stated that both plaintiff and his wife Late Smt. Raj Kumari were government employees and their service record show them as husband and wife and having one son namely Sh. Aakash Raman Sharma. It is further averred that details of License Fees recovered from monthly salary of defendant no.1 Digitally signed by MUNISH categorically indicate that defendant no.1 was residing in allotted MUNISH BANSAL BANSAL Date:
2025.02.19 14:31:16 +0530 CS/1084/2017 Page 11 of 38 Government Quarter since February, 2000 till April, 2011. It is further submitted that in the Will it is categorically stated that from the date of its execution on 26.04.2008, Ravi Dutt Sharma, Akash Raman Sharma, Praveen Phull and Indira Jyoti were married and were settled is false as in fact, Akash Raman Sharma got married on 09.03.2015 after death of his mother Smt. Raj Kumari on 26.02.2014 and therefore, these facts prove that the said Will is a forged one and was not executed by plaintiff's wife Smt. Raj Kumari. It is stated that the documents i.e. Personal Property Exchange Agreement and Possession Letter are forged and fabricated documents. It is stated that on 10.09.2016, the plaintiff submitted a complaint to defendant's office with copy to Senior Citizen Cell, Delhi Police that defendant has unauthorizedly/forcefully occupied the suit property and on 05.04.2017, defendant's office advised the plaintiff to approach the Court for eviction. It is reiterated that suit property is self-
acquired property of plaintiff. It is stated that suit of the Plaintiff be decreed.
4. Vide order dated 04.08.2018, Defendant no.2 stood deleted from the array of parties.
5. From pleadings of parties, following issues were framed on 04.08.2018:-
1. Whether plaintiff is entitled for decree of ejectment against Digitally signed by the defendant from suit property bearing no. 48-B, DDA MUNISH MUNISH BANSAL BANSAL Date:
2025.02.19 14:31:23 Janta Flats, First floor, second and third floor, Phase-II, +0530 CS/1084/2017 Page 12 of 38 Katwaria Sarai, New Delhi as shown red in the site plan attached, as prayed for? OPP
2. Whether plaintiff is entitled for decree of permanent injunction as prayed for? OPP
3. Whether plaintiff is entitled for arrears of rent from defendant, if so, at what rate and for which period? OPP
4. If issue no. 3 is proved in affirmative, whether plaintiff is entitled for any interest thereupon at what rate? OPP
5. Whether plaintiff is entitled for mesne profits from defendant, if so, at what rate and for which period? OPP
6. Whether no cause of action has arisen against the defendant? OPD
7. Whether present suit is under-valued for the purposes of court fees? OPD
8. Whether the plaintiff has no locus standi to file the present suit? OPD
9. Relief.
Thereafter, matter was fixed for Plaintiff's evidence.
6. To prove his case, the Plaintiff got examined seven witnesses. Plaintiff examined PW1 Shri Dheeraj Kumar, Junior Assistant from the Office of Sub Registrar-V, Mehrauli, New Delhi, who produced the summoned record i.e. Gift Deed vide registration no. 6083 in additional book no. 1, Vol. 8376, pages 43-51 dated 24.04.2008 and certified copy of the same was Ex. PW1/1 (Colly) (OSR). This witness was duly cross examined.
Digitally signed by MUNISHMUNISH BANSAL Date:
BANSAL 2025.02.19 14:31:28 +0530 CS/1084/2017 Page 13 of 38 6.1. PW2 Shri Parvinder Singh, JSO, CWC, Sewa Bhawan, R.K. Puram, Sector-1, New Delhi and he produced the summoned record i.e. service record of defendant and same was Ex. PW2/1 (Colly) (OSR). This witness was duly cross examined.
6.2. PW3 Shri Suresh Kumar, Zonal Inspector, House Tax Department, SDMC, South Zone, R.K. Puram, New Delhi and he produced the assessment file of property tax pertaining to property bearing no. 49-B, Janta Quarter, Katwaria Sarai, New Delhi. He also filed on record the computer generated copy of property tax and as per the same the property tax for the financial years 2017-18 and 2018-19 had been paid vide property record no. 245354410202 and same was Ex. PW3/1. This witness was not cross examined despite availing opportunity.
6.3. PW4 Shri Parvinder Singh, JSO, CWC, Sewa Bhawan, R.K. Puram, Sector-1, New Delhi and he had produced the summoned record ie leave record of the defendant as well as order for penalty with regard to subletting of government accommodation by the defendant and copy of the said leave record Ex. PW4/1 (OSR) and copy of the order of penalty Ex.
PW4/2 (OSR). This witness was duly cross examined.
6.4. PW5 Shri Rakesh Kumar, SSA, CWC, Sewa Bhawan, R.K. Puram, Sector -1 and he produced the summoned record ie register pertaining to allotment of government Digitally signed by accommodation and copy of the same is Ex. PW5/1 (OSR). This MUNISH MUNISH BANSAL BANSAL Date:
2025.02.19 14:31:33 +0530 CS/1084/2017 Page 14 of 38 witness was duly cross examined.
