Delhi District Court
Sh. Chaman Lal vs Sh. Hem Singh on 4 October, 2018
IN THE COURT OF SH. ANKIT SINGLA: ACJ/ARC/CCJ :
NORTH EAST: KARKARDOOMA COURTS: DELHI
CS No.158/2018
CNR no.: DLNE03-000258-2018
In the matter of:
Sh. Chaman Lal
S/o Late Sh. Siyaram Yadav
R/o H.No. 228A, Gali No. 13,
GBlock, Karawal Nagar,
Delhi 110094. ................. PLAINTIFF
Versus
Sh. Hem Singh
S/o Late Sh. Siyaram Yadav
R/o H.No. 228A, Ground Floor,
Gali No. 13, GBlock,
Karawal Nagar,
Delhi 110094. ................ DEFENDANT
Date of Institution : 31.03.2018
Date of reserving the judgment : 25.09.2018
Date of Judgment : 04.10.2018
Decision : Decreed
JUDGEMENT:
1. Vide this judgment, I shall dispose off the suit filed by the plaintiff for relief of permanent, mandatory injunction and damages.
CS no.158/18 Chaman Lal vs. Hem Singh Page 1 of 162. Briefly stated, the facts mentioned in the plaint are as follows:
a) The plaintiff is legal owner and in physical possession of property bearing house No. 228A, Gali No. 13, GBlock, Karawal Nagar, Delhi measuring 57 sq. yards (hereinafter referred to as suit property). The suit property was purchased by plaintiff from his hard earned money. The plaintiff got constructed the property from his own funds.
b) The defendant is real brother of plaintiff and he is residing in a room at ground floor in the suit property as licensee of plaintiff. The defendant is a auto driver by profession. Due to bad behaviour of defendant, the plaintiff disowned the defendant. In first week of December, 2015, defendant quarrelled with plaintiff and beat him. The plaintiff made a complaint to the police. From police, the matter was referred to Mediation Centre, Nand Nagri, wherein the matter was settled. As per settlement, the defendant agreed to hand over physical possession of room to plaintiff by 22.12.2017. After passing of period of 2 years, the defendant failed to comply the terms of Mediation. On 02.03.2018, the defendant entered into the house in drunken condition and beat the plaintiff.
c) Due to conduct of defendant, the plaintiff sent a legal notice dated 06.03.2018 asking the defendant to vacate the suit property, CS no.158/18 Chaman Lal vs. Hem Singh Page 2 of 16 but the defendant failed to comply with the legal notice. Under such circumstances, the present suit has been filed seeking a mandatory injunction against the defendant directing him to hand over vacate possession of one room in the suit property. The plaintiff has further sought relief of permanent injunction against the defendant restraining him from creating third party interest in the suit property. The plaintiff has further sought damages @ Rs. 5,000/ per month till recovery of possession.
3. Summons for settlement of issues were sent to the defendant for enabling him to defend the suit. The defendant filed written statement (WS) for his defence. In WS, interalia, the defendant took following preliminary objections.
a) The suit property was purchased by defendant in name of plaintiff and the present suit has been filed by plaintiff to grab the suit property.
b) The plaintiff has not come with clean hands.
c) The plaintiff in garb of mandatory injunction is seeking relief of possession.
d) The settlement dated 22.12.2015 has been entered under the fraud.
4. On merits, the defendant has pleaded that he purchased CS no.158/18 Chaman Lal vs. Hem Singh Page 3 of 16 the suit property in the name of plaintiff. It is submitted that because suit property has been purchased by the defendant in the name of the plaintiff, therefore, he is owner of the suit property and not licensee. It is denied that defendant is habitual drinker and he humiliate and beat the plaintiff. It is submitted that it is plaintiff who misbehave with the defendant in order to pressure him to vacate the suit property. It is submitted that defendant was represented that he is executing an agreement under which plaintiff will pay half amount of the suit property on the basis of today's valuation, but said condition has not been mentioned in the said agreement. All other facts stated in the plaint are denied.
