Delhi District Court
Ms. Sonia Chhabra vs Ms. Shanta Grover on 26 October, 2017
IN THE COURT OF SH. POORAN CHAND, ADDITIONAL
DISTRICT JUDGE06, SOUTHEAST DISTRICT, SAKET COURTS,
NEW DELHI
CS No. 11750/16
1.Ms. Sonia Chhabra Wife of Sh. Rakesh Kumar Chhabra R/o E101, East of Kailash, New Delhi
2. Sh. Rakesh Kumar Chhabra S/o Sh. C.L. Chhabra R/o E101, East of Kailash, New Delhi ..... Plaintiff Versus
1. Ms. Shanta Grover Wife of late Sh. Hira Lal Grover,
2. Sh. Neeraj Grover S/o late Sh. Hira Lal Grover
3. Sh. Rakesh Grover S/o Sh. Late Sh. Hira Lal Grover All presently residing at and unauthorized occupants of B31A, Second Floor, Kaliash Colony, New Delhi110048 .....Defendant Date of institution of Suit : 28.02.2012 Date of judgment reserved : 12.10.2017 Date of pronouncement of judgment : 26.10.2017 CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 1 of 33 SUIT FOR POSSESSION UNDER SECTION 6 OF SPECIFIC RELIEF ACT, 1963, AND RECOVERY OF MESNE PROFITS J U D G M E N T
1. This suit is a suit under Section 6 of the Specific Relief Act, 1963, for recovery of possession filed by Ms. Sonia Chhabra and Sh. Rakesh Kumar Chhabra (hereinafter will be referred as the 'plaintiffs') against Ms. Shanta Grover, Sh. Neeraj Grover and Sh. Rakesh Grover (hereinafter will be referred as 'defendants') in respect of property bearing no. B31A, Second Floor, Kailash Colony, New Delhi (hereinafter will be referred as suit property).
FACTUAL MATRIX
2.(i) The factual matrix of the plaintiffs case is that plaintiff no. 1 is the daughter of late Sh. H.L. Grover and defendant no. 1. Plaintiff no. 2 is the husband of plaintiff no. 1. Plaintiff no. 1 is the owner of suit property and has been in possession thereof since January 2002. Defendant no. 2 and 3 are bothers of plaintiff no. 1.
(ii) that defendants have illegally and forcibly trespassed into the suit property on or around 1st September 2011 and have dispossessed the CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 2 of 33 plaintiffs from the suit property.
(iii) that defendant no. 2 and 3 have even stolen and sold and disposed off goods worth lacs of rupees belonging to the plaintiff no. 2 which were being kept and stored in the suit property.
(iv) that the suit property was purchased by late Sh. H.L. Grover vide Registered Sale Deed. The funds for the same, as also for meeting the needs of defendant no. 2 and 3 were taken from plaintiff no. 1 and her husband, either directly or from his business contacts as loan.
(v) that since late Sh. H.L. Grover expresses his inability to repay the loan, the original documents of the suit property were handed over to the plaintiffs. They have agreed that they would clear the loan amount before Diwali of 2001.
(vi) that since neither the loan was could be repayed nor property was fetching the amount to clear the loan, the suit property was ultimately sold by late Sh. H.L. Grover by way of Agreement to Sell, Registered GPA, Registered SPA and Registered Will etc to plaintiff no. 1 on 24.01.2002.
(vii) that it was agreed that as and when the suit property is decided to be sold by plaintiff no. 1, late Sh. H.L. Grover, shall sign and execute the CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 3 of 33 necessary documents in favour of intending purchaser. Defendant no. 1 had also executed an affidavit confirming the sale and declaring her no objection.
(viii) that since sale/transfer took place as part of internal family matter, only the immediate family members (including the defendants) and some very near relatives were in the knowledge of the same.
(ix) that since value of the suit property was much less than the amount of loan, it was also agreed that they will pay the balance amount as well.
(x) that since January 2002, the suit property has been owned and possessed by plaintiff no. 1.
(xi) that as had been agreed, electricity bills and the property tax was also being paid by the plaintiffs and so was the case of filing of Income Tax Returns and payments thereof by the plaintiff no. 2 from the joint account opened in the name of late Sh. H.L. Grover and plaintiff no. 2.
(xii) that part of suit property was also being used as godown for storing the electronics spare parts by plaintiff no. 2.
(xiii) that plaintiff had also spent a lot of money on the renovation of the suit property.
(xiv) that various attempt were made to sell the suit property since no buyer CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 4 of 33 ready to pay the expected market rate could be found, same was not sold.
