Delhi District Court
Smt. Urmila Verma vs Sh. Ravinder Soni on 7 October, 2016
IN THE COURT OF SHRI RAJ KUMAR: ADDL. DISTRICT
JUDGE09: TIS HAZARI COURTS : DELHI
Suit No. 612834/16 (Old Suit No. 754/14)
Unique Case ID No. 02401C0343812014
Smt. Urmila Verma
W/o Sh. Shesh Nath Verma,
R/o A594, Indra Gali no. 3,
Prem Nagar, Nabi Karim,
New Delhi55. ........... Plaintiff.
VERSUS
Sh. Ravinder Soni
S/o Sh. Shesh Nath Verma
R/o A594, Indra Gali no. 3,
Prem Nagar Nabi Karim,
New Delhi55. ......... Defendant.
Date of institution of the suit : 22.07.2014
Date on which order was reserved : 28.09.2016
Date of decision : 07.10.2016
SUIT FOR RECOVERY OF POSSESSION, MESNE PROFITS/
DAMAGES AND PERMANENT INJUNCTION
JUDGMENT
1.1 The plaintiff has instituted the present suit for Possession and Mesne Profits/ Damages etc. against her own son, who happens to be the defendant in the present suit.
1.2 The facts in brief, necessary for the disposal of the present Suit No. 612834/14 (Old Suit No. 754/14) Page No. 1/23 suit filed by the plaintiff as disclosed in the plaint, are that the plaintiff purchased the property bearing no. A594, Indra Gali no. 3, Prem Nagar, Nabi Karim, New Delhi measuring about 60 sq. yards builtup to third floor on 15.07.2000 from Sh. Hans Raj by virtue of the registered GPA, the Agreement to Sell, Will, Affidavit and Receipt. It has been further stated that the abovesaid property was purchased by the plaintiff out of the earnings and savings of her husband and the defendant failed to render any kind of help in the purchasing of the aforesaid property. It has been further stated that the abovesaid property is constructed upto third floor having one shop and one big room/ Karkhana at the ground floor, three rooms alongwith latrine and bathroom at the first floor, one room and kitchen at the second floor and one room alongwith kitchen at the third floor.
1.3 The case of the plaintiff is that the defendant being the real son of the plaintiff was allowed to reside at the entire second floor of the said property by the plaintiff on licence basis, but, the defendant forcibly locked one big room/ Karkhana at the ground floor and one room at the first floor of the said property. The plaintiff has alleged that since the year 2009, the defendant is having the illegal intention to grab the property of the plaintiff and for this purpose, the defendant and his wife started abusing, quarreling, beating and harassing the plaintiff and her husband.
1.4 The plaintiff has further alleged that in the month of August, 2009, the defendant threw hot Daal (hot pulses) upon the plaintiff and the wife of the defendant threw Kerosene upon the plaintiff on 06.02.2012, when, the husband of the plaintiff was going to let out the shop at the Suit No. 612834/14 (Old Suit No. 754/14) Page No. 2/23 ground floor of the said property. It has been further stated that the husband of the plaintiff was running his business of electroplating at the ground floor of the said property and the defendant was also working with the husband of the plaintiff. It has been further stated that the husband of the plaintiff fell sick in the year 2010 and he suffered a number of diseases such as blood pressure, diabetes and heart problem etc. It has been alleged that during the abovesaid period, the defendant grabbed the Karkhana situated at the ground floor of the said property and one room at the first floor of the said property by force. The plaintiff has further alleged that the defendant is not allowing the husband of the plaintiff to do his business in the Karkhana at the ground floor of the said property.
1.5 It has been further stated by the plaintiff in the plaint that she had let out one shop at the ground floor of the said property to a tenant namely Sh Mohd. Hussain at a monthly rental of Rs. 5,000/ vide agreement dated 12.03.2012, but, the defendant is not allowing him to do his business. The plaintiff has alleged that she herself and her husband are senior citizens, suffering from various ailments and as such, they required money for the purposes of medicines and for their day to day livelihood but, the defendant has forcibly locked the Karkhana and one room of the plaintiff.
