Delhi District Court
Sunita vs Renu on 30 September, 2024
In The Court of Sh. Fahad Uddin,
ASCJ-cum-JSCC-cum-Guardian Judge,
East District, Karkardooma Courts, Delhi.
Civil Suit No. 6479/2016
CNR No.DLET03-000042-2014
In the matter of :-
Smt. Sunita
W/o Shri Karan Pal
R/o Village & Post Badhola,
P.S. Bhojpur, Tehsil Modinagar,
District Ghaziabad, UP ........... Plaintiff
Vs.
1.Smt. Renu W/o Shri Suresh
2. Shri Suresh S/o Not known Both R/o 3220-A, Khasra No. 135, Gali no. 5, Dharampura, Gandhi Nagar, Delhi-110031 ..............Defendants Date of institution : 21.11.2014 Reserved for order on : 15.07.2024 Order announced on : 30.09.2024 Judgment
1. Vide this judgment/order, I shall decide the present suit filed on behalf of the plaintiff (Smt. Sunita ) for permanent and mandatory injunction and damages/ mesne profits against the defendants (Smt. Renu and Sh. Suresh). The brief facts necessary to decide the present case may be described as under:
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2. It is the case of the plaintiff that the plaintiff is the owner of the property bearing no. 3220-A, Khasra no. 135, Gali no. 5, Dharampura, Gandhi Nagar, Delhi-110031 measuring 33 sq yards by virtue of registered GPA and registered Will and notarized Gift deed and affidavit all dated 25.11.1999 executed by the aunt / bua of the plaintiff namely Smt. Shanti Devi W/o Sh. Kanshi Ram in favour of the plaintiff. The aunt / bua of the plaintiff was residing at the aforesaid property during her life time alongwith the plaintiff and her family members and the plaintiff and her family members gave full respect, love and affection to her and being happy with the plaintiff during her life time, the aunt / bua of the plaintiff had transferred / given / gifted the said property to the plaintiff on 25.11.1999. Thereafter, the aunt/bua of the plaintiff had expired on 17.04.2009 and all her last rituals were performed by the plaintiff and her family members. After the death of aunt of the plaintiff, the plaintiff and her family members shifted at Ghaziabad, UP. The defendant no. 1 (Smt. Renu W/o Sh. Suresh) is the real sister of the plaintiff and the defendant no. 2 (Sh. Suresh) is the husband of the defendant no. 1. After the death of the aunt of the plaintiff, both the defendants requested the plaintiff to allow them to live in the said property as licencees/ permissive users of the plaintiff as the defendants were residing in a jhuggi on rental basis and being the real sister of the plaintiff, the plaintiff allowed the defendants to live in the said property as her licencee/permissive users in the month of May, 2009. Now, the plaintiff wants to shift in the said property as her children are grown up and the children of the plaintiff want to continue their study by living in Delhi. Hence, on 12.10.2014, the plaintiff asked the defendant to vacate the suit property and hand over the peaceful possession to her but the defendants flatly refused to vacate the suit property and finding no other options, the Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 2 of 45 plaintiff terminated the licence of the defendants to live in her property by sending a legal notice dated 14.10.2014 to the defendants which was dispatched on 15.10.2014 through speed post, thereby calling upon the defendants to hand over the peaceful and vacant possession of the suit property to the plaintiff within 15 days from the receipt of the said notice. The said notice was duly served upon the defendants but instead of complying the same, the defendants sent a false and frivolous reply to the counsel for the plaintiff as well as the plaintiff.
3. Thereafter, on 10.11.2014, the defendants threatened the plaintiff that they will transfer, sublet, alienate, part with possession or create third party interest in order to frustrate the claim of the plaintiff. The defendants have no right to transfer, sublet, alienate, part with possession or to create third party interest in the suit property and in case, the defendants succeed in their plan, plaintiff shall suffer irreparable loss and injury which cannot be compensated in terms of money. If the suit property which is in possession of the defendants is let out to any tenant, it will fetch the rent at least Rs. 5000/- per month. The plaintiff is the actual owner of the property in question and she does not want to allow the defendants to live in the suit property anymore and the defendants are legally liable to vacate and hand over the peaceful and vacant possession of the suit property to the plaintiff after termination of their licence as the defendants have no right to live and reside in the suit property. Hence, in this back ground the present suit has been filed by the plaintiff against the defendants for permanent and mandatory injunction as well as damages / mense profits as prayed for in the plaint.
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4. Written statement was filed in the present case on behalf of the defendants wherein the defendants denied the case of the plaintiff and stated that the suit of the plaintiff is not maintainable against the defendants as the plaintiff is not the owner of the suit property and the alleged documents i.e. GPA, Gift deed and affidavit allegedly executed by Smt. Shanti Devi in favour of the plaintiff are false and fabricated. The defendants are not the licencee of the plaintiff and the plaintiff has filed the present suit with a malafide intention to cause harassment, loss and mental agony to the defendants. The plaintiff has nothing to do with the suit property. On the contrary, the defendant no. 1 (Smt. Renu) is the owner of the property which was bequeathed in her favour by her aunt Smt. Shanti Devi during her life time as the defendant no. 1 used to reside with her aunt since her childhood i.e. 1994 and the defendants reconstructed the suit property from their own funds. The defendants denied that the plaintiff is the owner of the property by virtue of registered GPA, Registered Will, Notarized Gift Deed and Affidavit, all dated 25.11.1999 executed by Smt. Shanti Devi in favour of the plaintiff. All these documents are false and fabricated by the plaintiff in order to grab the suit property and Smt. Shanti Devi never executed any documents in favour of the plaintiff. The defendants denied that the plaintiff used to reside in the suit property alongwith her aunt Smt. Shanti Devi. In fact, defendant no. 1 (Smt. Renu) was residing in the suit property since her childhood i.e. since 1994 with her aunt Smt. Shanti Devi and after defendant no. 1 got married with defendant no. 2, her husband Suresh also started residing in the suit property. All the children of the defendants also born in the suit property and the birth certificate of the children of the defendants clearly show the address of the suit property. The hospital record also show that the defendants were residing in the property in question. However, the driving license of the husband of the plaintiff was at Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 4 of 45 the address of the suit property because of his personal request for the purpose of procuring the driving license from the transport authority. Hence, the driving license is the only document which was procured by the husband of the plaintiff in collusion with the plaintiff and he also got his name entered in the ration card of Smt. Shanti Devi for procuring the driving license. The name of the plaintiff is not in the ration card of Smt. Shanti Devi which clearly indicated that the plaintiff never resided in the suit property. The defendants were the only persons who looked after the suit property and even the rooms were also constructed by the defendants. During her childhood, when the defendant no. 1 was residing with her aunt Smt. Shanti Devi at that time, there existed only one small room as Smt. Shanti Devi was not having any income and the defendant no. 1 used to work as domestic servant in several houses in the locality and after the, defendant no. 1 got married on 08.06.2004 and since, there was not sufficient accommodation, both the defendants constructed the rooms in the suit property from their own funds.
5. The defendants submitted that the relations of the defendants with the plaintiff were not cordial and hence, both the parties were not having any talking terms with each other for last about 15-16 years. The defendants specifically denied that after the death of the aunt of the plaintiff, the defendants requested the plaintiff to allow them to live in the suit property as licencee / permissive users of the plaintiff as the defendants were residing in a jhuggi on rental basis. The defendants submitted that defendant no. 1 used to reside in the suit property since her childhood and after her marriage, the defendant no. 2 also started residing in the suit property who constructed the rooms from their own funds. The plaintiff has no right, title or interest over the suit property nor the plaintiff has any right to ask the defendants to vacate Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 5 of 45 the suit property. The defendants admitted that the plaintiff had sent a legal notice dated 14.10.2014 to the defendants and the defendants immediately gave a detailed reply to the plaintiff which was served upon the plaintiff and the plaintiff has no right to terminate the license of the defendants to live in the suit property as the defendants were never the licencee of the plaintiff. The suit property is being solely used by the defendants for their residential use. The plaintiff has nothing to do with the suit property and the plaintiff is having an evil eye on the suit property which belongs to the defendants. The plaintiff has no right, title and interest over the suit property. Accordingly, the defendants prayed for dismissal of the suit of the plaintiff on the grounds raised in their WS.
6. Replication has also been filed by the plaintiff to the WS filed by the defendant no. 1 and 2 wherein the plaintiff denied the case of defendant no. 1 and 2 as stated in the WS and reiterated and reaffirmed her own case as per the plaint. The plaintiff stated that she is the registered owner of the suit property on the basis of registered documents. The plaintiff denied that the defendants are not the licencee of the plaintiff or that the defendant no. 1 is the owner of the property which was bequeathed in her favour by her aunt Smt. Shanti Devi during her life time as the defendant no. 1 used to reside with her aunt since childhood i.e. 1994 and the defendants reconstructed the suit property from their own funds. Rest of the submissions made by the plaintiff in her replication are not being repeated herein for the sake of brevity. Suffice it to say, that the plaintiff prayed for decree of the suit as per the plaint.