(xv) that plaintiffs however repaid the amount payable to the market sources including the interest. The property tax and electricity bills and income tax of late Sh. H.L. Grover were being paid by the plaintiff. (xvi) that on 04.09.2011 one Sh. Sunny, local property dealer, who was sent by plaintiff no. 1 alongwith the keys of the suit property, informed the plaintiff no. 1 that when he tried to open the lock, he found that the keys were not matching with the lock. Though the premises was locked from outside, Sh. Sunny heard some voices from inside the premises. He immediately informed the husband of plaintiff no. 1 on his mobile. The plaintiff no. 1's husband rushed towards the premises and on the way, he dialed 100 number to call the PCR. The PCR which was patrolling in Nehru Place, called the Plaintiffs on mobile and directed the plaintiffs to bring the original documents with regard to the suit property. PCR reached at about 11.56 am and the plaintiff no. 1 came to know that defendants had trespassed into the property by breaking open the lock placed by the plaintiffs on the premises. The husband of the plaintiff no. 1 also informed the officer that lot of valuable items of the plaintiff no. 1 and her husband were lying in the CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 5 of 33 property. The PCR further directed the plaintiff no. 1 to show the original documents of the property to the SHO concerned and the plaintiff no. 1's husband was directed to file a complaint with the SHO concerned. No immediate action was taken against the trespasser. (xvii) that plaintiff no. 2 filed a complaint on behalf of plaintiff no. 1 on 04.09.2011 in PS Greater Kailash1, New Delhi. The original documents relating to the ownership as well as possession were also shown to the SHO. (xviii) that the plaintiff no. 2 thereafter visited the Police Station on a number of occasions and was asked to submit photocopies of documents including the ownership documents, electricity bills and property tax papers. The same were also submitted. An additional complaint enclosing the list of stocks belonging to the plaintiff no. 2 was also submitted to the SHO, PS GK1, New Delhi. The plaintiff no.2 was informed by the officials of PS GK 1 that they were investigating the matter and recording the statements of the other parties and the necessary action will be taken shortly. Thereafter, plaintiff no. 2 was conveyed that the file relating to registration of criminal case against the trespassed had been sent to the higher authorities for their necessary approval.
CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 6 of 33 (xix) that in the meantime the defendants filed a suit for permanent injunction, being CS(OS) No. 2244/2011, before the Hon'ble High Court of Delhi by making false allegations and story regarding their possession, and obtained an exparte order dated 15.09.2011 directing the parties to maintain status quo with respect to title and possession of the flat on the second floor of the suit property till further orders. The defendants have no proof whatsoever of either ownership or of possession prior to 04.09.2011. (xx) that defendants No. 2 and 3 were also residing with the defendant no. 1 in her rented accommodation at 31, Sector1, Type III, Sadiq Nagar, New Delhi till they trespassed into the property just before 04.09.2011 and after 30.08.2011.
(xxi) that defendants no. 2 and 3, who have been living in Czechoslovakia since 1993, have trespassed into the suit property along with defendant no. 1. Defendants no. 2 and 3 have been living in Czechoslovakia and had come to India only around 20.07.2011 as the father of defendants no. 2, 3 and plaintiff no. 1, late Sh. H.L. Grover had expired on 14.07.2011. Even the last rites of late Sh. H.L. Grover were performed by the son of plaintiffs since defendants no. 2 and 3 had practically no respect, love or affection towards the deceased CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 7 of 33 father.
(xxii) that an FIR, being FIR no. 128 of 2011, dated 11.10.2011, P.S. Greater Kailash, New Delhi, has been registered under Sections 454/448/380/120B/34 IPC against the defendants.
(xxiii) that the plaintiff no. 1 is the owner and had been in the possession of the suit property since January 2002 till the defendants dispossessed her and stole the articles and goods belonging to the plaintiff no. 1 and plaintiff no.
2. The defendants criminally trespassed into the suit property between 31.08.2011 and 04.09.2011 and dispossessed the plaintiff no. 1. (xxiv) that the defendants have no right, title or interest in the suit property and have illegally and criminally trespassed into the suit property in the first week of September 2011, thereby dispossessing the plaintiffs. (xxv) that the defendants, being rank trespassers, are unauthorized occupants of the suit property since about 01.09.2011 and are liable to pay mesne profits at the rate of Rs. 1.5 lakhs per month, being the normal market rent of the suit property, for unauthorized use and occupation of the suit property. The defendants are, thus, liable to pay a sum of Rs. 7.5 lakhs as mesne profits upto date and are further liable to pay the same at the rate of Rs. 1.5 lakhs CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 8 of 33 per month till the actual date of vacation of suit property by them and handing over the possession thereof in the same position as it was on 01.09.2011. The defendants are also liable to pay the amount equivalent to the value of goods stolen by them from the suit property to the plaintiffs, for which the plaintiffs reserve their right to file a separate suit for recovery along with recovery of other amounts due from the defendants.