1.6 It has been further stated that the defendant was disowned by the plaintiff by way of publication in the daily newspaper "Virat Vaibhave" dated 03.01.2010. It has been further stated that the defendant is liable to pay Rs. 10,000/ per month w.e.f. 01.10.2013 to the plaintiff as damages on account of use and occupation charges of the suit property Suit No. 612834/14 (Old Suit No. 754/14) Page No. 3/23 which has been more specifically shown in red colour in the site plan annexed with the plaint.
1.7 It has been further stated that the licence of the defendant was terminated vide legal notice dated 02.02.2010, but, the defendant failed to hand over the possession of the suit property to the plaintiff and hence, the present suit.
1.8 On the basis of the abovesaid allegations as contained in the plaint, the plaintiff has prayed for a decree of Possession in respect of the suit property i.e. One Karkhana/ big room at the ground floor, one room at the first floor, one room with kitchen and terrace at the second floor of the property bearing no. A594, Indra Gali No. 3, Prem Nagar, Nabi Karim, New Delhi, which has been more specifically shown in the site plan in red colour annexed with the plaint. The plaintiff has also prayed for a decree of Permanent Injunction restraining the defendant and his agents etc. from selling, transferring or creating any third party interest in the suit property. The plaintiff has also prayed for a decree of damages @ Rs. 10,000/ per month w.e.f. 01.10.2013 till the date of handing over of the vacant and peaceful possession of the suit property by the defendant to the plaintiff alongwith the costs of the suit. 2.1 Written statement has been filed on record by the defendant stating therein that the plaintiff has no locusstandi to institute the present suit. The defendant has further stated that the present suit has not been valued properly as the market value of the suit property is about Rs. 1 Crore even as per the minimum circle rates as per the notification of the Govt. of Delhi.
2.2 The defence of the defendant is that the property bearing no.
Suit No. 612834/14 (Old Suit No. 754/14) Page No. 4/23A594, Indra Gali no. 3, Prem Nagar, Nabi Karim, New Delhi was purchased by him out of his own savings, but, on account of love and affection, the defendant purchased the abovesaid property in the name of the plaintiff. It has been further stated that the defendant is in possession of the ground floor and two rooms at the first floor of the said property. It has been further stated that the defendant had arranged the amount of Rs. 5.5 Lacs for the purposes of purchasing the aforesaid property by taking loans from his friends and relatives. It has been further stated that Rs. 50,000/ were borrowed by the defendant from Smt. Lekhi Devi, Rs. 50,000/ were taken by the defendant from Sh. Radhey, Rs. 1 Lac was taken from Sh. Hari Prasad (the fatherinlaw of the defendant), Rs. 1 Lac was borrowed from Mrs. Baru and his business client Sh. Gulab Sahni. It has been further stated that the rest of the amount was arranged by the defendant out of his own savings. The defendant has further taken the stand that the construction of the ground floor upto the third floor over the abovesaid property was raised by the defendant out of his own funds and savings.
2.3 The defendant has further taken the stand that the documents annexed by the plaintiff with the plaint have no sanctity in the eyes of law by virtue of the law laid down by the Hon'ble Supreme Court of the India in the authority titled as Suraj Lamp Industries Vs. State of Haryana. It has been further stated that no probate of the Will has been obtained by the plaintiff and the documents in favour of the plaintiff cannot create any right, title or interest in favour of the plaintiff in respect of the aforesaid property.
2.4 The defendant has denied that he is in possession of the suit Suit No. 612834/14 (Old Suit No. 754/14) Page No. 5/23 property in the capacity of the licencee. The defendant has taken the stand that Sh. Satish, the other son of the plaintiff had thrown hot daal upon the plaintiff and levelled the false allegation against the defendant. The defendant has denied any act of atrocity upon the plaintiff either by he himself or by his wife. The defendant has denied his liability to pay any damages to the plaintiff. However, the defendant has not denied the receipt of the legal notice dated 02.02.2010 as is apparent from the counter para no. 15 of the written statement, of the reply on merits. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed with costs.