7. It may be noted that vide order dated 03.03.2015, the application of the plaintiff under Order 39 Rule 1 and 2 CPC was disposed of and the defendants Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 6 of 45 were restrained by way of temporary injunction not to transfer, alienate, sub let, part with possession or create any third part interest in property bearing no. 3220-A, Khasra no. 135, Gali no. 5, Dharampura, Gandhi Nagar, Delhi- 110031 more specifically shown in the site plan attached with the plaint Ex. P1 during the pendency of the suit.
Issues:
8. Vide order dated 25.05.2015, the following issues were framed by the court for adjudication in the present case:-
1) Whether the plaintiff is entitled for the peaceful and vacant possession of property bearing no. 3220-A, Khasra no. 135, Gali no. 5, Dharampura, Gandhi Nagar, Delhi-110031 as prayed for ? OPP
2) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for ? OPP
3) Whether the plaintiff is entitled for any damages / mesne profits? If so, at what rate and for what period ? OPP
4) Whether the suit is barred by limitation? OPD
5) Whether the suit has not been valued properly for the purpose of court fees and jurisdiction ? OPD
6) Whether the suit is barred under the provisions of Order 7 Rule 11 CPC? OPD
7) Relief, if any.
Plaintiff evidence:-
9. To prove her case before this court, the plaintiff got examined 5 witnesses i.e. PW1 Smt Sunita (plaintiff), PW2 Sh. Karan Pal, PW3 Sh. Prakash, PW4 Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 7 of 45 Sh. Chander Prakash and PW5 Sh. Rishi Pal. PW1 Smt. Sunita tendered her evidence by way of affidavit which is Ex. PW1 on court record and the said witness also relied upon the following documents in support of her case:
i) Registered GPA dated 25.11.1999 as Ex. PW1/1 (OSR).
ii) Copy of registered Will dated 25.11.1999 as Ex. PW1/2 (OSR).
iii) Copy of Gift Deed dated 25.11.1999 as Ex PW1/3 (OSR).
iv) Copy of Affidavit dated 25.11.1999 as Ex PW1/4 (OSR).
v) Copy of election I-card of Smt. Shanti Devi as Ex PW1/5 (OSR).
vi) Copy of ration card of Smt. Shanti Devi as Ex PW1/6 (OSR).
vii) Copy of electricity bill as Mark A.
viii) Photographs of deceased Smt. Shanti Devi as Ex. PW1/7 and Ex PW1/8.
ix) Copy of death certificate of Smt. Shanti Devi as Ex. PW1/9 (OSR).
x) Copy of election I-card of PW1 as Ex PW1/10 (OSR).
xi) Site plan of the suit property as Ex. PW1/11.
xii) Copy of legal notice dated 14.10.2014 is Ex. PW1/12.
xiii) Postal receipts are Ex. PW1/13 (colly).
xiv) Reply to the legal notice is Ex. PW1/14.
The said witness PW-1 was duly cross-examined by the counsel for the defendants on 26.10.2016 and 31.01.2017 and after conclusion of the cross- examination PW1 was discharged.
10. PW-2 Sh. Karan Pal tendered his evidence by way of affidavit which is Ex. PW2/A on court record and he relied upon the document Ex. PW2/1 (OSR) which is copy of his driving license. PW3 Sh. Prakash tendered his evidence by way of affidavit which is Ex. PW3/A on court record. PW 4 Sh. Chander Prakash tendered his evidence by way of affidavit which is Ex.
Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 8 of 45 PW4/A on court record and he relied upon the document i.e. GPA dated 25.11.1999 already Ex. PW1/1 (OSR), Deed of Will dated 25.11.1999 already Ex. PW1/2 (OSR) and Gift Deed dated 25.11.1999 is already Ex. PW1/3 (OSR) all the documents bearing his signatures at point X. PW-5 Sh. Rishi Pal tendered his evidence by way of affidavit which is Ex. PW5/A on court record and he relied upon the document i.e. the Gift Deed dated 25.11.1999 already Ex. PW1/3 (OSR). All the said witnesses were duly cross-examined by the counsel for the defendants and after conclusion of their cross-examination, they were discharged. After examination of the said witnesses, plaintiff evidence was closed on 20.11.2018.
Defendant evidence:-
11. To disprove the case of the plaintiff before this court the defendants got examined two witnesses i.e. DW1 (Smt. Renu) and DW2 (Sh. Suresh Chander). DW1 Smt. Renu tendered her evidence by way of affidavit which is Ex. DW1/1 on court record and she relied upon the following documents in support of her case:
i) Birth certificate of master Aryan as Ex. DW1/A (OSR)
ii) Birth certificate of baby Riya as Ex. DW1/B (OSR).
iii) Birth certificate of master Rehan as Ex. DW1/C (OSR).
iv) Agreement to sell, GPA and receipt all dated 11.07.1978 already Ex.
PW1/D1 and Will dated 07.05.2007 already Ex. PW1/D1.
The said witness DW1 was duly cross-examined by the counsel for the plaintiff on 12.09.2019, 25.10.2019, 18.01.2020 and 01.03.2023.
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12. Another witness examined on behalf of the defendant is DW2 Sh. Suresh Chander who tendered his evidence by way of affidavit which is Ex. DW2/1 on court record and the said witness relied upon the following documents in support of his case.
i) Will dated 07.05.2007 (already Ex PW1/D1).
ii) Copy of photographs showing DW2 and his wife as Mark B and C.
iii) Birth certificate of eldest son Aryan already Ex. DW1/A (OSR).
iv) Birth certificate of daughter Riya already Ex. DW1/B (OSR).
v) Birth certificate of son already Ex. DW1/C (OSR).
vi) Copy of Aadhar Card of DW2 Suresh Chand as Mark D. The said witness was duly cross-examined by the counsel for the plaintiff on 14.07.2022 and after conclusion of cross-examination, DW-2 was discharged. No other witness has been examined on behalf of the defendants in support of their case and DE was closed in the present case on 03.11.2023.
Final arguments:
13. Thereafter, final arguments were addressed in the present case on behalf of the plaintiff as well as the defendants wherein the counsel for the plaintiff stated that on the basis of testimony of plaintiff's witnesses as well as documents relied upon by them, the suit of the plaintiff is liable to be decreed as per the plaint. On the contrary, the counsel for the defendants submitted that the plaintiff has failed to prove her case before this court and the suit of the plaintiff is liable to be dismissed accordingly.
14. Submissions heard. Record perused. The documents filed on behalf of the plaintiff as well as the defendants are also gone through.
Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 10 of 45 Findings:
15. On the basis of the pleadings of the parties, evidence led on their behalf and arguments addressed by their Counsels, the issue wise findings of this Court are as under:-
Issue no.6: Whether the suit is barred under the provisions of order 7 rule 11 CPC?OPD For the sake of convenience issue no.6 is being taken up firstly. The onus to prove this issue is upon the defendants. In para no.8 of the preliminary objections of the WS, the defendants have stated that the suit of the plaintiff is liable to be dismissed under order 7 rule 11 CPC. On the contrary in the replication it has been denied by the plaintiff that the suit of the plaintiff is liable to be dismissed under order 7 rule 11 CPC. It may be noted that no specific evidence has been led on behalf of the defendants in the present case to prove this issue. The present suit has been filed by the plaintiff against the defendants for permanent and mandatory injunction, damages/mesne profits on the ground that the plaintiff is the owner of property bearing no. 3220-A, khasra no. 135, Gali no.5, Dharampura, Gandhi Nagar, Delhi-31 measuring 33 sq yds. by virtue of registered GPA, Registered Will and Notarized Gift Deed and Affidavit all dated 25.11.1999 executed by the aunt/bua of the plaintiff namely Smt. Shanti devi W/o Kanshi Ram in favour of the plaintiff. After the death of aunt of the Plaintiff, the Plaintiff allowed the defendants to live in the said property as her licencee/permissive users in the month of May 2009 and now the plaintiff wants to shift in the said property and the plaintiff terminated the licence of the defendants to live in her property by sending a legal notice dated 14.10.2014 to the defendants which was dispatched on 15.10.2014. The said notice was duly served upon the defendants but instead of complying with the said notice, the defendants sent a false and frivolous reply to Counsel Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 11 of 45 for the plaintiff as well as the plaintiff. The Plaintiff is the actual owner of the property in question and she does not want to allow the defendants to live in the suit property. Hence the present suit was filed by the plaintiff against the defendants in these circumstances. From the said averments made in the plaint as well the documents filed on record on behalf of the plaintiff, the suit of the plaintiff seems to be maintainable against the defendants and there seems to be a valid cause of action in favour of the plaintiff and against the defendants to file the present suit. Reference may also be made to the case of " Arunesh Punetha vs. Boston Scientific Corporation " decided on 25.08.2005 by the Hon'ble High Court of Delhi, wherein it was observed that:-
It is a settled rule of law that the plea of rejection of plaint is founded on the "PLEA OF DEMURRER". A person raising such plea in law has to take the facts as stated by the opponent as correct. Despite tentative admission of such correctness, the plaint does not disclose a complete or even partial cause of action or the relief claimed is barred by law and thus, the plaint is liable to be rejected within the provisions of Order 7 Rule 11 of the Code of Civil Procedure. Plain language of this rule shows that for determination of an application under this provision, the Court has to look into the plaint. This concept has been extended by judicial pronouncement of various courts so as to take within its ambit even the documents filed by the plaintiff Along with plaint or subsequent thereto but prior to the hearing of such application. It would be more so where the documents have been referred to in the plaint itself. But the defense raised by the defendants in his written statement or the documents filed along therewith certainly falls beyond the zone of consideration, where an application for rejection of a plaint is being considered by the Court. The language of the rules does not admit any scope for doubt that the written statement filed by the defendant cannot be referred or relied upon by the applicants for decision of such application. Whether the plaint discloses any cause of action or not, is a question found on the basic cause of action pleaded by the plaintiff in his plaint. It must thus necessarily be construed that language of Rule 1 is circumscribed by the limitation or reading the plaint at best with its supporting documents. A Full Bench of this Court in the case of Harnam Singh v. Surjit Singh, , held as under:-
Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 12 of 45 It is well settled that a cause of action means every fact which, if traversed, would be necessary for the plaintiff to prove in order to support the right to a judgment in his favor. In other words, it is a bundle of facts which taken with the law applicable to him gives the plaintiff a right to relief against the defendant. Negatively it does not comprise the evidence necessary to prove the bundle of facts and equally has no relation whatsoever to the defense, which may be set up by the defendant nor does it depend on the character of the relief prayed for by the plaintiff.