3. Pursuant to the summon served upon the defendants, defendant filed their joint written statement denying the averment of the plaint and pleading their own facts which are as under :
(a) that plaintiff have put forward conflicting and contradictory allegations regarding title and possession of the suit property at various time. The fact of conflicting and contradictory allegations are cleared from the complaint dated 04.09.2011 lodged by plaintiff no. 2 in police station Greater Kailash, written statement filed by plaintiffs in suit being CS (OS) No. 2244/2011 filed by defendants and the averment of plaint in the present suit.
(b) that without prejudice to other submissions no such alleged documents as relied by plaintiff no. 1 can confer any right other than those mentioned in Section 54 of Transfer of Property Act in respect of alleged agreement to CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 9 of 33 sell.
(c) that without prejudice to the other submissions no right under any other section of provision of Transfer of Property Act can be asserted by documents which are not accepted as valid or enforceable under the existing law at any material time.
(d) that without prejudice to the other submissions any claim to the property even on the basis of bogus Will, as part of any GPA Sale as having confer ownership or possessory right on the plaintiff would not entitle the plaintiff to maintain any such suit on the ground of alleged bequeath.
(e) that the suit is not properly valued for the purposes of court fee and jurisdiction as present market value of the suit property is much higher than valued by the plaintiffs. Plaintiff has suppressed the fact that at the time of filing of the suit the market value was not less than 5 crores.
(f) that admission and allegation made by plaintiffs in the written statement filed by them as defendants in CS (OS) 2244 of 2011 titled as Ms. Shanta Grover etc. Vs. Ms. Sonia Chhabra against the present plaintiffs are absolutely contradictory to each other and a new concocted story has been added by way of producing further bogus, fabricated and forged documents. CS No. 11750/16
Sonia Chhabra Vs. Shanta Grover Page No. 10 of 33 It is the submission of the defendants that the plaintiffs are liable to be proceeded against under Section 340 read with Section 195 Cr.P.C the cognizance of which can be taken by the Hon'ble Court and for which, in order to assist the Hon'ble Court, a separate application will be filed.
(g) that it is stated that on 20.04.2012, this Hon'ble Court was pleased to dispose of the CS (OS) NO. 2244/2011 with the following observation :
"Counsel for the defendant submits that the defendant has already filed a suit for possession and mesne profits against the plaintiffs and, therefore, no question can now arise for the defendant to forcibly dispossess the plaintiffs from the suit premises.
I have heard learned counsel for the parties.
The plaintiffs have filed the present suit for permanent injunction to seek a restraint order against the defendant from entering the suit property of from dispossessing the plaintiffs or creating any nuisance in the peaceful enjoyment of the plaintiffs of the suit property. Since the defendant has already filed a suit for possession and mesne profits against the plaintiffs, which would mean that the defendant has no intention to dispossess the plaintiffs without due process of law.
In the light of the aforesaid position the present suit filed by the plaintiffs has become infructuous."
CS No. 11750/16
Sonia Chhabra Vs. Shanta Grover Page No. 11 of 33
(h) that defendant no. 1 is the widow of Sh. H.L. Grover who expired on 14.07.2011, was employed in the Ministery of Health, Government of India, in a Senior Gazetted Position, opted premature retirement in 1984 to join the local office of WHO at a substantial rise in his remuneration. He worked with WHO till 1992 and thereafter being a trained naturopath, started his own practice in Sadiq Nagar.
(i) that the defendant no. 1 is also a highly educated being M.A, B.Ed, was employed as government school teacher at Masjid Moth, retired in 1997 and was further absorb as Invigilator in her school till 2006. Hence, it is pleaded that defendant no. 1 and her husband were financially well of and there was no occasion to obtain loan from plaintiff no. 2. It is also pleaded that suit property was purchased by the husband of defendant no. 1 out of their own fund.
(j) that after the purchased of the suit property, it is the admitted case of parties that the parents shifted to suit property and defendant no. 2 and 3 always stayed with them in the suit property when they were in Delhi.
(k) that in 2003 when the visit of the sons had become less frequent and because of their health problem, including knees arthritis making it difficult CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 12 of 33 for their parent to climb stairs and for the time being they again shifted to a quarter in Sadiq Nagar locality.