3. Replication has been filed on record by the plaintiff reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement filed by the defendant.
4. From the pleadings of the parties, the following issues were framed by this Court vide orders dated 08.01.2015 :
1) Whether the present suit has not been valued properly for the purposes of the Court Fees and Jurisdiction?OPD
2) Whether the plaintiff is entitled for the relief of Recovery of Possession as prayed for, by the plaintiff in the plaint? OPP
3) Whether the plaintiff is entitled for the relief of Permanent Injunction as prayed for, by the plaintiff in the plaint?OPP
4) Whether the plaintiff is entitled for the relief of Damages/ Mesne Profits, if so, at what rate and for which period?OPP Suit No. 612834/14 (Old Suit No. 754/14) Page No. 6/23
5) Relief.
EVIDENCE :
5. The plaintiff has examined herself as PW1 and in her evidence by way of affidavit Ex. P1, she has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. She has filed on record the photocopy of the I.D. Card as Ex. PW1/1 (OSR), photocopy of the ration card as Ex. PW1/2(OSR), General Power of Attorney dated 15.07.2000 as Ex. PW1/3, copy of the agreement to sell dated 15.07.2000 as Ex. PW1/4(OSR), photocopy of the affidavit dated 15.07.2000 as Ex. PW1/5 (OSR), Receipt dated 15.07.2000 as Ex. PW1/6 (OSR), legal notice dated 02.02.2010 as Ex. PW1/7, postal receipts thereof as Ex. PW1/8, copy of the newspaper as mark A, medical document dated 16.12.2009 and 24.11.2010 as Mark B and C, site plan as Ex. PW1/12, agreement dated 12.03.2012 as Ex. PW1/13 and the copy of the complaint to the police commissioner as Mark D.
6. The plaintiff has further examined her husband Sh. Shesh Nath Verma as PW2 and in his evidence by way of affidavit Ex. PW2/A on record, he has reiterated and reaffirmed the stand as contained in the plaint. He has filed on record the photocopies of his treatment/ medical prescriptions as Ex. PW2/4 to Ex. PW2/7(OSR).
7. The plaintiff has further examined Sh. Vinod Kumar, the summoned witness from the office of the SubRegistrarI, Kashmere Gate, Delhi as PW3. This witness produced in the Court the summoned record pertaining to the GPA dated 15.07.2000 and photocopy of the said Suit No. 612834/14 (Old Suit No. 754/14) Page No. 7/23 GPA was exhibited as Ex. PW3/1.
8. The defendant has examined himself as DW1 and in his evidence by way of affidavit Ex. DW1/A on record, he has reiterated and reaffirmed the stand as taken by the defendant in the written statement. He has filed on record the copy of the Aadhar Card as Ex. DW1/1(OSR), the copy of the Voter I card as Ex. DW1/2(OSR), two original electricity bills as Ex. DW1/3(colly), copy of the ration card as Ex. DW1/4(OSR), the original complaint dated 23.11.2011 as Ex. DW1/7, the original complaint dated 27.11.2011 as Ex.DW1/8, the original complaint dated 22.03.2012 as Ex.DW1/10, the original complaint dated 27.06.2012 as Ex. DW1/11, the original complaint dated 20.10.2012 as Ex. DW1/12, the photocopy of the complaint dated 01.01.2014 as Ex. DW1/13, the original complaint dated 11.03.2014 as Ex. DW1/14, the original complaint dated 29.05.2010 as Ex. DW1/15, photocopies of the discharge slip, medical report etc. as Ex. DW1/16(OSR).
9. The detailed testimonies of these witnesses shall be discussed in the later part of this judgment.
10. I have carefully gone through the entire material available on record and heard the rival submissions of Ld. counsels for both the parties.
11. My issuewise finding on the abovesaid issues is as under:
Issue No. 1 :
12. The onus to prove this issue has been placed upon the Suit No. 612834/14 (Old Suit No. 754/14) Page No. 8/23 defendant. The defendant, in the written statement, has taken the stand that the value of the suit property is about Rs. 1 Crore as per the circle rates.
