Delhi District Court
Sh. Moti Chand vs Sh. Sanjay Kumar on 6 October, 2020
1
IN THE COURT OF MS. CHHAVI KAPOOR, ADDITIONAL SENIOR CIVIL
JUDGE/ GUARDIAN JUDGE / JUDGE SMALL CAUSE COURT: NORTH
EAST DISTRICT, KARKARDOOMA COURTS, DELHI.
Civil Suit No.:02/16
1. Sh. Moti Chand
S/o Late Shivdhari
2. Smt. Panna Devi
W/o Sh. Moti Chand
(Through SPA Sh. Moti Chand)
Both R/o H. No. A-397, Gali No. 19,
Brijpuri, Delhi-110094.
............Plaintiffs.
Versus
1. Sh. Sanjay Kumar
S/o Sh. Moti Chand
2. Smt. Seema Devi
W/o Sh. Sanjay Kumar
Both R/o H. No. A-397, Gali No.19,
Brijpuri, Delhi 110094.
................Defendants
CS NO.02/16 Moti Chand v. Sanjay & Ors. 1/27
2
Date of institution:10.03.2016
Date of judgment:06.10.2020
SUIT FOR PERMANENT, MANDATORY INJUNCTION
AND RECOVERY OF DAMAGES/MESNE PROFITS.
JUDGMENT
1. This is a suit for Permanent, Mandatory Injunction and Recovery of Damages/Mesne Profits. The facts of the suit are as under:
2. Plaintiff nos.1 & 2 are husband and wife and are senior citizens. They are permanent residents of the suit property having House No. A-397, Gali No.19, Brijpuri, Delhi-110094 (reflected in the site plan filed along with the plaint). It is stated that Plaintiff no.1 is the special power of attorney holder of the Plaintiff no. 2 and is well conversant with the facts and circumstances of the case. The Defendant no.1 is the eldest son of the Plaintiffs, whereas the Defendant no.2 is the wife of the Defendant no.1 and is the daughter-in-law of the Plaintiffs. It is stated that both Plaintiff nos.1 and 2 are joint owners of the suit property which is constructed over a portion of the land measuring 100 CS NO.02/16 Moti Chand v. Sanjay & Ors. 2/27 3 square yards. It is claimed that this plot of land was purchased by the Plaintiffs by way of two different GPA, Agreement to Sell, possession letter in the year 1989. It is stated that initially the property was purchased by way of these documents as two plots, each measuring 50 square yards. It is stated that after purchasing the land underneath the suit property in the year 1989, construction was raised jointly over the two plots as one in the year 2000 by the Plaintiffs out of their hard earned money. It is claimed that the Defendants are residing in the suit property in the portion shown as red in the site plan filed along with the plaint. It is stated that a toilet, bathroom, kitchen, stairs and open space as shown in the site plan is in the common use of the Plaintiffs as well as the Defendants.
3. The Plaintiff's claim that Defendants are residing in the suit property in the capacity of a licensee. It is stated that the Defendant no.1 got married with the Defendant no.2 in the year 2009 and at the time of their marriage, the Plaintiffs had spent a sum of Rs. 4 Lakhs on the expenses of the marriage of their son. It is alleged that the Defendant no.1 does not have permanent employment since the time of his marriage and thus, financial support has been provided to him by the Plaintiffs from time to time . The Plaintiffs claim CS NO.02/16 Moti Chand v. Sanjay & Ors. 3/27 4 that the Defendant no.1 has taken a number of loans from the banks using his credit cards and as he is unable to pay the debt, therefore bank officers are regularly coming to the suit property for recovery of the amount and are threatening the Plaintiffs and are interfering in their peaceful possession of the suit property. The Plaintiffs have also alleged that number of times the loans taken by the Defendant no.1 have been re paid by them out of their own earnings/savings but despite this , the Defendant no.1 is not taking responsibility of his own matrimonial life and has refused to look after the needs of his old-aged parents. It is also claimed that the behaviour of the Defendants towards the Plaintiffs is violent and Defendant no.1 is pressurizing the Plaintiffs to sale off the suit property and give him his share. The Plaintiffs have submitted that the Defendants have no legal right, title or interest in the suit property as they are occupying the same in the capacity of being a licensee. Plaintiffs have alleged that they have an unmarried daughter to support and whenever they ask the Defendant no.1 to assist them with the finances, he gets violent and starts quarrelling with them. It is claimed that Defendant no.1 is creating pressure upon the Plaintiffs to sell off the suit property and give him his share and has threatened that if his demands are not met with, he would embroil the family members in false cases.