(l) that till such time they had official quarter they stayed there and thereafter started sharing flat with their friends. There was no question of selling the suit flat as the intention always was that on return of the sons, they will settle in Delhi, utilize the suit property for residence of the family. Besides this, there was no need for any disposal of the flat which was a sound investment.
The same was kept locked by Sh. Hira Lal Grover, with periodic visits for cleaning and maintenance. There was simply no question of handing over possession to any other person or sell off the same for any alleged paucity of funds, because the family was well off. Late Sh. Hira Lal Grover remained in possession of the suit flat till his death on 14.07.2011 as admitted by the plaintiffs and thereafter defendant no. 1 was in possession and after on return of the sons, all the defendant are residing in the said flat.
(m) that there was no question of late Sh. H.L. Grover obtaining any financial assistant from the plaintiff by way of loan or otherwise. It was late Sh. H.L. Grover and his wife, defendant no. 1 who had to give monetary help to their daughter on one or the other pretext. Even defendant no. 3 remitted CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 13 of 33 USD 9000 to plaintiff no. 2 for purchase of plot in DLF.
(n) that apart from handsome salary of late Sh. H.L. Grover and defendant no. 1 while in service, on retirement Sh. H.L. Grover drawing Rs. 15,000/ per month as pension while defendant no. 1 is drawing Rs. 16,000/ per month as pension. Hence, there was no question of obtaining any loan as alleged by the plaintiffs.
(o) that on being informed of the said demise of late Sh. H.L. Grover defendant no. 2 and 3 made immediate arrangements to fly out to India to reach on 20.07.2011 and attended the religious ceremony on 21.07.2011. The flat was already cleaned up soon after the arrival of defendant no. 2 and 3 which was not to be liking of plaintiffs. Besides when the defendants were shifting in the flat they wanted to discuss the settlement of the share of plaintiff no. 1.
(p) that on 04.09.2011, defendants were suddenly accosted with three or four goons who came to the suit property under the impression that they would take the possession if the defendants were not there or be able to throw them out. Immediate call was made to the PCR by the defendants to protect them and these goons disappeared immediately. Plaintiffs and their son Siddharth CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 14 of 33 Chhabra had come when the police had arrived. They were asked to go to the police station. Plaintiff could not produce any document at police station saying that they will produce the same in the evening. Evidently, soon thereafter plaintiff no. 2 filed a police complaint mentioned above.
(q) that soon after being harassed on 4th and 5th September 2011 and after receiving anonymous threating call, present defendant filed suit bearing no. CS (OS)2244/2011 for permanent injunction in Hon'ble High Court of Delhi.
(r) that in their written statement plaintiff has taken the defence that they were owners in possession of the suit property on the basis registered GPA, SPA and Will. But there was no mentioned of any other document i.e. agreement to sell, possession letter etc.
(s) that the present suit filed by the plaintiffs is false and based on concocted story. Even plaintiff has improved the story further in the present suit which was not pleaded in the written statement filed in the suit mentioned above. Hence, present suit is liable to be dismissed with heavy cost.
4. ISSUES TO BE DECIDED (1) After hearing the parties and going through the case record, on the pleadings of the parties, the following issues were settled for deciding the CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 15 of 33 dispute between the parties vide order dated 06.11.2012 :
1. Whether the plaintiff was dispossessed from the suit property without due process of law between 01.09.2011 to 04.09.2011 as alleged in the plaint? OPP
2. Whether plaintiff is entitled to mesne profit and if so, at what rate and to what amount? OPP
3. Relief.
5. PEREMTORY HEARING At the time of the peremtory hearing, the plaintiff side adduce of evidence in the shape of affidavit of the following witnesses:
(1) PW1 is Ms. Sonia Chhabra, who tendered her evidence by way of affidavit Ex. PW1/A. In her affidavit PW1 has also relied documents Ex. PW1/1 to PW1/35. It is pertinent that while conducting admission denial of documents defendants have admitted two documents, of plaintiff i.e. Ex. PW1/1 (Original sell deed of suit property) and Ex.