13. It has to be seen that the plaintiff has valued the present suit for the relief of possession at Rs. 18,36,466/. The plaintiff has claimed that she is the owner of the entire property bearing no. A594, Indra Gali no. 3, Prem Nagar, Nabi Karim, New Delhi. The said property is having the construction upto third floor. The plaintiff has categorically stated that the abovesaid property is having one shop and one big room/ Karkhana at the ground floor, three rooms alongwith latrine and bathroom at the first floor, one room and kitchen at the second floor and one room alongwith kitchen at the third floor.
14. The plaintiff has categorically stated in the plaint that the defendant, who is none other, but, the real son of the plaintiff is in occupation of the entire second floor consisting of one room with kitchen in the capacity of a licensee. The plaintiff has alleged that one big room/ Karkhana at the ground floor and one room at the first floor was also occupied forcibly by the defendant in the year 2010, when, the husband of the plaintiff fell ill and suffered various ailments such as blood pressure and heart diseases etc. The plaintiff has shown the property in possession of the defendant in the site plan Ex. PW1/12 on record in red colour.
15. The defendant, in the written statement, has stated that he is in possession of the ground floor and two rooms at the first floor. No site plan of his own has been filed by the defendant to show that he is in possession of two rooms on the first floor of the abovesaid property. In Suit No. 612834/14 (Old Suit No. 754/14) Page No. 9/23 the crossexamination, it is true that PW1 has stated that at the time of filing of the suit, the market value of the suit property was Rs. 40 Lacs to Rs. 50 Lacs, but, it has to be seen that in the plaint, the suit property has been shown as the entire property bearing no. A594, Indra Gali no. 3, Prem Nagar, Nabi Karim, New Delhi. The property in possession of the defendant has been specifically shown in the site plan Ex. PW1/12 on record.
16. The defendant has examined himself as DW1. Besides examining himself, no other witness has been examined by the defendant. No witness has been examined by the defendant to show that the value of the suit property was Rs. 1 Crore at the time of institution of the present suit. No valuation report has been filed on record by the defendant and has proved the same to show the valuation of the suit property to the tune of Rs. 1 Crore.
17. As per the own case of the defendant, the suit property was purchased by him for the amount of Rs. 5.5 Lacs. To the same effect is the crossexamination of PW1 on the aspect of purchase money of the suit property. The Agreement to Sell merely mentions the consideration amount of Rs. 60,000/. The said Agreement to Sell is dated 15.07.2000. The said Agreement to Sell has been placed on record by the plaintiff in the form of Ex. PW1/4.
18. The defendant, in the crossexamination, has categorically admitted that the registered GPA, Agreement to Sell, Will, Receipt and Affidavit, which have been placed on record by the plaintiff in the form of Ex. PW1/3 to Ex. PW1/6 were executed in favour of the plaintiff. As such, to my mind, the defendant has utterly failed to prove on record that Suit No. 612834/14 (Old Suit No. 754/14) Page No. 10/23 the present suit has not been valued properly for the purposes of court fees and jurisdiction. Issue no. 1 is, thus, decided in favour of the plaintiff.
Issues No. 2, 3 & 4 :
19. All these issues are taken up together as the same are connected interse, overlap each other and relate to the prayer clause of the present suit. The onus to prove all the abovesaid issues has been placed upon the plaintiff.
20. There is a categorical admission on the part of the defendant, in the written statement, that the title documents of the property in question have been executed in favour of her mother, who is the plaintiff in the present suit. The registered GPA dated 15.07.2000 is Ex. PW1/3, the Agreement to Sell dated 15.07.2000 Ex. PW1/4, the Affidavit dated 15.07.2000 Ex. PW1/5 and the Receipt dated 15.07.2000 Ex. PW1/6, which are in the name of the plaintiff have been placed on record by the plaintiff.
21. The defence of the defendant is two fold. The first defence of the defendant is that the suit property was purchased by the defendant out of his own funds and out of love and affection, the suit property was purchased by the defendant in the name of the plaintiff, who is his mother. It is the admitted case that the property bearing no. A594, Indra Gali no. 3, Prem Nagar, Nabi Karim, New Delhi has been constructed upto the third floor.