CS NO.02/16 Moti Chand v. Sanjay & Ors. 4/27 5 Constrained by this conduct of the Defendant nos.1 and 2, the Plaintiffs have severed their relations with them by getting a public notice dated 20.11.2015 published in the daily newspaper Rashtriya Sahara". They have intimated the Defendant nos.1 and 2 that they should vacate the suit property. The Plaintiffs have stated that they have got another public notice dated 15.10.2015 issued in the daily newspaper Rashtriya Sahara, whereby they have debarred the Defendants from all their movable and immovable properties and severed their relations with them. After publication of this notice, the Plaintiffs had also informed the Defendants and asked them to vacate the suit property. However, they failed to handover vacant and peaceful possession of the suit property back to the Plaintiffs. Hence, they have issued a legal notice dated 3.12.2015 upon the Defendants. After receiving the said notice, the Defendant no.2 has threatened the Plaintiffs that she will implicate them in false dowry cases if the notice is not withdrawn, therefore, the Plaintiffs are apprehending that the Defendants will cause harm to their life and property .Accordingly, they have filed the present suit for Permanent and Mandatory Injunction in order to direct the Defendants to vacate the suit property on the ground that their licence to reside in the property has been terminated. The Plaintiffs are also claiming damages/mesne profits from the Defendants on CS NO.02/16 Moti Chand v. Sanjay & Ors. 5/27 6 account of their illegal and unauthorized use and occupation of the suit property at the rate of Rs.15,000/- per month by alleging that similar properties in the area can easily fetch an amount of Rs.15,000/- per month as rent. The Plaintiffs have claimed damages/mesne profits at the rate of Rs.15,000/- per month with effect from 20.9.2015 ,i.e the date when the publication in the daily newspaper was affected against Defendants. Damages are claimed till 09.3.2016 in the amount of Rs.90,000/- on which requisite Court fee has been affixed on the plaint. The prayer clause of the plaint reads as under:-
i. Pass a decree for mandatory injunction, thereby, directing the Defendants to remove themselves, their goods and articles, from the portion in their possession in the suit property (shown in red colour in the site plan) and hand over the peaceful possession of the same to the Plaintiffs. ii. Pass a decree of permanent injunction against the Defendants, thereby, restraining the Defendants from creating the third party interest in the suit property, alienating or parting with the possession of the same as well as from interfering in the peaceful life of the Plaintiffs.
iii. Pass a decree in favour of the Plaintiff as against the Defendants for mesne profits/damages for an amount of Rs.90,000/- till filing of suit and CS NO.02/16 Moti Chand v. Sanjay & Ors. 6/27 7 further @ Rs.15,000/- p.m. till actual possession of the suit property is handed over to the Plaintiffs.
