Delhi District Court
Smt. Geeta vs Sh. Bal Kishan on 26 April, 2014
IN THE COURT OF ANURAG SAIN, ADJ03 (EAST),
KARKARDOOMA COURTS, DELHI
R.C.A. No.: 11/14
1. Smt. Geeta
W/o Sh. Rambir
2. Sh. Rambir
S/o Sh. Kanhaiya Lal
Both R/o D27, Acharya Niketan,
Mayur Vihar PhaseI,
Delhi91
........Appellants
Versus
Sh. Bal Kishan
S/o Late Sh. Chet Ram,
R/o D27, Acharya Niketan,
Mayur Vihar PhaseI,
Delhi91
.......Respondent
Date of Appeal : 09.01.2014
Date of reserving judgment : 25.04.2014
Date of pronouncement : 26.04.2014
JUDGMENT
1. The present appeal under Section 96 C.P.C. has been filed by the appellants (defendants before the Ld. Trial Court) for setting aside of the impugned judgment dated 26.11.2013 passed by Sh. RCA No.: 11/14 Raj Kumar, Ld. Senior Civil Judge and Rent Controller, Karkardooma Courts, East, Delhi in Civil Suit No.77/12. whereby the suit for permanent, mandatory injunctions and damages filed by the respondent (plaintiff before the Ld. Trial Court) has been decreed.
2. Brief facts of the case of the plaintiff/respondent is that the plaintiff/respondent has filed a suit for permanent, mandatory injunction and damages on the ground that the plaintiff/respondent is the absolute owner of the property measuring area 50 sq. yds. bearing no. D27, Acharya Niketan, Mayur Vihar Phase1, Delhi and is residing in one portion of the said property shown in green colour in the site plan; It has been further averred that defendant/appellant no.1 is the daughter of the plaintiff/respondent and defendant/appellant no. 1 is the husband of defendant/appellant no.1; It has been further averred that 1517 years back, the plaintiff/respondent had allowed her daughter i.e. defendant/appellant no.1 to live in the suit property in portion shown in red colour in the site plan as licencee without any licence fee and for taking care of the said property; It has been further averred that the RCA No.: 11/14 appellants/respondents lived peacefully for a certain time but thereafter, they became dishonest and with the intention to grab the property of the plaintiff/respondent, they started quarreling, harassing and torturing the plaintiff/respondent; It has been further averred that the plaintiff/respondent got issued a public notice in the newspaper Rashtriya Sahara on 13.11.2011 debarring the defendants/appellants and severing all his relationships from them; It has been further averred vide legal notice dated 24.02.2012, the licence of the defendants/appellants was terminated by the plaintiff/respondent.
3. The defendants/respondents filed written statement before the ld. Trial court wherein it has been averred that the plaintiff/appellant had sold the suit property to defendant/appellant no.1 for a total consideration of Rs.50,000/ with the request to execute the relevant documents afterwards but plaintiff/respondent turned dishonest and failed to execute the sale documents. It has been also averred that the defendants/respondents are in possession since the year 1990 but the legal notice dated 24.02.2012 was given by the RCA No.: 11/14 plaintiff/respondent after a gap of 22 years. Rest of the contents of the plaint have been denied by the appellants/defendants.
4. The Ld. Trial court vide order dated 06.08.2012 framed following issues:
(i)Whether defendants have purchased the suit property bearing no.D27, Acharya Niketan, Mayur Vihar Phase1, Delhi91 from the plaintiff as alleged ?OPD
(ii)Whether the plaintiff is residing in any portion shown in green colour in the site plan? OPP
(iii)Whether plaintiff is entitled to relief of permanent injunction thereby restraining the defendants from creating third party interest or transferring the suit property? OPP
(iv)Whether the plaintiff is entitled to relief of permanent injunction thereby restraining the defendants from dispossessing the plaintiff and his wife from the suit property ? OPP.
(v)Whether plaintiff is entitled to relief of mandatory injunction as prayed for ? OPP
(vi)Whether plaintiff is entitled for any damages ? If so at what RCA No.: 11/14 rate and for what period ? OPP
(vii)Relief.