16. Thus due to these reasons, this Court finds no merit in the objection of the defendants that the suit of the plaintiff is liable to be dismissed under 7 rule 11 CPC and hence this issue is decided against the defendants.
Issue no.5: Whether the suit has not been valued properly for the purpose of Court fees and jurisdiction? OPD
17. The onus to prove this issue is again upon the defendants. In the WS in preliminary objections no.4 it has been submitted by the defendants that the present suit has not been properly valued for the purpose of court fee and jurisdiction, hence the same is liable to be dismissed. In the replication, the plaintiff has denied that the present suit has not been properly valued for court fee and jurisdiction. In para no.13 of the plaint , the plaintiff has valued the present suit for the purpose of court fees and jurisdiction for the relief of mandatory and permanent injunction, the suit has been valued at Rs 130/- each for which appropriate court fees has been affixed on the face of the plaint and the suit is valued for the relief of damages/mesne profits @ Rs 5,000/- per month and the plaintiff has undertaken to pay the court fees for the relief of damages/mesne profits as per the directions of the court as the said amount is yet to be determined by this Court on the basis of evidence led by the parties. The defendants have not led any specific evidence qua this issue and have not Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 13 of 45 made any averment as to how the said valuation of the plaintiff is wrong and what ought to be the correct valuation of the present suit. In the case of "Sant Lal Jain v. Avtar Singh" [(1985) 2 Supreme Court Cases 332 ] decided on 12.03.1985 it was observed by the Hon'ble Supreme Court of India:-
After the termination of licence , the licencee is under a clear obligation to surrender his possession to the owner and if he fails to do so, we do not see any reason why the licencee cannot be compelled to discharge this obligation by way of a mandatory injunction under section 55 of the Specific Relief Act. We might further mention that even under the English Law a suit for injunction to evict a licencee has always been held to be maintainable.
Where a licencer approaches the court for an injunction within reasonable time after the licence is terminated, he is entitled to an injunction. On the other hand, if the licenser causes huge delay, the court may refuse the discretion to grant an injunction on the ground that the licenser had not been diligent and in that case, the licenser will have to bring a suit for possession which will be governed by section 7 (v) of the Court fees Act.
18. In the present case as per the averments made in the plaint, the plaintiff terminated the licence of the defendants to live in her property by sending a legal notice dated 14.10.2014 to the defendants which was dispatched on 15.10.2014 through speed post whereby the defendants were called upon to handover the peaceful and vacant possession of the suit property to the plaintiff within 15 days from the receipt of the said notice and the suit was filed on 21.11.2014 i.e. within reasonable time and hence the suit for mandatory and permanent injunction is maintainable against the defendants and fixed court fees is required to be paid in terms of the provisions of the Court Fees Act and as no evidence to disprove the valuation of the plaintiff as Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 14 of 45 improper and contrary to law has been led on behalf of the defendants, consequently this is issue is decided against the defendants.
Issue no. 4: Whether the suit is barred by limitation? OPD
19. The onus to prove this issue is also upon the defendants. In the WS in preliminary objection no.3, the defendants stated that the present suit is not maintainable and is liable to be dismissed as the same is barred by limitation.
In the replication the plaintiff has denied that the suit is not maintainable or liable to be dismissed as the same is barred by limitation. It may be noted that no details averments regarding the plea of limitation have been made by the defendants and no specific evidence led in this regard and no question has been put to the plaintiff witnesses with regard to the same during their cross examination. In the case cited above i.e. Sant Lal Jain v. Avtar Singh" [(1985) 2 Supreme Court Cases 332 ] decided on 12.03.1985 it was observed by the Hon'ble Supreme Court of India:- "that the principle that once a licencee always a licencee would apply to all kinds of licences and that it cannot be said that the moment the licence is terminated, the licencee's possession becomes that of a trespasser.
As in the earlier issue, it has been discussed that as per the averments made in the plaint, the plaintiff terminated the licence of the defendants to live in her property by sending a legal notice dated 14.10.2014 to the defendants which was dispatched on 15.10.2014 through speed post whereby the defendants were called upon to handover the peaceful and vacant possession of the suit property to the plaintiff within 15 days from the receipt of the said notice and the suit was filed on 21.11.2014 i.e. within reasonable time and hence in this situation, the plea of limitation raised by the defendants seem to Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 15 of 45 be a bald plea without any basis and cogent evidence and the same is accordingly dismissed due to the said reasons.
Issue no.1: Whether the Plaintiff is entitled for the peaceful and vacant possession of property bearing no.3220-A khasra no. 135, Gali no.5, Dharampura, Gandhi Nagar, Delhi-31 as prayed for? OPP
20. The onus to prove this issue is upon the plaintiff. To prove her case before this court, the plaintiff got examined 5 witnesses. PW1 is Smt. Sunita W/o Sh. Karan Pal, PW2 is Sh. Karan Pal S/o Sh. Jodha, PW3 is Sh. Prakash S/o Sh. Bansi, PW4 is Sh. Chander Prakash S/o Sh. Mohan Lal and PW5 is Sh. Rishi Pal S/o Sh. Sumer Singh. PW1 Smt. Sunita tendered her evidence by way of affidavit which is Ex. PW1 on court record.
21. In her evidence by way of affidavit, PW1 Smt. Sunita stated that she is the owner of property bearing no. 3220-A, Khasra no. 135, Gali no. 5, Dharampura, Gandhi Nagar, Delhi-110031 measuring 33 sq yards by virtue of registered GPA and registered Will and notarized Gift Deed and affidavit, all dated 25.11.1999 executed by the aunt/bua of the plaintiff namely Smt. Shanti Devi. The aunt / bua of the plaintiff was residing at the said property during her life time alongwith the plaintiff and her family members gave full respect, love affection and care to her and being happy with the plaintiff, during her life time, the aunt / bua of the plaintiff transferred / given / gifted the said property to the plaintiff on 25.11.1999. Thereafter, the aunt/bua of the plaintiff expired on 17.04.2009 and all her last rituals were performed by the plaintiff and her family members. After the death of the aunt of the plaintiff, the plaintiff and her family members shifted at Ghaziabad, UP. The defendant no. 1 (Smt. Renu) is the real sister of the plaintiff and the defendant no. 2 is the Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 16 of 45 husband of the defendant no. 1. After the death of the aunt of the plaintiff, both the defendants requested the plaintiff to allow them to live in the suit property as licencee / permissive user of the plaintiff as the defendants were residing in a jhuggi on rental basis and being real sister of the plaintiff, the plaintiff allowed the defendants to live in the suit property as her licencee / permissive users in the month of May, 2009. Now, the plaintiff wants to shift in her property as her children are grown up and the children of the plaintiff want to continue their studies by living in Delhi and hence, on 12.10.2014, the plaintiff asked the defendants to vacate the suit property and hand over the peaceful possession of the same to her but the defendants flatly refused to vacate the suit property and therefore the plaintiff terminated the licencee of the defendants to live in her property by sending a legal notice dated 14.10.2014 to the defendants which was dispatched on 15.10.2014 through speed post thereby calling upon the defendants to handover the peaceful and vacant possession of the suit property to the plaintiff within 15 days from receipt of the said notice. The said notice was duly served upon the defendants but instead of complying the same, the defendants sent a false and frivolous reply to the counsel for the plaintiff as well as plaintiff. Thereafter, on 10.11.2014, the defendants threatened the plaintiff that they will transfer sublet / alienate / part with possession and create third party interest to frustrate the claim of the plaintiff. The defendants have no right to transfer, sublet, alienate, part with possession or to create third party interest in the suit property. If the defendants are successful to create third party interest in the suit property, the plaintiff shall suffer irreparable loss and injury which can not be compensated in terms of money. The plaintiff is the actual owner of the property in question and she does not want to allow the defendants to live in the suit property. The defendants are legally liable to vacate and handover the Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 17 of 45 peaceful vacant possession of the suit property to the plaintiff after termination of their license as the defendants have no right to live, reside in the suit property.