5. Replication was filed by the plaintiff, wherein he reiterated the averments made in the plaint and denied the claim of defendant.
6. During admission denial, the defendant admitted the suit plan filed by the plaintiff, settlement deed which are Ex. P1 and Ex. P2 respectively. The plaintiff admitted all the documents filed by the defendant which are exhibited as Ex. D1 to D6.
Ex. D1 License of defendant.
Ex.D2 Driver's batch of defendant.
Ex.D3 TSR permit of defendant.
Ex. D4 RC of defendant.
Ex.D5 Voter ID card of the defendant.
Ex. D6 Aadhar card of the defendant.
CS no.158/18 Chaman Lal vs. Hem Singh Page 4 of 16
7. On completion of pleadings following issues were framed.
i) Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP.
ii) Whether the plaintiff is entitled to decree of mandatory injunction, as prayed for? OPP.
iii) Whether the plaintiff is entitled to decree of damages, as prayed for? OPP.
iv) Whether the suit is not maintainable in the present form? OPD.
v) Whether the suit is barred by limitation?OPD
vi) Whether the thumb impression of defendant on Ex.P2 were obtained by way of fraud?OPD.
vii) Relief.
8. Plaintiff examined himself to support his case. He filed his evidence by way of affidavit. In his evidence, he reiterated the averments made in the plaint. He was cross examined at length, however, during cross examination, ld. Counsel for the defendant failed to extract any admission from the testimony of this witness. The plaintiff relied upon following documents Ex. PW1/A Site plan.
Ex. PW1/B(colly)(OSR) Copy of GPA, Agreement to Sell, Affidavit, Receipt dated 17.04.1997.
Ex. PW1/C Electricity bill dated 28.11.2017 Ex. PW1/D is deexhibited and Copy of publication of news CS no.158/18 Chaman Lal vs. Hem Singh Page 5 of 16 now mark as Mark X paper dated 08.11.2013 Ex. PW1/D(OSR) Copy of mediation centre order dated 22.12.2015 Ex. PW1/E Legal notice dated 06.03.2018 Ex. PW1/F Postal receipt.
9. Thereafter, plaintiff closed his evidence and matter was fixed for DE.
10. Defendant examined himself as DW1 and wife of plaintiff Smt. Vidhya Devi as DW2 to prove his case. DW1 and DW2 tendered their evidence by way of affidavits Ex. DW1/A and Ex. DW2/A and were cross examined at length. DW1 reiterated the avements made in his WS, therefore, same are not repeated here for the sake brevity. DW1 relied upon following documents.
Ex. D1(OSR) ( already Copy of driving license. exhibited) Ex.D2(OSR) ( already Copy of driver's badge.
exhibited) Ex. D3(OSR)( already Copy of TSR permit. exhibited) Ex.D4(OSR) ( already Copy of RC. exhibited) Ex. D5(OSR)( already Copy of voter ID card. exhibited) Ex. D6(OSR) ( already Copy of Aadhaar Card. exhibited)
11. Thereafter, DE was closed and matter was fixed for final arguments.
CS no.158/18 Chaman Lal vs. Hem Singh Page 6 of 1612. Final arguments were addressed by Ld. Counsel for plaintiff and ld. Counsel for defendant. I have gone through the record and also considered the rival contentions. The submissions of Counsels of the parties are not repeated here for sake of prolixity and same are proposed to be dealt with issue wise.
Issue no.ii) and vi)
ii) Whether the plaintiff is entitled to mandatory injunction, as prayed for?OPP.
vi) Whether the thumb impression of defendant on Ex.P2 were obtained by way of fraud?OPD.