6.5. PW6 Shri Parvinder Kumar, ASO, LAD, Janta Housing, DDA, Vikas Sadan, INA and he produced the summoned record ie original file no. 61 (92) 1977 pertaining to flat no. 48-B, First Floor, Katwaria Sarai and he placd on record the conveyance deed, demand letter, possession letter and bank challan and same were ex. PW6/A (Colly) (OSR). This witness was not cross examined despite availing opportunity.
6.6. PW7 Shri Krishan Kumar Sharma who tendered his evidence and relied on following documents:-
1. DDA certificate of registration dt. 03.03.1976 Ex. PW7/1 (OSR).
2. Cash receipt dt. 28.02.1977 for ₹18,787/- Ex. PW7/2 (OSR).
3. Grant of HBA dt. 19.02.1977 Ex. PW7/3 (OSR).
4. Acknowledgment of family details of plaintiff registered with CGHS Ex. PW7/4.
5. Conveyance Deed Ex. PW7/5.
6. Site plan Ex. PW7/6.
7. Gift deed Ex. PW7/7 (OSR).
8. Copy of ration card, aadhar cared and voter ID card Ex.
PW7/8 (colly) (OSR).
9. Special power of attorney dt. 30.03.2000 Ex. PW7/9.
10.Registered deed agreement dt. 03.04.2000 Ex. PW7/10.
11.Lease deed Ex. PW7/11.
Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.02.19 14:31:38 +0530 CS/1084/2017 Page 15 of 38
12.Rent agreement between Akash Raman Sharma and Sh.
Praveen Kumar Ex. PW7/12.
13.Statement of outstanding dues against defendant no. 1 from 01.03.2014 to 30.09.217 Ex. PW7/13.
14.Death certificate of Smt. Raj Kumari Ex. PW7/14.
15.Legal notice dt. 03.09.2016 Ex. PW7/15.
16. Statement of outstanding dues against defendant no. 2 (now deleted from array of parties) Ex. PW7/16.
17.Reply of defendant no. 1 Ex. PW7/17.
18.Copy of notice dt. 18.05.2017 Ex. PW7/18.
19.Copy of reminder notice Ex. PW7/19.
20.Copy of legal notice dt. 28.06.2017 with postal receipts Ex. PW7/20 (colly).
21.Property Tax Ex. PW7/21.
22.Notice from Delhi Jal Board Ex. PW7/22.
23.Notice from BSES Rajdhani Ex. PW7/23 (OSR).
24.Revenue record Ex. PW7/24 (OSR).
25.Letter from DDO-1, CWC Ex. PW7/25.
26.Decree sheet dt. 06.05.2018 Ex. PW7/26 (OSR).
27.Copy of marriage certificate Ex. PW7/27 (OSR).
28.Letter from MCD dt. 11.04.2014 and 24.04.2014 (inadvertently mentioned as 24.04.2018) Ex. PW7/28 and PW7/29.
29.Letter from post office and money order Ex. PW7/30.
(All the exhibits are written as PW1 instead of PW7 in the affidavit of evidence.) Digitally signed by MUNISH MUNISH BANSAL Date:
BANSAL 2025.02.19 14:31:42 +0530 CS/1084/2017 Page 16 of 38 6.7. PW8 Shri Aakash Raman Sharma who tendered his evidence as Ex.PW8/A. This witness was duly cross examined.
Thereafter, Plaintiff's evidence was closed vide order dated 18.03.2021 and matter was fixed for DE.
7. To rebut the case of the Plaintiff, the Defendant no.1 got himself examined as DW1 and tendered his evidence by way of affidavit Ex. DW1/A wherein he deposed in consonance of his pleas and contentions taken in the written statement and relied upon the following documents viz.:-
1. Certified copy of will dated 26.04.2008 Ex. DW1/1
2. Copy of election ID card Ex. DW1/2 (OSR).
3. Copy of personal property exchange agreement dated 19.12.2005 Ex. DW1/3 is now de-exhibited as Mark C.
4. Copy of possession letter dated 24.04.2008 is Ex. DW1/4 is now de-exhibited as Mark D.
5. The original progress report for the session 2001 to 2003 Ex. DW1/5 (Colly) (already exhibited as Ex. PW8/DX3 to Ex. PW8/DX6).
6. The original progress report for the session 2006 to 2011 is Ex. DW1/9 (Colly) (already exhibited as Ex. PW8/D3 to Ex. DW8/DX6).
7. Original electricity bill (total 21 in number) Ex. DW1/7.
8. Original meter changing report (total 3 in number) Ex. DW1/8 (colly).
9. Original telephone bills (total 43 in number) Ex. DW1/9 (Colly).
Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
10. Original water bills (total 3 in numbers) Ex. DW1/10 2025.02.19 14:31:47 +0530 CS/1084/2017 Page 17 of 38 (Colly).
11. Photocopies of notice dated 18.05.2017 and 03.07.2017 Mark A (Colly).
DW1 was cross-examined by Ld. Counsel for the Plaintiff.