22. The second contention of the defendant is that the construction over the property in question was raised by the defendant Suit No. 612834/14 (Old Suit No. 754/14) Page No. 11/23 out of his own earnings and savings. The defendant, admittedly, is in possession of the suit property, which has been specifically shown in red colour in the site plan Ex. PW1/12 on record.
23. The plaintiff has categorically alleged that being the son of the plaintiff, the defendant was allowed to reside in the property in question in the capacity of a licensee. The plaintiff has further stated that the defendant was allowed to reside at the entire second floor consisting of one room and kitchen, but, forcibly and illegally, the defendant occupied one big room/ Karkhana at the ground floor and one room at the first floor.
24. As such, the vital question to be considered by this Court is as to whether the plaintiff has been able to prove that the second floor of the property in question was allowed to be used by the defendant in the capacity of a licensee only. This Court has to further consider and see as to whether the plaintiff has been able to prove that illegally and forcibly, the defendant occupied the Karkhana at the ground floor of the aforesaid property and one room at the first floor as is the stand of the plaintiff. This Court has to further consider and see as to whether the defendant has been able to prove that the suit property was purchased by him out of his own funds and savings, but, the title documents were executed in the name of the plaintiff and further that the construction upto the third floor was raised by the defendant over the property in question out of his own earnings and savings.
25. In the written statement, the defendant has taken the stand that he had arranged the payment of Rs. 5.5 Lacs for taking loans from his friends and relatives. The defendant, in the written statement, has Suit No. 612834/14 (Old Suit No. 754/14) Page No. 12/23 alleged that he had borrowed the amount of Rs. 50,000/ from Smt. Lekhi Devi, Rs. 50,000/ were taken from Sh. Radhey, Rs. 1 Lac was taken from Sh. Hari Prasad (the fatherinlaw of the defendant), Rs. 1 Lac was borrowed from Mrs. Baru and his business client Sh. Gulab Sahni.
26. In the crossexamination as well, the abovesaid stand has been reiterated by the defendant, who has examined himself as DW1, but, it has to be seen that DW1, in the crossexamination categorically states that no loan agreement and no receipt was ever executed in respect of the amount, which was obtained by him from the persons namely Smt. Lekhi Devi, Sh. Radhey, Sh. Hari Prasad (the fatherinlaw of the defendant), Mrs. Baru and Sh. Gulab Sahni. DW1 further states that he does not remember the exact date, month or year when the said amount was obtained by him from the abovesaid persons. DW1, in his cross examination, further states that he had paid the amount of Rs. 5.5 Lacs to the Property Dealer known by the name of Pandit Property Dealer, but, DW1 again states that no receipt was ever issued to him in respect of the payment of the purchase money by Pandit Property Dealer. DW1 further states that he does not have any documentary evidence or proof to show that the suit property was purchased by him for an amount of Rs. 5.5 Lacs. By way of volunteer, DW1 states that the abovesaid persons are the witnesses to the fact that the suit property was purchased by him for a sum of Rs. 5.5 Lacs.
27. The fact remains that none of the abovesaid persons, who have been named by the defendant in the written statement and in his crossexamination as well, have been examined at all. There is no documentary evidence on record to show the payment of the amount of Suit No. 612834/14 (Old Suit No. 754/14) Page No. 13/23 Rs. 5.5 Lacs by the defendant towards the purchase money of the abovesaid property. As per the own admission of DW1, not even a single receipt has been issued in his favour by Pandit Property Dealer. As such, I have no hesitation to hold that the defendant has utterly failed to prove on record that the suit property was purchased by him out of his own funds and savings.
28. Furthermore, it has to be seen that nothing has been placed on record by the defendant to show that he had raised the construction over the abovesaid property upto the third floor. There is not even a single iota of evidence on record to show the alleged raising of the construction over the property in question by the defendant. As such, to my mind, the defendant has utterly failed to prove on record that he had raised the construction over the aforesaid property out of his own funds and savings.
