Delhi District Court
Also At: vs Smt. Nirmala Devi on 15 July, 2022
IN THE COURT OF MS. NEHA GARG, LD. CIVIL JUDGE01,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CNR No:DLCT030005152010
CS SCJ No.1163/2016
Shri Nathu Ram
S/o Late Shri Bhairon Ram,
R/o 52/57, Gali No.17,
Nai Basti, Anand Parbat,
New Delhi110005.
Also at:
Shop Pvt No.8 on G.F.
Property No. 52/65, Gali No.18,
Nai Basti, Anand Parbat,
New Delhi110005. ....................Plaintiff
Versus
Smt. Nirmala Devi
W/o Shri Satish Kumar,
D/o Shri Sunder Lal,
R/o 52/57, Second Floor,
Gali No.17, Nai Basti,
Anand Parbat,
New Delhi110005.
Also at:
House No. C229,
Shiv Main Market,
Vijay Enclave, Dabri,
New Delhi. ..............Defendant
Date of institution of suit : 27.04.2010
Date on which reserved for judgment : 24.05.2022
CS SCJ No. 1163/2016 Nathu Ram vs Smt. Nirmala Devi Page No. 1 of 21
Date of pronouncement of Judgment : 15.07.2022
SUIT FOR POSSESSION, RECOVERY OF DAMAGES/MESNE
PROFITS FOR UNAUTHORISED USE AND OCCUPATION,
PERMANENT INJUNCTION ETC.
JUDGMENT
1. Plaintiff has filed the present suit for declaration, recovery of damages/mesne profits for unauthorised use and occupation and for permanent injunction. Brief facts as set out in the plaint are that the plaintiff is residing at 52/57, Gali No.17, Nai Basti, Anand Parbat, New Delhi5 (herein after referred to as the suit property') along with his family members since long and is carrying on his kerosene oil depot at Shop bearing Private No.8 on Ground Floor of the property bearing No. 52/65, Gali No.18, Nai Basti, Anand Parbat, New Delhi110005 and the defendant is the daughterinlaw of the plaintiff. That the marriage of the son of the plaintiff Sh. Satish Kumar was performed with the defendant on 20.11.1998 at Anand Parbat, New Delhi and after their marriage, they were allowed by the plaintiff to use one room on the second floor of the suit property and to live as licensees without any charges. That since the very day of marriage of defendant and son of plaintiff they started having separate mess and plaintiff and other family members of plaintiff never interfered in the personal life of the defendant and her husband/son of plaintiff. That the behavior and attitude of the defendant towards the plaintiff and his other family members since the very beginning was very rude and the defendant never gave any respect to them and used filthy language and abused them on various occasions and also assaulted them without any cause whatsoever. That CS SCJ No. 1163/2016 Nathu Ram vs Smt. Nirmala Devi Page No. 2 of 21 the defendant also started blackmailing the plaintiff and asked the plaintiff to transfer the suit property in her name, which was refused by the plaintiff. That the defendant had taken Rs. 60,000/ from the plaintiff on the pretext that she has to arrange some separate house near the house of her parents and plaintiff gave the said amount to her in order to avoid any possible dispute in the family and complications, with intention to live peaceful life. That in spite of the above, the behavior of the defendant towards the plaintiff and his family members remained cruel and the defendant had left no stone unturned to harass the plaintiff and his family. That due to rude behavior of defendant, the husband of defendant had left the suit property and had started living separately for the last about nine months and is not on visiting terms with the plaintiff. That keeping in view the rude behavior and disrespectful acts and harassment being made to the plaintiff, the plaintiff vide notice dated 30.03.2010 terminated defendant's licence with immediate effect and called upon her to vacate and hand over the vacant possession of the suit property to the plaintiff within 7 days of the receipt of the said notice as her license stands revoked and cancelled and thereafter her possession in the said room on the second floor of the suit property shall be illegal and unauthorised and that of a trespasser. That the said notice was served on the defendant but the defendant failed to comply with the same within the stipulated period and till date she has not vacated the suit property. After the termination of her licence, occupation of suit property by the defendant is unauthorised and illegal and her status is that of a trespasser. That defendant sent a reply dated 05.04.2010 to the said notice. That instead of vacating the said room on the second floor of the property shown in red in the site plan and handing over its vacant possession to the plaintiff, after the receipt CS SCJ No. 1163/2016 Nathu Ram vs Smt. Nirmala Devi Page No. 3 of 21 of the said notice, the defendant on 17.04.2010 has threatened to transfer the possession, part with, dispose of, and create third party interest over the portion of the property illegally, in favour of other person. That if the defendant succeeds in her illegal designs the plaintiff shall suffer irreparable loss and injury. Hence the present suit.
