Delhi District Court
Rca No.20/2012: "Smt.Sunita vs Smt.Chanda Devi" Dod: 30.04.2013 on 30 April, 2013
RCA No.20/2012: "Smt.Sunita V/s Smt.Chanda Devi" DOD: 30.04.2013
IN THE COURT OF VINOD YADAV: ADDL. DISTRICT JUDGEIV:
SOUTHWEST DISTRICT: DWARKA COURTS: NEW DELHI
Regular Civil Appeal No.20/2012
In the matter of:
Smt.Sunita,
W/o Late Shri Vijay Kumar,
R/o C141, SectorI, J.J Colony,
Pappan Kalan, New Delhi75.
.....Appellant
(Through Dr.R.S Sasan, Advocate)
Versus
Smt.Chanda Devi,
W/o Late Shri S.D.X Saxena,
R/o E1423, New Delhi,
Palika Parisad Samaj Kalyan Samiti
SandhyaHome for Senior Citizens,
Netaji Nagar, New Delhi.
And Also At:
B81, J.J Colony, Sector1,
Dwarka, New Delhi.
.....Respondent
(Through Shri Puran Chand, Advocate)
Date of Institution of Appeal : 28.04.2011
Date of transfer to this Court : 23.08.2012
Date of reserving judgment : 25.04.2013
Date of pronouncement : 30.04.2013
RCA U/s 96 CPC: "RCA Dismissed" Page 1 of 24
RCA No.20/2012: "Smt.Sunita V/s Smt.Chanda Devi" DOD: 30.04.2013
APPEAL U/s 96 CPC AGAINST THE JUDGMENT/DECREE Dated 21.03.2011,
IN CS No.184/2011, TITLED AS "Smt.CHANDA DEVI V/s Smt.SUNITA",
PASSED BY SHRI ASHISH AGGARWAL, THE THEN Ld.CIVIL JUDGE1 (S/W),
DWARKA DISTRICT COURTS.
30.04.2013
J U D G M E N T:
This appeal is directed against judgment/decree dated 21.03.2011, passed by the Ld.Trial Court in Civil Suit No.184/2011, titled as, "Smt.Chanda Devi V/s Smt.Sunita", whereby the Ld.Trial Court was pleased to decree the suit in favour of plaintiff and against the defendant and a decree of possession and damages was passed. The appellant was the defendant before the Ld.Trial Court. The facts of the case, as borne out from the record are as under.
1. The plaintiff pleaded in the plaint that she was owner of property bearing no. C141, Sector1, J.J. Colony, Pappan Kalan, New Delhi 110075 (hereinafter referred to as the "suit property"). It was stated in the plaint that on 11.09.1997, the plaintiff had purchased the suit property from its previous owner one Smt. Suman Kumari who had been allotted the property by Delhi Development Authority on 08.04.1994. Soon after the purchase, the plaintiff alongwith some of her family members started residing in the property. Later, the other son of the plaintiff namely Mr. Vijay Kumar and his wife Smt. Sunita (the defendant herein) sought permission from the plaintiff to live in the suit property for a short period on licence basis and as a permissive user. The plaintiff permitted them to stay on the ground floor of the property on the assurance of the defendants that as soon as the latter found a suitable rental accommodation they would shift. Subsequently, RCA U/s 96 CPC: "RCA Dismissed" Page 2 of 24 RCA No.20/2012: "Smt.Sunita V/s Smt.Chanda Devi" DOD: 30.04.2013 the plaintiff asked the defendant to leave the premises. The defendant refused. The defendant forced the plaintiff and her relatives to leave the premises. The plaintiff was compelled to stay in a rented house because of the threats advanced by the defendant. The plaintiff disowned the defendant and her husband by way of public notice. The defendant's husband also left the premises. The defendant however continued to illegally occupy the premises. The plaintiff served legal notice upon the defendant terminating her licence to stay in the premises and asking her to hand over vacant possession thereof. The defendant, however, continued to occupy the suit property and became liable to pay damages for unauthorized use at the rate of Rs. 8,000/per month. By the suit, the plaintiff has prayed for recovery of possession of the suit property. In addition, the plaintiff has prayed for recovery of damages at the rate of Rs.8,000/ per month till vacant possession is handed over to her. The plaintiff has also prayed for costs of suit.