29. In the written statement, the defendant has taken a categorical stand that the suit property was purchased by him out of his own funds and savings, but, the title documents were executed in the name of the plaintiff out of love and affection. But, the cross examination of DW1 is in stark contravention to the abovesaid stand of the defendant as contained in his written statement. In the cross examination, DW1 has admitted that the title documents Ex. PW1/3 to Ex. PW1/6 are in the name of the plaintiff, but, the defendant has tried to take the stand, in his crossexamination, that the Property Dealer had stated to him on 15.07.2000 that his name would also be mentioned in the Power of Attorney and that his mother would not be able to sell the suit property without his consent. By way of volunteer, DW1 has stated that Suit No. 612834/14 (Old Suit No. 754/14) Page No. 14/23 in the documents placed on record by the plaintiff, the name of the defendant has not been mentioned at all. DW1 has further stated, in his crossexamination, that he did not obtain any copy of the Power of Attorney from Pandit Property Dealer in which his name was mentioned. It has to be seen that in the written statement, this is not the case of the defendant that the Pandit Property Dealer had assured him that in the GPA, the name of the defendant was to be mentioned. As such, I am of the opinion that the abovesaid part of the crossexamination of DW1 is diametrically opposite to the stand of the defendant as contained in his written statement.
30. The next submission of the defendant is that the registered GPA, Agreement to Sell, Affidavit, Receipt, all dated 15.07.2000, which have been placed on record by the plaintiff in the form of Ex. PW1/3 to Ex. PW1/6, do not carry any legal sanctity in the light of the law laid down by the Hon'ble Supreme Court of India in the authority titled as Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana and Anr. cited as 183 (2011) DLT 1 (SC).
31. The abovesaid authority has been discussed in detail by the Hon'ble High Court of Delhi in the authority cited as 188(2012) DLT 538 titled as Ramesh Chand Vs. Suresh Chand and Anr. wherein it has been held as under :
"3. A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Supreme Court however reiterated that rights which are created pursuant to Suit No. 612834/14 (Old Suit No. 754/14) Page No. 15/23 Section 53 A of the Transfer of the Property Act, 1882 dealing with the doctrine of part performance (para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per section 202 of the Contract Act, 1872 (para 13) and devolution of interest pursuant to a Will(para 14). therefore, no doubt a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53 A of the Transfer of the Property Act, 1882, Section 202 of the Contract Act, 1872/ There also takes place devolution of interest after the death of the testator in terms of a Will."
"8. Great stress was laid on behalf of the appellant to the fact that the respondent No. 1/ plaintiff had failed to prove the Will Ex. PW1/5 in accordance with law inasmuch as no attesting witnesses were examined. Reliance is placed on behalf of the appellant on the judgment of the Supreme Court in the case of Kahibai & Anr. v. Parwatibai & Ors., 1995 IV AD S.C. (C) 41 to argued that the Will has to be proved in terms of the provisions of Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872 by calling of the attesting witnesses and if the same is not done merely because there is an exhibit mark given to the Will, the same cannot be said to be proved.
