Delhi District Court
Also At: vs Smt. Kavita Devi on 16 August, 2014
1
IN THE COURT OF SH. SANJEEV AGGARWAL
ADJ03 (NorthWest) Rohini Courts DELHI
Suit No. 151/14
Smt. Darshana Devi
W/o Sh. Anoop Singh
R/o H.No. 269/1
Sector44A, Chandigarh
Also At:
C/o Sh. Shyam Lal Aggarwal
House no. 333, Derewal Chopal,
Pana Udhyan, Narela, Delhi .....Plaintiffs
Versus
Smt. Kavita Devi,
W/o Sh. Sushil Kumar
D/o Sh. Krishan Singh,
R/o H.No.D474, Gali No.7,
Gautam Colony,
Behind Police Station
Narela, Delhi ...Defendant
Date of Institution of the Suit : 07.04.2010
Date on which order was reserved : 31.07.2014
Date of decision : 16.08.2014
Suit No. 151/14
Darshana Devi Vs. Kavita Devi 1/33
2
J U D G M E NT
1.Vide this judgment I shall dispose off suit for recovery of possession, damages, mesne profits and permanent injunction.
2. Brief facts are plaintiff has filed the present suit for on the allegations that plaintiff is the absolute owner of the property/house bearing previous municipal plot no. 104, Khasra No. 50/4 and new No. D474, Gali No. 7, Gautam Colony, behind Police Station Narela, Delhi(hereinafter referred to as suit property) which she purchased from Smt. Santosh Kumari w/o Sh. Ram Kumar on 28.08.1999 for a valuable consideration of execution of relevant sale document.
At the time of purchase of the said property by the plaintiff it was vacant plot measuring 125 sq. yds., and thereafter plaintiff from her own funds and savings constructed the entire property consisting of four rooms, two kitchen, one laterine, one bathroom at ground floor and one room covered with verandah on first floor, as shown in the site plan filed on record.
3. It is further stated that plaintiff is serving with Chandigarh police Suit No. 151/14 Darshana Devi Vs. Kavita Devi 2/33 3 as constable and most of the time she resided there and she is the only legal heir of her parents, as she has inherited the entire property of her parents situated in her parental village Murthal, Haryana. It is further stated that defendant was married to the son of plaintiff namely Sh. Sushil Kumar on 24.02.2004 according to Hindu Rites and Rituals. The defendant right from the marriage has been harassing, torturing, maltreating the plaintiff and her husband and pressurizing them to vacate the entire house, failing which she had been threatening them that they will be implicated in a false case of dowry demands and other cases.
4. It is further stated that defendant in connivance with her parents and other family members never gave any respect to the plaintiff and her husband and she was having evil eye on the property of the plaintiff and she had been threatening that plaintiff her husband will be killed by her brother.
5. It is further stated that on 02.08.2009 the defendant alongwith her parents and brothers threatened the husband of the plaintiff Suit No. 151/14 Darshana Devi Vs. Kavita Devi 3/33 4 that he will be killed, if he does not vacate the house and thereafter she had been continuously harassing the plaintiff and her husband on the pretext that she would commit suicide and would implicate them in a false case. It is further submitted that on 18.09.2009 defendant in connivance with her family members forced the husband of the plaintiff Sh. Anoop Singh who was residing alone in the suit property to leave the said house and in this manner she had been ousted forcibly from the house on 18.09.2009 and she was living in a rental accommodation since then.
6. It is further stated that on 02.11.2009, the plaintiff visited suit property from Chandigarh alongwith her husband to collect her belongings, but the defendant did not allow them to enter the suit property, defendant got the plaintiff and her husband beaten mercilessly, as a result of which both of them received injuries on their person and they were also taken to the hospital where they were medically examined where their MLC were prepared. The plaintiffs and her husband were disowned from all their Suit No. 151/14 Darshana Devi Vs. Kavita Devi 4/33 5 movable and immovable properties and they also published a public notice in this regard. It is further stated that defendant has no right, title or interest in the suit property and her status in the suit property is that of illegal and unauthorized trespasser. It is stated that not only the defendant is in illegal occupation and possession of the suit property, but the defendant has rented out a part of the property to some tenants without the knowledge and permission of the plaintiff and was receiving Rs. 20000/ p.m from the tenants illegally and causing monetary loss to the plaintiff.