5. The plaintiff in order to prove his case examined himself as PW1 and relied upon following documents Ex. P1 is IGPA dated 01.06.1983, Ex. P2 is agreement deed dated 01.06.1983, Ex. P3 is affidavit, Ex.P4 is receipt dated 01.06.1983, Ex. P5 is electricity bill, Ex.P6 is water bill, Ex.P7 is latest water bill dated 09.02.2012, Ex. P8 is disability certificate of the petitioner, Ex. P9 is site plan, Ex. P11 & Ex. P12 are complaint and its receipt respectively, Ex. P13 is publication in newspaper Rashtriya Sahara dated 13.11.2011 and Mark P10.
6. The defendant examined herself as DW1 and also relied upon documents such as photocopy of the birth certificate of Ms Chhaya Ex. DW1/1, photocopy of the birth certificate of Ms Neeti Ex. DW1/2, photocopy of the birth certificate of Ms Jyoti Ex. DW1/3, photocopy of the birth certificate of Master Chirag Ex. DW1/4, photocopy of Gas Connection Receipt Ex. DW1/5, photocopy of the electricity connection receipt Ex. DW1/6, original receipt of Aadhaar Card of Sh. Rambir Ex. DW1/7, RCA No.: 11/14 original receipt of Aadhaar card of Smt. Geeta Ex. DW1/8, original receipt of Aadhaar card of Ms Neeti Ex. DW1/9, original receipt of Aadhaar card of Ms Jyoti Ex. DW1/10, original receipt of Aadhaar card of Ms Chhaya Ex. DW1/11, original LIC premium receipt Ex. DW1/12, photocopy of OBC certificate of Ms Preeti Ex. DW1/13, reply dated 07.03.2012 to the legal notice Ex. DW1/15, photocopy of complaint dated 06.01.2012 Ex. DW1/16, photocopy of the complaint to the SHO PS Pandav Nagar dated 04.01.2012 Ex. DW1/19 and photocopy of the ration card Ex. DW1/21.
7. Defendant also examined Sh. Har Singh, posted as AGII with BSES, District Mayur Vihar, Commercial Office PhaseI and II, Delhi91.
8. After hearing the parties, examining the witnesses, the ld. Court vide impuged judgment dated 26.11.2013 decreed the suit of the respondent.
9. Being aggrieved by the impugned judgment dated 26.11.2013 of the ld. Trial Court, appellants have challenged the impugned judgment on various grounds and filed the present appeal. RCA No.: 11/14
10.Trial Court record has been received.
11. I have heard ld. Counsel for the appellants and have carefully perused the record.
12.Ld. Counsel for the appellants argued that the present suit suffered from legal infirmity. It has been further argued that the appellants are the cosharers under the Indian Succession Act. He has taken another plea of adverse possession in the appeal for the first time. Ld. Counsel for the appellants further stated that the appellants can take a plea that the appeal is continuous proceedings. He has relied upon judgment AIR 2000 SUPREME COURT 1976 and also the judgment of the Hon'ble High Court of Rajasthan AIR 1983 RAJASTHAN 109 in this regard.
13.On the other hand, ld. Counsel for the respondent has argued that the applicants are concealing the facts from this court. He submits that it is not the case of the appellants before the court below that the respondent is not the owner of the suit property and the appellants have been residing in the suit premises as daughter and sonin law, appellant no.2 (husband of appellant RCA No.: 11/14 no.1). No legal right of any nature accrued in favour of the appellants as the appellants are only by way of permissive user were residing in the suit premises. Counsel for the respondent submits that the judgment passed by the ld. Trial court is well reasoned, the court has dealt with the issues in accordance with the law and called for no interference. He further prays that the appeal of the appellants be dismissed with heavy cost.
14. I have perused the record and heard the ld. Counsels for the parties.
15.Interestingly the counsel for the appellant has not challenged the finding of the lower court on issues decided by the court. Nowhere in the appeal the appellants has stated that how the findings of the lower court are perverse, without appreciating the evidence and are against the settled preposition of law.
16.The case of the appellants before the court below is that the respondent has sold the suit property for a valuation consideration of Rs.50,000/ to the appellant no.1 and the said amount was paid in installments by the appellant no.1 to the respondent. It has been further stated by the appellant no.1 that RCA No.: 11/14 she requested to execute the relevant documents in her favour however the respondent did not execute the same by giving one or other excuses. The relation between the appellants and the respondent were cordial and the appellants believed the version of the respondent and did not make any issue in this regard.