PW1/33 (Death Certificate of late Sh. H.L. Grover). Documents Ex. PW1/22 to Ex. PW1/24 objected to being photocopies. (2) PW2 is Sh. Rakesh Chhabra who also tendered his evidence by way CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 16 of 33 of affidavit Ex. PW2/A. (3) PW3 is Ms. Asha Gulati who has also tendered her evidence by way of affidavit Ex. PW3/A. (4) PW4 is Sh. Sheetal Gulati, who has also tendered his evidence by way of affidavit Ex. PW4/A. (5) PW5 is Sh. Sada Nand Arora who has tendered his evidence by way of affidavit Ex. PW5/A. (6) PW6 is Sh. Satinder Singh @Sunny who has also tendered his evidence by way of affidavit Ex. PW6/A. (7) PW7 is Sh. Ravinder Singh Rana who has also tendered his evidence by way of affidavit Ex. PW7/A. (8) PW8 is Ms. Janki Devi who tendered her evidence by way of affidavit Ex. PW8/A. (9) PW9 is Sh. Sikander Singh who tendered his evidence by way of affidavit Ex. PW9/A. (10) PW10 is Sh. Govind Raj who tendered his evidence by way of affidavit Ex. PW10/A. (11) PW11 is Ms. Parwati Devi who also tendered her evidence by way CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 17 of 33 of affidavit Ex. PW11/A.
6. In support of their case, the defendants have also adduced evidence of the following witnesses:
(1)DW1 is Sh. Rakesh Grover i.e. plaintiff no. 3 who tendered his evidence by way of affidavit Ex. DW1/A. In his evidence DW1 has also relied and proved bank statement of the account of late Sh. H.L. Grover as Ex. DW1/1 and delivery challan of CCTV camera installed at the main gate of the suit premises is proved as Ex. DW1/2. The slip of cheque book issued by bank of the account of late Sh. H.L. Gorver is Ex. D3.
(2)DW2 is Ms. Shanta Grover who also tendered her evidence by way of affidavit Ex. C1. It is pertinent that DW2 was partly cross examined and her cross examination was deferred. But despite opportunity she did not appeared in the witness box for further cross examination. Therefore, her evidence cannot be read as remained incomplete.
(3)DW3 is Sh. Sachchidanand Pandey, Officer of Royal Bank of Scotland who has filed and proved the statement of account of late Sh. H.L. Grover Ex. DW3/1 and certificate under Section 65B Evidence Act is Ex. DW3/2. (4)DW4 is Sh. Aditya Kumar, Officer of SBI, who has proved the statement CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 18 of 33 of account of joint account in the name of late Sh. H.L. Grover and Sh. R.K. Chhabra as Ex. DW4/1 and certificate under Section 65B is Ex. DW4/2. (5)DW5 is Sh. Kumar Nikhlesh, Senior Manager, Indian Bank who filed and proved the statement of joint account in the name of Sh. H.L. Grover and Ms. Santa Grover as Ex. DW3/A. Inadvertently DW5 is examined as DW3 though in fact he is DW5.
DISCUSSION, DICISION AND THE REASONS THEREOF
7. After conclusion of evidence of the parties, I have heard the arguments Sh. Anil Amrit, the learned counsel appearing for the plaintiff and Sh. Rakesh Vats, the learned counsel appearing for the defendants. The rival contentions have duly been considered and will be discussed at the appropriate stage. To substantiate their arguments both the parties have also filed their written submissions.
ISSUE NO. 1 :
Whether the plaintiff was dispossessed from the suit property without due process of law between 01.09.2011 to 04.09.2011 as alleged in the plaint? OPP
8. In short it is the case of plaintiffs that they are owners in possession of CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 19 of 33 suit property on the basis of documents i.e. General Power of Attorney, Special Power of Attorney, Will, Two Agreement to Sell, receipt of payment, Affidavit of Defendant no. 1, Three Affidavit of late Sh. H.L. Grover, Indemnity Bond and Possession Letter all Ex. PW1/2 to PW1/14. It is also the case of the plaintiffs that late Sh. H.L. Grover has also handed over vacant physical possession to plaintiff no. 1 Ms. Sonia Chhabra on 24.01.2002 itself. Plaintiffs are claiming to be in peaceful possession of the suit property right from 24.01.2002 till dispossession by the defendants. To prove their continuous possession plaintiff have also relied the electricity bill, house tax bill including various correspondence done with the electricity department. Based on the documentary as well as oral evidence it is prayed that suit of the plaintiff be decreed in terms of the prayers made.
9. Per contra defendants have repudiated the claim of handing over vacant physical possession on the basis of alleged documents on 24.01.2002. It is further argued that by detail cross examination of PW1 and PW2 i.e. both the plaintiffs the entire story of execution of documents leading to handing over of possession on 24.01.2002 and further dispossession following the death of Sh. H.L. Grover and mother and two brothers have CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 20 of 33 been debunked. Hence, suit of the plaintiff is liable to be dismissed with heavy cost.