7. It is further stated that the defendant is illegally occupying the accommodation in her possession as such the defendant is also liable to pay damages @ Rs. 10000/ per month apart from the said rent of Rs. 20000/ to the plaintiff, which has already already been received by the defendant from the said tenants. In this regard, if the similar accommodation is rented out to other tenants by the plaintiff, it can fetch rent of Rs. 30,000/ per month. It is further stated that defendant was ultimately asked to Suit No. 151/14 Darshana Devi Vs. Kavita Devi 5/33 6 vacate the suit property vide legal notice dated 20.01.2010, despite service of the same, she has failed to do so. Hence, plaintiff has been forced to file the present suit with a prayer that a decree for recovery of possession be passed in favour of the plaintiff with respect to the suit property, as shown in site plan filed on record and also to pass a decree of a sum of Rs. 30000/ alongwith pendentlite and future damages/mesne profits alongwith a decree of permanent injunction, thereby restraining the defendant not to create any third party interest in the suit property or to part with the same to any other person.
8. Written Statement has been filed by the defendant in which number of preliminary objections have been taken. The first one is that the suit of the plaintiff is without any cause of action, as the suit property was a matrimonial home of the defendant, as defendant is none other but wife of plaintiffs son. The suit property is the property of Joint Hindu Family which had been built up out of the common funds of the family and it is also stated that suit has not been properly valued for the purposes of Suit No. 151/14 Darshana Devi Vs. Kavita Devi 6/33 7 court fees.
9. It is further stated that the suit is not maintainable, as suit property is not the same, which was purchased by the plaintiff, suit is even otherwise not maintainable, as defendant was residing in the suit property under a settlement dated 19.09.2009, which was executed by the plaintiff and her husband alongwith other respectable persons of the society. It is also stated that the suit is even otherwise not maintainable, as defendant is not occupying the suit property illegally.
10.On merits, all the allegations made in the plaint have been denied. It is denied that plaintiff is the absolute owner of the suit property and it is reiterated that the suit property was the property of Joint Hindu Family and matrimonial home of the defendant which had been built up out of the common funds of the family. It is stated that the plot purchased by the plaintiff is not the same over which the suit property has been built up it is different. It is not denied that the plaintiff was working with Chandigarh police, but it is denied that defendant after marriage Suit No. 151/14 Darshana Devi Vs. Kavita Devi 7/33 8 with the son of plaintiff has been harassing them or has been torturing them in order to occupy the suit property. It is also denied that defendant or her family members on 02.08.2009 threatened the husband of the plaintiff on 02.08.2009 and again on 18.09.2009. It is stated that the said allegations made in the suit are absolutely false and frivolous. It is also stated that the advertisement given in the newspaper on 26.09.2009 is totally false in order to mislead the public and infact it is the plaintiff and her husband who had been harassing the defendant for a number of years.
11.It is further stated that even after vacating the suit property, the rent from the tenant has been regularly collected by the husband of plaintiff and thereafter at the direction of the plaintiff, all the tenants have vacated the suit property, therefore defendant is not in illegal occupation of the suit property. It is denied that defendant had rented out a part of the property to some tenants or that defendant had been receiving a monthly rent of Rs. 20,000/ per month. It is denied that the suit property Suit No. 151/14 Darshana Devi Vs. Kavita Devi 8/33 9 can fetch Rs. 30000/ per month as rent. It is submitted that no tenant was residing in the suit property and when the tenants were residing the rent has been regularly received by the husband of plaintiff. However, all the tenants have now been thrown out by the plaintiff and defendant is the only occupant in the suit property which is her matrimonial home. Therefore it is stated that suit of the plaintiff is liable to be dismissed
12.Replication has been filed by the plaintiffs to the aforesaid written statement of defendants, in which the allegations made in the written statement have been denied and those made in the plaint have been reaffirmed as correct.