4. In Written Statement filed by the Defendants, they have taken various preliminary objections against the suit. The Defendants have stated that the present Court has no pecuniary jurisdiction to decide the matter and therefore, the suit is liable to be dismissed. In this regard, the Defendants have claimed that the value of relief of possession of the suit property should be in the sum of Rs. 50 Lakhs and therefore , the present Court does not have the competent pecuniary jurisdiction to decide the matter. The Defendants also claimed that the relief sought by the Plaintiff in this suit could only be granted by a decree of possession and therefore the suit of mandatory injunction was liable to be dismissed. The Defendants also claimed that the suit had been incorrectly valued for the purposes of court fee and jurisdiction and therefore, the suit was liable to be dismissed. It was claimed that the Plaintiffs had no locus standi to file the suit as it was alleged that they were not the owners of the suit property. The Defendants claimed that the Plaintiffs had placed reliance upon unregistered documents to prove their ownership. The Defendants placed reliance upon the judgment of the Honorable Supreme CS NO.02/16 Moti Chand v. Sanjay & Ors. 7/27 8 Court of India in the case of Suraj Lamp & Industries Private Limited vs State of Haryana wherein the Honorable Apex Court had observed that an immovable property could be lawfully and legally transferred only by way of a registered deed of conveyance. In the light of the said judgment, the Defendants had argued that the Plaintiffs had not become owners of the suit property on the basis of unregistered GPA, Agreement to Sell, receipt etc. relied upon by them and therefore, it was claimed that the relief of possession could not be granted to the Plaintiffs. Furthermore, the Defendants also claimed that the suit property was an ancestral property. In this regard, they claimed that the father of the Plaintiff no.1 and his brother had purchased a house bearing no. 373, Gali no. 8, Shanti Mohalla, Gandhi Nagar in the year 1974-75 jointly. It was claimed that the father of the Plaintiff no.1 namely Sh. Shivdhari had expired and thereafter the Plaintiff no.1 had sold the share of his father out of the said house to his brother. It was claimed that the Plaintiff no.1 had sold the jewellery of his mother and purchased the house no. 377, Gali no.1 8, Brijpuri in Delhi in the year 1980 - 81 from the amount received from the sale of the house No. 373 and the jewellery of his mother. It was claimed that thereafter Plaintiff no.1 had sold the house no. 377, Gali no.18, Brijpuri, Delhi-94 and purchased the two plots (referred to the land CS NO.02/16 Moti Chand v. Sanjay & Ors. 8/27 9 underneath the suit property) measuring 50 square yards each in the year 1989 from one Mohammed Nasim by way of unregistered GPA, Agreement to Sell, receipt, etc. It was claimed that the construction raised on two plots of 50 square yards each as one plot was raised with the help of the joint earnings of the entire family. The Defendants stated that the old construction was demolished in the year 2000 and the house was raised below the road level. It was claimed that construction was carried out in phases in the suit property up till the year 2009. It was stated that after demolition of the already built structure, the Plaintiffs were not capable of construction of the suit property on their own after the year 2002 and therefore, Defendant no.1 had invested a sum of Rs. 6 Lakhs for construction and renovation of the suit property from his own earnings. The Defendant no.1 claimed that since passing of class 12 th in the year 1998, he had been carrying on the business of surveyor and had accumulated sufficient savings which were later on used for construction and renovation of the suit property. It was claimed that the defendant No. 1 used to assist his father at his dry cleaners shop from the age of 12 years. It was further alleged that the defendant No.1 had paid a sum of Rs.80,000/- for repair and renovation of the shop of his father in the month of August, 2012. It was also claimed that in the month of August/September, 2015 defendant CS NO.02/16 Moti Chand v. Sanjay & Ors. 9/27 10 No.1 had paid a sum of Rs.10,000/- to his father for installing a water connection in his property. Accordingly, it was claimed that the family was being held as one joint unit and hence, the suit property was an ancestral property and not the self acquired property of the Plaintiffs. It was therefore claimed that Defendant no.1 was a co-owner of the suit property and had a valid and legal right in the same. The Defendant no.1 also claimed that the Plaintiffs had not approached the court with clean hands and hence, their suit was liable to be dismissed. In this regard, the Defendant no.1 stated that he was running his business in the suit property in the name of M/s. Aqua Care and Maintenance Enterprises. He claimed that the firm was registered with the office of Sub-Registrar, Delhi and the Defendant no.2 was doing the business of work of ironing clothes in the suit property. It was alleged that these facts were not disclosed in the plaint and therefore, it was stated that the Plaintiffs were not entitled to the equitable relief of injunction. The Defendants denied that they were occupying the suit property in the capacity of being a licensee. They denied that their possession in the suit property had become illegal or unauthorized by publication of any notice in the daily newspaper or notice of the Plaintiffs. They further denied that they were in arrears of any damages/mesne profits as claimed in the plaint. They averred that they were CS NO.02/16 Moti Chand v. Sanjay & Ors. 10/27 11 occupying the suit property as they were the co-owners of the same. Accordingly, it was prayed that the suit be dismissed for being without any cause of action.
