Delhi District Court
Sh. Balchand vs Shri Angesh on 28 January, 2019
IN THE COURT OF MS. COLETTE RASHMI KUJUR
JSCC: ASCJ: GUARDIAN JUDGE, NORTH EAST,
KARKARDOOMA COURTS, DELHI
Suit No.: 104857/2015
In the matter of:
Sh. Balchand
S/o Lt. Sh. Hardev
R/o H. No. 3, Gali No. 14,
Phase-6, Shiv Vihar,
Karawal Nagar, Delhi-110094 ......Plaintiff
Versus
1. Shri Angesh
S/o Sh. Balchand
2. Smt. Nirjala
W/o Sh. Angesh
Both R/o H. No. 3, Gali No. 14,
Phase-6, Shiv Vihar,
Karawal Nagar, Delhi-110094. .....Defendants
Date of institution of the suit : 08.04.2015
Final Arguments heard on : 14.01.2019
Date of Judgment : 28.01.2019
SUIT FOR MANDATORY INJUNCTION AND DECLARATION
JUDGMENT:
Brief Facts:
1. Plaintiffs' Case:-
1.1 The present suit has been filed by the plaintiff seeking mandatory injunction against the defendants for directing the defendants to vacate the Suit No. 104857/2015 Page 1 of 10 Sh. Balchand Vs. Sh. Angesh & Ors. Dated 28.01.2019 suit property and hand over peaceful and vacant possession of the property bearing No. 3, Shiv Vihar, Phase-6 Gali No. 10, Karawal Nagar, Delhi-94 (herein after referred to as a suit property) and for seeking license fee @ Rs.
3,000/- per month with effect from August 2014 till handing over the actual possession. Plaintiff has also sought declaration to declare that newspaper publication dated 01.08.2014 as binding upon the defendant no. 1 and 2.
1.2 The case of the plaintiff is that he is the owner and in possession of 50 sq.yrds of the above mentioned property consisting of the ground floor and the first floor which is fully constructed and is also shown in the site plan.
1.3 As per the plaintiff, the suit premises measured 50 sq. yrds on the ground floor of the suit premises there are two rooms in which the plaintiff and one of his son are residing. On the first floor there are two rooms out of which one room is in possession of the defendants.
1.4 As per the plaintiff, he has been maintaining the entire house and also paying for electricity, water bills and also is burdened to maintain social obligations whereas the defendant no.1 although earning handsomely has not been contributing to any of the household expenses nor paying for the medical needs of the plaintiff.
1.5 It is stated that the defendant no.1 and 2 have been harassing and threatening and demanding the plaintiff for their share. The defendant no.2 has even threatened to implicate the plaintiff in criminal cases. Therefore, the plaintiff out of fear has lodged a complaint on 22.06.2014 with the local police.
Suit No. 104857/2015 Page 2 of 10Sh. Balchand Vs. Sh. Angesh & Ors. Dated 28.01.2019 1.6 As per the plaint, the plaintiff has by way of publication on 01.08.2014 debarred defendant no.1 and 2 from his movable and immovable properties and also issued legal notice to the defendants asking them to vacate the suit premises. The plaintiff apprehends that the defendants may sublet, assign or part with the suit property.
2. Defendants' Case:
2.1 Upon receiving the summon, the defendants appeared and filed their written statement objecting to the present suit as being false, fabricated and filed only to harass or to humiliate them. As per the defendants, proper court fees is not filed for the relief of damages as such the defendant no.1 has contributed about Rs. 10 lacs towards the renovation, construction, white wash of the said property and also to the marriage of his sister. The defendants have denied specifically of all the contents of the suit.
3. Replication:
3.1 In replication, the averments made in the written statement are denied by the plaintiff and averments made in the plaint have been reiterated and reaffirmed.
4. Upon completion of pleadings, following issues were framed:-
(i) Whether the plaintiff is entitled to the relief of mandatory injunction as prayed ? OPP.