13.Vide order dated 05.08.10, from pleadings of the parties following issues were framed: Issues
1. Whether plaintiff is entitled for a decree of possession as prayed for ?
OPP
2. Whether plaintiff is entitled for decree of permanent injunction as prayed for ? OPP Suit No. 151/14 Darshana Devi Vs. Kavita Devi 9/33 10
3. Whether plaintiff is entitled for decree of Rs. 30,000/ alongwith pendentlite and future damages/mesne profits till realization ? OPP
4. Whether any cause of action has arisen in favour of plaintiff ? OPD
5. Whether defendant is entitled to reside in the suit property as HUF property of the parties ? OPD
6. Relief, if any ?
14.Thereafter it appears that an application U/o 6 Rule 17 CPC was filed and the plaint was amended. Pursuant to filing of amended pleadings it appears that the court framed following issues inadvertently again on 23.12.2010:
(i) Whether the suit property is property of Joint Hindu Family as alleged in preliminary objection no. 1 in written statement ? OPD
(ii)Whether plaint is liable to be rejected in view of preliminary objection no. 3 in written statement ? OPD Suit No. 151/14 Darshana Devi Vs. Kavita Devi 10/33 11
(iii)Whether suit is not maintainable in view of preliminary objection no. 3 ?
OPD
(iv)Whether the defendant is residing in the suit property under a settlement dated 19.09.2009 as alleged in preliminary objection no. 4 ? OPD
(v)Whether plaintiff is entitled to decree of possession as prayed ? OPP
(vi)Whether plaintiff is entitled to decree of permanent injunction as prayed ?
OPP
(vii)Relief
15.Some of the issues framed on 05.08.2010 are covered in the issues framed on 23.12.2010. However, issue no. 3 & 4 framed on 05.08.2010 does not find mention in the issues framed on 23.12.2010. Accordingly, they will be decided alongwith the issues framed on 23.12.2010.
Suit No. 151/14
Darshana Devi Vs. Kavita Devi 11/33 12
16. ISSUES NO. 1, 3 & 4(framed on 23.12.2010) and ISSUE No 4 (framed on 05.08.2010)
17.These issues are taken up together as they all are interconnected with each other.
18.PW1 i.e plaintiff has herself appeared in the witness box has reiterated the contents of her plaint, while appearing as PW1. She has proved the site plan of the suit property ExPW1/1A and the agreement and receipt by virtue of which she purchased the suit property as ExPW1/1. The plaintiff has also examined PW3 Smt. Santosh wife of Sh. Ram Kumar from whom she claims to have purchased the suit property. PW3 categorically stated in her examination in chief that she sold out the plot measuring 125 sq. yds., at Gautam Colony, Narela to the plaintiff for Rs. 1.5 lacs, as she was the owner of the same and thereafter she gave possession of the plot to the plaintiff and she ratified the sale documents relied upon by the plaintiff which are collectively ExPW1/1. She also stated that she executed a receipt alongwith the said documents which is also Suit No. 151/14 Darshana Devi Vs. Kavita Devi 12/33 13 part of collective ExPW1/1 and she had transferred all her rights regarding the said plot in question to the plaintiff in presence of two witnesses. In her cross examination she stated that she sold the property consisting of two rooms and one laterine constructed on the same. In her examination in chief she could not tell the municipal and khasra number of the plot. Counsel for defendant has argued that since PW3 could not tell the khasra number or plot number of the same, which she had sold to the plaintiff, therefore the suit property which is involved in dispute is different from the property which was actually purchased by the plaintiff from PW3.
19.The said contention of counsel for defendant is absolutely preposterous, as it is not the case of the defendant anywhere in the written statement that she is claiming independent title with respect to the suit property on the basis of her own documents. Infact in the entire written statement the stand of the defendant is that the suit property is her matrimonial home which was purchased from the funds of Joint Hindu Family business and it Suit No. 151/14 Darshana Devi Vs. Kavita Devi 13/33 14 was built up out of the common funds of the family. It is also not denied that she came into possession of the suit property after her marriage with the son of plaintiff on 24.02.2004, therefore it does lie in the mouth of the defendant to claim that the suit property was totally different from what was purchased by the plaintiff from PW3. In any case, defendant has not filed even a single piece of paper from which it could be discerned that the property purchased by plaintiff from PW3 was totally different, from the one in which defendant was residing at present. In any case no site plan has been filed to prove the same.
20.Though the said document i.e ExPW1/1 i.e one agreement and receipt may not be said to be document(s) of title, as the same have not been properly registered as per law. However, the plaintiff on the basis of said document can claim much better rights than that of defendant with respect to the suit property. In any case, the plaintiff can always file a suit on the basis of possessory title by virtue of Section 5 of Specific Relief Act 1963, as it has been held in the judgment AIR 1970 SC 846 Suit No. 151/14 Darshana Devi Vs. Kavita Devi 14/33 15 "Mere possessory title is good enough to maintain an action U/s 5 of Specific Relief Act.". In any case, by virtue of Section 116 of Indian Evidence Act, no tenant or licensor claiming through such landlord or licensor can be permitted to deny that the landlord or the licensor had no title to the property at the beginning of tenancy or licence. The status of the defendant has been proved to be of a licensee, therefore she during the continuance of the licence cannot deny the title of the defendant i.e her mother in law.