2. Summons of the suit were issued to the defendant, which were duly served on the defendant. Thereafter written statement was filed on behalf of defendant.
3. In the Written Statement, it is stated that the present suit is liable to be dismissed as the plaintiff has concealed the true facts and by presenting false story has totally mislead this Court. That the plaintiff has filed the present suit with intention to harass the defendant as he has lusty on her daughterinlaw i.e., defendant herein and failing in his immoral desire, now the plaintiff is bent upon to oust her from the suit property. That the present house has been purchased by the income of all family members and kerosene oil depot in question is a family enterprise, wherein all the members of the family including the husband of defendant had made their input. That the suit property is not the sole property of the plaintiff. That all the problems have occurred due to the drinking habit of husband of defendant, who is not performing his family duty either towards his wife or two children. That he has created such situation that the defendant and her children are now bereft of two meals in a day. That prospect of the children is also becoming dark. That the husband of defendant in collusion with plaintiff is not maintaining his family.
CS SCJ No. 1163/2016 Nathu Ram vs Smt. Nirmala Devi Page No. 4 of 21 It is further submitted that the plaintiff is bend upon to harass his daughterinlaw and to convert her homeless. That defendant came to his house after the marriage which is arranged by guardians of both the parties. That in the case wherein marriage is arranged, it is the duty of the guardian to arrange a room for their residence. That it is totally wrong to submit that a separate mess was also operating in a single room wherein newly wedded husband and wife were given shelter. That whole story has been cooked up with intention to convert the defendant homeless by the plaintiff due to reason that she has not fulfilled his immoral desire. That whenever she has been harassed, either by plaintiff or his family members, has taken the help of lawful authority. That behavior of the defendant towards any member of the family of plaintiff has never been cruel and she is a household lady cultured with the Hindu way of life. That she has never desired and requested any separate residence. That the husband of the defendant in collusion with plaintiff is not maintaining his family. That it is totally baseless and false submission that the plaintiff has ever given Rs. 60,000/ to defendant for arranging some separate house. That it is totally a wrong and cooked story by plaintiff to make his daughter in law homeless. That it is wrong that husband of the defendant is living separately for last 9 months and not having visiting terms. That the husband of the defendant is paying his service in Kerosene Oil Depot which is a family enterprise and the plaintiff as well as husband of defendant are meeting daily and he is residing with the plaintiff. That this story has been cooked up with only intention to oust the defendant from her matrimonial house, which is the duty of the plaintiff to provide and it is provided in Section 17 of the Protection of Women from Domestic Violence Act, 2005 that "every woman in domestic relationship shall CS SCJ No. 1163/2016 Nathu Ram vs Smt. Nirmala Devi Page No. 5 of 21 have right to reside in share household, whether or not she has any right, title or beneficial interest in the same." That defendant has been harassed and plaintiff along with his family members has conducted the cruelty and the defendant has been harassed continuously and despite that the family life continued since 1988 and two children, one son and one daughter are born out of this wedlock. That it shows that defendant is such devoted patience full lady in the Hindu Culture that she has only wish to prolong his family life and to bright the future of her children. That the husband of the defendant is alcoholic person, who used to drain all his earning in aforesaid addiction and totally negligent towards his family and plaintiff has immoral desire against the defendant. That possession of defendant is legal and hence no question of vacation of the said room arises. Accordingly, it is prayed that the present suit may be dismissed.
4. Replication was filed on behalf of plaintiff to the written statement of defendant No.2, thereby denying the averments made in the written statement and reiterating the averments made in the plaint.