22. To support her case, the plaintiff has also relied upon the documentary evidence, which is Ex. PW1/1 to Ex. PW1/14 on court record. Registered GPA dated 25.11.1999 executed by Smt. Shanti Devi in favour of Smt. Sunita qua the suit property is Ex. PW1/1 (OSR). Copy of Registered Will dated 25.11.1999 executed by Smt. Shanti Devi in favour of the Smt. Sunita qua the suit property is Ex. PW1/2 (OSR), Copy of Gift deed dated 25.11.1999 executed by Smt. Shanti Devi in favour of Smt. Sunita qua the suit property is Ex. PW1/3 (OSR), Copy of affidavit dated 25.11.1999 executed by Smt. Shanti Devi in favour of the plaintiff Smt. Sunita qua the suit property is Ex. PW1/4 (OSR). Copy of election I card of Smt. Shanti Devi is Ex. PW1/5 (OSR), Copy of ration card of Smt. Shanti Devi is Ex. PW1/6 (OSR), Copy of electricity bill in name of Smt. Shanti Devi qua the suit property is Mark A, photographs of deceased Smt. Shanti Devi are Ex. PW1/7 and Ex. PW1/8. Copy of death certificate of Smt. Shanti Devi is Ex. PW1/9 (OSR) which shows that the Shanti Devi had expired on 17.04.2009 in her native village in Meerut U.P. Photocopy of election I card of the plaintiff is Ex. PW1/10 (OSR), Site plan of the suit property is Ex. PW1/11, copy of legal notice dated 14.10.2014 issued on behalf of the plaintiff to the defendants thereby calling upon the defendants to hand over the vacant and peaceful possession of the suit property to the plaintiff within 15 days of the receipt of the said legal notice is Ex. PW1/12. Postal receipts for the same are Ex. PW1/13 (colly) and reply to the legal notice issued on behalf of the defendants to the plaintiff is Ex. PW1/14.
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23. In her cross-examination, PW1 Smt. Sunita stated that the defendant no. 1 got married in court around 8-10 years back. The court marriage was performed in Dharampura Delhi. She stated that she did not know as to where defendant no. 2 was residing at that time. She stated that her family members including the family of her parents were not aware of their marriage. The defendant no. 1 left the house for getting married with defendant no. 2 from the house of her bua Smt. Shanti Devi. The defendant no. 1 was residing with her bua when she was of the age of 15-16 years. She again said that she used to visit, the house of her bua for temporary period only and used to return back. She stated that the defendant no. 1 was permanently residing in the village Atrada, near Hapur, at her paternal home. She stated that her parents are still alive and she used to reside with her parents before her marriage. She stated that no police action was taken by her parents after defendant no. 1 left the house for marriage. She denied the suggestion that defendant no. 1/ Smt. Renu was residing with her bua Smt. Shanti Devi since the year 1994 or that she remained with her bua since then. She stated that she was having good relations with defendant no. 1 till the filing of the present suit. The defendant no. 1 is having four children and her first and second child were born in Delhi in her jhuggi. She stated that the name of one of the child of defendant no.1 is Riya and she denied the suggestion that the defendant no. 1 was residing in the suit property when she was born and the name of one of the sons of defendants is Aryan who is about 11-12 years of age and she denied the suggestion that defendant no. 1 was residing in the suit property when he was born. PW1 stated that the ownership documents in the name of Smt. Shanti Devi were stolen and the said documents were stolen after the death of the Smt. Shanti Devi. She came to know about the theft of the said documents Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 19 of 45 when they searched the box of late Smt. Shanti Devi after her death. Later on, after about 10-15 days of death of Smt. Shanti Devi, she came to know that the documents have been stolen by the defendant no. 1. She stated that she is saying this on the basis of her own assessment and defendant no. 1 never stated to her that she had stolen the said documents. She stated that she did not lodge any complaint in this regard and she never saw the ownership documents in the name of Smt. Shanti Devi. She stated that she had heard that Smt. Shanti Devi had purchased the suit property from one Chandan and she can identify the documents in favour of Smt. Shanti Devi if shown to her. The documents Ex. PW1/D1 (colly) were shown to her and she stated that the said documents are the same documents in favour of Smt.Shanti Devi which she had seen earlier. She stated that her evidence by way of affidavit Ex. PW1 was prepared on her instructions and was read over to her by her counsel. She said that she cannot say if the fact of the theft of the documents is mentioned in the affidavit or not. She stated that she did not have any document to show that she ever resided in Delhi at any point of time. She stated that she did not have the knowledge about the jhuggi number where defendant no. 1 used to reside prior to her marriage but it was in Seelampur, Delhi. The defendant no. 1 used to reside alongwith her husband and she cannot tell about the total length of period when she resided in the said jhuggi. She stated that she never visited the defendant no. 1 in the said jhuggi.
24. In her further cross-examination on 31.01.2017, PW1 Smt. Sunita stated that it is correct that her name has not been recorded in the ration card of late Smt. Shanti Devi which has been filed by her. All the documents with regard to her residence are of Village Badhola, Ghaziabad, UP. She stated that her matrimonial house is in village Badhola. She stated that Smt. Shanti Devi is Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 20 of 45 her bua and she admitted as correct that documents such as Gift deed and affidavit which are Ex. PW1/3 and Ex. PW1/4, in the said documents it has been mentioned that she is the real daughter of Smt. Shanti Devi. She admitted as correct that she is not the daughter of Smt. Shanti Devi. Her children never studied in Delhi and all her children studied at village Badhola. She denied the suggestion that the documents Ex. PW1/1 to Ex. PW1/4 are fabricated and manipulated documents by her in order to falsely create the ownership over the suit property. She denied the suggestion that she never had any right, title or interest over the suit property. She further denied the suggestion that she never gave permission to the defendants to reside in the suit property or that defendant no. 1 resided with Smt. Shanti Devi since her childhood. She stated that the documents Ex. PW1/1 to Ex.PW1/4 were executed about 17 years back by Smt. Shanti Devi and she did not remember the exact date and year of execution of the said documents. At that time, she used to reside at Village Badhola and after execution of the said documents, she used to visit Delhi after one month or two months regularly. The Tehravi and Barsi of Smt. Shanti Devi took place at Village Atrara, Meerut. She stated that she came to Delhi after one month of Teharavi of Smt. Shanti Devi. She stated that her sister Renu / defendant no. 1 was already residing in the suit premises at that time. She denied the suggestion that she had never permitted the defendants to reside in the suit premises or that she has filed the present suit in order to harass the defendants. She further denied the suggestion that she has no right, title or interest in the suit property or that the defendants have all the rights, title, interest over the suit property. She admitted as correct that she never paid any electricity or water bills of the suit property at any point of time. She denied the suggestion that the thumb impressions of Smt. Shanti Devi in the documents Ex. PW1/1 to Ex. PW1/4 are forged and fabricated. No Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 21 of 45 other material fact was deposed by PW1 Smt. Sunita during her cross- examination.
25. PW-2 Sh. Karan Pal tendered his evidence by way of affidavit which is Ex. PW2/A on court record. In his evidence by way of affidavit, PW2 reiterated and reaffirmed the same facts as mentioned by the plaintiff in her affidavit and the same are not being repeated herein for the sake of brevity. PW-2 relied upon the documents Ex. PW2/1 (OSR), which is copy of Driving license of PW2 Karan Pal at the suit property.
26. In his cross-examination, PW2 Karan Pal stated that he got married with plaintiff in 1986. At the time of his marriage, he was residing in village Badhola, District Ghaziabad UP. After marriage, the plaintiff was residing with him in his village. His first child namely Sh. Rahul was born at village Badhola, District Ghaizabad UP and at the time of birth of his son Sh. Rahul, he was residing in village Badhola, District Ghaziabad UP. He stated that they had shifted to Delhi in 1995 to 1996. He stated that he knew defendant no. 1 / Smt. Renu since his marriage in 1986. He stated that he did not remember the year in which defendant no. 1 Smt. Renu got married. He stated that defendant no. 1 had eloped and got married. He stated that after marriage, defendant no. 1//Smt. Renu was residing in the jhuggi's of Dharampura, Gandhi Nagar, Delhi and he admitted as correct that defendant no. 1/ Smt. Renu used to visit her bua late Smt. Shanti Devi. He further admitted as correct that late Smt. Shanti Devi did not have any child. However, he denied the suggestion that as Smt. Shanti Devi had no child, the defendant no. 1 Ms. Renu used to reside with her. He stated that defendant no. 1 Ms. Renu has 2-3 children. He denied the suggestion that all the children of defendant no. 1 were born at the suit Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 22 of 45 property. He denied the suggestion that all his children had taken birth in his village. He stated that his 3rd child a daughter was born in Delhi and his last child a son was born in village on 25.03.1999. At that time, he and his wife used to visit their village but they were settled in Delhi and as on today, they reside in their village. He stated that he shifted back to his village in 2005. At that time, he and his wife used to stay often with Late Smt. Shanti Devi. In their absence, his brother in law and his father in law used to stay with late Smt. Shanti Devi. He stated that Ms. Pooja sister of defendant no. 1 also used to visit Late Smt. Shanti Devi. He further stated that after marriage, the husband of defendant no. 1 used to reside in the jhuggi's of Dharampura and he denied the suggestion that the husband of the defendant no. 1 was residing with late Smt. Shanti Devi and that the suit property has been built up by his funds. He stated that he was explained the contents of his affidavit which is Ex. PW2/A on court record. He stated that the documents dated 25.11.1999 were prepared at Shahdara Courts Delhi and he denied the suggestion that the documents dated 25.11.1999 are forged documents or that the defendants are not licencees / permissive users qua the suit property. He admitted as correct that the electricity and water bills qua the suit property were being paid by defendant no. 1. He denied the suggestion that neither him nor his wife ever resided in the suit property or that in order to grab the suit property they have filed the present suit on the basis of forged documents dated 25.11.1999. No other material facts was deposed by PW2 in the present case.