21.Regarding the claim of the plaintiff that the suit property was Joint Hindu Family property which was built up out of the common funds of the family. Defendant has failed to lead any evidence on this aspect. It is admitted case of the parties that plaintiff/PW1 was working with Chandigarh police as a constable and at the time of her cross examination her salary was above Rs. 23,000/ per month and as per her cross examination which has not been assailed on the point that she was serving with Chandigarh police from 04.03.1990, it is Suit No. 151/14 Darshana Devi Vs. Kavita Devi 15/33 16 apparent that she had sufficient funds and means to purchase the suit property which she purchased in the year 1999.
22.PW2 in his cross examination stated that though the entire construction was done under his supervision, but it is wrong that the suit property had been purchased by the joint income of the family. He further stated that he did not pay anything to the contractor. He denied the suggestion that to earn the faith of his wife, he had purchased the suit property in her name. Further, DW1 in her cross examination has categorically admitted that it was correct that the plaintiff had purchased the suit property from its erstwhile owner namely Smt. Santosh Kumari. It is further correct that plaintiff was the owner of the suit property, she further admitted that it is the same house which the plaintiff had purchased and where she was residing and it was correct that plaintiff had already purchased the suit property prior to her marriage. She further stated that she got married in the same house. She also agreed that suit property has not been transferred in her name. She was also specifically asked in her Suit No. 151/14 Darshana Devi Vs. Kavita Devi 16/33 17 cross examination if she could show any proof that her husband spent his entire income in the suit property to which she stated that her husband used to tell her about this fact.
23.The said answer given by DW1 in her cross examination does not further the case of the defendant in this regard, as it is a hearsay evidence, as she has not produced any evidence on the record that her husband had spent any money on the purchase or construction of the house in question and in the cross examination she has admitted the entire case of the plaintiff. PW2 has denied that she has spent any money on the purchase or construction of the said house in question. Therefore it appears that the suit property had been purchased by the plaintiff from her own funds and it was not a Joint Hindu Family property purchased from the funds of the family.
24.It is also submitted by Ld. Counsel for the defendant that the suit property which was purchased by the plaintiff in the year 1999 in which the defendant was residing at present was the matrimonial house of the defendant or was a shared household. Suit No. 151/14
Darshana Devi Vs. Kavita Devi 17/33 18 Counsel for plaintiff has relied upon a judgment 136(2007) DLT 1(SC), For the proposition that claim for alternative accommodation can only be made against the husband and not against the husband's in laws or other relatives especially when the property in question neither belongs to the husband nor taken on rent nor the same is the joint family property of which husband is the member. I am of the considered opinion that the said judgment is squarely applicable to the facts of the present case, as it has been proved by the aforesaid discussion that the suit property is the exclusive property of the plaintiff, who is mother in law of defendant, therefore the defendant cannot claim any right to live in the said property, as it neither belongs to the husband of the defendant, nor it was taken on rent by him, nor it is joint family property of which husband was the member.
25.Regarding the contention of the defendant that she has been permitted to live in the suit property vide settlement dated 19.09.2009, though in pleadings plaintiff has denied that it was Suit No. 151/14 Darshana Devi Vs. Kavita Devi 18/33 19 so, but in her cross examination PW1 has admitted that it was correct that defendant was residing in the suit property under a compromise/settlement deed dated 19.09.2009, which is Ex PW1/D1, as same bears the signatures of her and her husband and brother and uncle of defendant voluntarily though she gave an explanation that they were forced to sign upon the same by the police officials by saying that if they do not sign, a case would not be registered against them. She also stated that she did not lodge any complaint before any officer/authority in this regard.