(ii) Whether the plaintiff is entitled to the relief of declaration as prayed ? OPP.
(iii) Whether the plaintiff is entitled to damages / mesne profits / license fee @ Rs.3000/- per month w.e.f. August, 2014 till handing over of the vacant physical possession of the suit property to the plaintiff ? OPP.
(iv) Relief ?
Suit No. 104857/2015 Page 3 of 10
Sh. Balchand Vs. Sh. Angesh & Ors. Dated 28.01.2019
5. Plaintiff's Evidence:
5.1 The plaintiff was examined as PW-1 and his affidavit by way of
evidence is Ex. PW-1/A. He has relied upon documents i.e. Photocopy of GPA, agreement, affidavit all dated 28.01.1986 executed in his favor which is Ex.PW1/A1 to Ex. PW-1/A3. He has also produced original Electricity Bill dated 05.03.2015 Ex.PW1/B to show his possession of the suit property. The site plan is E.x PW-1/D. The plaintiff has also filed photocopy of the Ration Card Ex.PW1/C, Photocopy of death certificate of his wife Ex.PW1/E, Photocopy of complaint dated 22.06.2014 made by him to the SHO Karawal Nagar which is Mark-A. To prove his case, the plaintiff has furnished the photocopy of newspaper publication dated 01.08.2014 Ex.PW1/G, Legal notice dated 16.05.2015 (running into 5 pages) Ex.PW1/H etc.
5.2 The witness was duly cross examined by the defendants's counsel wherein he has denied the suggestion that the defendant used to give all his earnings to him or that the defendant financially contributed in the construction of the suit property. The witness further reiterated that he has purchased the suit property in the year 1996 from Pratap Singh.
5.3 The plaintiff also examined Shiv Kant Dubey as PW-2 whose evidence by way of affidavit is Ex. PW-2/1. As per the PW-2, Balchand was known to him for the last 35 years. Thereafter PE was closed on 22.05.2018 as the witness PW-2 was not made available for three to four days.
6. Defendants' Evidence:
6.1 The defendant examined himself as DW-1. He tendered his evidence by way of affidavit Ex. DW-1/A. As per the defendant, he had given all his earnings to his parents and spent approximately Rs. 10 lac over renovation, Suit No. 104857/2015 Page 4 of 10 Sh. Balchand Vs. Sh. Angesh & Ors. Dated 28.01.2019 construction, white wash of the suit property as well in marriage of his sister.
As per the defendant, he has equal right, title and interest over the suit property being the son of the plaintiff and therefore the plaintiff has no right to debar him without determining the proportionate share of all the sons.
6.2 The witness on being cross examined has admitted categorically that, "The property has been purchased by my father. I was not born in the year my father purchased the property....It is correct that my father has permitted me to reside at the suit property." The witness further admitted that he has received a court notice for vacating th suit property. As per this witness, he has been working as a mechanic since he was 14-15 years old at Sanjay Gandhi Transport Nagar and earned about Rs. 12,000/- to 16,000/- per month.
6.3 On further cross examination, it is admitted that all the expenses of his marriage were borne by the plaintiff. He also admitted that he has not filed any documentary proof of his contribution towards the expenses incurred or born by him in the marriage of his sister.
6.4 It is stated by him that he paid half of electricity charges per month but he has no receipt of the payment made by him. Further it is admitted that he has not given any maintenance charges to his father in respect of the suit property. He also admits that the suit property was constructed in the year 2012 and that he has not filed any receipt regarding the contribution made by him.
6.5 The witness further states that he has not purchased any material/ goods for renovation/ white wash/ construction of the suit property but volunteered to say that he had paid Rs. 2.5 lacs to Rs. 3 lacs for these purposes to his Suit No. 104857/2015 Page 5 of 10 Sh. Balchand Vs. Sh. Angesh & Ors. Dated 28.01.2019 father in cash. According to him the amount was arranged from committee and from his friends. The witness however, further admitted that he has not filed any documentary proof or receipt regarding raising of funds from the committee or his friends.