5. After the pleadings the following issues were framed on 21.05.2011:
1. Whether the plaintiff is entitled for decree of possession, as prayed for? OPP
2. Whether the plaintiff is entitled for decree of damages along with interest, as prayed for? OPP
3. Whether the plaintiff is entitled for decree of permanent injunction, as prayed for? OPP
4. Whether the suit of the plaintiff is without cause of action? OPD CS SCJ No. 1163/2016 Nathu Ram vs Smt. Nirmala Devi Page No. 6 of 21
5. Whether the plaintiff is not the sole owner of the suit property? OPD
6. Relief.
Thereafter, evidence was recorded in the present matter.
EVIDENCE:
6. The following witnesses were examined on behalf of plaintiff in support of his case:
(a) PW1 Sh. Nathu Ram/plaintiff tendered his evidence by way of affidavit Ex.PW1/A and relied upon the documents i.e., Ex.PW1/1 to Ex.PW1/10 & Ex.PW1/12 and mark PW1/13 & PW1/14.
(b). PW2 Sh. K.L. Singhla tendered his evidence by way of affidavit Ex.PW2/A and relied upon the documents already exhibited by PW1 from Ex.PW1/1 to Ex.PW1/12 and mark PW1/13 & PW1/14.
Thereafter plaintiff's evidence was closed vide order dated 01.12.2018 upon separate statement of attorney of plaintiff.
7. Thereafter defendant's evidence was recorded in the present matter and the following witnesses have been examined on behalf of defendant:
(i) Smt. Nirmala Devi/defendant as DW1. DW1 tendered her evidence by way of affidavit Ex.DW1/A. DW1 relied on the following documents DW1 has been duly cross examined.
Thereafter defendant's evidence was closed on 31.10.2019 on separate statement and the matter was fixed for final arguments.
CS SCJ No. 1163/2016 Nathu Ram vs Smt. Nirmala Devi Page No. 7 of 21
8. Final Arguments have been heard and the record is carefully perused by this court.
After giving my thoughtful consideration to the pleadings of the parties, the entire evidence available on record and after hearing the submissions, my issue wise finding in the present matter is as follows:
Considering the nature of issues in involved in the present suit, issue No.4 & 5 shall be taken up together before the other issues. ISSUE NO.4:Whether the suit of the plaintiff is without cause of action? OPD ISSUE NO.5:Whether the plaintiff is not the sole owner of the suit property? OPD
9. Onus to prove the present issues was upon the defendant. Plaintiff has filed the present suit against his daughterinlaw stating, inter alia, that plaintiff allowed the defendant to reside in the suit property as a licensee. That the suit property belongs to him. Plaintiff has not filed any document of ownership of the suit property in his favour. Though defendant has taken a stand in her Written Statement that the suit property was purchased from income of all the family members and the same is not the sole property of the plaintiff, however, defendant/DW1 has admitted in her cross examination that the suit property is owned by plaintiff. Even otherwise, defendant has not led any evidence in support of her contentions that the suit property has been purchased by income of all family members. In view of the categorical admission made by defendant in her cross examination, it is clear that the suit property belongs to the plaintiff.
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10. It is further the case of plaintiff that license of defendant has been duly terminated vide Legal Notice dated 30.03.2010 and that till date defendant has not vacated the suit property. Defendant has not opposed the present suit stating that she is not in possession of the suit property. Defendant has contested the present suit by averring that the suit property is her matrimonial house and she has been residing therein since the date of her marriage.
11. Defendant has made a bald averment in her written statement that there is no cause of action in favour of the plaintiff to file the present suit. However, no evidence has been led by the defendant to show that there is no cause of action in favour of the plaintiff and against the defendant. Cause of action is nothing but a bundle of facts which gives right to a litigant to institute legal proceedings against the other party. Essentially, series of facts culminating into infringement of legal right of a person which entitles him to seek recourse under the law, is known as a cause of action. Defendant has admitted the ownership of plaintiff to the suit property and has further admitted that she is in possession of the suit property. In view of the aforesaid facts, it is quite apparent that the present suit, as filed by the plaintiff against the defendant is maintainable and plaintiff has in fact, a cause of action accruing in his favour and against the defendantt after the termination of the alleged license via legal notice dated 30.03.2010.