26.In any case, this explanation given by PW1 is not believable for the simple reason that plaintiff admittedly herself is serving with Chandigarh police, she is a police women, therefore it is hard to imagine that she should have been forced to sign upon any settlement that too by the police authorities. Consequently if she would have been made to sign on the settlement forcibly, then she would have never remained mum and would have made a complaint to the higher authorities, as she would be knowing full Suit No. 151/14 Darshana Devi Vs. Kavita Devi 19/33 20 well where to make such kind of complaint, which is not the case in hand. Now what is stated in ExPW1/D1, is reproduced as as under:
Suit No. 151/14
Darshana Devi Vs. Kavita Devi 20/33 21
27.Even perusal of said settlement dated 19.09.2009 reveals that defendant has not been bestowed with any right in the suit property by virtue of said settlement and it was only to settle their matrimonial dispute(s). Defendant alongwith her husband were allowed to live separately in the suit property from her mother in law i.e plaintiff and father in law, but she was not given any special right by the defendant in the same and it appears that she was only residing in the suit property vide settlement dated 19.09.2009 as a licencee and no more. Therefore even if the defendant came and resided in the suit property by virtue of said family settlement dated 19.09.2009 it does not make any difference to the case of the plaintiff.
28.Regarding the cause of action PW1 and PW2 both have stated in their affidavits that on 02.08.2009 and thereafter on 18.09.2009 they were threatened and PW2 was forced to leave the house in question by the family members of the defendant in view of the family settlement dated 19.09.2009 proved above, the said plea of the defendant is not proved, as PW1 has herself Suit No. 151/14 Darshana Devi Vs. Kavita Devi 21/33 22 admitted that they had signed on the said family settlement. Now coming to the claim of PW1 and PW2 that they were beaten up on 02.09.2009 by family members of the defendant including her brother and other relatives and they had also made a complaint to the SHO Narela which is ExPW1/2 and thereafter were medically examined. The plaintiff has examined one witness PW4 Sh. Veer Bhan who was Record Clerk from Satyavadi Road, Raja Harish Chandan Hospital who has proved the MLC dated 02.11.2009 of PW2 and that of PW1 which are ExPW4/1 and ExPW4/2 respectively, though the said Record Clerk was not competent to prove the nature of injuries stated in the said MLC, but at the same time from his testimony it is apparent that MLC had indeed been prepared in the hospital on 02.11.2009 in which the plaintiff and her husband i.e PW2 had suffered extensive injuries on their person. They have also filed photographs of the said injuries.
29.It is nowhere case of the plaintiff that the said injuries were self inflicted. No such suggestion has even been given in their cross Suit No. 151/14 Darshana Devi Vs. Kavita Devi 22/33 23 examination. Plaintiff has also proved one complaint ExPW1/2 dated 04.11.2009. However, this court is not competent to assess who are the assailants or aggressors in the said alleged transaction, but it appears that some sort of altercations took place on 02.11.2009, as alleged by the plaintiff with the defendant. Therefore it is apparent that there is cause of action which has arisen for filing the suit. In any case, the plaintiff has also proved the legal notice dated 20.01.2010 which is Ex PW1/5 supported by UPC and receipts. Defendant in the corresponding para of the written statement has admitted the receipt of said legal notice and it is stated that the said legal notice was duly replied vide reply ExPW1/5. Therefore there is definite cause of action in filing the present suit. These issues are decided accordingly.
ISSUE NO. 2(framed on 23.12.2010)
30.In the Written Statement defendant has claimed that the present suit is not properly valued for the purposes of court fees and jurisdiction. In this regard para 18 of the plaint is relevant, same Suit No. 151/14 Darshana Devi Vs. Kavita Devi 23/33 24 is reproduced as under:
"18. That the value of the suit for the purposes of court fees and jurisdiction is valued at Rs. 15,00,000/ for the relief of possession of the suit property and Rs. 30,000/ as damages/mesne profit at the rate of Rs. 10,000/ w.e.f 02.11.2009 and Rs. 130/ for the relief of permanent injunction and the appropriate court fee is being affixed on the suit."
31.Counsel for defendant has argued that the market value of the suit property, which is admeasuring 125 sq. yds falling under the Revenue State of Narela, as per the circle rates prevalent at the time of filing of the present suit, is much higher than the pecuniary jurisdiction of this court, which is only Rs. 20 lacs and the valuation of the suit for possession as per Section 7(V) of Court Fee Act has to be done as per the market value of the suit property, which is much more than Rs. 15 lacs, as has been Suit No. 151/14 Darshana Devi Vs. Kavita Devi 24/33 25 valued by the plaintiff in the plaint, which is totally arbitrary and cannot be accepted.