27. PW-3 is Sh. Prakash, who is the father of the plaintiff and defendant no.
1. He tendered his evidence by way of affidavit which is Ex. PW3/A on court record. In his affidavit, he reiterated and reaffirmed the same facts as stated by the plaintiff in her affidavit/plaint and hence, the contents of the affidavit of Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 23 of 45 PW3 are not being repeated herein for the sake of brevity. In his cross- examination, PW3 Sh. Prakash stated that it is correct that his elder daughter Ms. Sunita was married at Village Badhola, Modi Nagar, UP and husband of Ms. Sunita works in the corporation. His office is near Karkardooma courts and he comes to his office from Modi Nagar, UP. He stated that he knows that his younger daughter Ms. Renu was married to Sh. Suresh way of a court marriage and it is correct that Ms. Renu had eloped with Sh. Suresh. He stated that he did not know whether Ms. Renu and Sh. Suresh had setup their matrimonial house. He stated that he used to visit the house of his sister late Smt. Shanti Devi and when, he used to visit his sister late Smt. Shanti Devi, she used to be residing with his son Bhole. Sometimes, even he used to stay with his sister. He stated that he did not remember as to when he had visited the suit property for the last time as he had been keeping unwell for the past 10 years. He stated that he did not remember as to when he had seen his daughter Ms. Renu for the last time and he has not met with his daughter Ms. Sunita since a number of months. The witness stated that he did not know his affidavit Ex. PW3/A and same does not bear his signature at point A and B. No other material fact was deposed to by PW3 in the present case.
28. PW-4 is Sh. Chander Prakash, who tendered his evidence by of affidavit which is Ex. PW4/A on court record. In his affidavit, PW 4 stated that he is the cousin of the plaintiff as well as defendant no. 1 and is well known to Late Smt. Shanti as she resided in the neighbourhood of PW-4. He stated that on 25.11.1999, Late Smt. Shanti Devi had asked him to visit with her at sub- Registrar office for the purpose of executing some documents in favour of the plaintiff and PW4 alongwith Smt. Shanti Devi and one Rishipal went to the office of Sub-Registrar, Delhi where Smt. Shanti Devi executed a registered Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 24 of 45 GPA, registered Will and notarized Gift deed in respect of property bearing no. 3220-A, Khasra no. 135, gali no. 5, Dharampura, Gandhi Nagar, Delhi- 110031 measuring 33 sq yards in favour of plaintiff. Smt. Shanti Devi put her thump impressions on the said documents in her sound mind and PW4 also put his signatures as witness on all the said documents. Sh. Rishipal also put his signatures as witness on the gift deed in the presence of PW4 and the said documents were prepared by one advocate who also put his signature on the GPA and Will. PW-4 also relied upon the said GPA dated 25.11.1999 Ex. PW1/1 (OSR), Deed of Will dated 25.11.1999 Ex. PW1/2 (OSR) and Gift deed dated 25.11.1999 Ex. PW1/3 (OSR) bearing his signatures at point X on all the said documents.
29. In his cross-examination, PW 4 stated that he knew late Smt. Shanti Devi since the year 1980 as she was his aunt. In 1999, the defendant no. 1 Renu and her sister Ms. Rama used to reside with Late Smt. Shanti Devi at the suit property. He stated that he had signed the aforesaid documents at the same time and the same place that is Seelampur Court. He stated that at the time of signing of the said documents, he had signed a register. He did not remember the designation / authority of the person in front of whom he had signed the documents and the register as too much time has passed. He stated that at time time of signing of the said documents, he had not visited any advocate and he had not signed the register of any advocate. He stated that all the aforesaid documents were executed before the same authority. He stated that he knew the plaintiff Ms. Sunita and at the time of execution of the said documents, Ms. Sunita was also present. He did not know what identity document Ms. Sunita had at the time execution of the said documents. He stated that at the time of signing of the documents, the concerned authority had asked for his Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 25 of 45 identity document. He stated that he had gone to execute the said documents from the residence of Late Smt. Shanti Devi. On that day, Sh. Prakash, brother of late Smt. Shanti Devi and Ms. Sunita were present at the residence of Late Smt. Shanti Devi. He denied the suggestion that he had not gone to Seelampur court for execution of the said documents or that in his presence Late Smt. Shanti Devi had not executed the said documents. He denied the suggestion that the thumb impression of Late Smt. Shanti Devi on the said documents are forged. No other material fact was deposed to by PW4 during his cross- examination.
30. PW5 is Sh. Rishi Pal who tendered his evidence by way of affidavit which is Ex. PW5/A on court record. He also stated that he is the neighbour of plaintiff and well known to Late Smt. Shanti Devi as she resided in the neighbourhood of the PW-5. He stated that on 25.11.1999, Late Smt. Shanti Devi had asked him to visit with her at sub-Registrar office for the purpose of executing some documents in favour of the plaintiff and he alongwith Smt. Shanti Devi and one Chander Prakash (PW4) went to the office of Sub- Registrar, Delhi where Smt. Shanti Devi executed a registered GPA, registered Will and notarized Gift deed in respect of property bearing no. 3220-A, Khasra no. 135, gali no. 5, Dharampura, Gandhi Nagar, Delhi-110031 measuring 33 sq yards in favour of plaintiff. Smt. Shanti Devi put her thump impressions on the said documents in her sound mind and PW5 also put his signatures as witness on the notarized Gift deed. He stated that PW-4 Sh. Chander Prakash also put his signature as a witness on the registered GPA and registered Will in presence of PW-5. He stated that the said documents were prepared by one Advocate who also put his signature on the GPA and Will as a Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 26 of 45 witness. PW5 also relied upon the Gift deed dated 25.11.1999 Ex. PW1/3 (OSR) on court record.
31. In his cross-examination, PW5 stated that he did not know exact cause of death of Late Smt. Shanti Devi and he knows that she used to stay unwell. He was a regular visitor to the house of late Smt. Shanti Devi. He stated that he knew defendant no. 1 Ms. Renu as she is the niece of Late Smt. Shanti Devi. She used to reside in a jhuggi away from the house of late Smt. Shanti Devi. He stated that he did not know the distance between the house of Late Smt. Shanti Devi and the said jhuggi. The said jhuggi was near the railway line. He stated that he had signed only one document and he did not remember what was that document. He stated that he had never seen the said document after signing it. In order to sign the said documents, he had gone to Seelmpur. He had not gone inside to meet the concerned officer and therefore, he did not know his designation. He stated that the said documents was not stamped in his presence. He stated that he did not remember what identity document was being carried by the plaintiff, Ms. Sunita and Late Smt. Shanti Devi at the time of execution of the said documents. Apart from Late Smt. Shanti Devi and Ms. Sunita, he and Sh. Chander Prakash had gone to Seelampur and he stated that he did not remember if Sh. Chander Prakash had gone inside to meet the concerned officer. He stated that as per his knowledge Ms. Sunita is not daughter of Late Smt. Shanti Devi. He stated that he had not affixed his thumb impression on the gift deed Ex. PW1/3 (OSR). He denied the suggestion that gift deed Ex. PW1/3 (OSR) was not executed in his presence and that the said document is a fabricated document. No other material fact has been deposed by PW5 in his cross-examination.