12. In view of the aforesaid discussion, both the issues No.4 & 5 are decided against the defendant.
CS SCJ No. 1163/2016 Nathu Ram vs Smt. Nirmala Devi Page No. 9 of 21 Issue No.1 & 3 shall be taken up together as both the issues are interconnected.
ISSUE NO.1:Whether the plaintiff is entitled for decree of possession, as prayed for? OPP ISSUE NO.3:Whether the plaintiff is entitled for decree of permanent injunction, as prayed for? OPP
13. The burden to prove the present issues is on plaintiff. It is the case of plaintiff that he is the owner of the suit property and is residing therein along with his family members. That he is carrying on the business of Kerosene oil depot from shop bearing Pvt No. 8 on ground floor of property bearing No. 52/65, Gali No. 18, Nai Basti, Anand Parbat, New Delhi110005. That marriage of the son of the plaintiff and defendant was performed on 20.11.1988 and after her marriage, defendant and her husband were allowed by the defendant to use one room on the second floor of the suit property and were allowed to live in the said room as licensees. That the behavior and attitude of the defendant towards the plaintiff and his other family members since the beginning was very rude and she used filthy language and abused and assaulted them on various occasions. That defendant had taken Rs. 60,000/ from the plaintiff on the pretext that she will arrange separate accommodation for herself near the house of her parents. That despite the same, the behavior and attitude of defendant towards the plaintiff and his family members remained cruel and she continues to harass the plaintiff and his family members. That husband of the defendant due to her cruel ways, has left the suit property and has been living separately for the last about 15 months and he is not having any visiting terms with the plaintiff. That keeping in view the rude behavior of the defendant and the CS SCJ No. 1163/2016 Nathu Ram vs Smt. Nirmala Devi Page No. 10 of 21 harassment being met out by defendant to the plaintiff, plaintiff has terminated the licence of plaintiff vide legal notice dated 30.03.2010 and defendant was called to vacate and hand over the possession of the said room on the second floor of the suit property to the plaintiff within seven days of the receipt of the said notice. That in spite of vacating the said room, defendant has sent a false and frivolous reply dated 05.04.2010 to the legal notice of the plaintiff. That defendant is under obligation to vacate and hand over the vacant possession of the said room on the second floor of the suit property and is also liable to pay use and occupation charges for unauthorised occupation of the said room at the rate Rs. 2000/ per month.
14. Per contra, it is the case of defendant that she is residing in the suit property since the time when she came there after her marriage with the son of plaintiff and the same is a shared household as defined under The Protection of Women from Domestic Violence Act 2005. That she has never abused the plaintiff and all the allegations made against her are false. That she has problem with her husband who drinks a lot and he never took care of his family. That her husband works at the kerosene depot of the plaintiff and is in collusion with the plaintiff to oust the defendant from the suit property.
15. Perusal of the pleadings shows that defendant has claimed to reside in the suit property on the ground that it is her matrimonial home. Before I move on to decide this aspect, it is pertinent to note that the civil court derives its power to decide on this aspect from Section 26(1) of the Domestic Violence Act, 2005 (hereinafter referred to as 'the DV Act), which provides as follows CS SCJ No. 1163/2016 Nathu Ram vs Smt. Nirmala Devi Page No. 11 of 21 "Relief in other suits and legal proceedings. -- (1) Any relief available under sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act."
16. The averment of the defendant regarding her right to reside in the suit property, is the most significant question in this suit. It has been clearly held in the case of Satish Chander Ahuja vs Sneha Ahuja, 2020 SCC OnLine SC 841, by the Hon'ble Supreme court that to prove that the daughter in law has a right to reside in shared household as per section 17(1) and 19, apart from proving that the suit property is in fact a shared household, she needs to prove the following: (Para 100, 103& 104).
(i) That she is an aggrieved person, i.e., an act of domestic violence has been committed against her (only an aggrieved person can file an application under section 12 of DV act).