10. Now, before going into the threadbare discussion on the issue, we must see what is the case of the plaintiff and under what provision it was filed or falls. From perusal of plaint I find that plaintiff has filed this suit for possession under Section 6 of Specific Relief Act 1963. In para 23 and 25 of the plaint it is specifically prays for relief under Section 6 of the Specific Relief Act. As such I conclusively hold that this is a cause under Section 6 of Specific Relief Act only.
11. Now, let us see what Section 6 of Specific Relief Act 1963 says :
"Suit by person dispossessed of immovable property - (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. (2) No suit under this section shall be brought :
(a) after the expiry of six months from the date of dispossession; or
(b) against the Government.
(3) No appeal shall lie from any other or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. (4) Nothing in this section shall bar any person from suing to establish his title to CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 21 of 33 such property and to recover possession thereof."
12. From the content of the section it appears that any person or any other person claiming under him, who is in possession of an immovable property, if dispossessed from it without his consent, and otherwise than in due course of law, can recover the possession by bringing a suit within six month from the date of dispossession. The question of title is not material for recovery of possession under this section. But such suit cannot be filed against the government. The provision of Section 6 of the Act are unique in itself and primarily based on equity than any other statutory right.
13. Now, when I travelled through the evidence on record, in the light of law laid down by the statute and superior court, I find that plaintiffs alleges that defendants have dispossessed them from the suit property on 04.09.2011 and present suit is filed on 28.02.2012 i.e. within six months of the dispossession. As such in view of Section 6(2) (a) of the Act suit is filed within period of limitation.
14. As per case of plaintiffs they were put in possession of the suit property only on 24.01.2002 when the transfer documents were executed and registered. First party i.e. late Sh. H.L. Grover has handed over the physical vacant possession as mentioned in clause 2 of Agreement to Sell Ex. PW1/7 CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 22 of 33 and possession letter Ex. PW1/14 both dated 24.01.2002. Whereas defendants have pleaded that plaintiff were never in possession and no such transaction between them and late Sh. H.L. Grover took place. Therefore, in these facts and circumstances the first question arises whether plaintiff were in possession of suit property as claimed.
15. To prove their possession plaintiffs besides themselves has also examine other 9 witnesses, out of them PW4 Sh. Sheetal Gulati and PW5 Sh. S.N. Arora are also material witnesses to prove the possession as both the witnesses are attesting witness to the Agreement to Sell (Ex. PW1/7) and possession letter (Ex. PW1/14).
16. PW1 Ms. Sonia Chhabra has deposed that she got the possession of the suit property on 24.01.2002 whereas PW5 Sh. Sada Nand Arora has deposed that "I had gone to my house after taking refreshment once the ownership documents had been signed. Sh. H.L. Grover had also signed the possession letter also on that day but I do not know when the actual possession was given to the plaintiffs. I cannot give the exact date when Sh. H.L. Grover removed his belongings from suit property. I have come to know that he had shifted to Sadiq Nagar." Further "The water and electricity CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 23 of 33 connections were not got transferred in the name of Rakesh Chhabra and a joint account has been opened with Sh. H.L. Grover to deposit the earning from the property if any and for payment of expenses relating to the property till it was sold."
17. PW4 Sh. Sheetal Gulati had deposed that "I do not know if Sh. H.L. Grover left the property physically on 24.01.2002. I do not know if his telephone number at the suit property was active till September, 2003. I do not know where Sh. H.L. Grover took his furniture from the suit property but he had shifted to Sadiq Nagar." PW4 further deposed that " I do not remember if there is one agreement to sell or two agreement in respect of our house." He further deposed that " It is correct that on 24.01.2002 only a few internal family members had the knowledge of the alleged transfer of suit property in favour of plaintiff no. 1. The family members knew about the loan on 24.01.2002 but the amount of loan was revealed on 27.01.2002."
18. PW2 Sh. Rakesh Kumar Chhabra, plaintiff no. 2 has deposed that "There is no any specific reason why the telephone in the name of Sh. H.L. Grover was allowed to continue by me even after I had taken possession in January 2002." He further deposed that " I have seen Ex. PW1/5 to Ex. PW CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 24 of 33 1/7. The two agreements of sale were executed on the same day on the advice of deed writer. One agreement related to the advance payment and the second related to the final payment. The two agreements were advised so that the second agreement if required may be produced before the Registrar. It is correct that electricity connection was in the name of S.K. Zutshi who was the original owner. I applied for change of name in the electricity connection but I did not remember the date. The name of Sh. H.L. Grover was given because I did not have the sale deed of property in the name of plaintiff no.