5. A replication was filed by the Plaintiffs in which the contents of the written statement were denied and controverted with and the contents of the plaint were reiterated and reaffirmed.
6. On the basis of the pleadings of the parties, following issues were hereby framed for adjudication of this suit;-
(i) Whether the Plaintiffs are entitled to the relief of mandatory injunction as prayed for? OPP.
(ii) Whether the Plaintiffs are entitled to the relief of permanent injunction as prayed for? OPP.
(iii) Whether the Plaintiffs are entitled to mesne profits/damages for an amount of Rs.90,000/- till filing of the suit and further @ Rs.15,000/- per month till the handing over of the actual possession of the suit property to the Plaintiff? OPP
(iv) Whether this Court has no pecuniary jurisdiction to try the present suit? OPD.
(v) Whether the Plaintiffs have no locus standi as they are not the owners/landlords to the suit property? OPD
(vi) Whether the suit property is ancestral property? OPD.
CS NO.02/16 Moti Chand v. Sanjay & Ors. 11/27
12
(vii) Relief?
7. Plaintiff no.1 Sh. Moti Chand stepped in the witness box as PW-1, tendered his affidavit of evidence Ex. PW-1/A and relied upon the following documents exhibited as under:-
a. Copy of notarized SPA dated 01.03.2016 as Ex. PW-1/1 (OSR). b. Copy of his voter ID card as Ex. PW-1/2 (OSR). c. Copy of Registration Form slip, GPA, Agreement to Sell, receipt dated 16.01.1989 in favour of Plaintiff no 2 as Ex. PW-1/3 (OSR). d. Copy of Registration Form slip, GPA, Agreement to Sell, receipt dated 16.01.1989 in his favour as Ex. PW-1/4 (OSR).
e. Copy of electricity connection slip in favour of Plaintiff no.2 dated 21.12.2000 as Ex PW-1/5 (OSR).
f. Copy of electricity bills in the name of Plaintiff no.2 as Ex. PW-1/6 (OSR). g. Copy of MTNL bill in the name of Plaintiff no. 2 as Ex. PW-1/7. h. Original four photographs as Ex. PW-1/8.
i. Copy of Hindi News paper "Dainik Jagran" dated 12.01.2016 as Ex. PW-1/9 (OSR).
j. Copy of public notice dated 20.09.2015 as Ex. PW-1/10 (OSR). k. Copy of public notice dated 15.10.2015 in Rashtriya Sahara as Ex. PW-1/11 (OSR).
l. Copy of application to SHO PS Gokal Puri as Ex. PW-1/12 (OSR). m. Copy of legal notice dated 03.12.2015 as Ex.PW-1/13.
n. Copy of reply dated 17.12.2015 as Ex. PW-1/14.
CS NO.02/16 Moti Chand v. Sanjay & Ors. 12/27 13 o. Copy of police complaint to Commissioner of Police, DCP-NE, Delhi, SHOPS Gokal Puri vide DD No. 776 dated 13.01.2016 as Ex PW-1/16 (OSR). p. Copy of five speed post receipts dated 13.01.2016 as Ex.PW-1/16 (OSR). q. Copy of rejoinder notice dated 15.01.2016 as Ex. PW-1/17 (OSR). r. Copy of two speed post receipt as Ex. PW-1/18 (OSR).
s. Original site plan as Ex. PW-1/19.
t. Copy of police compliant to Commissioner of Police, DCP NE. SHO PS Gokal Puri, Vide DD No.76B dated 21.04.2016 as Ex.PW-1/20 (OSR).
u. Copy of three speed post receipts dated 21.04.2016 as Mark A. v. Copy of settlement dated 12.04.2016 as Mark B. w. Copy of RTI dated 19.05.2017 with postal order dated 19.05.2017 as Ex. PW-1/23.
x. Copy of reply of RTI dated 13.06.2017 as Ex. PW-1/24.