2. After service of summons, the defendant filed written statement. She stated in the written statement that the suit is barred by Order II Rule 2 of Code of Civil Procedure. It was further stated in the written statement that the value of the suit property is more than Rs. five lakhs and therefore the Court of Civil Judge did not have pecuniary jurisdiction to entertain the suit. The defendant further stated that the suit property was purchased by Sh. S.D.S. Saxena, husband of the plaintiff in the name of the plaintiff. Thereafter a family settlement took place during the lifetime of late Sh. S.D.S. Saxena. As per settlement, the plaintiff paid Rs.1,30,000/ to the other legal heirs while the suit property came into the share of the husband of the defendant, who was the son of late Sh. S.D.S. Saxena. Later, the plaintiff executed a WILL in favour of the RCA U/s 96 CPC: "RCA Dismissed" Page 3 of 24 RCA No.20/2012: "Smt.Sunita V/s Smt.Chanda Devi" DOD: 30.04.2013 husband of the defendant. The late husband of the defendant namely Mr. Vijay Kumar obtained loan from a financial institution and carried out construction on the suit property. The plaintiff was a guarantor in the said loan. The plaintiff also submitted an affidavit in the office of Delhi Jal Board regarding installation of water connection in the suit property. On the basis of the aforesaid assertions, the defendant claimed that she was residing in the suit property as its owner and not as a licencee. She has also stated that the title documents transferring ownership of the suit property in the name of her husband were not executed due to respect towards the mother in law of the defendant i.e. the plaintiff herein. The plea of the plaintiff that the defendant was permitted to live in the premises only as licencee was denied by the defendant.
3. Replication was filed on behalf of the plaintiff. The plaintiff reiterated the correctness of the averments made in the plaint and denied the assertions of the defendant. The plaintiff further affirmed that the suit property was bought by her in her own name and with her own funds. She stated that her late husband Mr. S.D.S Saxena was a tailor by occupation and did not have sufficient income to purchase immovable property. On the other hand, the plaintiff was working as a nurse in government hospital and had adequate funds to purchase the property. The plaintiff also referred to the statement of the defendant made in her complaint dated 04.04.2008 addressed to the DCP and ACP, Nanakpura, according to which the plaintiff was in possession of the title documents. The WILL dated 29.10.2003 was assailed by the plaintiff on the ground that it was executed at the time when the defendant was taking care of the plaintiff and at that time the defendant had not exhibited her ill intentions. It was also stated that the RCA U/s 96 CPC: "RCA Dismissed" Page 4 of 24 RCA No.20/2012: "Smt.Sunita V/s Smt.Chanda Devi" DOD: 30.04.2013 late husband of the defendant could not have taken loan for carrying out construction at the suit property since he was a drug addict. The plaintiff also disputed her signatures on the loan document where she has been shown as a guarantor. She further stated that no licence deed was executed between the plaintiff and the defendant due to proximity of the relationship.
4. After completion of pleadings, the following issues were framed by the trial Court vide order dated 07.12.2009:
1. Whether plaintiff is entitled for a decree of possession as prayed for in the plaint? OPP.
2. Whether the plaintiff is entitled for a decree for damages @ Rs.8,000/ per month with interest till such time possession is handed over to the plaintiff by the defendant? OPP.
3. Whether the suit of the plaintiff is barred under Order II rule 2 CPC?
OPD.
4. Whether plaintiff has not valued the suit properly for the purpose of court fees and jurisdiction? OPD.
5. Relief.
5. The plaintiff adduced evidence in support of her case. She examined herself as PW1. She tendered her affidavit Ex. P1 in evidence on 10.05.2011. In her affidavit, she reiterated the averments made in the plaint. She identified the following documents:
a. Copy of FIR dated 25.03.1994 as Mark A; b. Demolition/Allotment slip dated 08.04.1994 as Ex. PW1/B;RCA U/s 96 CPC: "RCA Dismissed" Page 5 of 24
RCA No.20/2012: "Smt.Sunita V/s Smt.Chanda Devi" DOD: 30.04.2013 c. Copy of receipt dated 30.03.1994 depositing Rs.5,000/ as cost of flat as Ex. PW1/C; d. Copy of allotment letter issued by Slum and JJ Department dated 08.04.1994 as Ex.
PW1/D;
e. Copy of general power of attorney dated 11.09.1997 as Ex. PW1/H;
f.Copy of registered deed of will dated 11.09.1997 as Ex. PW1/I;
g. Copy of Election Identity Card as Ex. PW1/J;
h. Copy of ration card as Ex. PW1/K;
i. Copy of bank pass book as Ex. PW1/L;
j. Site plan as Ex. PW1/M;
k. Copy of publication in newspaper as Ex.
PW1/O;
l.Copy of notice dated 14.07.2009 as Ex.
PW1/1;
m.UPC receipts dated 14.07.2009 as Ex.