7.1. DW2 Shri Bhawar Singh who produced the summoned record i.e. the service record of late Smt. Rajkumari which was posted as Lab Attendant, Rank No. 1891. As per our record in the details of family members dated 01.11.2006 of late Smt. Rajkumari the name of the family members has been mentioned as Smt. Praveen, Smt. Indirajyoti, Shri Ravi Dutt, Shri Parul and husband name was mentioned as Shri Krishan Kumar Sharma. Further, as per the record there was a declaration which was submitted by late Smt. Raj Kumari on dated 26.02.1970 the name of the husband of late Smt. Rajkumari was mentioned as Shri Braham Das Sharma and further the name of the children of Late Smt. Rajkumari was mentioned as Ms. Prabina Kumari, Ms. Indra and Shri Ravi Kumar and as per their record, Late Smt. Raj Kumari got married with Shri K.K. Sharma on 25.12.1978. The date of appointment of late Smt. Raj Kumari was 21.02.1970 and the photocopies of aforesaid documents were Ex. DW2/1 (Colly) (OSR). This witness was duly cross examined by Ld. Counsel.
7.2. DW3 Shri Ashu Kumar Sharma and tendered his evidence by way of affidavit Ex. DW3/A . This witness was duly cross examined.
Digitally signed by MUNISHMUNISH BANSAL Date:
BANSAL 2025.02.19 14:31:51 +0530 CS/1084/2017 Page 18 of 38 7.3. DW4 Shri Pramod Kumar who deposed that he was called regarding the production of record of ration car bearing consumer card no. 368355 which was issued in the name of the plaintiff on dated 0909.1996 and as per record no record in the respect of the said ration card was found in the NFD portal. His report in this regard was Ex DW4/A bearing the seal and signature of Shri Manmohan Sharma, Food & Safety Supply Officer, Circle-40 New Delhi 633, Laxmi Bai Nagar, New Delhi.
This witness was not cross examined despite grant of opportunity.
Thereafter, DE was closed vide order dated 04.07.2024.
8. I have heard arguments as advanced by Ld. Counsel for the Plaintiff, gone through the written submissions and perused the record. My issue-wise findings are as under:-
Issue no.1 Whether plaintiff is entitled for decree of ejectment against the defendant from suit property bearing no. 48-B, DDA Janta Flats, First floor, second and third floor, Phase-II, Katwaria Sarai, New Delhi as shown red in the site plan attached, as prayed for? OPP
9. Onus to prove this issue was upon the plaintiff.
9.1. The very basis/ foundation for the drawing of the alleged Will Ex. DW1/1 in favour of defendant no.1 by Late Smt. Raj Kumari is the vesting of the property in favour of Late Smt. Digitally signed by Raj Kumari by way of the registered Gift Deed dated 24.04.2008 MUNISH MUNISH BANSAL BANSAL Date:
2025.02.19 14:31:56 +0530 CS/1084/2017 Page 19 of 38 Ex. PW7/7 (OSR). However, the said Gift Deed was cancelled vide Court decree dated 06.05.2017 (wrongly mentioned as 06.05.2018) Ex.PW7/26 (OSR). The contention of the defendant no.1 that he was not a party to the suit seeking cancellation of the Gift Deed holds no force since under the Gift Deed, he was neither the Donor nor the Donee.
9.2. Defendant no. 1 has chosen not to reply/ respond to the pleadings in the plaint that defendant no.1 was required to vacate official accommodation allotted to him due to departmental inquiry/ action. In the plaint/ replication, there is a specific pleading that defendant no.1 had requested the plaintiff's wife Smt, Raj Kumari to allow him and his family to live in the 2nd floor of the suit property as he may be required to vacate his government quarter very soon. Apart from the bald denial, the defendant no.1 in his written statement has not controverted the factum regarding his eviction from the government quarter after departmental inquiry as a punishment for sub-letting the same. In this regard, Ex. PW-5/1 (OSR) and PW-7/25 proves allotment of government accommodation to the defendant no.1. PW4 has proved copy of the order of the penalty Ex. PW4/2 (OSR) and in the cross-examination, has stated that defendant no.1 has surrendered the government accommodation on 20.04.2011 and one year increment of the defendant no. 1 was also withheld by the department due to sub-letting of the government accommodation. Thus, it stands proved that the defendant no.1 has surrendered the government accommodation only on Digitally signed by MUNISH MUNISH BANSAL 20.04.2011. Even u/s 114 of Indian Evidence Act, Court can BANSAL Date:
2025.02.19 14:32:01 +0530 CS/1084/2017 Page 20 of 38 presume that by giving bald denial of the aforesaid pleading of the plaintiff regarding allotment of the government accommodation and its subsequent surrender by the defendant no.1, the giving of specific denial to the said pleading would be unfavourable to the defendant no.1.