17. The entire case of the appellants is that the appellants had allegedly paid a sum of Rs.50,000/ in installments to the respondent towards the sale consideration of the suit property and the parties are living in cordial relation being father and daughter i.e. respondent and appellant no.1, as per the case of the appellants, the respondent did not execute the documents with respect to the sale of the suit property by giving one or more excuses. Infact it was the malafide intention of the respondent that the respondent did not execute the documents for the sale of the suit property in favour of the appellant no.1 and thereby deliberately cheated the appellants. The appellants further argued that the respondent failed to keep his promise and filed the present suit. The fact remains except for the oral averment of the transaction of the suit property, there is nothing on record which the appellant could substantiate. RCA No.: 11/14
18.The plea of oral agreement to sell has been discarded by the various courts and also in a case titled as Vinay Kumar Vs. Dr. Sushil Kumar Jain CS(OS) 2218/2008 of our own Hon'ble High Court where in paras 7 to 10 held:
'7. It is thus evident that a contract of ? agreement to sell ? of immovable property in which part consideration moves from Vendee to Vendor and the possession moves to the transferee or the transferee already in possession continues in the possession after the agreement to sell, such a contract is required to be in writing.
8. The Registration Act of 1908 was amended by an Act of 48 of 2001 and this amendment came into force since October, 2001 whereby the registration of a document containing contract to transfer for consideration any immovable property where part performance of the contract is performed and possession of the property is transferred to the transferee, is required to be compulsorily registered and if such documents are not registered they shall have no effect for the purpose of Section 53 A.
9. The jurisdiction to grant a decree of specific performance is discretionary with the Court and Court is not bound to grant such relief merely because it is lawful to do so. This discretion has to be exercised by the Court in a judicious manner based on a sound and reasonable judicial RCA No.: 11/14 principle. The Courts have also a duty to see that frivolous and patently illegal suits are dismissed at the very inception. Where a tenant, who has been paying rent every month only by cheque to the landlord, takes a plea that landlord had entered into an oral agreement to sell his property to him and had received part consideration in cash without any receipt and he had stopped paying rent as a result of this agreement to sell, the Court need not entertain such a suit which is based on illegalities and violates the statutory provisions of Registration Act and Transfer of Property Act. The court is bound to reject a plea of oral agreement and payment in cash without a receipt, as a part consideration for transfer of immovable property.
10. The second reason for not entertaining such a suit is opening the doors of the Court for property grabbers and forgers. If the Court starts entertaining suits on the basis of oral agreements and cash payments without any receipt about the sale of immovable property worth lakh of rupees then every tenant, trespasser, licensee and property grabber would rush to the Court alleging that he had purchased the property orally by paying substantial or entire part of the consideration in cash and he was in possession of property in his own right, the landlord should be directed to execute the sale deed. Such propositions are contrary to Section 17 of the Arbitration Act as well as contrary to the Section RCA No.: 11/14 53A of the Transfer of Property Act and contrary to the basic human conduct. The Courts are meant to promote justice and lawfulness. They cannot be allowed to be used as a tool of lawlessness or as a tool of harassment. This court cannot entertain a suit in respect of specific performance of immovable property where the possession of the property has been taken by the vendee on the basis of an oral agreement to sell and payment consideration is allegedly made in cash without a receipt. The suit can be entertained only if an agreement is in writing and the payment of the consideration is in writing against a valid receipt. The suit deserves to be dismissed with exemplary costs. The suit is hereby dismissed with costs of Rs. 1 Lakh.'
19.Besides, the respondent has come to know about the pendency of the present matter and have also come to know that the respondents have denied the execution of the documents as alleged by the appellant, still the appellants have preferred not to file any suit of declaration and specific performance till date. Moreover, the appellants have not challenged the ownership of the respondent in the entire proceedings before the court below or has also not filed any suit for transfer of the property in his favour till date. Thus the stand of the appellants that they have RCA No.: 11/14 paid a sum of Rs.50,000/ towards the sale of the suit property holds no water. The ownership was never challenged by the appellants either pleading or evidence in the lower court. I have gone through the records, the evidence led by the parties in this regard, appreciation of evidence by the court and findings thereof, in the opinion of the court, the findings of the ld. Trial court are clear and calls for no interference.
20.The other argument by the appellants was that they are not the licencee. The evidence so led by the defendant and the cross examination as carried out by the appellants in the court, nowhere says that the appellants are not the licencees and stated to have purchased the suit property for a valuable consideration from the respondent.