PW1/2;
n. AD receipts dated 14.07.2009 as Ex. PW1/3;
o. Copy of affidavit as Mark B;
2. The Ld.Trial Court gave several opportunities to the defendant to crossexamine the plaintiff, but plaintiff was not crossexamined and as such on 10.05.2010, the trial court proceeded the defendant "exparte". Thereafter, the PE was closed by the trial court on 19.10.2010 and the matter was listed for defendant's evidence. The defendant miserably failed to lead evidence in the matter. On 02.02.2011, the trial court allowed adjournment to the defendant for leading evidence for 22.02.2011, however, on 22.02.2011, the matter was adjourned to 05.03.2011, on which date the final arguments were heard and judgment was reserved, which came to be pronounced on 21.03.2011 (hereinafter referred to as the "impugned judgment").
RCA U/s 96 CPC: "RCA Dismissed" Page 6 of 24 RCA No.20/2012: "Smt.Sunita V/s Smt.Chanda Devi" DOD: 30.04.2013
3. For the sake of convenience, the parties in this judgment are being referred to as per their respective status before the Ld.Trial Court.
4. In the present appeal, alongwith the memo of appeal, the defendant had moved an application U/o 41 Rule 27 CPC, seeking to lead defendant's evidence in the matter. This court allowed the said application vide order dated 27.03.2012, pursuant whereto the defendant examined herself as DW1, one Shri Krishan Kumar, LDC from the O/o SubRegistrar as DW3 and Shri Arun Kumar, Sr. Sales Executive from M/s Saryu Leasing & Finance as DW3 (wrongly mentioned as DW3). Thereafter, the plaintiff led evidence in rebuttal and examined her grandson Shri Vikrant Saran as PW2 and her grand daughter Smt.Sujata Saxena as PW3.
5. I have heard arguments advanced at bar by Shri R.S Sasan, learned counsel for the defendant and Shri Puran Chand, learned counsel for the plaintiff and have perused the entire material on record. Since the "impugned judgment"
was an exparte judgment and this court permitted the defendant to lead evidence in appeal and further permitted the plaintiff to lead rebuttal evidence, the findings on all the issues will have to be rendered by this court. My issue wise findings in the matter are as under:
6. Issue No.1: Whether plaintiff is entitled for a decree of possession, as prayed for in the plaint? OPP.
The onus to prove this issue was upon the plaintiff. The case of the plaintiff is that she had purchased the suit property and thereby became owner. She was residing in the suit property. She permitted her son Vijay Kr. (since deceased) RCA U/s 96 CPC: "RCA Dismissed" Page 7 of 24 RCA No.20/2012: "Smt.Sunita V/s Smt.Chanda Devi" DOD: 30.04.2013 and his wife Sunita, i.e defendant to reside in the suit property as a licence. Later she revoked the licence. Defendant refused to leave the suit property and instead forced the plaintiff out of the suit property. On this basis, plaintiff has claimed possession of the suit property. These averments made in the plaint have been reiterated in the affidavit of the plaintiff. The plaintiff has laid claim to the ownership of the suit property. This requires determination. Ownership of plaintiff over the suit property:
7. In her affidavit Ex.P1, the plaintiff has deposed about her ownership over the suit property and the induction of the defendant as a licensee. She has also stated that she terminated the licence of the defendant and therefore defendant is liable to hand over vacant possession of the suit property. PW1 has not been cross examined by the defendant. Failure to cross examine the witness implies acceptance of correctness of his testimony. The testimony of PW1 clearly indicates that she is the owner of the suit property and the defendant was a licensee whose license stood terminated by the plaintiff.
8. The oral testimony of PW1 is strengthened by the documents filed and duly proved by her. The allotment slip Ex. PW1/B, receipt Ex. PW1/C and allotment letter Ex. PW1/D indicate that the suit property was allotted by the Delhi Development Authority to one Suman Kumari. Correctness of the said documents has not been disputed by the defendant.
9. The General Power of Attorney Ex. PW1/H and Will Ex. PW1/I further confer rights over the suit property upon the plaintiff on transfer from the RCA U/s 96 CPC: "RCA Dismissed" Page 8 of 24 RCA No.20/2012: "Smt.Sunita V/s Smt.Chanda Devi" DOD: 30.04.2013 original allottee Smt. Suman Kumari. The correctness of the said documents is also not disputed by the defendant.
10. It is not the case of the defendant that the suit property was never transferred by Smt. Suman Kumari in favour of the plaintiff. In fact the defendant also, as stated in the written statement, derives her rights from the plaintiff. The factum of transfer of the title from Smt. Suman Kumari to the plaintiff is not in dispute. Since the defendant is also claiming to derive her rights from the plaintiff, in accordance with the Section 115 of the Evidence Act, 1872, the plaintiff is estopped from questioning or challenging the ownership of the plaintiff over the suit property. Therefore, ownership of plaintiff over suit property stands proved. Evidence of defendant:
11. The defence put forth by the defendant is threefold:
(a) That although the property was purchased in the name of the plaintiff, it was actually purchased by the husband of the plaintiff i.e. father in law of the defendant. The defendant has acquired rights over the property by succession (if suit property is treated as the separate property of the father in law of the defendant) or by survivorship (if the property is treated as joint family property).