13. Both these issues are taken together as they involve common question of law and facts. As per plaintiff, he is the owner of the suit property and defendant is his licensee. The defendant has admitted in his written statement that plaintiff is the recorded owner of the suit property i.e property was purchased in the name of the plaintiff and documents are in his name, but it is submitted that suit property was actually purchased by him in name of plaintiff. The claim of defendant that suit property was purchased by defendant in name of plaintiff was denied by plaintiff. Since, the defendant has admitted that documents of the suit property are in name of plaintiff and plaintiff has denied that the suit property was purchased by defendant, the onus to prove that suit property CS no.158/18 Chaman Lal vs. Hem Singh Page 7 of 16 was purchased by defendant was upon the defendant. In order to prove this aspect, the defendant has failed to place on record any documentary evidence. He also failed to examine any independent witness that consideration of the purchase of the suit property was given by the defendant.
14. Although, the defendant has examined wife of plaintiff as witness to substantiate his claim that he has paid the consideration amount, but the sole testimony of wife of plaintiff that DW2 in absence of any documentary evidence like bank statement etc. is insufficient to believe the version of the plaintiff. Even otherwise, it would be highly unsafe to rely upon testimony of DW2, who as per plaintiff is residing with defendant as his wife. The said fact has been substantiated by the fact that DW2 appeared on behalf of defendant instead of his own husbabnd I.e plaintiff. During cross examination also, DW2 admitted that a LIC policy was purchased in her name and in said policy she is shown as wife of defendant, even though, she is admittedly wife of plaintiff. Further, she has admitted that she has filed a domestic violence petition before the court against the plaintiff which shows that she is not having cordial relationship with the plaintiff and therefore, in absence of any documentary evidence, it is unsafe to rely on her testimony. The oral testimony of defendant has been denied by plaintiff by way of suggestion as well as by his own oral testimony. Thus, in absence of any documentary evidence, the factum of consideration for purchase of suit property being paid by CS no.158/18 Chaman Lal vs. Hem Singh Page 8 of 16 defendant remained unproved.
15. Although, the claim of defendant that he is owner of the suit property can be decided against him merely on the ground that he has failed to prove that he had paid the consideration amount for purchase of the suit property, but, still even if it is assumed for sake for argument that he had paid the consideration amount, then also defendant cannot defend the suit merely on the ground that he had paid the consideration amount, because the said defence is barred by Section 4 (2) of Benami Transaction ( Prohibition) Act 1988.
16. Section 4 of the Prohibition of Benami Property Transaction Act, 1988 prohibit filing of claim and taking any defence based on any right in respect of any property held benami. As per Section 2 (9) of the Benami Transaction Act, a transaction where a property is transferred or is held in the name of others and consideration of such property has been provided or paid by any other person, then such property is a benami property. Admittedly, the property was purchased in name of plaintiff. Now, if the claim of defendant is to be believed i.e he had paid the consideration amount, then, the whole transaction was benami and, therefore, any defence against a claim to recover benami property is hit by section 4 (2) of Benami Transaction ( Prohibition ) Act, 1988. Accordingly, now, the defendant cannot claim that he is the owner of the suit property, merely, because he had paid the consideration amount CS no.158/18 Chaman Lal vs. Hem Singh Page 9 of 16 Thus, it is plaintiff who is having documents in his name shall be considered owner of suit property for all practical purpose.
17. Apart from the fact that defence set up by the defendant is barred by Benami Transaction ( Prohibition ) Act, 1988, the defence set up by the defendant is also barred by estopple. The plaintiff has claimed that defendant had admitted before mediation centre that he would vacate the suit property within two years from 22.12.2015. The defendant has admitted his thumb impression as well as signature on the mediation settlement which is Ex. PW1/D. However, it is claimed by defendant that it was also agreed with plaintiff that he would pay half of the value of suit property to the defendant, but the said fact has not been mentioned in the mediation settlement. The defendant has not filed any suit for setting aside the Ex. PW1/D on the ground that same has been obtained by way of fraud. No evidence except his oral evidence has been produced by defendant to claim that Ex. PW1/D has been obtained by fraud. The mediation settlement was entered into mediation center set up by Govt. of Delhi. Neither any complaint has been made nor any action has been taken by the defendant to get the mediation settlement as null and void. Merely, saying that defendant was misrepresented by plaintiff and the mediator is insuffficient and if such defence is allowed to be taken, then no legal sanctity would remain with the mediation settlements. Accordingly, the mediation settlement is legally valid and enforceable against the defendant.