The witness of the Plaintiff was cross examined by the Defendants. However, the Defendants did not lead any evidence to prove their case.
8. This court has heard final arguments advanced by the counsel for the Plaintiffs and the Defendants (Legal Aid counsel) and have perused the judicial record.
CS NO.02/16 Moti Chand v. Sanjay & Ors. 13/27 14
9. This court has considered the merits of the contentions of both the sides as per their pleadings and on the basis of arguments advanced by them. Findings are as under:-
The Plaintiffs have filed this suit for Injunction and Recovery of Damages/Mesne profits on the ground that they were the sole and absolute owners of the suit property and had allowed the Defendants to occupy a portion of the suit property (mark Red in the Site Plan Ex.PW1/19) on account of their near relations. It was claimed that the Defendant No.1 being the eldest son of the Plaintiffs and the Defendant No.2, being their daughter in law were granted permission by way of a temporary license to reside in the suit property. However, with the passage of time, relations between the family members turned sour and the Plaintiffs alleged that the Defendants had made their life miserable. The Plaintiffs also alleged that the Defendants had failed to maintain their obligations and duties to their old aged parents and had started pressurizing them to give them a share in their property. The Plaintiffs also claimed that the Defendants had failed to pay monthly maintenance and it was getting difficult for them to manage their daily expenses. Thus, Plaintiffs want the Defendants to vacate their property as they wish to lead their CS NO.02/16 Moti Chand v. Sanjay & Ors. 14/27 15 remaining life in a peaceful environment. Hence, they have filed the present suit.
10. On the other hand, the Defendants alleged that the Plaintiffs had filed this suit with malafide intention, in order to harass them and pressurize them to pay a sum of Rs 10 lakhs. The Defendants alleged that the suit property had been purchased by the funds realized by selling of the ancestral property of the family and thus, it was claimed that the Defendants had an independent right to reside in the suit property. Defendant no. 1 also claimed that he had contributed sufficient amount of money from time to time for construction and renovation of the suit property and therefore, it was stated that possession of the Defendants in the suit property could not be termed as that of a licensee. The Defendants also alleged that Plaintiffs were seeking to obtain the relief of possession against them in an injunction suit and had intentionally framed the suit in such a fashion to avoid payment of court fee on the market value of the suit property. It was claimed that the documents of title relied upon the by Plaintiffs were unregistered and hence, could not be said to have conferred titular rights in them. Accordingly, it was prayed that this suit be dismissed.
CS NO.02/16 Moti Chand v. Sanjay & Ors. 15/27 16
11. Plaintiffs had placed reliance upon documents Ex PW1/3 and Ex PW1/4 to prove that they were the sole and absolute owners of the suit property. The Defendants did not deny the execution of these documents in favour of the Plaintiffs, yet it was their case that since the title documents of the Plaintiffs were unregistered, hence it could not be said that the ownership rights in suit property had been conveyed from the previous owner to them by virtue of execution of these documents. It was argued on behalf of the Defendants that in the light of the judgment of Hon'ble Supreme Court in the case of Suraj Lamp& Industries Pvt Ltd Vs State of Haryana , it was clear that an immovable property could only be validly sold by way of registered documents. Hence, it was argued that no titular rights were conveyed to the Plaintiffs on execution of the documents Ex PW1/3 and Ex PW1/4 and therefore, they were not entitled to be placed in possession of the suit property by granting them the relief of mandatory injunction against the Defendants. However, the reliance of the Defendants upon the above referred judgment is misplaced. I am afraid that the observations made by the Hon'ble Apex Court in the said judgment do not come to the rescue of the Defendants. At this juncture, the court wishes to refer to the judgment of the Hon'ble Apex Court in case titled as in Maya Devi v. Lalta Prasad, ; Civil Appeal No. 2458 of 2014 (date of decision on CS NO.02/16 Moti Chand v. Sanjay & Ors. 16/27 17 19.02.2014) wherein it has categorically been clarified that the judgment of Suraj Lamps will not affect the transfer of property done through agreement to sale and GPA executed in genuine transaction and the judgment of Suraj Lamps case (supra) would operate only prospectively.