(b) That by way of family settlement, property came into the share of the husband of the defendant.RCA U/s 96 CPC: "RCA Dismissed" Page 9 of 24
RCA No.20/2012: "Smt.Sunita V/s Smt.Chanda Devi" DOD: 30.04.2013
(c) That the plaintiff has divested herself of rights over the suit property by executing a Will in favour of the late husband of the defendant, from whom it devolved upon the defendant. These contentions are dealt with hereunder:
(A) That the property was purchased not by the plaintiff but by her husband in her name.
12. It is contended on behalf of the defendant that the property was purchased not by the plaintiff but by her husband in the name of the plaintiff. This plea is devoid of merit for the following reasons:
(i) There is no evidence adduced by the defendant to establish that the payment of the sale consideration for the property was made by the husband of the plaintiff and not by the plaintiff. No document has been placed on record to establish such transfer of funds from the husband of the plaintiff to the vendor.
(ii) The sale has taken place by way of General Power of Attorney Ex. PW1/H and Will Ex. PW1/I. The said documents do not indicate that payment was made not by the plaintiff but by her husband. Since the fact that property was purchased by the plaintiff has been reduced into writing, oral evidence to controvert this fact is not admissible as per Section 92 of the Evidence Act, 1872. Further the defendant has also not attempted to lead either oral or documentary evidence to this effect.
(iii) In the General Power of Attorney Ex. PW1/H and Will Ex.
PW1/I, the plaintiff has been shown as sole and exclusive owner of the suit property. No document has been placed on record to show that the plaintiff had become owner on behalf of anybody else. I have no reason to doubt the correctness or veracity of the said documents RCA U/s 96 CPC: "RCA Dismissed" Page 10 of 24 RCA No.20/2012: "Smt.Sunita V/s Smt.Chanda Devi" DOD: 30.04.2013 or to assume that the documents were sham. Onus to prove this was on the defendant, which she has failed to discharge.
(iv) Even if it is assumed that payment of purchase price was made by the husband of the plaintiff, that does not imply that after the purchase, the said husband continued to have a right in the property. The only owner of the property, as per the documents, was the plaintiff. At best, it can be assumed that the said payment was made as gift to the plaintiff. Even if this is so, it would not indicate that husband of plaintiff continues to have a right in the property. After the gift, the husband ceased to have any proprietary interest over the immovable property.
(v) Even if it is assumed that property was in fact sought to be purchased by the husband and it was only purchased in the name of the plaintiff, that would not establish that husband of the plaintiff or other family members have acquired rights therein. If the said assumption of the defendant is treated to be correct, the transaction of purchase of property would qualify as a "benami transaction" as defined in Section 2 (a) of the Benami Transactions (Prohibition) Act, 1988. As such, by operation of Section 4 of the said Act, no suit or other action to enforce the rights in the property would lie on behalf of actual payer.
13. In the case of "Rama Kanta Jain V/s M.S. Jain, AIR 1999 Delhi 281", the plaintiff had filed a suit for recovery of possession of immovable property on the ground that the defendant was a licensee whose license had been revoked. The defendant raised a plea that he had contributed to the purchase of the property by making payment of part of the sale consideration and that only the name of the plaintiff had been utilized for the purchase. Repelling this contention, the Hon'ble High Court of Delhi held that the defendant cannot be allowed to lay claim over the property. The above case squarely applies to the present case. RCA U/s 96 CPC: "RCA Dismissed" Page 11 of 24 RCA No.20/2012: "Smt.Sunita V/s Smt.Chanda Devi" DOD: 30.04.2013
14. The defendant in her evidence has stated that her father in law late Shri S.D.S Saxena had purchased eight properties in the name of plaintiff, however, in her crossexamination she gave vague details of about 10 properties. Admittedly, no document in respect of any of the said properties has been filed. She further failed to prove that her father in law had the means to purchase the suit property. It has clearly come in her evidence that he was a small time tailor, whereas the plaintiff was a government employee. She retired from the government employment in the year 2000 and prior thereto she is presumed to have the means to purchase the suit property.
15. In view of the aforesaid decision, it is clear that neither husband of the plaintiff nor son of the plaintiff could lay claim to a share or any right in the property.
16. For the foregoing reasons, the contention of the defendant that the property was purchased not by the plaintiff but by her husband in her name is of no help to the defendant. Even if the contention is assumed to be factually correct, it would not advance the defence of the defendant. Since the plaintiff continues to be the sole and exclusive owner of the suit property, as demonstrated above, the defendant cannot be stated to have acquired any rights therein by way of either succession or survivorship.