CS no.158/18 Chaman Lal vs. Hem Singh Page 10 of 1618. From the above discussion, it is clear that defendant has failed to discharge the onus that he is not licensee in the suit property, whereas the plaintiff through his testimony as well as admission in the WS of defendant that suit property was purchased in the name of the plaintiff has proved that he is licensor of the defendant in respect of one room in the suit property.
19 In Nopany Investment (P) ltd. Vs. Santokh Singh ( HUF) (2008) 2 SCC 728, it was held that filing of an eviction suit under the general law itself is a notice to quit on the tenant, therefore, no notice to quit was necessary under Section 106 of the Transfer of Property Act. Although defendant has specifically denied receiving notice under 106 of TPA, but still in view of the aforesaid judgment by the Hon'ble Apex Court, it is held that requirement of notice is sufficiently met by the plaintiff to file the present suit. Accordingly, the plaintiff is entitled for relief of mandaory injunction. Hence, both these issues are decided against the defendant and in favour of plaintiff.
Issue no. i)
i) Whether the plaintiff is entitled to decree of permanent injunction, as prayed for? OPP.
20. While deciding aforesaid issue, it has already been held that defendant is licensee and his license had been revoked by the plaintiff and as such he is bound to vacate the suit CS no.158/18 Chaman Lal vs. Hem Singh Page 11 of 16 property. Since, defendant is left with no interest in the suit property, he is bound not vacate the suit property, therefore, for this reason only plaintiff is entitled for relief of permanent injunction. Even otherwise, it is admitted case that suit property was purchased in the name of the plaintiff and documents are in his name, therefore, for this reason also defendant is liable to be restrained from creating any third party interest in the suit property. Hence, this issue is decided against the defendant.
Issue no.iii)
iii) Whether the plaintiff is entitled to the damages, as prayed for? OPP.
21. Plaintiff has claimed that the user and occupation charges @ Rs.5000/ per month along with interest @ 18% p.a from the date of filing of the suit. In order to decide this issue, two questions arise, whether plaintiff is entitled for any user or occupation charges or not, and if yes, at what rate. As discussed while deciding issue of mandatory injunction, it has already been held that plaintiff is able to prove that license of defendant was revoked and after revocation of license defendant has no right to stay in the suit property and he was duty bound to surrender his possession to the plaintiff. However, it is admitted case that defendant failed to vacate the suit property, therefore, his stay after revocation of the license is illegal. Thus, plaintiff is entitled to be compensated for illegal stay by the defendant in order to do the complete justice. No reason could be assign by CS no.158/18 Chaman Lal vs. Hem Singh Page 12 of 16 counsel for defendant as to why plaintiff should be deprived of user charges. Thus, this court is of the view that plaintiff is entitled for user charges from the defendant.
22. Now, after deciding that the entitlement of plaintiff for damages, the next question which arise is what should be rate at which such damages are to be awarded. The onus of proving the same was on the plaintiff but, no evidence has been placed on record in this regard. The purpose of awarding damage is to compensate a party for the loss which may cause to that party. Now, the suit property could have earn some rent if, the same would have rented out. Plaintiff has failed to bring on record any proof to prove the prevalent rent of similar property, in the locality, where suit property is situated.
23. However, taking judicial notice of the fact that suit property is a residential property and situated in area of Karawal Nagar and further, that over the period of time, rent in the said area has increased manifold, this court is of the opinion that the plaintiff would have received the rent at a rate of Rs.1,000/ per month enhanced at least by minimum 10% every year. Thus, the plaintiff is entitled for damages/user charges at the rate of Rs. 1000/ p.m. from the date of service of summons i.e 23.04.2018 till the possession is restored with increase of 10% every year. Accordingly, this issue is also decided in favor of the plaintiff and against the defendant.