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32. On the contrary, to disprove the case of the plaintiff, the defendants got examined two witnesses i.e. DW1 Smt. Renu and DW2 Sh. Suresh Chander. DW1 Smt. Renu tendered her evidence by way of affidavit which is Ex. DW1/1 on court record. In her affidavit, the defendant no. 1 stated that she is the real sister of the plaintiff and she was residing in the suit property since her childhood i.e. since the year 1994 with her aunt Smt. Shanti Devi and after that, the defendant was married with defendant no. 2 namely Sh. Suresh. Soon after the marriage, the defendant's husband also started residing in the property in question and both the defendants used to take care of her aunt Smt. Shanti Devi. All the children of the defendants were also born there and the birth certificate of all their children clearly show the address of the suit property. The defendant alongwith her husband is the only person who looked after and managed the suit property and they also constructed the upper portion of the property from their own funds. During her childhood, when the defendant was residing with her aunt Smt. Shanti Devi, at that time, there existed only one small room as Smt. Shanti Devi was not having any income and the defendant used to work as a maid servant in some houses of the locality and after that the defendant got married with defendant no. 2 on 08.06.2004 and both the defendants constructed the rooms in the suit property from their own funds. Smt. Shanti Devi was the owner of the suit property which was purchased by her from one Sh. Chandan for a sum of Rs. 3000/- (Rs. Three Thousand Only). An agreement for sell, GPA and a receipt all dated 11.07.1978 were executed by Sh. Chandan in favour of Smt. Shanti Devi and further Smt. Shanti Devi executed a Will in favour of defendant on 07.05.2007 which was duly attested by two witnesses. The plaintiff never resided in the suit property and the alleged documents in favour of the plaintiff are false and fabricated and the defendant is the owner of the property which was Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 28 of 45 bequeathed in her favour by her aunt Smt. Shanti devi during her life time. Neither the plaintiff nor the husband of the plaintiff ever resided in the suit property. However, the driving license of the husband of the plaintiff was at the address of the suit property because of his personal request for the purpose of obtaining the driving licence from the Transport Authority of Delhi and the husband of the plaintiff in collusion with the plaintiff got his name entered in the ration card of Smt. Shanti Devi only for the purpose of procuring the driving licence. The name of the plaintiff is not in the ration card of Smt. Shanti Devi. The plaintiff has no right, title or interest in the suit property nor the plaintiff has any right to ask the defendant to vacate the suit property. The defendant has been using the suit property in her own rights on the basis of the will executed by Smt. Shanti Devi in her favour in presence of two witnesses and the defendant along with her husband and her minor children have been residing in the suit property. The defendant specifically denied that the suit property was given by the plaintiff to the defendant on their request. There is no question of allowing the defendants to live in the suit property as licencees of the plaintiff in the month of May 2009 as the defendant was already in use and occupation of the suit property prior to the year 2009. The suit of plaintiff is baseless and has been filed to grab the suit property illegally and unlawfully.
33. In support of her case, the defendant also relied upon the documents i.e. birth certificate of Master Aryan as Ex.DW1/A (OSR), birth certificate of baby Riya as Ex.DW1/B (OSR) and birth certificate of Master Rehan as Ex.DW1/D (OSR), agreement to sell, GPA and receipt all dated 11.07.1978 already Ex.PW1/D1 and will dated 07.05.2007 as Ex.PW1/D1.
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34. In her cross examination, Smt. Renu stated that they are seven sisters and one brother, out of them five sisters are older than her. Her native place is village Atrada, Meerut, UP. Her elder sister is Sunita and thereafter Anita, Kavita, Laxmi, Rama and then her and her brother namely Bhole is younger than her. She has stated that her father namely Sh. Prakash resided in the native village and he is working as a farmer. She has stated that she did not remember when Sunita got married as at the time of marriage of Sunita, her age was around 2-3 years. At that time, she was residing with her parents at her native village. She remained in the village only for 4-5 years and thereafter she shifted with her bua at Delhi. Her fufa ji expired prior to her arrival at Delhi. Sunita was residing at her matrimonial house at Badola, Modi Nagar. Her bua was working as a maid in nearby houses. She has stated that Ramwati got married 20 years back and she is residing at Ludhiana at her matrimonial house. She has stated that her father used to visit at her bua's house/ suit property. Sunita also used to visit the suit property to meet bua. She has stated that the husband of Sunita was not working at the time of marriage but thereafter he started working in Delhi. She has stated that Ramwati's marriage was solemnized at suit property as the marriage expenses were born by her bua. She has stated that her marriage was solemnized by her bua in a temple at Dharampura. None of the family members had joined her marriage as she had married against their approval and wishes. She has stated that she did not remember the exact address of her matrimonial house but it was nearby to the suit property. No marriage certificate was issued in respect of her marriage by the temple authority and there is no photograph of her marriage. She has stated that it is correct that no document of her identity of suit property is filed on record.
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35. In her further cross examination, She has stated that she did not know when the DL of the husband of the plaintiff was issued by the concerned authority from the address of property in question. She has stated that she did not know as to when the name of the husband of the plaintiff has been added in the ration card of Smt. Shanti Devi. She admitted as correct that her bua / deceased Shanti Devi had never added her name in her ration card. She denied the suggestion that as she never resided with her bua / deceased Shanti Devi before her marriage, therefore her name was not added in the ration card. She has stated that the name of her elder sister Rama was added in the ration card of her bua. She has stated that she did not know as to whether the husband of plaintiff was working in Delhi or not and he never resided in the suit property. She has stated that even after marriage she was residing in the same premises in her bua's house. Her husband was residing with his parents before marriage but after marriage, her husband also shifted to her bua's house as per the consent of her bua.
36. In her further cross examination, DW1 Smt. Renu stated that after her marriage her husband also joined her bua's house with her and in the marriage which was solemnized in a mandir, only her mother-in-law attended the marriage. She has stated that her husband was working in an office situated at ITO as Safai karamchari at the time of her marriage and she did not know what was the salary of her husband at the time of her marriage. She has stated that during her stay with her bua, her bua was not working with MCD Shahdara. However, the I-card issued by MCD pertaining to Smt. Shanti Devi dated 22.03.1999 was shown to the witness and the same was marked as Ex.DW1/P1 and she admitted the photograph of Smt. Shanti Devi and the I- card of Smt. Shanti Devi. She has stated that during her stay with her bua, Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 31 of 45 Smt. Shanti Devi she was not working in MCD as she had retired as per her knowledge. She has stated that she did not remember the date and year of retirement of her bua. She has stated that she did not know if her bua Smt. Shanti Devi was working in MCD during her life time or that she was drawing a salary of more than Rs.6,000/- in the year 2006. She has stated that when she joined the house of her bua in her childhood at that time the house was consisting of only one room and she did not remember when it was further constructed. They had further constructed over the suit premises but she did not remember the year of further construction. She has stated that she has not filed any receipt / bill of any building material which may prove that she and her husband got further construction in the suit property as she was not knowing that her sister would file a suit against her that is why the said documents /bill were not preserved by her. She denied the suggestion that she had not filed any documents / bill etc. of building material as no part/portion of the suit property was got constructed by them. She denied the suggestion that her bua Smt. Shanti Devi and her elder sister Smt. Sunita raised the construction over the suit property and she and her husband had no role in it. She denied the suggestion that her claim over the suit property is false and fabricated or that her sister Smt. Sunita has full right, title or interest over the suit property. She has stated that her elder sister Sunita was not residing in the suit property but she rarely used to visit there in order to meet her and her bua. She denied the suggestion that any gift deed was executed by her bua in favour of Sunita or that her bua had executed a registered GPA dated 25.11.1999 and registered will dated 25.11.1999 in favour of her sister Sunita. She denied the suggestion that on the suit property one room, one hall was constructed in the year 1999. DW1 Renu stated that the hall in the suit property was constructed by her and her husband after her marriage but the Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 32 of 45 exact year is not remembered by her right now. She has stated that the first two floors were constructed by her and her husband together over the suit property but she did not remember the exact year. She denied the suggestion that after marriage she along with her husband used to reside in jhuggi near Gandhi Nagar. She stated that the first construction which was carried out by them was around after 2-3 years of their marriage and the top floor was raised by them around in the year 2009. Her father recognized their love marriage so she sometimes used to visit her father's house too. She has stated that her bua Shanti Devi was suffering from old age ailments as she was a senior citizen and she had died when her age was around 80-90 years. She has stated that the documents filed by her which are Ex.PW1/D1 consist of GPA and receipt which were handed over by her bua to her during her life time i.e. prior to five year's of her death. She denied the suggestion that these documents were stolen by her from the box of her bua during her stay with her. She has stated that her bua had never told her about the fact that she had executed certain documents pertaining to the suit property in favour of Smt. Sunita. The will/Vasiyatnama was given to her by her bua in the year 2007 which is part of Ex.PW1/D1. Her husband knew about this fact and her husband told her that her bua got his signatures in the vasiyatnama which was got signed in the month of May 2007. She has stated that the plaintiff Sunita took her bua to her village Atrada secretly without her consent and she later on came to know that her bua was taken in a car and she also confirmed this fact on telephone through telephone booth. But she had not made any complaint to any authority as her bua had gone to her mayka. Her father had informed her on telephone that Sunita had taken her bua with her to the village. She has stated that in the month of April 2009, she also went to the village to meet her bua but she was unable to recognize her or any other member due to her old age and after few Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 33 of 45 years she died. She has stated that she had joined her last rituals. She denied the suggestion that her bua was residing in the village on her free will. She further denied the suggestion that the vasiyatnama/will dated 07.05.2007 allegedly executed by her bua in her favour is a false and fabricated document. She denied the suggestion that her bua did not execute any document in her favour and has stated that her bua had told her that the vasiyatnama/ will dated 07.05.2007 was got prepared in Tis Hazari. She has stated that her husband had not accompanied her bua for typing the vasiyatnama/ will dated 07.05.2007 and her husband signed the vasiyatnama/ will in the house/ suit property and one person namely Kundan was also present there. She has stated that her bua might have gone to Tis Hazari for getting typed the vasiyatnama/ will in the early morning hours and then came back to her house around 12:12:30 noon. On that day, she was in her house as she had not gone for her work. Her husband had came from his duty at around 4-5 pm and after coming from office her bua called her husband and after some time, he signed the vasiyatnama/ will as a witness. She has stated that Kundan was already present in the house with bua from 3:00 pm and he used to come to ask about the well-being of her bua. She has stated that her bua had instructed him to stay there for some more hours as she had some work. Kundan had not brought any pen. Kundan and her husband had signed in her presence on the vasiyatnama/ will and she did not remember whether both of them signed with same pen or not. She has stated that her bua had put her thumb impression in her presence as she was already having a stamp pad to put thumb impression. She denied the suggestion that the vasiyatnama/ will was not executed in her presence and the same is a forged and fabricated document.
Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 34 of 45
37. In her further cross examination, DW1 Smt. Renu admitted that she had received a legal notice sent by the plaintiff for vacating the suit property as well as terminating her licence to reside in the suit property. She has stated that she did not remember whether any reply was sent on her behalf through her counsel. She has stated that she did not remember whether her counsel had mentioned in respect of the will which was executed in her favour as she is illiterate. She denied the suggestion that Smt. Shanti Devi had not executed any will in her favour at any point of time. She has stated that the husband of the plaintiff had approached to deceased Shanti Devi and requested her to get a driving licence in his name from the address of Shanti Devi. She has stated that she has not filed on record any Aadhar card or ration card which can show that she was residing at the suit property. She admitted as correct that she has not done the last rites of Shanti Devi in village Atrada because she was pregnant at that time. She denied the suggestion that she had not joined the last rituals of Smt. Shanti Devi as she was not residing in the suit property with Shanti Devi and were not having cordial relation with Shanti Devi as well as her family members. She has stated that she did not remember when the vasiyatnama Mark A was executed in her favour. She denied the suggestion that no vasiyatnama has ever been executed in her favour, therefore she did not recollect the exact date of vasiyatnama. She has stated that she did not know if Shanti Devi is having any other property except the suit property. She denied the suggestion that the vasiyatnama is a forged and fabricated document which was created by her in collusion with defendant no. 2 to create a false claim over the suit property. She has stated that Shanti Devi was not capable to do signatures. After her marriage, she was residing with her bua Shanti Devi in her house along with her husband. She denied the suggestion that she intentionally and deliberately mentioned the address of Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 35 of 45 suit property in the birth certificate of her children or that she had stolen the previous chain of documents of the suit property from the box of Shanti Devi. She further denied the suggestion that the plaintiff is the absolute owner of the suit property as Shanti Devi had executed registered GPA/ Gift deed and will in her favour. She denied the suggestion that she was allowed by the Plaintiff to reside in the suit property after the demise of Shanti Devi as the plaintiff had shifted to her matrimonial house. No other material fact was deposed to by DW1 during her cross examination.
38. DW2 Sh. Chander Prakash also tendered his evidence by way of affidavit which is Ex.DW2/1 on court record. In his affidavit, DW2 has stated that he got married with defendant no. 1 on 08.06.2004 and he was not having any immovable property in his name so they decided to live together in the suit property with Smt. Shati Devi who was the bua of defendant no. 1 and she was having no issue with the same. After few days, the accommodation was not sufficient as there was only one room and Smt. Shanti Devi was not having any income, thus they got constructed the first floor portion from their own funds. They used to take care of Smt. Shanti Devi who was the owner of the suit property which was purchased by Smt. Shanti Devi in the year 1978 by way of GPA, Agreement to sell and receipt. On 07.05.2007, Smt. Shanti Devi during her life time executed a will in favour of defendant no. 1/ (Smt. Renu) by bequeathing the complete suit property in favour of defendant no. 1 and this will was executed by Smt. Shanti Devi on her free will and without any pressure, coercion and undue influence, in her full senses and DW2 was one of the witnesses of this will and Sh. Kundan was also a witness who signed in the presence of DW2. Neither the plaintiff nor her husband ever resided in the suit property and the plaintiff has no right, title or interest in the Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 36 of 45 suit property. Hence there is no question of allowing the defendants to live in the suit property. The defendants are residing in the suit property since the year 2004 i.e. after few days of their marriage and defendant no. 1 has been residing with her aunt/ bua i.e. Smt. Shanti Devi since her childhood. The birth of all the children of defendants had also taken place during their stay in the suit property and the birth certificate of the children clearly show the address of the suit property.
39. In support of his case, DW2 also relied upon the documentary evidence i.e. Will dated 07.05.2007 which is Ex.PW1/D1, copy of photograph showing the defendants with Smt. Shanti Devi as Mark B and C, birth certificate of eldest son Aryan already Ex.DW1/A (OSR), birth certificate of daughter Riya already Ex.DW1/B (OSR), birth certificate of son already Ex.DW1/C (OSR) and copy of Aadhar card of DW2 as Mark D.
40. In his cross examination, DW2 (Sh. Suresh Chand) admitted that he is not the owner of the suit property i.e. 3220 A, Gali no. 5, Dharampura, Gandhi Nagar, Delhi and the same belonged to Smt. Shanti Devi and his address is 3221, Gali no. 5, Dharampura, Gandhi Nagar Delhi, and he has been residing there since his childhood. He has stated that he is working in National Science Academy as 4th class employee since 2002-03 and he knew plaintiff Sunita and her husband since after his marriage. His marriage with Renu was arranged marriage with the consent of parents of his wife and his parents in law came to his marriage. His marriage was solemnized at Mata Mandir and his family also came to his marriage. He stated that he has no photograph to show as to who had attended his marriage. He stated that after his marriage he started residing at the house of his wife. Shanti Devi's house consisted of 02 Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 37 of 45 varandas and one room. He denied the suggestion that after his marriage, he started residing at Jhuggi at ITO. He stated that Shanti Devi was a Govt. Servant working in MCD and she was a permanent employee over there. His wife used to work as a maid in houses also. Sunita never used to visit the suit property after their marriage. He stated that he has placed on record birth certificate of his children to show that he is residing at property no.3221, however he has not placed on record any documents qua him to show the same. He stated that his wife Renu has five sisters and she used to do small works like some stitching etc. The second floor was constructed on the suit property in the year 2005-2006. He stated that he did not remember his salary in the year 2005-06. Renu used to earn Rs 3000-4,000/- per month. He denied the suggestion that he had raised any construction over the suit property or that construction was raised by bua Shanti Devi. He stated that the husband of Shanti Devi was also working with MCD. He stated that he had got constructed one room in the year 2004-2005. Thereafter in the year 2010, he demolished the complete construction and raised a new one i.e. ground and first floor. Prior to fresh construction , there was wooden beam on the wall. He stated that he has not placed on record any bill to show that he had purchased the material to raise the said construction. He further stated that the bua Shanti Devi remained with them till the year 2010. She got expired at the suit property. The cremation took place at Geeta Colony, Shmshan Ghat, Delhi. He had joined the last rituals of Shanti Devi. He denied the suggestion that Shanti Devi had expired at her native place i.e. Village Atrada, Meerut U.P. He admitted as correct that prior to her death Shanti Devi was suffering from old age ailments and she was getting treatment from Dr. Charan and others. He denied the suggestion that Shanti Devi reside with Sunita till 2010 and it was Sunita who took care of her. He denied the suggestion that he was residing in Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 38 of 45 jhuggi prior to 2010 and it was Sunita who after the demise of Shanti Devi permitted them to reside in the suit property. He denied the suggestion that Shanti Devi raised the construction on the suit property fom her own funds. He stated that Sunita and his mother in law took Shanti Devi forcibly to her village at Meerut U.P. Shanti Devi handed over a document to his wife Renu in his presence on 07.05.2007. As per the said document, Shanti Dei devolved the property in favour of Renu and she further handed over previous chain of documents. He stated that he did not know if the document Ex. PW-1/D1 bears the signature/thumb impression of Shanti Devi when it was handed over to Renu. He and his friend Kundan had signed the said document. He admitted as correct that Shanti Devi was not educated. She did not inform as to from where she got the said document drafted. He denied the suggestion that the said document was forged and fabricated document and does not bear the signatures of Shanti Devi. DW-2 also identified his signatures at point A on the document Ex. PW-1/D1. He denied the suggestion that he and his wife had stolen the said documents from the box of Shanti Devi. He further denied the suggestion that he has no right in the suit property and he is residing over there forcefully. He denied that he has mentioned wrong address on his aadhar card. No other material fact was deposed to by DW-2 during his cross examination.