(B) Family settlement:
17. According to defendant, the property came into the share of her husband by way of a family settlement. This contention cannot be accepted for the following reasons: RCA U/s 96 CPC: "RCA Dismissed" Page 12 of 24 RCA No.20/2012: "Smt.Sunita V/s Smt.Chanda Devi" DOD: 30.04.2013
(i) There is no evidence adduced by the defendant to support this plea. There is no document in which the alleged family settlement was reduced into writing.
(ii) As demonstrated above, the property was under exclusive ownership of the plaintiff. Yet, even if it is assumed that it is not the plaintiff but her husband who was owner of the property, since the property was not ancestral property and had been acquired by purchase out of his own funds, neither the defendant nor her husband could have any preexisting right over the property. Unless one has a preexisting right over the property, the property cannot be distributed or partitioned by way of family settlement. Such a measure, if any, would, at best, amount to a gift and would be compulsorily registrable under Section 17 of the Registration Act, 1908 and Section 123 of the Transfer of Property Act, 1882.
18. In the case of "R.N. Dawar vs. Ganga Saran Dhama, AIR 1993 Delhi 19", the Hon'ble High Court of Delhi held that an immovable property can be gifted only by way of registered documents. An oral gift of immovable property cannot be made in light of Section 123 of the Transfer of Property Act.
19. No written document has been placed on record to establish the said transfer and since there is no such registered document, the plea of gift cannot be given credence. The defendant has further not led any evidence to establish that a sum of Rs. 1,30,000/ was given to other legal heirs in lieu of the suit property and thereby the said property came into the share of the late husband of the defendant.
20. In her crossexamination, DW1 has taken a categorical stand that she was not living in the suit property when her fatherinlaw had died. It has been further stated that family settlement with regard to the properties had taken place RCA U/s 96 CPC: "RCA Dismissed" Page 13 of 24 RCA No.20/2012: "Smt.Sunita V/s Smt.Chanda Devi" DOD: 30.04.2013 during the lifetime of her husband as well as fatherinlaw. The said family settlement has been stated to have taken place prior to the year 2000. She has further specified that said family settlement took place at Mahavir Enclave house. The said family settlement is stated to have been reduced into writing, but she has not produce any such settlement on record. It has also come on record that House No.RZD3/62A, Gali No.7, Mahavir Enclave, DabriPalam Road, New Delhi was sold in the year 2005 and the sale proceeds thereof was divided by the plaintiff to the tune of Rs.1,30,000/ each among all her family members pursuant to the settlement. If both these contentions are read in juxtaposition with each other, then the stand of the defendant gets falsified, as in one breath she has stated that the family settlement took place in the year 2000, pursuant whereto the properties belonging to the plaintiff were sold; whereas in another breath she states that property at Mahavir Enclave was sold in the year 2005, i.e after the death of her fatherinlaw. She has further stated that she had for the first time obtained loan in the year 2001 for raising construction at suit property, but as per her own saying, she had shifted to the suit property only in the year 2005. It is further apparent from the perusal of Mark A, which has been placed on record by defendant herself, which is a letter dated 24.03.2005, purportedly written by plaintiff, wherein it has been stated that the plaintiff was residing in the suit property, whereas the defendant was residing in Mahavir Enclave property. Hence, the above plea of the defendant is liable to be rejected.
(C) WILL:
21. Ld. Counsel for defendant has urged that the suit property came into the share of the defendant by testamentary disposition of the plaintiff. The plaintiff, RCA U/s 96 CPC: "RCA Dismissed" Page 14 of 24 RCA No.20/2012: "Smt.Sunita V/s Smt.Chanda Devi" DOD: 30.04.2013 on the other hand, has stated that the will was executed at a time when relations between the plaintiff and the defendant were cordial.
22. Even if it is assumed that the contention of the defendant is correct, that would not confer any right upon the defendant. A WILL takes effect upon the death of testator and the testator herein being alive, the will is of no effect and does not confer any right upon any beneficiary. Even otherwise, the plaintiff has herself raised a challenge to the said WILL which indicates implied revocation thereof.