21. The entire cross examination of the respondent before the court below pertains to the amount of Rs.50,000/ as consideration amount paid by the appellants to the respondent towards the purchase of the suit property. However, as per the evidence led by the appellants before the court below, the appellants have not filed any document to show that they have any proof with respect to the payment of Rs.50,00/ to the respondent. It has RCA No.: 11/14 come in the cross examination of the appellant no.1 that it is correct that I do not have any proof with regard to Rs.50,000/ to my father i.e. appellant herein. It has also come on record during the cross examination of the appellant no.1 that she has received the notice of vacating the suit property but has not vacated the suit property. Thus, from the facts of the case and the evidence adduced by the parties and the cross examination of PW1 clearly shows that the appellants have failed to prove the same either by direct proof or payment or surrounding circumstances.
22.What is admitted and factual position emerges from the pleadings and the evidence of the case is that the appellants are the daughter and soninlaw of the respondent. Admittedly the respondent brought the appellants to the suit property to reside with them. In the cross examination of the respondent PW1, it has come on record that the respondent called their daughter, appellant herein from Village Nithari to the suit property after her marriage. The suit property was given to the appellant by the respondent for residential purpose as well as for taking care of the said property. It has further come on record during the RCA No.: 11/14 cross examination of the respondent that the relations between the respondent and the appellant no.1 were cordial. What is left now to hold the status of the appellant in the suit property except that the appellants are residing in the suit property with the permission of the respondent and thus there possession can safely be termed as permissive one.
23.The lower court below while considering the facts and evidence of the matter has relied upon the judgment AIR 2012 SC 1727 titled as Maria Margarida Sequeria Fernandes and Ors. Vs. Erasmo Jack De Sequeria (dead) through LRs, wherein the Hon'ble Supreme Court of India has categorically held that caretaker, watchman or servant could never acquire interest in property irrespective of his long possession. Caretaker or servant has to give possession forthwith on demand. The aforesaid judgment squarely applies to the present proceedings between the appellants and the respondent. The appellants are in possession of the suit property since long however merely possession of appellants does not confirm right in the suit property in favour of the appellants. Thus, I have no hesitation to say that appellants are occupying the suit property in the RCA No.: 11/14 capacity of permissive one. The findings of the ld. Trial court calls no interference.
24.Now I shall be dealing with the pleas of the appellants that the appellants have urged before this court for the first time, that they are the owner by way of adverse possession and also co sharer in the suit property.
25.It is the right of the parties to raise any plea/averment in support of their case however the said averment should have some legal base in accordance with the facts and law involved. It is not that the party can raise plea of his whim and fancies.
26.Plea should be in consonance with facts and law involved. It is not that in a case a party is allowed to take several pleas and prays that if it is not accepted then this one to be considered and this is not then the other one. This shows the party itself is not sure about its rights.
27. It is not that only such person approaches the court whose legal rights are infringed or under threat from the infringement of the same it also applies to those who are defending their case because they are not only disproving the case of the plaintiff but RCA No.: 11/14 also proving their rights in their defence.
28.As per records, in the entire pleadings of the appellants in the court below, the appellants have not made even a whisper of either cosharer or the plea of adverse possession. The consistent stands of the appellants in the court below is that the respondent is the owner of the suit property. The appellants have raised the plea of adverse possession and cosharer for the first time in the present appeal.
29.What emerges from the contentions of the appellants is that if appellants base their claim on the basis of adverse possession then this would mean that they admit the title of the respondent and if they claim themselves to be the cosharer then the adverse possession cannot sustain. The pleas are self destructive in nature.
30.The appellants have already taken the plea of adverse possession and also cosharer at the time of arguments before the court below. Admittedly the appellants have not taken the plea of adverse possession in their written statement before the court below. Admittedly, the appellants have not amended their RCA No.: 11/14 suit before the said court. The ld. Trial court has rightly held that the party is not allowed to travel beyond pleadings. This shows that the ground in the present appeal taken by the appellant is an afterthought and has been taken only to further complex the proceedings.
31. It has been held by our own Hon'ble High Court in the case titled as Virender Kumar and Ors. Vs. Jaswant Rai and Ors. RSA no. 46/11 passed in 10.03.2011 that when a particular defence is not taken in the written statement the same cannot be agitated in appeal. Thus, viewed from any corner the grounds taken by the appellants does not stand to reasons.