9.3. Defendant no.1 claims himself to be the son of Late Smt. Raj Kumari but plaintiff alleges that defendant no.1 was only a distant relative of Smt. Raj Kumari. Ex. PW7/24 (OSR) shows name of the mother of defendant no.1 as Smt. Kamla Devi instead of Smt. Raj Kumari. No explanation has been tendered for the same nor any proof furnished to the effect that Smt. Kamla Devi has changed her name to Raj Kumari or that both the names were interchangeably used by the same person whom defendant no.1 claims to be his mother. Counsel for the defendant no.1 has submitted that Smt. Kamla Devi was the nick name of Smt. Raj Kumari, however, no proof of the same has been tendered on behalf of defendant no.1. Relevant herein is the cross-examination dated 03.11.2022 of the defendant no.1 wherein he has stated that he does not have any document to show that his mother's name is Raj Kumari Sharma. Only a bald statement is made by defendant no. 1 that his mother was also known with the name of Smt. Kamla Devi. Defendant no. 1 also states that he does not know whether the name of his mother was mentioned in any of the documents pertaining to his sisters. If one goes by the argument put forth by the counsel for defendant no.1 that Smt. Raj Kumari was the real name of Kamla Devi, Kamla Devi being the nick name, then in such a scenario, the real Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.02.19 14:32:06 +0530 CS/1084/2017 Page 21 of 38 name Smt. Raj Kumari should reflect on the documents of the defendant no.1. Admittedly, no documents in this regard have been brought forth by the defendant no.1. Defendant no.1 alleges that Late Smt. Raj Kumari was the widow of Sh. Brahm Dutt Sharma and remarried the plaintiff. To support this averment, no death certificate of Sh. Brahm Dutt Sharma has been furnished by defendant no.1. The inconsistency in the documents i.e. Ex.PW7/24 and Ex. DW2/1 (colly) (which is the service record of the Smt. Raj Kumari which shows one Ravi Kumar as her child) has not been explained by defendant no.1. There is no further proof that Late Smt. Raj Kumari is the mother of defendant no.1.
9.4. The alleged Will Ex. DW1/1 is not registered and is of dated 26.04.2008 which as per record has been executed just two days after the execution of Gift Deed dated 24.04.2008 Ex. PW7/7 (OSR). The sole basis on which the defendant no.1 claims ownership over the suit property, is the said Will whereby suit property was bequeathed in his favour by Smt. Raj Kumari. Admittedly, Smt. Raj Kumari expired on 26.02.2014 which stands proved by death certificate of Smt. Raj Kumari Ex. PW7/14. Though the defendant no.1 has placed reliance on the said Will for claiming ownership over the suit property, however, the said Will has not been proved as per law. Perusal of the said Will shows that even the factum of the marriage of plaintiff's son namely Akash Raman Sharma has been incorrectly mentioned in the Will, though Akash Raman Sharma was not married at time of alleged Will and said Akash Raman Sharma married on Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.02.19 14:32:11 +0530 CS/1084/2017 Page 22 of 38 09.03.2015 which is proved by marriage certificate Ex.PW-7/27 (OSR). No explanation has been afforded by defendant no.1 about the incorrect mentioning of the factum of marriage of Mr. Akash Raman Sharma in the said Will.
9.5. Defendant no.1 in written statement states it is a matter of record regarding the factum of allotment of suit property in favour of the plaintiff. Defendant as DW-1 in his cross examination dated 03.11.2022 has admitted that the plaintiff is the allottee of the suit property and till date, suit property is in name of the plaintiff and electricity bills and water bills are in the name of the plaintiff. Thus, there is admission of the said factum on the part of defendant no.1. However, in para no. 9 of the preliminary submissions of the written statement, defendant has stated that he has been residing in the suit property since December, 2004 and Late Smt. Raj Kumari (deceased wife of the plaintiff) executed a Will in favour of defendant no.1 on 26.04.2008 and also signed the Possession Letter on 26.04.2008 giving the possession of first floor of the suit property and thereafter, the defendant no.1 constructed the second floor on the suit property and the third floor of the suit property is under construction and as such, defendant no.1 is a sole and absolute owner of the suit property. In these facts and circumstances, it stands proved that defendant no.1 was well aware of the initial allotment/ ownership of the plaintiff i.e. suit property was originally allotted to and owned by the plaintiff.
Digitally signed by MUNISHMUNISH BANSAL Date:
BANSAL 2025.02.19 14:32:16 +0530 CS/1084/2017 Page 23 of 38 9.6. Defendant no.1 has alleged existence of Personal Property Exchange Agreement dated 19.12.2005 Mark 'C' which has not been proved by the defendant no.1. The plaintiff has alleged the same to be a forged and fabricated document. The personal property exchange agreement dated 19.12.2005 Mark 'C' has been denied by the plaintiff in the replication and in his cross-examination by stating the same to be forged and fabricated. Onus lied upon defendant no.1 to prove the same since he intended to rely upon the same. Original of the same has not been produced by the defendant no.1 nor any steps have been taken to lead secondary evidence.
9.7. It is to be noted that in reply dated 15.09.2016 Ex.
PW7/17 to the legal notice, defendant no.1 has not mentioned anything about the aforementioned Personal Property Exchange Agreement and Possession Letter Mark C and D respectively. It has been argued on behalf of defendant no.1 that suit property was given by the plaintiff himself to the mother of defendant no.1 in pursuance of the said Exchange Agreement Mark C which was arrived between the plaintiff and the mother of defendant no.1 and according to the said agreement, the mother of the defendant no.1 had exchanged her house of which she was the owner i.e. House no. 20/7, Madangir, New Delhi and further, in pursuance of the said agreement, the plaintiff has executed a registered Gift Deed dated 24.04.2008 in favour of mother of defendant no.1 and as such, mother of the defendant no.1 has become owner of the suit property and subsequently, on the basis of the Will Ex. DW1/1 in favour of the defendant no.1, on the death of late Smt. Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.02.19 14:32:21 +0530 CS/1084/2017 Page 24 of 38 Raj Kumari, the defendant no.1 became the owner of the suit property. As discussed above, the Personal Property Exchange Agreement has not been proved on the basis of which the subsequent transactions, as pleaded by the defendant no.1, are based. If a prior transaction which is the basis for subsequent transactions is not proved, no rights or entitlements shall emerge out of the subsequent transactions.