23. The defendant in her evidence has stated that after taking possession of the suit property, she constructed the same by taking loan from M/s Saryu Leasing & Finance and constructed the suit property. DW3, who appeared on behalf of M/s Saryu Leasing & Finance has placed on record documents of loan Ex.DW1/2 (Colly) which shows very meagre amount having been obtained by the defendant as loan from the said company from the year 2001 to the year 2003. The said amount could not have been used for raising construction at the suit property. The stand of the defendant that she had constructed the suit property is further falsified from the perusal of Ex.DW1/1, wherein after admitting the plaintiff to be the owner of the suit property, she had claimed a sum of Rs.2,00,000/ (Rupees Two Lakhs Only) from her for vacating the same; whereas the plaintiff had categorically stated that she had raised the construction at suit property herself. A careful reading of Ex.DW1/2 would show that the said amount could not have been utilized by the defendant for raising construction at the suit property. Admittedly, the husband of the defendant was a drug addict, there is a strong possibility that she might have taken the loan time and again from defendant No.3 for providing RCA U/s 96 CPC: "RCA Dismissed" Page 15 of 24 RCA No.20/2012: "Smt.Sunita V/s Smt.Chanda Devi" DOD: 30.04.2013 treatment to him. The learned counsel for the defendant very vehemently argued that on 03.10.2003 defendant asked the plaintiff to stand as a guarantor for the repayment of loan. On the basis of her signatures being there as guarantor on Ex.DW1/2, it has been argued that the defendant became owner of the suit property. I do not find any force in this argument for the simple reason that merely by standing as a guarantor, the plaintiff did not loose her ownership of suit property in any manner. This court cannot loose sight of the fact that defendant is the daughter inlaw of plaintiff and her husband was son of the plaintiff and as mother, she could have stood guarantor for them in the hour of need.
24. For the aforesaid reasons, I find no merit in the contentions agitated by the defendant.
Status of defendant in the suit property
25. There is unimpeachable evidence to establish that the plaintiff was owner and occupant of the suit property. She had inducted the defendant in the premises and had permitted her to use the suit property since the defendant was her daughter in law. The control over the premises continued to vest with the plaintiff. Exclusive possession of the premises was not given to the defendant and defendant was living only in a part of the premises till she forced the plaintiff to leave.
26. In the case of "Arjan Dev vs. Om Parkash, AIR 1992 Delhi 202, the Hon'ble High Court of Delhi" held as under:
"It is not necessary that for purpose of creation of licence any instrument be written. Under Section 54 of the Act, the grant of licence may be express or implied from the conduct of the guarantor".RCA U/s 96 CPC: "RCA Dismissed" Page 16 of 24
RCA No.20/2012: "Smt.Sunita V/s Smt.Chanda Devi" DOD: 30.04.2013
27. In the aforesaid case, the plaintiff had permitted his brother to reside in the suit property. He later wanted to evict his brother and filed a suit for possession. The defendant raised the plea that he was residing in the suit property in his own right since it was joint family property. The contention of the defendant was rejected and it was held that the defendant was a mere licensee.
28. In the case of "Sharda Devi Gill (Decd.) Vs. Rakesh Jain, 148 (2008) DLT 33 (DB)", the Hon'ble High Court of Delhi held that the defendant was occupying the suit property without paying any rent and this fact strengthened the version of the plaintiff that the defendant was a mere licensee. The Hon'ble High Court of Delhi relied upon the following observations made in the case of "Turab Vs. Laxmi, AIR 1984 All 180":
"The possession of a property by a person without the payment of money and for the purpose of safety thereof, the possession not being unrestricted or uncontrolled would show that the person is a licensee and not a lessee".
29. Applying the law laid down in the aforesaid judgments, the relationship between the plaintiff and defendant is clearly that of the licensor and licensee. The right bestowed upon the defendant qualifies as a "license" as defined in Section 52 of the Easement Act, 1882.
30. The said licence is terminable at will in terms of Section 61 of the said Act. In the present case, when the plaintiff expressed her desire that defendant must leave the premises, the license stood revoked. Further, the plaintiff subsequently RCA U/s 96 CPC: "RCA Dismissed" Page 17 of 24 RCA No.20/2012: "Smt.Sunita V/s Smt.Chanda Devi" DOD: 30.04.2013 also served upon the defendant a legal notice dated 14.07.2009 Ex. PW1/1 whereby the plaintiff expressly revoked the license.
31. The defendant has denied having received the legal notice dated 14.07.2009 Ex. PW1/1. According to the testimony of PW1, the legal notice had been sent by registered post as well as UPC. The receipts of registered post and UPC have been identified as Ex. PW1/2 and Ex. PW1/3 respectively. The genuineness of the receipts has not been questioned by the defendant. The receipts indicate that the notice was duly dispatched to the defendant at her residential address. The residential address is the suit property. Admittedly, the defendant has been occupying the suit property. It is also not the case of the defendant that she was not residing at the said address when the legal notice was dispatched. From the testimony of the PW1, duly corroborated by the legal notice and postal receipts, it is clear that the notice had been sent at the correct address. The defendant has failed to disclose any reason which could have prevented the service of notice upon her. Under Section 114 of Evidence Act, the existence of facts which are likely to have happened in the ordinary course of human conduct and business may be presumed. Particular reference may be made to illustration (f) of Section 114. By common course of business, the legal notice would have been received by the defendant. Under Section 27 of the General Clauses Act, 1897 also, the service of legal notice upon the defendant may be presumed.