In my opinion, the judgment of the Supreme Suit No. 612834/14 (Old Suit No. 754/14) Page No. 16/23 Court in the case of Kashibai & Anr. (supra), and various other judgments which deal with the issue of requirement of a Will having to be proved by summoning of an attesting witness, are judgments given in those cases where there are inter se disputes between the legal heirs of a deceased testator and the validity of the Will is questioned in those circumstances. Observations in the said judgments cannot have application to be facts of those cases where the disputes with regard to Will are not classical disputes between the legal heirs of the deceased testator and the Will is an instrument which really furthered an intent to transfer the rights in an immovable property by the testator to the beneficiary. I may note that in the present case, there is absolutely no cross examination at all on behalf of the appellant when the registered Will was proved and exhibited in the statement of the respondent No. 1/ plaintiff as PW1. Once there is no crossexamination, in the cases such as the present, which are different than the classical disputes inter se the legal heirs of a deceased testator, I would feel that the Will should be held to be a proved document inasmuch as the object of the Will in cases such as the present was really to transfer rights in an immovable property after the death of the testator. Further, I may note that the observations with respect to Will having to be very strictly proved by calling the attesting witness are in probate cases where the judgment is a judgment in rem whereas in the present case the Suit No. 612834/14 (Old Suit No. 754/14) Page No. 17/23 judgment on the basis of ownership rights devolving upon the respondent No. 1/ plaintiff under a Will will not be a judgment in rem but only a judgment interse the parties. Also another aspect to be borne in mind is that besides the two sons of the deceased Sh. Kundan Lal, who were the plaintiff and defendant no.1 in the suit, the other legal heirs of the deceased Sh. Kundan Lal were very much in knowledge of the present litigation but they never chose to add themselves as parties. Whereas the other son i.e the brother of the parties to the present suit, Sh. Ram Swaroop deposed in favour of respondent no.1/plaintiff as PW2, the only daughter of the deceased Sh. Kundan Lal namely Smt. Krishna deposed in favour of the appellant/defendant no.1 as DW2. Therefore, all the interested parties, who would claim any benefit in the suit property, were aware of the subject litigation.
"12. In view of the aforesaid facts and the validity of the documents, being the power of attorney and the Will dated 16.05.1996, the respondent no.1/plaintiff would though not be the classical owner of the suit property as would an owner be under a duly registered sale deed, but surely he would have better rights/entitlement of possession of the suit property than the appellant/defendant no.1. In fact, I would go to the extent saying that by virtue of para 14 of judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd.(supra) taken with the fact that Sh. Kundan Lal has already died, the respondent Suit No. 612834/14 (Old Suit No. 754/14) Page No. 18/23 no.1/plaintiff becomes an owner of the property by virtue of the registered Will dated 16.05.1996. A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement right to the possession of the property than qua the person who is in actual physical possession thereof. The facts of the present case show that the respondent no.1/plaintiff has undoubtedly better entitlement/title/rights in the suit property so as to claim possession from the appellant/defendant no.1/brother. I have already held above that the appellant/defendant no.1 miserably failed to prove there there was any partition as alleged of the year 1973 whereby the suit property allegedly fell to the share of the appellant/defendant no.1. In fact, the second reason for holding the appellant to be unsuccessful in establishing his plea of partition is that the appellant failed to lead any evidence as to the other two properties being the property no. 290, Ambedkar Basti, Delhi and the second property being the property adjoining the property no. 290, Ambedkar Basti, Delhi as having belonged to the father Sh. Kundan Lal."
32. In the light of the ratio of the abovestated authority, it has to be seen that the Court can weigh the better title. In the case in hand as the documents of title are there in favour of the plaintiff, there is not even a single document in favour of the defendant. As such, the question of weighing better title does not arise. To my mind, the submission of the Ld. Counsel for the defendant, which is based on the aspect of the ratio of Suit No. 612834/14 (Old Suit No. 754/14) Page No. 19/23 the authority titled as Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana and Anr. cited as 183 (2011) DLT 1 (SC) is absolutely fallacious.
33. There is no document in favour of the defendant. To my mind, in the absence of any right, title or interest in the suit property, the plaintiff has been able to show that the defendant was inducted as a licensee in the suit property. The receipt of the legal notice dated 02.02.2010 Ex. PW1/10 has not been denied by the defendant in the written statement.
34. The testimony of PW1 and PW2 has not been shaken, even in their crossexaminations, so far as the licence granted to the defendant and so far as the ownership of the property in question is concerned. As such, I have no hesitation to hold that the plaintiff is entitled for the relief of recovery of the possession as prayed for by the plaintiff in the plaint. Issue no. 2 is, thus, decided in favour of the plaintiff. So far as the relief of Permanent Injunction is concerned, I am of the opinion that the plaintiff is also entitled for the said relief. Accordingly, issue no. 3 is also decided in favour of the plaintiff.