41. After appreciating the testimony of the plaintiff witnesses as well as the defendant witnesses and the documents relied upon by them in support of their respective cases , this Court is of the view that the Plaintiff has been able to prove her case against the defendants on the basis of preponderance of probabilities. The Plaintiff is claiming title on the suit property on the basis of documents i.e. Registered GPA dated 25.11.1999 (Ex. PW-1/1), Registered Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 39 of 45 Will dated 25.11.1999 (Ex. PW-1/2), Copy of notarized Gift Deed dated 25.11.1999 (Ex. PW-1/3) and Affidavit dated 25.11.1999 (Ex. PW-1/4) executed by Smt. Shanti Devi in favour of the plaintiff in the presence of 02 witnesses. A perusal of the said documents show that by virtue of these documents, Shanti Devi had bequeathed/gifted her property bearing no. 3220- A, measuring 33 sq yds, out of khasra no. 135, situated in the abadi of Gali no.5, Dharam Pura, Gandhi Nagar in favour of the plaintiff to the exclusion of other legal heirs and the said transaction had occurred in the presence of two independent witnesses i.e. PW-4, Sh. Chander Prakash and PW- 5 Sh. Rishi Pal. Both the said witnesses have deposed regarding execution of the said documents by Smt. Shanti Devi in favour of the plaintiff on 25.11.1999 qua the suit property and putting her thumb impression on the said documents in her sound mind as well as they also put their signatures as witnesses on all the said documents in presence of each other. PW-4 Chander Prakash has specifically stated in his cross examination that Smt. Sunita was present at the time of execution of said documents. He had gone to execute the said documents from the residence of late Smt. Shanti Devi and on that day Sh. Prakash brother of late Smt. Shanti Devi and Ms. Sunita were present at the residence of late Smt. Shanti Devi. He stated that he had signed the said documents at the same time and the same place i.e. Seelampur Court and at the time of signing the documents , he had signed a register and all the documents were executed before the same authority. Further PW-5 Sh. Rishi Pal stated in his cross examination that he had signed only one document. In order to sign the document he had gone to Seelampur. Apart from late Shanti Devi and Ms. Sunita, he and Sh. Chander Prakash had gone to Seelampur for the execution of said documents. The testimony of these two witnesses regarding execution of documents all dated 25.11.1999 by Smt. Shanti Devi in Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 40 of 45 favour of the plaintiff is unequivocal, clear and trustworthy and inspires the confidence of this court.
42. Further the said documents are registered documents in favour of the plaintiff with Sub-Registrar IV Delhi and are to be given preference over the will dated 07.05.2007 Ex. PW-1/D1 being relied upon by the defendants in support of their claim over the suit property. The execution of the said will by Smt. Shanti Devi in favour of defendant no.1 (Smt. Renu) is not clear and further the said document is not duly proved by the attesting witnesses before this Court. The other witness Sh. Kundan has not been examined by the defendants in support of the said will. Further there are several inconsistencies and anomalies in the testimony of DW-1 Smt. Renu and DW-2 Sh. Suresh Chand regarding execution of the said will by Smt. Shanti Devi in favour of the defendant NO.1. For instance, in her cross examination DW-1 Smt. Renu stated that the vasiyatnama/will was given to her by her bua in the year 2007 and her husband had told her that her bua got his signatures in the vasiyatnama. She stated that her bua had told her that the vasiyatnama/will dated 07.05.2007 was got prepared in Tis Hazari and her husband had not accompanied her bua for typing the vasiyatnama/will dated 07.05.2007. Her husband signed the vasiyatnama/will in the house i.e. suit property. Her bua might have gone to Tis Hazari for getting typed the vasiyatnama/will and Kundan and her husband had signed the vasiyatnama/will in her presence. Her bua had put thumb impressions in her presence. But DW-2 Sh. Suresh Chander stated in his cross examination that he did not know if the document Ex. PW-1/D1 bears the signatures/thumb impression of Smt. Shanti Devi when it was handed over to Renu and Shanti Devi did not inform as to from where she got the document drafted. These inconsistencies in the testimony of Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 41 of 45 DW-1 and DW-2 raise a reasonable doubt qua the execution of will dated 07.05.2007 by Smt. Shanti Devi in favour of Smt. Renu as at the time of execution of said will no other family member/relative of Smt. Shanti Devi was present and the execution of the said document by Smt. Shanti Devi seems to be suspicious and doubtful in favour of defendant no.1. It is also possible that as defendant no.1 was living with Smt. Shanti Devi in the suit property she might have got possession of the documents dated 1.07.1978 in favour of Smt. Shanti Devi Ex. PW-1/D1 during her stay without her consent and knowledge. Further the death certificate of Smt. Shanti Devi Ex. PW-1/9 shows that she expired on 17.04.2009 at her native village in Meerut U.P. DW-1 Renu stated in her cross examination she went to village to meet her bua in the month of April 2009 and she was unable to recognize her and any other members due to old age and after few days she died and she had joined her last rituals. She denied the suggestion that she had not joined the last rituals of her bua in village. But DW-2 Suresh Chand stated in his cross examination that Shanti Devi remained with them till the year 2010 and she got expired at the suit property and the cremation took place at Geeta Colony Shamshan Ghat Delhi and he had joined the last rituals of Smt. Shanti Devi. The said statement of DW-2 is contrary to the proved facts and the aforesaid stand of DW-1 and shows that DW-2 did not depose before the court truly and sincerely and thus his testimony is not trustworthy and reliable in the present case. Further the defendants have failed to prove that they constructed the suit property out of their own funds as alleged in the written statement since no document has been produced by the defednants with regard to the said point and DW-2 specifically stated in his cross examination that he has not placed on record any bill to show that he had purchased the material to raise the construction in the suit property. DW-1 Smt. Renu also stated in her cross Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 42 of 45 examination that they have not filed any receipt/bill of any building materials which may prove that they had got further construction in the suit property. Further mere mentioning the address of the suit property on the birth certificates of their children by the defendants is of no help to the defendants when there are registered documents Ex. PW-1/1 to Ex. PW-1/4 such as GPA, WILL, Affidavit and Notarized Gift Deed all dated 25.11.1999 executed by Smt. Shanti Devi in favour of the plaintiff in the presence of independent witnesses. Thus on the basis of these documents the plaintiff seems to have a better right, title or interest qua the suit property against the defendants and therefore she is held entitled to recover the possession of the suit property from the defendants in the present case. Hence, it is held that the plaintiff has been able to prove her case before this Court on the basis of preponderance of probabilities and due to the aforesaid reasons issue no. 1 is decided in favour of the plaintiff and against the defendants accordingly.
Issue no.2: Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? OPP
43. As issue no.1 has already been decided in favour of the plaintiff and against the defendants and the plaintiff has been held entitled to recover possession of the suit property from the defendants on the basis of documents all dated 25.11.1999 executed in her favour by Smt. Shanti Devi, thus on the basis of the discussion held while dealing with issue no.1, issue no.2 is also decided in favour of the plaintiff and against the defendants.
Issue no.3 Whether the plaintiff is entitled for any damages/mesne profits? If so at what rate and for what period? OPP Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 43 of 45
44. From the case record, it is revealed that the plaintiff had terminated the licence of the defendants to live in the suit property vide legal notice dated 14.10.2014 Ex. PW-1/12 on court record but despite this neither the defendants vacated the suit property nor handed over the possession of the same to the plaintiff as required in the said notice and also sent a false reply to frustrate the claim of the plaintiff over the suit property. Hence in these circumstances, the claim of the plaintiff against the defendants to pay a sum of Rs 5,000/- per month as damages/mesne profits from the date of filing of the suit till recovery of possession seems to reasonable in the facts and circumstances of the present case, keeping in view the size and location of the property and thus the claim of the plaintiff for damages/mesne profits at the said rate and for the said period is allowed by this Court against the defendants. The issue is answered accordingly and the suit of the plaintiff is decreed against the defendants as prayed for in the plaint and the following reliefs are passed in favour of the plaintiff and against the defendants:-
45.Reliefs:-
(i) A decree of mandatory injunction is passed in favour of the plaintiff and against the defendants thereby directing the defendants to vacate and handover the peaceful, physical and vacant possession of the suit property i.e. property bearing no.3220-A, Khasra no.135, Gali no.5, Dharampura, Gandhi Nagar, Delhi-31 measuring 33 sq yds as shown in red color in the site plan Ex. PW- 1/11 to the plaintiff within 60 days of passing this order/judgment.
(ii) A decree of permanent injunction is passed in favour of the plaintiff and against the defendants thereby restraining the defendants, their servants, associates, representatives etc. from transferring, alienating, subletting, parting Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 44 of 45 with possession or creating third party interest qua the suit property as mentioned above.
(iii) Defendants are also directed to pay a sum of Rs 5,000/- per month as damages/mesne profits from the date of filing of the suit till recovery of possession of the suit property to the plaintiff.
(iv) Plaintiff is also directed to make good the deficient court fee within a month qua the relief of damages/mesne profits as mentioned above as per rules.
(v) In the interest of justice, the plaintiff is also held entitled to recover the cost of the suit from the defendants as per rules.
With these observations/ directions, the suit of the plaintiff is decreed against the defendants. Let decree-sheet be prepared accordingly in favour of the plaintiff and against the defendants in the afore-said terms.
No further action is required. File be consigned to Record Room after due compliance.
Order pronounced in open court on 30.09.2024.
(Fahad Uddin) ASCJ-cum-JSCC-cum-Guardian Judge East, KKD Courts, Delhi/30.09.2024 Civ suit no. 6479/2016 Sunita Vs. Renu & Anr. Page no. 45 of 45