(ii) That the act of domestic violence has been committed by the respondent (respondent is the one against whom she has claimed some relief).
(iii) That she has been living in a domestic relationship with the respondent, i.e., she has not been living merely as a licensee.
(iv) Only when all these three prerequisites are fulfilled can she claim a right to reside in the shared household.
17. I shall be discussing the aspects mention by the Supreme Court, in the subsequent paragraphs, one by one. The first point for consideration is CS SCJ No. 1163/2016 Nathu Ram vs Smt. Nirmala Devi Page No. 12 of 21 whether the suit property should be a shared household. For this purpose, it is important to read two definitions as given under the Domestic Violence Act, which are as follows "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;
"shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.
18. In Satish Chander Ahuja (Supra) case, the Hon'ble Supreme Court, gave a wider meaning to the word 'shared household'. The Hon'ble Apex Court divided the definition under section 2(s) into two parts and held that the first condition to be fulfilled for a shared household is that person aggrieved lives or at any stage has lived in a domestic relationship. For the second part of the definition, the Hon'ble Supreme Court held as follows:
(i) It is not requirement of law that aggrieved person may either own the premises jointly or singly or by tenanting it jointly or singly;
CS SCJ No. 1163/2016 Nathu Ram vs Smt. Nirmala Devi Page No. 13 of 21
(ii) The household may belong to a joint family of which the respondent is a member irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household; and
(iii) The shared household may either be owned or tenanted by the respondent singly or jointly.
19. In the instant case, it is an admitted fact that the defendant after her marriage to the son of plaintiff in 1988 resided in one room on second floor of the suit property and that she has been residing there ever since. Now in order to decide whether the suit property is a shared house hold or not the aspect which needs consideration is whether the defendant was residing there in a domestic relationship with the plaintiff. According to the definition, the applicant and the respondent should be living or should have at any time lived together in the shared household. Reverting to the facts of the present case, admittedly, the suit property belongs to the plaintiff. It is an also an admitted position that the defendant came to reside in the suit property after her marriage in 1988 and has been residing there till today. This further means that defendant was living in a domestic relationship with the plaintiff.
20. Now that the same is established, the two conditions for the property to be a shared household within the meaning of above cited definitions and as narrated by the Hon'ble Supreme Court in case of Satish Ahuja(supra) are fulfilled in the instant case, which are as follows:
(i) defendant lives in a domestic relationship with the plaintiff; and
(ii) the suit property is owned by the plaintiff.
CS SCJ No. 1163/2016 Nathu Ram vs Smt. Nirmala Devi Page No. 14 of 21 Thus, it can be safely concluded that the suit property is a shared household.
21. The next aspect for determination is whether any act of domestic violence has been committed against the defendant. Defendant has made averments in her written statement that she had been harassed by plaintiff and his family members. That the plaintiff has leveled false allegations against her on account of the fact that she has not fulfilled the immoral desire of the plaintiff. That all the problems have occurred on account of the drinking habit of her husband, who is not performing his marital obligations towards his wife or his children. That husband of the defendant is in collusion with the plaintiff as he has not left the suit property and is residing with the plaintiff in the suit property. That her husband is working the kerosene oil depot, which is a family enterprise. Defendant has not led any evidence in support of her averments that domestic violence was committed against her. It is worth mentioning that not even a single question was asked to plaintiff/PW1 or PW2, who is the son of plaintiff and the elder brother of husband of defendant, in their cross examinations that plaintiff has harassed or acted cruelly towards the defendant. Therefore, the averments of the defendant that domestic violence is committed against her, remain mere bald averments, which cannot be believed, without any evidence to substantiate the same. Thus, as per the law laid down above, since defendant has not been able to establish all the aspects which entitle her the right of residence, she has failed to discharge the onus that she has right to reside in the suit property.