9.8. In the plaint, it has been pleaded that plaintiff in the month of August, 2008 has raised two floors with temporary roof in the suit property so that plaintiff could get good rental income from his flat to maintain social and financial security. Countering this pleading, in the written statement, defendant no.1 has averred that defendant no.1 has constructed the second floor of the suit property from his own funds and resources and as at the time of the filing of written statement, the construction of third floor was still going on and SDMC has issued demolition order on 18.05.2017 and show-cause notice on 03.07.2017 mark A (colly) to defendant no.1. Even if going by the version of defendant no.1 that he has built the second and the third floor, that itself cannot be a ground for conferring title or ownership on the defendant no.1. Perusal of the notice dated 03.07.2017 Mark A (colly) shows that the same was issued to Mr. Ravi Sharma who admittedly was the tenant of defendant no.1, thus, mere issuance of notice by the SDMC on a certain name cannot be termed as a proof of the title or entitlement of possession.Digitally signed by MUNISH
MUNISH BANSAL Date:
BANSAL 2025.02.19 14:32:26 +0530 CS/1084/2017 Page 25 of 38 9.9. The documents such as election ID card Ex. DW1/2 (OSR), original progress report for the session 2001-2003 Ex.
DW1/5 (colly) and for session 2006 to 2011 Ex. DW1/6 (colly) brought on record by defendant no.1 are, at best, mere proofs of his residence and cannot be termed as proof of ownership. However, no further document has been brought on record on the basis of which the address of the defendant no.1 is shown on these documents as that of the suit property. Perusal of the Ex.DW1/5 (colly) shows that the same pertains to the property i.e. 20/581, DDA Flats, Madangir, which is a property different from the suit property. Not much reliance can be placed on the said documents when seen in the light of the factum of the government accommodation allotted to the defendant no.1 which he surrendered in year 2011.
9.10. On one hand, defendant no.1 alleges that he is the sole owner of the suit property on the basis of the Will Ex. DW-1/1 and on the other hand, defendant no.1 has pleaded and deposed that electricity and water bills are till date being issued in the name of the plaintiff and that plaintiff has not taken steps to transfer the same in the name of defendant no.1 despite defendant no.1 making repeated requests to the plaintiff. When defendant no. 1 claims that he has become the sole and absolute owner, then where remains the requirement for the defendant no.1 to ask/request the plaintiff to get the electricity and water connections in his name.
Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.02.19 14:32:31 +0530 CS/1084/2017 Page 26 of 38 9.11. Defendant no.1 alleges to be residing in the suit property since 2004, however, original electricity bills Ex.
DW1/7 are from year 2005 till 2017, however, the same are issued in the name of the plaintiff and in many of the bills, there are certain arrears of the pending electricity charges due towards the BSES. No explanation has been tendered by defendant no.1 regarding the said arrears. Document Ex.DW1/8 relates to the meter changing report. Ex. DW1/9 relates to telephone bills, though the same are issued in the name of the defendant, however, the same pertains to year 2009 onwards. Document Ex.DW1/10 (colly) pertains to the water bills but for period 2011 onwards and are issued in the name of the plaintiff. Pertinently, one of the documents out of Ex. DW1/10 (colly) is the notice dt. 08.10.2015 of disconnection of water supply if pending dues are not paid. Notably, payment proofs of the aforesaid bills have not been brought on record by defendant no.1. Further to note is that how defendant no.1 came in possession in 2004 has not been divulged out i.e. whether he came in possession as a licensee and on whose permission or asking and also as to what specific portion of the suit property he came into possession at the very initial stage when he had alleged to have entered into the suit property.
9.12. Further aspect to be noted is that property tax, for the period from 2009-10 to 2018-2019, has been paid by the plaintiff, proofs of which are receipts Ex. PW1/3 and Ex. PW7/21. No explanation from the defendant no.1 has come as to Digitally signed by MUNISH MUNISH BANSAL why property tax has not been paid by him when he claims BANSAL Date:
2025.02.19 14:32:36 +0530 CS/1084/2017 Page 27 of 38 himself to be the owner on the basis of alleged Will since 26.02.2014 and also alleging to be resident therein since 2004.
Similarly, notices dated 02.06.2017 and 13.07.2017 for disconnection of water and electricity connection Ex. PW7/22 and PW7/23 respectively have been issued to the plaintiff for non-payment of respective water and electricity charges and arrears of same being piled up. Interestingly, there is no explanation as to why the aforesaid charges were not being paid by the defendant no.1 and arrears accumulating to a good amount, when he claims to be owner in possession of suit property.