6.6 The witness denied the suggestion that he is illegally occupying the suit property to grab the suit property and is liable to pay license fee @ Rs. 3,000/- per month. He also denied the suggest that he has no title or interest in the suit property.
6.7 As no other witnesses were to be examined by the defendants, DE was closed on 17.11.2018 and final arguments were heard.
7. Final Arguments:
7.1 It is argued by the counsel for plaintiff that plaintiff is owner of the suit property which fact has not been rebutted by the defendant and rather defendant no.1 has admitted that the suit property was purchased by his father plaintiff even before his birth. It is argued that the plaintiff has proved his case by producing all the relevant documents which have also not been denied or rebutted by the defendants. It is the case of the plaintiff that all other sons are also residing in the suit property but defendant no. 1 and 2 are not supporting the plaintiff nor paying for the maintenance and hence, there is every cause of action for dis-owning/ debarring them from movable and immovable properties of the plaintiff.
7.2 As such the defendants has failed to produce any documentary proof or receipt to prove his averments claiming title and interest over the property of his father.Suit No. 104857/2015 Page 6 of 10
Sh. Balchand Vs. Sh. Angesh & Ors. Dated 28.01.2019 7.3 The plaintiff has relied upon Sachin and Anr. Vs. Jhabbu Lal & Anr.
[AIR 2017 Delhi 1] to say that where the property is self acquired property of the father- son whether married or unmarried, has no legal right to live in that house-he can live in that house only at the mercy of the parents till 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 burdened through his life.
7.4 The counsel for the defendants on the other hand has argued that the defendants have always served the plaintiff with utmost respect and regard and have also paid all the earnings to him as and when required. The defendants have not only contributed Rs. 10 lacs towards the renovation, construction of the property but have also spent in the marriage of his sister. It is argued that the plaintiff is a patient of paralysis and is not doing any job for long time and therefore, it is inconceivable that the plaintiff would have paid for the renovation and the marriage alone.
7.5 The defendants have relied upon Suraj Lamp and Industries Private Limited (2) Through Director Vs. State of Haryana & Anr [(2012) 1 SCC 656] in support of his argument that immovable property can be transferred/ conveyed only by deed of conveyance (sale deed) duly stamped and registered as required by law.
8. Arguments heard. Considered.
Issue Wise Findings
9. Issue No.(i): Whether the plaintiff is entitled to the relief of mandatory injunction as prayed ? OPP.
Suit No. 104857/2015 Page 7 of 10Sh. Balchand Vs. Sh. Angesh & Ors. Dated 28.01.2019 9.1 The onus to prove this issue was upon the plaintiff. The plaintiff has stated himself to be the owner and in possession of the suit premises bearing No. 3, Shiv Vihar, Phase-6 Gali No. 10, Karawal Nagar, Delhi-94 measuring 50 sq. yrds and to prove the same, he has produced the property documents, electricity bill and a ration card. The defendant on his part has not denied this proposition but categorically admitted that the property was purchased by his father and he is residing in the property with the permission of his father/ plaintiff. Therefore, the issue that the plaintiff is the owner of his self acquired property is undisputed. Secondly, the allegation of the plaintiff that defendant has not contributed towards maintenance or for his medicines is also not disproved by the defendant. The defendant has accepted and admitted that he has no documentary proof to show his contribution towards any renovation, construction of the property or even to show his contribution towards the maintenance of the property including electricity charges, water charges, renovation etc. or even his contribution towards the marriage of his sister. The judgment filed by the defendant is produced and observed that the same is not relevant to the case of the defendant as no such pleading regarding dispute of ownership has been led by the defendant. As DW-1 he has not been able to refute Ex. PW-1/G which is the publication debarring the defendants from the movable and immovable property of the plaintiff. There is also no averment regarding the non receipt of the legal notice.