12. The land underneath the suit property was admittedly purchased by the Plaintiffs in the year 1989. There is no denial to this fact in the written statement. Since the date of its purchase , the Plaintiffs are in possession of the land. In fact, pursuant to the purchase, the suit property has been built upon the land and the Plaintiffs and their family members are residing in the property. Hence, it cannot be said that the transfer documents Ex. PW1/3 and Ex. PW1/4 were executed to cover up a sham transaction and thus, they have no sanctity in the eyes of law. The judgment of Suraj lamps case has prospective operation and thus, its observations cannot be used in the facts and circumstances of this case to hold that the Plaintiffs have not been conveyed propriety rights with respect to the land underneath the suit property by execution of GPA, Agreement to Sell, Will, Receipt etc. dated 16.1.1989. Furthermore, the Hon'ble Supreme Court has also observed that such unregistered documents are being continued to be treated as existing CS NO.02/16 Moti Chand v. Sanjay & Ors. 17/27 18 agreement of sale and nothing prevented the affected parties from getting registered Deeds of Conveyance to complete their title. The court has also held that the said SPA/GPA/Will transactions could also be used to obtain specific performance or to defend possession under section 53A of Transfer of Property Act. It was also held by the Apex Court that if the transactions were entered before the day of this order (Suraj Lamps Judgment), they could be relied upon to apply for regularization of allotments/leases by Development Authorities as well.
13. In case titled as O.P. Aggarwal & Anr. Vs. Akshay Lal & Ors., 188 (2012) Delhi Law Times 525, it has been held as under: "Ownership in immovable property- Documents such as Agreement to Sell, Power of Attorney, Will etc. do not strictly confer ownership rights as a sale deed, however, such documents create certain rights in an immovable property, though not strictly ownership rights but entitling persons having documents to claim possession of suit property as SSatleast right to suit property would stand transferred to person in whose favour such documents have been executed."
CS NO.02/16 Moti Chand v. Sanjay & Ors. 18/27 19
14. Therefore, I have no hesitation to observe that Plaintiffs have succeeded in proving to the court that the suit property was validly purchased by them from the previous owner after execution of the documents Ex PW1/3 and Ex PW1/4 in the year 1989. Defendants have failed to prove that no titular rights were conveyed to the Plaintiffs on execution of these documents. In fact, the Defendants have failed to set up a case otherwise, nor have they questioned the veracity of the documents. Resultantly, the plea of defence that the Plaintiffs are not the owners of the suit property was rendered baseless.
15. It was also argued vehemently by the Defendants that the suit property was purchased by using the funds of the HUF of their family and thus Plaintiffs were not justified in terming themselves as the sole owners of the property. Since the Defendants did not lead any evidence of their own, hence they were unable to prove that any HUF of the family was in existence, which allowed the Plaintiffs to use the fund for acquiring the property. Furthermore, a bare perusal of the pleadings of the defendant made it clear that they were harping upon use of funds of an ancestral property for purchase of the land underneath the suit property instead of setting up a case of existence of a CS NO.02/16 Moti Chand v. Sanjay & Ors. 19/27 20 common hotchpotch or nucleus of HUF and it being used to acquire the subject matter land underneath the suit property. The Defendants had attempted to portray to the court that the Plaintiff No.1 had used the sale proceeds of a house of his father for purchase of the suit property and thus, he was not justified in pleading that the suit property was his self-acquired estate. It is worthwhile to state again that since the defendant did not lead any evidence of his own, hence he was unable to prove any of the above said allegations. The Defendants failed to examine any members of their family; immediate or extended; to prove the existence of an HUF. The Defendants failed to place on record any statutory documents or record of Tax to prove that an HUF was in existence and that the funds of this HUF were used to purchase the suit property. The Defendants further did not care to examine any witness to prove that a property held in the name of the father of the Plaintiff No.1 was sold by him and the sale proceeds were used to purchase this property. Therefore, the Defendants hopelessly failed to prove that the suit property was purchased from the funds of the HUF and he being a member of the said "illusory HUF" was entitled to occupy the property as a co-owner. Even otherwise, it is clear that all ancestral properties are not necessarily HUF property. This has been held by the Supreme Court in its judgments in the CS NO.02/16 Moti Chand v. Sanjay & Ors. 20/27 21 cases of Commissioner of Wealth Tax, Kanpur etc. Vs. Chander Sen Etc. AIR 1986 SC 1753 and Yudhishter Vs. Ashok Kumar AIR 1987 SC 558. The Hon'ble Supreme Court in these judgments has held that after passing of the Hindu Succession Act, 1956, if any property is inherited by a male person from his paternal ancestor, he inherits the same as a self -acquired property and not as an HUF property.