32. As held in the case of "Madan Lal Sethi Vs. Amar Singh Bhalla, 1980 (2) AIRCJ 543", a mere bald denial by the defendant of service of notice is not sufficient to rebut the presumption under Section 114 of illustration (f) of the RCA U/s 96 CPC: "RCA Dismissed" Page 18 of 24 RCA No.20/2012: "Smt.Sunita V/s Smt.Chanda Devi" DOD: 30.04.2013 Evidence Act. Some other evidence to show the interruption of post has to be adduced by the tenant.
33. Reference may also be made to the case of "C.C. Alavi Haji Vs. Palapetty Muhammed & Anr., 2007 (2) DCR 321 SC" in which the Hon'ble Supreme Court held as under:
"Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return f the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business".
34. It is therefore safe to presume that the said legal notice was duly served upon the defendant and thereby her license to stay in the premises stood revoked. After termination of the license, the defendant has become a trespasser in the suit property and she is liable to hand over vacant possession of the suit property to the plaintiff.
35. For the abovesaid reasons, the plaintiff is entitled to recover possession of the suit property from the defendant. The issue is decided in favour of the plaintiff and against the defendant.
RCA U/s 96 CPC: "RCA Dismissed" Page 19 of 24 RCA No.20/2012: "Smt.Sunita V/s Smt.Chanda Devi" DOD: 30.04.2013
36. Issue No.2: Whether the plaintiff is entitled for a decree for damages @ Rs.8,000/ per month with interest till such time possession is handed over to the plaintiff by the defendant? OPP.
The onus to prove this issue was upon the plaintiff. The plaintiff has claimed damages at the rate of Rs.8,000/per month. The claim for damages is based on unauthorized use of the suit property by the defendant. It has already been held above that license of the defendant to occupy the suit premises had been terminated initially when the plaintiff verbally asked the defendant to leave the property and subsequently by way of service of legal notice dated 14.07.2009 Ex. PW1/1. Since the precise date on which the plaintiff verbally asked the defendant to leave the premises has not been pleaded or proved, the date of service of the legal notice dated 14.07.2009 Ex.PW1/1 revoking the license shall be treated as the date of termination of the license for the purpose of computation of damages. The notice was dispatched by registered post on 14.07.2009, as evident from the receipts Ex. PW1/2 and Ex. PW1/3. The notice granted fifteen days period to vacate the property. It is, therefore, reasonable to assume that defendant stood liable to vacate the premises on 05.08.2009. The defendant became an unauthorized occupant and became liable to pay damages for the said unauthorized occupation with effect from 05.08.2009.
37. As to the quantum of damages, the plaintiff has stated in the plaint that the suit property could easily fetch rent of Rs. 8,000/ per month. This assertion made in paragraph no. 11 of the plaint has not been specifically denied in the written statement. A fact not specifically denied in the pleadings is deemed to have been admitted.
RCA U/s 96 CPC: "RCA Dismissed" Page 20 of 24 RCA No.20/2012: "Smt.Sunita V/s Smt.Chanda Devi" DOD: 30.04.2013
38. Moreover, the same liability of the defendant was reiterated in the legal notice dated 14.07.2009 Ex. PW1/1. The legal notice has not been replied to despite having being served upon the defendant, as noted above. Failure to reply to the notice also indicates acceptance of the correctness of its contents.
39. The defendant consciously continued to occupy the suit property despite knowing that on failure to handover possession, she would be liable to pay damages at the rate of Rs.8,000/ per month as stipulated in the above notice. Since the defendant chose to overstay despite being aware of the consequential damages of which she had been put to notice, I find no ground to refuse to grant damages at the said rate. A sum of Rs.8,000/ per month appears to be a reasonable demand for damages having regard to the extent of the suit property.
40. In the case of "P.L. Kapur Vs. Jia Rani, AIR 1973 Delhi 186", the Hon'ble High Court of Delhi held that the claim for damages can be founded on legal notice.
41. For the aforesaid reasons, the plaintiff is entitled to recover damages from the defendant at the rate of Rs.8,000/ per month from 05.08.2009 till the date of recovery of possession. The issue is decided in favour of the plaintiff and against the defendant.