35. The plaintiff has claimed the damages @ Rs. 10,000/ per month w.e.f. 01.10.2013. PW1 and PW2 have not been crossexamined at all on the abovesaid aspect of the matter. In her evidence by way of affidavit, PW1 has categorically stated that the defendant is liable to pay the damages to the plaintiff @ Rs. 10,000/ per month from 01.04.2010. In the plaint, the plaintiff has claimed the decree for the amount of Rs. 90,000/ w.e.f. 01.10.2013 till the date of the filing of the suit @ Rs. 10,000/ per month.
Suit No. 612834/14 (Old Suit No. 754/14) Page No. 20/2336. As such, there is an apparent contradiction in the affidavit of PW1 with respect to the date and the year from which the damages have been claimed. In para no. 15 of the affidavit of PW1, it has been stated that the defendant is liable to pay the damages @ Rs. 10,000/ per month w.e.f. 01.04.2010, but, in the plaint, the plaintiff has claimed the damages @ Rs. 10,000/ per month w.e.f. 01.10.2013, but, it has to be seen that there is no crossexamination of PW1 on the abovesaid aspect of the matter.
37. The settled law is that if a part of the examinationinchief of a particular witness is not crossexamined, then, the same stand admitted, but, in the case in hand, in the plaint, the plaintiff has claimed the damages w.e.f. 01.10.2013. As such, it is hereby deemed appropriate to grant the damages to the plaintiff w.e.f. 01.10.2013 only.
38. The question is as to what should be the quantum of the damages. The plaintiff has claimed the damages @ Rs. 10,000/ per month. The defendant is none other, but, the son of the plaintiff. Besides examining herself as PW1 and her husband as PW2, nothing has been placed on record by the plaintiff to show that the suit property can fetch a rental of Rs. 10,000/ per month. As such, to my mind, the plaintiff has not been able to prove that she is entitled for the damages @ Rs. 10,000/ per month.
39. In the facts and circumstances, the plaintiff is hereby awarded the damages @ Rs. 1,000/ per month keeping in view the close relationship of the defendant with the plaintiff w.e.f. 01.10.2013 till the date of the handing over of the possession of the suit property by the defendant to the plaintiff. Issue no. 5 stand decided, accordingly, in Suit No. 612834/14 (Old Suit No. 754/14) Page No. 21/23 favour of the plaintiff.
Relief :
40. In the light of my findings on the foregoing issues, the suit of the plaintiff is hereby decreed for the relief of Possession and a decree of Possession in respect of the suit property i.e. one big room/ Karkhana at the ground floor, one room at the first floor, one room with kitchen and terrace at the second floor of the property bearing no. A594, Indra Gali No. 3, Prem Nagar, Nabi Karim, New Delhi, which has been more specifically shown in red colour in the site plan Ex. PW1/12 is hereby passed in favour of the plaintiff and against the defendant. A decree of Permanent Injunction is also hereby passed in favour of the plaintiff to the effect that the defendant and his agents etc. are hereby restrained from selling, transferring and creating any third interest in the aforesaid suit property. The plaintiff is also entitled to the damages @ Rs. 1,000/ per month w.e.f. 01.10.2013 till the date of the handing over of the possession of the suit property by the defendant to the plaintiff. Costs of the suit are also awarded in favour of the plaintiff.
Decree sheet be prepared accordingly by the Reader. File be consigned to Record Room after due compliance.
Announced in the open court (RAJ KUMAR) on this 07th day of October, 2016. ADJ09 (Central) Tis Hazari Courts, Delhi.
Suit No. 612834/14 (Old Suit No. 754/14) Page No. 22/23
Suit No. 612834/16 (Old Suit No. 754/14)
07.10.2016
Present : None.
Vide my separate judgment of even date, announced in the open court today, the suit of the plaintiff has been decreed. Costs of the suit have also been awarded in favour of the plaintiff.
Decree sheet be prepared accordingly by the Reader.
File be consigned to Record Room after due compliance.
(Raj Kumar) ADJ-09, Central Delhi/07.10.2016 Suit No. 612834/14 (Old Suit No. 754/14) Page No. 23/23