16. Yet another objection was taken against the Plaintiffs case by stating that the suit was misconceived and had been framed in order to avoid payment of court fee on the relief of possession. This issue has been put to rest in a number of judgments of the Hon'ble High court of Delhi. In the case of Gyan Chand & Ors. vs Sh. Ram Chander,decided by the Hon'ble High Court of Delhi on 19 March, 2014 a suit was filed by father against his son against whom the allegations were that the sons were harassing the father and threatening to part with possession. The father was claiming the property to be the self-acquired property while as the defence was that it is an ancestral property. The Defendants had claimed that the father must pay the court fees as per the market value of the property. The court held that if the CS NO.02/16 Moti Chand v. Sanjay & Ors. 21/27 22 Plaintiff was the owner of the suit property, the Defendants would only be gratuitous licencees and the suit for permanent and mandatory injunction would be maintainable against the Defendants in view of the judgment of the Supreme Court in the case of Sant Lal Jain Vs. Avtar Singh (1985) 2 SCC 332 wherein the Supreme Court held that it is only a matter of form of a plaint as to whether the suit is for mandatory injunction or possession and a suit for mandatory injunction will lie against a licensee by the owner of the property. The Apex Court also held in the case of Sant Lal vs. Avtar Singh, that a suit for mandatory injunction was permissible where the licence stood terminated and the title of the Plaintiff was not in dispute.
17. It is not in dispute that where there is a close relationship between the Plaintiff and the defendant or where admittedly the defendant is a licensee either by written agreement or by other credible evidence brought by the Plaintiff, a suit for mandatory injunction would be maintainable provided there is some proximity of time in bringing the suit after revocation of the license. In this regard, the judgments of cases of Maria Margarida Sequeira Fernandes & Ors. Vs. Erasmo Jack De Sequeira, (2012) 5 SCC 370; Shri Gian Chand Vs. CS NO.02/16 Moti Chand v. Sanjay & Ors. 22/27 23 Shri Ram Chander, (RSA No.69/2014);Puneet Chadha vs. B.K. Chadha CRP No.152/2009, decided on 01.12.2009 and Sunil Sharma vs. Smt. Uma Sharma (166/2004) and many more on the subject have made the position of the courts clear. Accordingly, the frame of this suit for Mandatory Injunction is proper and there is no fault in the valuation arrived at the purposes of court fee and jurisdiction. Therefore ,the present court has competent pecuniary jurisdiction to decide the issue.
18. Thus, it shows that the Defendants have raised untenable pleas and they cannot be considered to withhold the benefit of the Injunction order from the Plaintiffs. A bare perusal of the evidence led by the Plaintiffs show that they have proved that they are owners of the suit property. PW-1 has testified that a part of the suit property (portion mark red in the site plan Ex PW1/19) was being used by the Defendants on the basis of a license granted to them to occupy the same. The said license has been terminated by the Plaintiffs. They have got notices published in daily newspapers to notify the public at large regarding severance of relationship between the family members. The Plaintiffs have also terminated the license of the Defendants to occupy the suit CS NO.02/16 Moti Chand v. Sanjay & Ors. 23/27 24 property by serving the legal notice dated 03.12.2015; Ex.PW1/13 upon them whereby they have been asked to vacate the suit property. The Defendants are therefore liable to vacate the suit property. In the same breath, it is mundane to observe that the Plaintiffs have succeeded in proving that they are entitled to the relief of Permanent and Mandatory Injunction against the Defendants.