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22. However, the quest for justice and the need for balancing the rights of parties does not end here. It has always been the endeavour of courts in such cases of dispute between the fatherinlaw and the daughterinlaw, to balance the rights of both the parties. Needless to say, that the courts have vehemently stressed on the fact that workable solutions need to be found in such cases. In fact, the Supreme Court in the case of Satish Ahuja (supra) has observed that "Before we close our discussion on Section 2(s), we need to observe that the right to residence under Section 19 is not an indefeasible right of residence in shared household especially when the daughterinlaw is pitted against aged fatherinlaw and motherinlaw. The senior citizens in the evening of their life are also entitled to live peacefully not haunted by marital discord between their son and daughterinlaw. While granting relief both in application under Section 12 of Act, 2005 or in any civil proceedings, the Court has to balance the rights of both the parties."
23. At this juncture it is pertinent to refer to the judgment of the Hon'ble Delhi High Court in the case of Vinay Varma v. Kanika Pasricha & Another 2019 SCC Online Del 11530, wherein the issue was regarding the interpretation and balance between The Protection of Women from Domestic Violence Act, 2005 and The Maintenance and Welfare of Parents and Senior Citizens Act, 2007. The Hon'ble Delhi High Court in this case laid down guidelines for striking a balance between the two Acts, while observing as follows "However, later decisions of various High Courts have, while giving divergent opinions on the concept of `shared household‟, followed one uniform pattern in order to protect the daughter inlaw and to provide for a dignified CS SCJ No. 1163/2016 Nathu Ram vs Smt. Nirmala Devi Page No. 16 of 21 roof/shelter for her. The question then arises as to whether the obligation of providing the shelter or roof is upon the inlaws or upon the husband of the daughterinlaw i.e., the son. Some broad guidelines as set out below, can be followed by Courts in order to strike a balance between the PSC Act and the DV Act:
(i) The court/tribunal has to first ascertain the nature of the relationship between the parties and the sons/ daughters family.
(ii) If the case involves eviction of a daughter in law, the court has to also ascertain whether the daughterinlaw was living as part of a joint family.
(iii) If the relationship is acrimonious, then the parents ought to be permitted to seek eviction of the son/daughterinlaw or daughter/son inlaw from their premises. In such circumstances, the obligation of the husband to maintain the wife would continue in terms of the principles under the DV Act.
(iv) If the relationship between the parents and the son are peaceful or if the parent are seen colluding with their son, then, an obligation to maintain and to provide for the shelter for the daughterinlaw would remain both upon the inlaws and the husband especially if they were living as part of a joint family. In such a situation, while parents would be entitled to seek eviction of the daughterinlaw from their property, an alternative reasonable accommodation would have to be provided to her.
(v) In case the son or his family is ill treating the parents then the parents would be entitled to seek unconditional eviction from their property so CS SCJ No. 1163/2016 Nathu Ram vs Smt. Nirmala Devi Page No. 17 of 21 that they can live a peaceful life and also put the property to use for their generating income and for their own expenses for daily living.
(vi) If the son has abandoned both the parents and his own wife/children, then if the son's family was living as part of a joint family prior to the breakdown of relationships, the parents would be entitled to seek possession from their daughterinlaw, however, for a reasonable period they would have to provide some shelter to the daughterin law during which time she is able to seek her remedies against her husband."
24. In the instant suit, plaintiff has claimed in the plaint that husband of the defendant left the suit property about none months from the date of filing of the present suit, whereas it was the case of defendant in her written statement that he was residing in the suit property at the time of institution of the suit. PW2 has deposed in his crossexamination that his brother left the suit property and was living separately from his family from the last two years from the filing of the present suit. The said statement of PW2 is contrary to the averments made in the plaint that the husband of the plaintiff left the suit property nine months before the filing of the present suit. The said contradiction with respect to the month in which the husband of defendant left the suit property as stated in the plaint and as deposed by PW2, raises serious doubt on the averment of the plaintiff that husband of the defendant had left the suit property. Furthermore, plaintiff has averred in the plaint that he had paid Rs. 60,000/ to plaintiff as the same was demanded by the defendant for arranging separate accommodation for herself. However, in his crossexamination, plaintiff has deposed that he has given Rs. 60,000/ to his son and not the daughterinlaw and has asked his son CS SCJ No. 1163/2016 Nathu Ram vs Smt. Nirmala Devi Page No. 18 of 21 to live separately. This statement of plaintiff is entirely contradictory to the stand taken by him in his plaint that defendant has demanded Rs. 60,000/ from the plaintiff or that husband of the defendant has left the suit property on his own. It is also noteworthy that the marriage of the defendant was solemnised in the year 1988, whereas the various complaints made by the plaintiff to police authorities (Ex.PW1/3, PW1/4, PW1/7) are for the year 2009 and afterwards i.e., immediately before the institution of the present suit and the same casts a doubt on the averments of the plaintiff that behavior and attitude of the defendant towards the plaintiff and his other family members since the very beginning was very rude. A cumulative reading of the aforesaid facts hints at an element of collusion between the plaintiff and his son, to evict the defendant from the suit property.