32.On the other hand, counsel for plaintiff has argued that the suit has been properly valued for the purposes of court fees and jurisdiction and there was no discrepancy with regard to the same. As discussed above, plaintiff has herself admitted in the plaint that the suit property is built up and the same is also shown to be so in the site plan filed on record which is Ex PW1/1A, therefore the value of the suit for possession of such a built up property has to be done as per Section 7(V) (e) as per Chapter 3 part D of the suit property Delhi High Court Rules which would be the market value of the suit property in question, as the suit property is a built up property, its valuation would be done as per the table showing the value of suits for the purposes of computing court fee and for determining the jurisdiction of the Courts, as enumerated in the table annexed with part D of Delhi High Court Rules.
33.The present suit falls under the category of suit for possession Suit No. 151/14 Darshana Devi Vs. Kavita Devi 25/33 26 of a house, therefore its value for the purposes of court fees would be the market value of the suit property and its value for the purposes of determining the jurisdiction of the court under the Suits Valuation Act, 1887 would also be the market value of the suit property.
34.The present suit property falls under the category "G" of the circle rates as the same falls in Ward Narela Zone and as per prevailing circle rates at the time of filing of suit which was filed on 06.04.10 would be Rs. 13700/ per Sq. mtr which was the circle rate in circulation prior to 08.02.2011. The valuation of whole suit property at the time of filing of the suit on 06.04.10 admeasuring 125 Sq Yds or 104.51 Sq. Yds would be 104.51 sq. mtrs x 13700 = 14,31,787/, whereas the plaintiff has done the valuation of the suit for the relief of possession to be Rs. 15 lacs which is absolutely in order. The other reliefs i.e valuation with regard to mesne profits and injunction has been properly done, therefore it cannot be said that suit has not been properly valued for the purposes of court fees and jurisdiction. This issue Suit No. 151/14 Darshana Devi Vs. Kavita Devi 26/33 27 is answered accordingly.
ISSUE NO. 5 & 6 (framed on 23.12.2010) and ISSUES NO. 1, 2, 3 & 4(framed on 05.08.10)
35.These issues are also taken up together, as they are either interlinked with each other or covered by the later issues framed on 23.12.2010.
36.In view of my findings with regard to issue no. 1, 3 & 4 framed on 23.12.2010, it is held that the suit property is not a Joint Hindu Family Property in which husband of the defendant was having share, nor it has been proved that the suit property was purchased from the joint family funds to which husband of the defendant also contributed. It has been also held that it is the exclusive property of the plaintiff. Therefore it follows as a sequel to the fact that the defendant whose licence has been terminated with regard to the suit property vide notice ExPW1/5 has no right to remain in possession of the same after the termination of her licence, her continuous presence in the suit property after termination of licence is that of unauthorized Suit No. 151/14 Darshana Devi Vs. Kavita Devi 27/33 28 occupant and therefore the plaintiff is entitled to a decree of possession in her favour.
37.As a consequence a decree of possession is hereby passed in favour of plaintiff and against the defendant with respect to the suit property/house bearing previous municipal plot no. 104, Khasra No. 50/4 and new No. D474, Gali No. 7, Gautam Colony, behind Police Station Narela, Delhi, as shown in site plan ExPW1/1A. Since defendant has no right to remain in the suit property after termination of licence, it follows as a corollary that defendant has no right to create third party interest, sublet or part with possession of the suit property till the possession is actually handed over to the plaintiff, if the defendant is able to do so the corresponding legal right of the plaintiff would be seriously infringed.
38.Regarding the mesne profits, plaintiff has claimed that defendant is getting monthly rent of Rs. 20000/ per month from the tenants occupying the suit property and defendant is also liable to pay damages @ Rs. 10,000/ per month apart from the Suit No. 151/14 Darshana Devi Vs. Kavita Devi 28/33 29 rent of Rs. 20,000/ per month so received by the defendant from the said tenants and if similar accommodation is rented out to other tenants by the plaintiff it can fetch Rs. 30,000/ per month as rent. In this regard plaintiff has herself appeared in the witness box as PW1 and has reiterated the contents of her plaint in this regard. Similar is the testimony of her husband PW2 . Neither PW1 and PW2 have been able to prove that the defendant had been collecting rent from the tenants occupying the suit property. Infact DW1 in her affidavit more specifically para 17 of her evidence by way of affidavit has stated that she never received any rent from any tenant and the last tenant in respect of suit property Sh. Kishori vacated the suit property on 30.01.2010, who had been paying the rent to the husband of the plaintiff. Plaintiff has failed to prove the contrary as they have not produced any of the tenant occupying the suit property in the witness box, who could say that they were paying the rent to the defendant instead of plaintiff and that the total rent which had been received by the defendant from the said tenants was Suit No. 151/14 Darshana Devi Vs. Kavita Devi 29/33 30 around Rs. 30,000/ per month. No such witness has been produced. Infact DW1 has relied upon one receipt issued by the said tenant ExDW1/A, which the plaintiff has contended is forged and fabricated.