9.2 In Sachin and Anr. Vs. Jhabbu Lal & Anr. [AIR 2017 Delhi 1] J Pratibha Rani, has clearly held that "15. 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.
16. In my opinion in case such as the present one where the appellants/ defendant Nos. 3 and 4 have led no evidence to prove that it waived self acquired or co-ownership in the suit property whereas Suit No. 104857/2015 Page 8 of 10 Sh. Balchand Vs. Sh. Angesh & Ors. Dated 28.01.2019 respondent/ plaintiff nos. 1 and 2 have proved their case on the basis of documentary evidence i.e. copies of General Power of Attorney, Agreement to Sell, Receipt, possession letter, affidavit etc., the learned trial court was justified in decreeing the suit which was upheld by the First Appellate Court".
9.3 Considering the entire evidence led by the plaintiff, it is clear that the defendant is residing in the suit property only as a licensee of the plaintiff. I also concur with the arguments of the plaintiff that the defendant has no legal right to live in the self acquired property of his father merely because he has been allowed to live in that house.
9.4 Considering so, this issue is decided in favour of the plaintiff and against the defendants.
10. Issue No. (ii): Whether the plaintiff is entitled to the relief of declaration as prayed ? OPP.
10.1 The plaintiff has sought a decree of declaration that the publication dated 01.08.2014 in the daily newspaper Rashtriya Sahara be made binding upon defendants no. 1 and 2. The purpose of a publication is only to 'declare' and to make public the intention that the defendants are being disowned/ debarred from the movable and immovable property. The publication itself cannot be made binding therefore, this issue is decided against the plaintiff.
11. Issue No. (iii): Whether the plaintiff is entitled to damages / mesne profits / license fee @ Rs.3,000/- per month w.e.f. August, 2014 till handing over of the vacant physical possession of the suit property to the plaintiff ? OPP.
11.1 The onus to prove this issue was upon the plaintiff. For showing the expenses incurred by the plaintiff every month towards the maintenance and other expenses of the suit property, the plaintiff has brought on record Ex.
Suit No. 104857/2015 Page 9 of 10Sh. Balchand Vs. Sh. Angesh & Ors. Dated 28.01.2019 PW-1/B and has also stated that he is suffering from paralysis since August 2012 and therefore, he had to leave his employment. Both these averments of the plaintiff have gone unrebutted and in fact have been strengthened by the statement of the defendant who admits that his father is a patient of paralysis. There is also no averment by the defendant that a license fee @ Rs. 3,000/- per month is not made out against him. Considering so, it is clear that there are several expenses of the household which the plaintiff is alone incurring. From the above evidence, the issue is decided in favour of the plaintiff.
12. Relief, if any; in view of the observation made while deciding the issues, the suit of the plaintiff is decreed in his favour and against the defendant. The defendants no. 1 and 2 are directed to vacate and hand over the peaceful and vacant possession of the room of premises no. 3, Shiv Vihar, Phase-6, Gali no. 10, Delhi-94. Defendants no. 1 and 2 are also directed to pay the license fee @ Rs. 3,000/- per month to the plaintiff with effect from August 2014 till realization.
13. No order as to costs.
14. Decree Sheet be prepared accordingly on filing of deficient court fees, if any.
15. File be consigned to Record Room after due compliance.
Digitally
signed by
COLETTE
COLETTE RASHMI
RASHMI KUJUR
KUJUR Date:
2019.01.28
16:28:06
+0530
Pronounced in the open Court COLETTE RASHMI KUJUR
On 28.01.2019 ASCJ-cum-JSCC-cum-GJ (NE)
Karkardooma Courts, Delhi
Suit No. 104857/2015 Page 10 of 10
Sh. Balchand Vs. Sh. Angesh & Ors. Dated 28.01.2019