9.13. Nothing has been brought on record to show any challenge, by way of filing a suit or by way of any other remedy available under law for seeking setting aside of decree Ex. PW7/26 (OSR) of the cancellation of the Gift Deed, made by defendant no.1 since he was allegedly a subsequent beneficiary under the Will which was dependent upon the existence/ subsistence of the Gift Deed. It is only during final arguments that it has been informed that a suit challenging the cancellation of gift deed has been filed bearing no. CS 910/2019, pending before the court of Ld. ASCJ, South.
9.14. Plaintiff had filed two separate applications dated 17.05.2023 and 03.07.2024 under Order VII Rule 14 CPC at different intervals in the suit proceedings which were allowed vide orders dated 02.11.2023 and 14.11.2024 respectively. Vide Digitally signed by MUNISH order dated 02.11.2023 passed in application dated 17.05.2023, MUNISH BANSAL BANSAL Date:
2025.02.19 14:32:42 +0530 CS/1084/2017 Page 28 of 38 three documents i.e. order dated 25.05.2022 passed by Ld. ADJ-02, South, Saket Courts, New Delhi; copy of the report of the RFSL dated 30.01.2023; and copy of the order dated 24.03.2023 passed by the Ld. ADJ-02, South, Saket Courts, were taken on record. Vide order dated 14.11.2024 passed in application dated 03.07.2024, copy of the cross-examination dt. 04.04.2024 of Ravi Dutt Sharma (defendant no.1 in the present suit) in suit bearing no. PC/31/2019 was taken on record. Perusal of order dated 25.05.2022 passed in probate case filed by defendant no. 1 shows that defendant no. 1 has submitted that they are in possession of three original documents i.e. Possession letter of year 2008; Property Exchange Agreement of 2005; and Gift Deed dated 24.04.2008, however, subsequently during evidence, originals of Possession letter of year 2008 and Property Exchange Agreement of 2005 have not been produced in the probate case nor in the present case, for the reasons best known to the defendant no.1. As regards this, the Court takes an adverse inference against the defendant no. 1. Though in the present case, the defendant no.1 has relied upon the Will dated 26.04.2008 for claiming his entitlement over the suit property, the same has not been proved by the defendant no.1 nor the defendant no.1 has been able to show his entitlement over the suit property on the basis of other grounds. Copy of the RFSL report dated 30.01.2023 bears significance since as per the said report, it has been opined that the divergencies in the writing characteristics between the questioned and standard signatures are fundamental in nature and beyond the range of natural variations and intended Digitally signed by MUNISH disguise and when considered collectively. It is to be noted that MUNISH BANSAL BANSAL Date:
2025.02.19 14:32:47 +0530 CS/1084/2017 Page 29 of 38 vide order dated 25.05.2022, Ld. Court of ADJ-02, South, Saket Courts has sent the original Will together with the original passport and original Gift Deed dated 24.04.2008 for the verification of the signatures of Testatrix Smt. Raj Kumari on the Will in question to the FSL for scientific investigation.
9.15. Perusal of the pleadings on behalf of the defendant no.1 as well as the cross-examination of plaintiff as well as other witnesses of the plaintiff, conducted by the counsel for defendant no.1 shows that the same are more focused on the possession rather than the title on the basis of which possession is claimed.
Counsel for the defendant no.1 has submitted that in cross- examination, plaintiff has admitted that as per possession letter, defendant no.1 came to the suit property on 26.04.2008 and Voter ID card has been issued to defendant no.1 in year 2008 having address of the suit property and Aadhar Card has also been issued in the name of the defendant no.1 having address of the suit property. However, perusal of the said cross-examination shows that the said statements have been voluntarily made by the plaintiff in the context where plaintiff has denied the suggestion that defendant no.1 has been residing in the suit property alongwith his family since 2004. Furthermore, a holistic reading of the cross-examination shows that the said statements have been made by the plaintiff by quoting what was written in the possession letter/ documents filed by defendant no.1 and therefore, nothing more should be read out of the same. On one hand, defendant no.1 pleads and relies upon the personal property Digitally signed by exchange agreement Mark 'C' and on the other hand, relies upon MUNISH MUNISH BANSAL BANSAL Date:
2025.02.19 14:32:51 +0530 CS/1084/2017 Page 30 of 38 the Gift Deed. If the suit property stood transferred in the name of Smt. Raj Kumari by way of the aforesaid exchange agreement, there is no requirement of further making a Gift Deed. In the exchange agreement, there is an element of consideration but for Gift Deed, no consideration should be there. Moreso, the said agreement even if it was proved as per law by the defendant no.1, in terms of Section 118 r/w Section 54 of the Transfer of Property Act, required compulsory registration and since the same being unregistered, cannot be relied upon or read in evidence as per provisions of the Registration Act.
9.16. In view of the above discussion and after analyzing the pleadings and evidence on the principle of preponderance of probabilities, plaintiff has been able to prove his title to the suit property viz a viz defendant no.1 who has failed to prove his tile as well as entitlement to possession and therefore, issue no.1 is decided in favour of the plaintiff and against the defendant no.1.