1." However, PW2 has denied the suggestion that " I got the new connection in the name of Sh. H.L. Grover because I did not want him to know about my design and intention to grab the property."
19. Further, PW11 Ms. Parvati Devi during her cross examination has deposed that I do not remember when I went to the house at Kailash Colony for the last time. I have not gone there for the last 23 years. We did not find anymore in that house whenever we went there since 2002. I used to take the keys from Madam and return the keys to her. It would not be correct to say that I went to the Kailash Colony house only for cleaning. When plaintiff no. 2 renovated the house my husband used to stay there and get the material and CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 25 of 33 serve tea etc. to be labour. I also used to go there after finishing my work. The renovation work went on for about 6 months. At that time I used to go for cleaning the house and also I used to take food for my husband. Further, PW11 has deposed that I do not know about the dates and therefore I cannot say if I had gone to the house at Kailash Colony between 30.08.2011 and 04.09.2011. I must have gone during this period. For the last 23 years I have not gone there as the brothers of Ms. Sonia Madam are living there after the death of her father. The brothers of Sonia Madam had stayed in the house of the plaintiff at East of Kailash for about a week or 10 days after the death of her father and after that they are living at Kailash Colony.
20. Section 54 of Transfer of Property Act defined Sale :
" Sale" defined "Sale" is a transfer of ownership in exchange for a price paid or promised or partpaid and partpromised.
Sale how made - Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 26 of 33 buyer, or such person as he directs, in possession of the property. Contract of sale - A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property."
Therefore, Section 54 mandates that delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of immovable property. In other words to prove the handing over of actual physical possession besides the title document something more is required. The possession letter does not speak about handing over of keys of the suit property. It only talks of physical vacant possession. But when it was actually given is the material fact to be decided. PW4 and PW5 categorically deposed that possession was not handed over in their possession. Even they are not aware as to when the actual possession was handed over. Plaintiff also talks of having received the vacant physical possession. But their testimony are silent regarding the shifting of household goods of late Sh. H.L. Grover and defendant no. 1. PW1 in her cross examination in reply to question no. 19 has deposed that " I do not remember probably my husband had got the furniture sold and give the money to my father." Further PW2 i.e. plaintiff no. 2 has deposed that he has got the CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 27 of 33 house furnished after taking over possession and have also filed some bills on record to substantiate his plea. PW11 Ms. Parvati Devi has also deposed that the renovation work went on for 6 months. At that time I used to go for cleaning the house and also I used to take food for my husband. Per contra PW1, Ms. Sonia Chhabra, plaintiff no. 1 in reply to question no. 20 and 21 in her cross examination has deposed that plaintiff did not furnish the house and from January 2002 to September 2011 the house remained unfurnished. Therefore, the plea of renovation is also negated by the plaintiffs themselves.
21. The another plea which plaintiff have taken to prove their possession is depositing of electricity and House Tax Bill. In his cross examination PW 2 Sh. Rakesh Chhabra has admitted that House Tax receipts Ex. PW2/X7 and Ex. PW2/X8 were paid by late Sh. H.L. Grover from his account. Similarly Income Tax return for the year 20102011 shows that the rent received from the suit property and the house tax was paid by late Sh. H.L. Grover. Even PW2 in his cross examination has admitted that House Tax of the suit property deposited by late Sh. H.L. Grover. Therefore, the plea of deposit of House Tax by plaintiff is also negated in view of above.
22. It is pertinent to mention that prior to filing of the present suit CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 28 of 33 defendants have filed a suit for Permanent Injunction being CS (OS) No. 2244/2011 before the Hon'ble High Court of Delhi against the plaintiffs. Plaintiff filed their written statement in the said suit on 15.10.2011 claiming ownership of suit property on the basis of General Power of Attorney, Special Power of Attorney, Will etc. only. The plaintiff have not disclosed of having executed the two agreement to sell and possession letter all dated 24.01.2002. But present suit is filed claiming possession only on the basis of agreement to sell and possession letter as mentioned above. No plausible reasons have come on record to hide two agreements to sell in the earlier suit against the plaintiffs. Even the explanation as to why the electricity connection was not transferred in the name of plaintiff no. 1 is also not satisfactory. Once plaintiff become the owner of the suit property in 2002 there was no reason to transfer the electricity connection in the name of late Sh. H.L. Grover.