CS no.158/18 Chaman Lal vs. Hem Singh Page 13 of 16Issue no.iv) Whether the suit is not maintainable in the present form? OPD.
24. It is averred in the WS that present suit for mandatory injunction is not maintainable as plaintiff is seeking relief of possession in garb of mandatory injunction. It is submitted that plaintiff has not filed court fees for seeking relief of possession.
25. With regard to restoring the possession of an immovable property from a licensor has been settled by the Hon'ble Supreme Court. It is held by Hon'ble Supreme Court in case reported as 2005(3) Civil Court cases 781(SC) that correct position of law is that licensee may be actual occupant, but the licensor is the person having control and possession of the property through his licensee. In case reported as AIR 1985 SC 857, hon'ble Supreme Court observed that after termination of license, a licensee is under obligation to surrender his possession to owner and if, he fails to do so, we do not see any reason as to why he cannot be compelled to discharge his obligation by way of mandatory injunction. Thus, in view of the observation made by the hon'ble Supreme Court, a suit of mandatory injunction is maintainable at the instance of the licensor to evict a licensee.
26. As per Section 7 (IV)D of the Court Fees Act, in a suit for mandatory injunction, the plaintiff is at liberty to state the valuation of the suit. Thus, a discretion is given to the CS no.158/18 Chaman Lal vs. Hem Singh Page 14 of 16 plaintiff to value the suit.
27. It is settled law that plaintiff is not bound to value the suit for purpose of court fee and jurisdiction at the market value of the suit property. He can value his suit as per his own discretion, subject to the condition that discretion is not whimsical. In the present case, plaintiff has valued the suit for the purpose of court fee as well as pecuniary jurisdiction for relief of mandatory injunction at the rate of Rs.130/ and for perpetual injunction at Rs.130/. As noted above, the defendant has failed to state and lead evidence to show that valuation made by plaintiff is incorrect. Thus, there is no evidence that valuation made by the plaintiff is whimsical. Thus, this court is of the view that defendant has failed to discharge the onus to prove that valuation done by plaintiff is incorrect and suit for mandatory injunction for taking possession of one room of the suit property is not maintainable in the present form. Accordingly, this issue is decided against the defendant.
Issue no.v) Whether the suit is barred by limitation?OPD.
28. It is settled law that once a licensee is always a licensee. It is also settled proposition of law that a licensee may be actual occupant of an immovable property, but it is the licensor, who remains in possession and control of the same through his licensee till the period of license. As per Section 61 of Easement CS no.158/18 Chaman Lal vs. Hem Singh Page 15 of 16 Act, the revocation of a license may be expressed or implied. Admittedly, the plaintiff never revoked the license prior to 06.03.2018. The period of limitation does not start when licensor get a feeling to terminate the license, it starts when the licensor actually terminated the license. Therefore, this court is of the view that the period of limitation for filing of suit did not start till 06.03.2018. The period of limitation for filing mandatory injunction is three years. The suit is filed within month of sending the legal notice. Accordingly, the suit is well within limitation. Hence, this issue is decided against the defendant.
Relief.
29. In view of the aforesaid observation, this court has no hesitation to hold that plaintiff is the licensor and defendant is the licensee and license of the defendant has been duly terminated, therefore, plaintiff is entitled for relief of mandatory injunction. Accordingly, suit of the plaintiff is decreed. Decree sheet be prepared accordingly. Defendants to bear cost. File be consigned to record room.
Announced in the open court (ANKIT SINGLA)
th
on 4 October, 2018 ACJcumARCcumCCJ
NorthEast District, KKD
Digitally signed by Delhi.
ANKIT SINGLA
ANKIT Location: North-
East,Karkardooma,
SINGLA Delhi
Date: 2018.10.05
15:43:06 +0530
CS no.158/18 Chaman Lal vs. Hem Singh Page 16 of 16