Issue no. 2 Whether plaintiff is entitled for decree of permanent injunction as prayed for? OPP
10. Onus to prove this issue was upon the plaintiff. In the facts and circumstances of the present case, since the plaintiff has been able to prove his title to the suit property viz a viz defendant no.1 and also in view of the discussion on issue no.1 which stands decided in favour of the plaintiff, the plaintiff is entitled to the decree of permanent injunction as prayed for. The Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.02.19 14:32:56 +0530 CS/1084/2017 Page 31 of 38 defendant and his associates, legal heirs, agents, employees etc. are restrained from transferring or creating any charge or sale, letting out, executing any type of deed or parting away with the possession of the suit property. This issue is accordingly decided in favour of the plaintiff and against defendant.
Issues no.3, 4 and 5 Whether plaintiff is entitled for arrears of rent from defendant, if so, at what rate and for which period? OPP If issue no. 3 is proved in affirmative, whether plaintiff is entitled for any interest thereupon at what rate? OPP Whether plaintiff is entitled for mesne profits from defendant, if so, at what rate and for which period? OPP
11. All these issues are taken up together being inter- connected and based on similar evidence. Onus to prove these issues was upon the plaintiff. Plaintiff has claimed Rs.4,30,000/- as arrears of rent from the defendant as mentioned in the relief clause of the plaint. However, in para no. 40 of the plaint pertaining to valuation of the suit, the relief of arrears of rent has been valued at Rs.5,60,000/-. The said difference in the value of rent has not been explained by the counsel for the plaintiff. It is to be noted that in para no. 21 of the plaint, it has been pleaded that defendant no.1 was inducted as tenant on second floor of the suit property w.e.f. 01.10.2012 on rent @ Rs.10,000/- per month excluding the water and electricity charges. However, the said tenancy has been denied by the defendant no.1 by stating that the Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.02.19 14:33:02 +0530 CS/1084/2017 Page 32 of 38 defendant is residing therein since 2004 though there is no specific mention as to how and in what capacity, he came in possession of the suit property. Plaintiff has not been able to prove that w.e.f. 01.10.2012, the defendant no.1 was inducted as tenant of the plaintiff. No document in this regard has been brought on record by the plaintiff especially when the plaintiff has filed documents Ex. PW7/10, Ex. PW7/11 and Ex. PW7/12 pertaining to lease/ rent agreement qua the previous tenants in the suit property. Admittedly, defendant no.1 was staying on the second floor of the suit property without paying any rent prior to 01.10.2012 and in these facts and circumstances, his possession over the suit property was that in the nature of a licensee since defendant no.1, as discussed above, has not been able to prove his entitlement over the suit property.
11.1. Further, as per the plaintiff, he has served an eviction notice dated 06.06.2017 Ex. PW7/19 (mentioned as copy of reminder notice in the evidence of PW7 ) to defendant no.1 calling upon defendant no.1 to quit, vacate and deliver the peaceful possession of first floor to third floor of the suit property within 15 days from the date of receipt of said notice. The said notice is affixed with the postal receipt dated 06.06.2017. Thus, as per Section 27 of the General Clauses Act wherein a presumption of service of the said notice to the defendant no.1 is made. Mere bald denial on the part of defendant no.1 is not sufficient to displace the onus which laid on the defendant no.1 to rebut the said presumption of service of notice. As per the said provision, there is also presumption that the notice has been Digitally signed by MUNISH BANSAL MUNISH Date:
BANSAL 2025.02.19 14:33:08 +0530 CS/1084/2017 Page 33 of 38 effected at a time at which it would be delivered in the ordinary course of post. In this regard, presumption of service can safely be said to have been effected upon the defendant no.1 within 15 days from the date of the post. In the said notice, 15 days time from the date of receipt of notice was granted to defendant no.1 to vacate and deliver the possession. Thus, w.e.f. 06.07.2017, the possession of the defendant no.1 over the suit property can be said to be unauthorized. No reply to the said notice has been made on behalf of defendant no.1. Thus, the contents of the said notice remained unrebutted. Pertinently in the notice Ex. PW7/19, there is no mention of the rate of rent chargeable from the defendant no.1, however, it was mentioned that said notice be considered as notice U/s 106 of the Transfer of Property Act, 1882. Since, plaintiff has been unable to prove the existence of tenancy, hence, the plaintiff cannot be said to be entitled to arrears of rent and therefore, no question of awarding interest on the claimed arrears of rent arises. Accordingly, issues no. 3 and 4 are decided against the plaintiff.
11.2. Plaintiff has also claimed mesne profits @Rs.20,000/- per month w.e.f. 01.10.2017, by stating that defendant would be liable for mesne profits in case he fails to vacate and hand over the possession by 30.09.2017.
11.3. Though plaintiff has alleged rent @Rs.10,000/- per month for each floor by stating that the same is the prevailing rate of rent in the similar accommodation in the vicinity and in the written submissions filed on behalf of the plaintiff, has Digitally signed by MUNISH MUNISH BANSAL BANSAL Date:
2025.02.19 14:33:13 +0530 CS/1084/2017 Page 34 of 38 calculated the arrears of rent as well as mesne profits w.e.f. 01.10.2012, however, no evidence has been brought on record by the plaintiff to substantiate the either the agreed rent was Rs.10,000/- or that similar accommodation in the vicinity fetched rent @ Rs.10,000/- per month per floor. Plaintiff has also not been able to prove the existence of tenancy between the plaintiff and the defendant no.1. However, it is admitted fact on the part of defendant no. 1 as stated by him in his cross-examination that he has inducted defendant no.2 (now deleted from array of parties) as his tenant on the first floor and the last rent paid by defendant no.2 in 2015 was @ Rs.4,000/- per month. Thus, in these facts and circumstances, it can be safely concluded that the plaintiff is entitled to mesne profits @Rs.4,000/- per month for each floor (total three floors i.e. 1st, 2nd and 3rd ) w.e.f. the date when the possession of the defendant no.1 became unauthorized. However, since the plaintiff himself has claimed the mesne profits w.e.f. 01.10.2017, the same are so awarded from the said date.