23. Plaintiffs as per their own case become owner of suit property in 2002 and waited till 2011 on the pretex that they did not get the good offer to sell the suit property. They received offer below 60 lacs. However, plaintiff own witness, PW6 Satinder Singh @Sunny has deposed that plaintiff was CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 29 of 33 expecting 90 lacs. The buyer were offering 7075 lacs in 2005. The marked price of the property in the year 2005 would be around 90 lacs to 1 crore. Therefore, in view of above the plea of not getting good offer to sell the property between 2002 to 2011 is also negated.
24. Now I will deal with the plea of dispossession from the suit property on or around 01.09.2011 to 04.09.2011 by the defendants. The burden to prove that plaintiff were dispossessed from the suit property is upon the plaintiff. To prove this fact plaintiffs besides themselves have examined PW 7 Satinder Singh @Sunny, property dealer who deposed that on 04.09.2011 at around 10.3011.00 am he gone to suit property and tried to open the door 23 times but door did not open. He called the plaintiff no. 2 and also knocked the door and also suggested to call the police. He did not remember if they rang the doorbell. PCR came and police knocked the door, door was opened. Defendant no. 2 and 3 were present there. Police told them to bring the documents. Thereafter PW7 alongwith plaintiff went to police station and gave the complaint. It is pertinent that in the complaint plaintiff has only mentioned that " It is informed that lots of valuable items of the complainant were lying in the suit property." Admittedly plaintiff lodged the complaint in CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 30 of 33 the evening on 04.09.2011 after they inspected the premises with the police. Why they have not mentioned regarding missing of goods. The list of goods were handed over to the police with the second complaint dated 12.09.2011. Further, regarding the stock lying the suit property deposition of PW's are not consistent. PW1 has admitted that complaint dated 12.09.2011 was received by police on 11.09.2011. PW1 has also admitted that they did not make any efforts to retrieve the goods on 04.09.2011. PW1 further deposed that spare parts were of a Truck load. PW7 employer of plaintiff no. 2 deposed that he do not have the stock register with him. Even PW9 Sikander Singh another employee also deposed that plaintiff did not maintain stock in any register. PW7 deposed that stock was about a tempo load whereas PW9 deposed that stock was enough to be put in 2 or 3 tempos. Pertinently plaintiffs have not pleaded lost of any house hold items which shows that as per case of plaintiff suit property was vacant and was being used for store of the spare parts only.
25. To prove his dispossession plaintiff should have prove the PCR call made on 04.09.2011 which is not done because defendant has also deposed that PCR was called by them. Plaintiff have also place on record the photocopy of photographs obtaining from criminal case alongwith additional CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 31 of 33 documents which have not been proved by the photographer. The true copies of photograph filed alongwith the statement under Section 161 Cr.P.C of PW Naresh Bhalla, photographer in criminal case. As per the statement of PW Naresh Bhalla he took these photographs on 03.09.2011 at the instance of Investigating Officer (IO) which fact is again contradictory. Further, PW11 Ms. Parvati Devi has deposed that for the last 23 years I have not gone there as brothers of Ms. Sonia Madam are living there after the death of her father. She has further deposed that brothers of Sonia Madam stayed in the house of plaintiff at East of Kailash for about a week or 10 days after the death of her father and after that they are living at Kailash Colony. This piece of deposition of PW11 proves that defendants were residing in the suit property after 10 days from the death of late Sh. H.L, Grover. Admittedly Sh. H.L. Grover died on 14.07.2011. Since defendants were residing in the premises after 10 days from 14.07.2011 (date of death of late Sh. H.L. Grover), there was no question of dispossession of plaintiff on or around 01.09.2011 to 04.09.2011 since defendants were already residing in the suit property. In view of the above reasons this court is of the view that plaintiff has also failed to discharge their burden that they have been dispossessed from the CS No. 11750/16 Sonia Chhabra Vs. Shanta Grover Page No. 32 of 33 suit property. Hence, this issue is decided against the plaintiffs and in favour of defendants.
26. ISSUE NO. 2 :
Whether plaintiff is entitled to mesne profit and if so, at what rate and to what amount? OPP In view of findings to the issue no. 1, this issue become infractuous. Hence, this issue is also decided against the plaintiff and in favour of defendants.
27. RELIEF :
In view of my findings to the issues no. 1 and 2, suit of the plaintiff is dismissed leaving the parties to bear their own cost. Order accordingly. Decreesheet be prepared.
Announced in Open Court (Pooran Chand) On this 26th day of October, 2017. ADJ06 (South East) Saket Courts, New Delhi.
CS No. 11750/16
Sonia Chhabra Vs. Shanta Grover Page No. 33 of 33