32.As regards the question of adverse possession, the same in the opinion of the court deserves to be outrightly rejected for the reasons that in view of the judgment Virender Kumar (Supra) and also that the appellant has not filed any document to show how the appellant is justified in raising the new plea before the appellant court. I have already stated above that one cannot be allowed to take the pleas as per his own whims and fancies. The pleas should be in consonance with some legal base. I draw the support for the same from the judgment of the Supreme Court RCA No.: 11/14 of India in AIR 2012 SC 1727 titled as Maria Margarida Sequeria Fernandes and Ors. Vs. Erasmo Jack De Sequeria (dead) through LRs. Moreover, the ld. Counsel for the appellants also failed to establish how his plea of adverse possession is sustainable in accordance with law.
33.As regards the plea of cosharer, it is ununderstandable as to how the appellants clamed their rights. On the one hand, the appellants have claimed the title of the property as having been purchased by the appellant for a valuable consideration. This assertion is bregut of documentary evidence. And on the other hand the appellant is claiming the ownership by way of adverse possession and also as a cosharer. A person who termed himself as a cosharer cannot claim title on the basis of adverse possession. Thus, the question of cosharer does not sound to logic.
34.Ld. counsel for the appellants argued that the court cannot direct the appellants by way of mandatory injunction to handover the vacant possession of the suit property to the respondent. The ld. Trial Court has already dealt with the preposition and has infact held that as per Sections 38 and 39 of RCA No.: 11/14 Specific Relief Act suit for specific performance can be filed and there is no necessity to file suit for possession. The judgment so relied upon by the ld. Trial Court 2006 (4) RCA (Civil) page no.777, 2007 (1) PLR page no. 398 titled as Jagdish Vs. Brij Lal wherein it has been held that suit for possession by way of mandatory injunction against the licensee by cancellation of his licence is maintainable and no ad valorem court fee is payable in such a suit. The same is the case herein. The respondent has already given the notice to quit to the appellants which is admitted by appellant no.1 in her cross examination.
35.Lastly, ld. Counsel for the appellants has argued that the respondent was not in possession of green portion shown in the site plan and is in possession of the entire suit property. Besides observations by the ld. Trial Court, the record shows that in case the appellants wish to counter the same, he is required to file his own site plan to prove the same which infact has not filed by the appellants. Even in this court also no such site plan is urged before this court nor has been filed by the appellants. Accordingly, the existence and correctness of the RCA No.: 11/14 site plan cannot be doubted. The findings of the lower court does not call any interference on this issue.
36.There was also an issue on the damages. As per the respondent, the appellants are trespassers in the suit property and the respondent has claimed damages of Rs.2,500/ per month. The court has rightly appreciated the same that the respondent has not filed any supporting evidence and the court on its wisdom considering the relations between the parties has awarded damages @ Rs.1,000/ per month from the date of the institution of the suit till the date of delivery of vacant possession of the suit property by the appellants to the respondent. I find no infirmity in the same.
37. It is the irony of the proceedings that nowadays the social relations have taken the back foot and money or the property have taken the fore running position. How can daughter who had been called by her mother to live with the respondents which is an admitted fact, would contest against her own mother on flimsy ground and the appellant has taken all possible grounds which she has already taken before lower court and whatever left after whose, advise has taken before this court. It RCA No.: 11/14 is the case where the parents of the appellants are old aged and in fact the father of the respondent is paralytic and is confined to bed and the situation in the house has turned so bad that the respondent's father has to because of the harassment suffered by them, publically disowned vide publication effected on 13.11.2011 the appellants and has to file the suit for evicting the appellant from the suit property.
38.From the above discussion, there is no infirmity in the order passed by the Ld. Trial Court. The appeal is hereby dismissed. Trial Court record be sent to the ld. Trial Court with copy of this order.
39.Appeal file be consigned to record room. Announced in the open court On 26.04.2014 ( Anurag Sain) Addl. District Judge03 (East) Karkardooma Courts, Delhi RCA No.: 11/14 RCA No.: 11/14 26.04.2014 Present: Appellants in person.
Vide separate judgment announced in the open court today, the present appeal is dismissed. Trial Court record be sent to the ld. Trial Court with copy of this order. Appeal file be consigned to record room.
(Anurag Sain) ADJ3, East, Karkardooma Court, Delhi/26.04.2014 RCA No.: 11/14