Accordingly, issue no. 5 is partially decided in favour of the plaintiff and against defendant no.1.
Issue no. 6 and 8 Whether no cause of action has arisen against the defendant? OPD Whether the plaintiff has no locus standi to file the present suit? OPD
12. Both these issues are taken up together being inter-
MUNISH connected. Onus to prove these issues was upon the defendant. In BANSAL Digitally signed by MUNISH BANSAL Date: 2025.02.19 14:33:19 +0530 view of the decision on the issues no. 1 and 2 in favour of the CS/1084/2017 Page 35 of 38 plaintiff and against the defendant no.1, it cannot be said that no cause of action has arisen against the defendant no.1 or that plaintiff has no locus standi to file the present suit. Since the plaintiff has been held entitled to relief in terms of decision on the aforesaid issues, the present issues are decided against the defendant no.1.
Issue no. 7 Whether present suit is under-valued for the purposes of court fees? OPD
13. Onus to prove this issue was upon the defendant. Counsel for the defendant by way of oral arguments and by way of written submissions has submitted that paras no. 40 and 42 of the plaint are contradictory to each other. He further submits that plaintiff has valued the suit for the purpose of possession as Rs.24,06,480/- but since the plaintiff has shown the defendant as a tenant on a rent @Rs.10,000/- per month, the valuation should be @ Rs.1,20,000/- and in case defendant no.1 is an illegal occupant then it should be according to the market value of the suit property which is more than Rs.30 Lakhs at the time of filing of the suit. It is further submitted that plaintiff has claimed arrears of rent amounting to Rs.4,30,000/- but in para no. 40 of the plaint, the plaintiff has valued the suit @ Rs.5,30,000/- for the relief of arrears of rent and therefore, the valuation is defective. It is further submitted that plaintiff has claimed mesne profits @ Rs.20,000/- per month which should come to Rs.60,000/- for a Digitally signed by period from 01.10.2017 to 31.12.017 but in para 40, the relief of MUNISH MUNISH BANSAL BANSAL Date:
2025.02.19 14:33:24 +0530 CS/1084/2017 Page 36 of 38 mesne profit has been valued at Rs.1,20,000/- and as such the said valuation is also defective.
13.1. Analyzing the submissions made on behalf of defendant no.1, it is clear that the plaintiff has over valued the suit rather than being undervaluing the same. Valuation of the suit is significant for the purpose of the pecuniary jurisdiction as well as for the payment of proper court-fees. As regards pecuniary jurisdiction, even considering the over valuation done by the plaintiff, the suit has been filed in the proper Court having pecuniary jurisdiction. As regards valuation for the purpose of court-fees, since suit has been over valued by the plaintiff, as per defendant no.1's own submissions, extra court-fees than necessary has been affixed by the plaintiff and that cannot be a ground for rejection of plaint/ dismissal of the suit. Accordingly, this issue is decided against the defendant no.1.
Relief
14. In view of the above discussion, this suit of the Plaintiff is decreed. The Plaintiff has been able to prove his title to the suit property viz a viz defendant no.1 who has failed to prove his title as well as entitlement to possession. The plaintiff is accordingly, entitled to following reliefs:-
1. The plaintiff is entitled to possession of suit property i.e. Flat no. 48-B, DDA Janta Flats, First floor, second and Digitally signed by MUNISH third floor, Phase-II, Katwaria Sarai, New Delhi -110016 MUNISH BANSAL BANSAL Date:
2025.02.19 14:33:29 +0530 CS/1084/2017 Page 37 of 38 as shown in site plan. Defendant no.1 is directed to hand over the peaceful, vacant and physical possession of the suit property to plaintiff within one month from the date of judgment.
2. The plaintiff is also entitled to the decree of permanent injunction as prayed for. The defendant no.1 and his associates, legal heirs, agents, employees etc. are restrained from transferring or creating any charge or sale, letting out, executing any type of deed or parting away with the possession of the suit property.
3. The plaintiff is also entitled to recover, from the defendant no.1, mesne profits @ Rs.4,000/- per month per floor (total three floors i.e. 1st, 2nd and 3rd) of the suit property w.e.f. 01.10.2017 till the date of the actual handing over the vacant, peaceful possession of the suit property.
4. Costs of the suit is also awarded in favour of the Plaintiff.
Decree-sheet be prepared accordingly. File be Digitally signed consigned to record room. by MUNISH MUNISH BANSAL Date:
BANSAL 2025.02.19 14:33:37 Announced in the Open Court +0530 on 19.02.2025 (Munish Bansal) District Judge-03, South District Saket Courts, New Delhi CS/1084/2017 Page 38 of 38