19. The Defendants have failed to handover the suit property back to the Plaintiffs despite service of this legal notice Ex. PW1/13. They have also refused to pay monthly maintenance to the Plaintiffs. They are not even paying the use and occupation charges of the portion of the suit property in their possession despite the demands of the Plaintiffs. I have perused the publication dated 20.9.2015 issued in the daily newspaper "Rashtriya Sahara"
against the Defendants which states that they have been debarred from the immovable and movable assets of the Plaintiffs. However, the notice does not state that the Defendants are required to vacate the suit property on account of severance of their family ties. Such a demand has been made in the legal notice Ex PW1/13. Hence, for the purpose of calculation of damages/mesne CS NO.02/16 Moti Chand v. Sanjay & Ors. 24/27 25 profits, the date of termination of license of the Defendants shall be calculated from 03.12.2015(date of legal notice of the plaintiffs ) and not from 20.9.2015.
20. In order to prove that the properties in the area were capable of fetching rent in the sum of Rs.15,000/- per month, the Plaintiffs did not examine any other independent witness or place on record rent deed of neighbouring properties. Therefore, the court shall take into account the prevailing rate of rent in the area wherein the suit property is situated and the economic situation prevalent in the city and decide on the quantum of damages/mesne profits liable to be awarded to them.
21. Since the license of the Defendants to occupy the property was terminated w.e.f. 03.12.2015 and thereafter, the Plaintiff immediately filed the present suit for injunction to direct them to vacate the suit property on 10.3.2016, therefore, it cannot be said that the Plaintiffs have acted with laxity or have slept over their rights. It shows that the claims of the Plaintiffs were bona fide and they were interested to get the suit property vacated after termination of license of the Defendants. Thus, the court deems it fit that the CS NO.02/16 Moti Chand v. Sanjay & Ors. 25/27 26 Defendants be made to pay a sum of Rs. 8,000/- per month as use and occupation charges/damages/mesne profits for the portion mark Red in the site plan Ex PW1/19. This amount is to be paid as damages/mesne profits from the date of termination of license, i.e 03.12.2015 till the date when the property is vacated by the Defendants and the Plaintiffs are able to take back charge of the same. Court fee has been affixed on the quantum of damages calculated till the date of filing of the suit, hence the said damages be paid at the rate of Rs.8000/- per month by the Defendants to the Plaintiffs in pursuance of this order for the said period. Nonetheless, the Defendants are ordered to keep paying the damages/mesne profits to the Plaintiffs @ Rs.8,000/- per month till suit the property is vacated by them.
22. In terms of the abovesaid discussion, the relief of Permanent and Mandatory Injunction and Recovery of Damages/Mesne profits is granted in favour of the Plaintiffs and against the Defendants and all the Issue Nos.1, 2, 3, 4 & 5 are answered in favour of the Plaintiffs.
Relief CS NO.02/16 Moti Chand v. Sanjay & Ors. 26/27 27
23. In view of the findings of the court on the Issues framed in the suit, the relief of Permanent, Mandatory Injunction and Recovery of Damages/Mesne profits is granted to the Plaintiffs. The Defendants are directed to vacate the portion mark Red in the site plan Ex. PW1/19, of the suit property. The Defendants are directed to not create any third party interest in the suit property, alienating or parting with the possession of the same as well as from interfering in the peaceful life of the Plaintiffs. The amount of Rs.8,000/- per month is to be paid as damages/mesne profits by the Defendants from the date of termination of license, i.e 03.12.2015 till the date when the property is vacated by them. Costs of the suit are awarded to the Plaintiffs. Decree sheet be prepared in consonance with the relief granted. Thereafter, file be consigned to record room.
Announced on 06/10/2020 (physical hearing of the court).
(CHHAVI KAPOOR) ASCJ/GJ/JSCC-North East Karkardooma Courts, Delhi.
CS NO.02/16 Moti Chand v. Sanjay & Ors. 27/27