39.DW1 has also stated that the last tenant vacated the suit premises on 30.01.2010. To rebut the testimony in this regard plaintiff had to prove this fact by examining any other witness of the locality or the nearby house(s) or the tenants to negate the testimony of DW1 that the last tenant had vacated the suit property on 30.10.2010 and rent was being received by the husband of the plaintiff from the said tenants, no such witness has been examined. Therefore plaintiff has failed to prove that defendant was collecting the rent Rs. 20,000/ per month from the tenants in the suit property. Now to coming to the question what should be the measure of mesne profits with respect to the suit property. The plaintiff in her affidavit has claimed that the suit property can fetch rent of atelast Rs. 30,000/.
40.In the cross examination of PW1 a suggestion was given by the Suit No. 151/14 Darshana Devi Vs. Kavita Devi 30/33 31 Ld. counsel for the defendant as under:
"It is correct that similar house to the suit property may fetch Rs. 15000/ as rent again said it may be Rs. 20,000/".
From the very nature of suggestion given by Ld. Counsel for the defendant it appears that the house of the suit property may fetch rent between Rs. 15000/ and 20000/.
41.Further DW1 in her cross examination has stated that the rate of rent in Gautam Colony and nearby areas are of different rates, for one room it may be Rs. 10,000, Rs. 15000/ per month. Though she denied the suggestion that all the vacant rooms, terrace, kitchen etc., if given on rent can fetch a monthly rent of Rs. 20,000/. However, in view of the nature of suggestion given by counsel for the defendant to PW1 discussed above and the fact that the suit property as per site plan ExPW1/1 consists of 4 rooms on the ground floor alongwith two kitchen, bathroom and laterine and one room on the first floor and terrace it cannot be said to fetch rent less than Rs.15000/ per month, taking into account the market situation and the fact that the suit property Suit No. 151/14 Darshana Devi Vs. Kavita Devi 31/33 32 was situated in the suburb Narela.
42.The said mesne profits @ Rs. 15000/ per month cannot be said to be unreasonable at any stretch of imagination taking into account, ever increasing rate of rent in Delhi now a days. In these circumstances, it cannot be said the suit lacks cause of action. All the issues are answered accordingly.
(RELIEF)
43.In view of my findings on above issues, a decree of possession is hereby passed in favour of plaintiff and against the defendant with respect to the suit property/house bearing previous municipal plot no. 104, Khasra No. 50/4 and new No. D474, Gali No. 7, Gautam Colony, behind Police Station Narela, Delhi, as shown in site plan ExPW1/1A.
44.Further a decree of permanent injunction is also passed in favour of the plaintiff and against the defendant, thereby restraining the defendant not to create any third party interest in the suit property or to part with the possession of the same to any other person.
Suit No. 151/14
Darshana Devi Vs. Kavita Devi 32/33 33
45.Further plaintiff is held entitled to future damages/mesne profits w.e.f 01.02.2010 @ Rs. 15000/ per month alongwith interest @ 6% per annum on the arrears of mesne profits till possession is actually handed over to the plaintiff. However, decree sheet be prepared only after the plaintiff pays the deficient court fee on the mesne profits so determined above. Plaintiff is also entitled to the cost of the suit.
46.File be consigned to Record Room.
ANNOUNCED IN THE OPEN (Sanjeev Aggarwal)
COURT ON 16.08.2014 ADJ(N/W) Rohini Courts
Delhi/16.08.2014
Suit No. 151/14
Darshana Devi Vs. Kavita Devi 33/33
34
Suit No. 151/14
Darshana Devi Vs. Kavita Devi 34/33
35
Suit No. 151/14
Darshana Devi Vs. Kavita Devi 35/33