25. It has already been established that the suit property is a shared household, however, defendant has failed to establish her right to reside in the suit property. On court query it was informed by Ld. Counsel for plaintiff that the husband of defendant has passed away during the pendency of the present suit. Thus, in order to balance the right of both the parties and keeping in view the guidelines issued by the Hon'ble High Court of Delhi in the case of Vinay Varma (supra), an alternative accommodation should be arranged for the defendant. Defendant has not denied that she is in occupation of one room on the second floor of the suit property. Therefore, the present issues are decided in favour of the plaintiff with the following directions:
(a) The plaintiff shall make arrangements for alternative accommodation of the defendant consisting of at least one room, kitchen and bathroom in the same CS SCJ No. 1163/2016 Nathu Ram vs Smt. Nirmala Devi Page No. 19 of 21 locality in which the suit property is located and shall take care of the rent of such accommodation. He shall deposit the rent in the bank account of the defendant on a monthly basis on or before the 10th of every month.
(b) Upon the said payment being commenced, defendant shall vacate the suit property i.e., one room situated on first floor of property bearing No. 52/57, Gali No.17, Nai Basti, Anand Parbat, Delhi110005(as shown in red colour in the site plan Ex.PW1/1) within a period of two months thereafter.
(c) Defendant is restrained from creating any thirdparty interest in one room situated on first floor of property bearing No. 52/57, Gali No.17, Nai Basti, Anand Parbat, Delhi110005(as shown in red colour in the site plan Ex.PW1/1).
ISSUE NO.2:Whether the plaintiff is entitled for decree of damages along with interest, as prayed for? OPP
26. The burden to prove the present issue is on the plaintiff. Plaintiff has also claimed damages at the rate Rs. 2000/ per month for unauthorised occupation of the suit property. As has already been established, the suit property is the matrimonial home of defendant and since in the present case the duty to maintain his daughterinlaw is on the plaintiff, no decree of recovery of damages in respect of the suit property or interest thereupon can be passed in favour of the defendant. Accordingly, issue No.2 is decided against the plaintiff.
Relief:
27. In view of the foregoing discussion and the findings on the aforesaid issues, the present suit is partly decreed in favour of the plaintiff and against the defendant, with the following directions: CS SCJ No. 1163/2016 Nathu Ram vs Smt. Nirmala Devi Page No. 20 of 21
(a) The plaintiff shall make arrangements for alternative accommodation of the defendant consisting of at least one room, kitchen and bathroom in the same locality in which the suit property is located and shall take care of the rent of such accommodation. He shall deposit the rent in the bank account of the defendant on a monthly basis on or before the 10th of every month.
(b) Upon the said payment being commenced, defendant shall vacate the suit property i.e., one room situated on first floor of property bearing No. 52/57, Gali No.17, Nai Basti, Anand Parbat, Delhi110005(as shown in red colour in the site plan Ex.PW1/1) within a period of two months thereafter.
(c) Defendant is restrained from creating any thirdparty interest in one room situated on first floor of property bearing No. 52/57, Gali No.17, Nai Basti, Anand Parbat, Delhi110005(as shown in red colour in the site plan Ex.PW1/1).
No order as to cost.
Decree sheet be prepared accordingly.
File be consigned to the record room after due compliance.
Announced in the open court
on this 15.07.2022 (NEHA GARG)
Civil Judge1, Central District
Tis Hazari Courts, Delhi
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