42. Issue No.3: Whether the suit of the plaintiff is barred U/o 2 Rule 2 CPC? OPD.
The onus to prove this issue was upon the defendant. This issue was framed by the Ld.Trial Court on the basis of preliminary objection No.4, taken in RCA U/s 96 CPC: "RCA Dismissed" Page 21 of 24 RCA No.20/2012: "Smt.Sunita V/s Smt.Chanda Devi" DOD: 30.04.2013 the written statement by the defendant. The learned counsel for the defendant did not press for this issue and very bleakly argued that on account of the proceedings which took place before the police U/s 107/151 Cr.P.C, the present suit was barred. This is an absurd argument. The proceedings before the police U/s 107/151 Cr.P.C are not judicial proceedings and the same did not determine the right, title and interest of somebody with regard to suit property. The issue is accordingly decided against the defendant and in favour of plaintiff.
43. Issue No.4: Whether the plaintiff has not valued the suit for the purpose of court fees and jurisdiction? OPD.
The onus to prove this issue was upon the defendant. The defendant has claimed that the plaintiff has not valued the suit properly for the purpose of court fees and jurisdiction.
44. The present suit has been filed for recovery of possession and for damages. The suit has been filed on the ground that defendant was a licensee and the license of the defendant had been revoked. The plaintiff has valued the suit at Rs.1,20,000/ for the relief of recovery of possession and appropriate court fee has been paid. For the purpose of recovery of damages, the plaintiff has undertaken to make up the deficiency in court fee.
45. In the case of "Neelavathi V/s N. Natarajan, AIR 1980 SC 691", the Hon'ble Supreme Court held that for computing court fee, the allegations made in the plaint are alone to be considered. The decision cannot be influenced by the pleas taken in the written statement or the final decision of the suit on merits. RCA U/s 96 CPC: "RCA Dismissed" Page 22 of 24 RCA No.20/2012: "Smt.Sunita V/s Smt.Chanda Devi" DOD: 30.04.2013
46. For recovery of possession, valuation is governed by Section 7 (v) of the Court Fees Act, 1870. Such a relief has to be valued as per the value of the suit property. The defendant has not led any evidence to establish that the value of the suit property was more than that stated by the plaintiff in the plaint. Since no evidence has been led to demonstrate that the suit is under valued, the valuation put forth by the plaintiff must be accepted. Even otherwise, the case of the plaintiff is that the defendant is a mere licencee and hence, having regard to the substance of the suit and not its mere form, even a suit for injunction valued as such would have been maintainable, in accordance with the law laid down by the Hon'ble High Court of Delhi in the case of "Geetanjali Nursing Home (P) Ltd. v/s Dr. Dileep Makhija and others, AIR 2004 Delhi 53".
47. For the relief of damages, the plaintiff can be called upon to pay deficient court fee.
48. For the purpose of jurisdiction, in the facts of the case, value for the purpose of court fee shall be same as value for the purpose of the jurisdiction in terms of Section 8 of the Suits Valuation Act, 1870.
49. It is, thus, concluded that the suit has been correctly valued for the purpose of court fee and jurisdiction. The issue is decided against the defendant and in favour of the plaintiff.
50. Relief:
In view of the aforesaid facts and circumstances of the case, present appeal being devoid of merits stands dismissed. Consequently, the suit is decreed in RCA U/s 96 CPC: "RCA Dismissed" Page 23 of 24 RCA No.20/2012: "Smt.Sunita V/s Smt.Chanda Devi" DOD: 30.04.2013 favour of the plaintiff and against the defendant as under:
(i) Decree of possession is passed in favour of the plaintiff and the defendant is directed to hand over vacant and peaceful possession of the suit property bearing No.C141, Sector1, J.J. Colony, Pappan Kalan, New Delhi110075, as shown in red colour in the site plan Ex.PW1/ H to the plaintiff forthwith;
(ii) A decree for recovery of damages is passed in favour of plaintiff and against the defendant in the sum computed @ of Rs.8,000/per month with effect from 05.08.2009 alongwith interest @ 6% per annum till today and thereafter alongwith interest @ 12% per annum till the date of recovery, which shall be executed only on payment of appropriate Court fee;
(iii) A decree for recovery of future damages is also passed in favour of plaintiff and against the defendant in the sum computed @ of Rs.
8,000/ per month from the date of decree till the date on which vacant possession is handed over by the defendant to the plaintiff;
(iv) The plaintiff is also entitled to costs.
51. Decree Sheet shall be prepared accordingly.
52. The trial court record be sent back forthwith to the Ld.Trial Court along with copy of this judgment.
53. Appeal file be consigned to Record Room.
Dictated & Announced in the (Vinod Yadav)
open Court on 30.04.2013 Addl. District JudgeI/SouthWest
Dwarka District Courts:New Delhi
RCA U/s 96 CPC: "RCA Dismissed" Page 24 of 24