Delhi District Court
Suit No.8802/16 Gurdayal Singh vs . Kuldeep Singh on 29 September, 2018
Suit No.8802/16 Gurdayal Singh vs. Kuldeep Singh
IN THE COURT OF SH. MUNEESH GARG, CIVIL JUDGE (EAST)
KARKARDOOMA COURTS, DELHI
Suit No.:8802/16
In the matter of--
Gurdayal Singh (since expired) through LRs
1. Smt. Sita Rani
w/o Late Sh. Gurdayal Singh,
2. Sh. S. Inder Jeet Singh,
s/o Late Sh. Gurdayal Singh,
3. Sh. S. Balbir Singh
s/o Late Sh. Gurdayal Singh,
4. S. Balvinder Singh
s/o Late Sh. Gurdayal Singh,
5. Smt. Rani
d/o Late Sh. Gurdayal Singh,
6. Smt. Manjeet Kaur
d/o Late Sh. Gurdayal Singh,
all r/o 103, Radhey Shyam Park,
Gali no.4, Parwana Road, Delhi110051 .....LR of the deceased plaintiff
versus
Kuldeep Singh
s/o Sh. Gurdayal Singh
r/o 73, Radhey Shyam Park,
New Delhi110051 ......Defendant
Date of Institution of suit:06.10.2009
Page 1 of 19
Suit No.8802/16 Gurdayal Singh vs. Kuldeep Singh
Date of reservation of judgment:31.08.2018
Date of pronouncement of judgment:29.09.2018
JUDGMENT:
1. A suit for mandatory injunction, possession and for permanent injunction has been filed by plaintiff against the defendant.
2. In brief, as per the amended plaint, it is the case of the plaintiff that the plaintiff is absolute owner of his selfacquired property H.No. 103, Radhey Shyam Park, Near Parwana Road, Delhi110051. There is one room and kitchen measuring about 175 sq. Yards on ground floor of aforesaid property no. 103, Radhey Shyam Park, Near Parwana Road, Delhi110051 (hereinafter referred to as 'Suit Property').
3. It is averred that on the request of the defendant, plaintiff allowed the defendant to put his goods/articles in the suit property situated on the ground floor of the aforesaid property. In the year 20062007, the defendant started creating troubles for plaintiff due to which the plaintiff had filed a civil suit against the defendant and his family, in which an amicable settlement had arrived at between defendant and plaintiff before the Mediation Centre, Karkardooma Courts, Delhi in which the defendant admitted that the plaintiff is absolute owner of the said property and the same is selfacquired property of plaintiff and it was further agreed between the defendant and the plaintiff to maintain statusquo and in the said settlement, it has come that the said room on ground floor is in possession of the defendant.
4. It is further averred that the defendant again started creating troubles for the plaintiff and his other family members and he started creating nuisance in the peaceful living of the plaintiff and his Page 2 of 19 Suit No.8802/16 Gurdayal Singh vs. Kuldeep Singh family members. The defendant started to give filthy abuses to the plaintiff, his wife and other family members and started giving beating to the plaintiff and started creating scene at the suit property. Though the defendant is not using the suit property for residential purpose but he is keeping domestic goods in the suit property. For the last some time, the defendant started keeping gas cylinder, tyre, compressor and other dangerous goods in the suit property, which would cause any untoward incident. On 15.08.2009, plaintiff requested the defendant to remove the harmful articles/goods and vacate the suit property but the defendant did not listen to the plaintiff rather gave him filthy abuses and picked up a quarrel with him and threatened the plaintiff that he would burst out the gas cylinder by lighting fire.
5. It is further averred that defendant has been using the suit property with permission of the plaintiff and his status in the suit property is that of a licensee. It is further averred that earlier legal notice dated 20.08.2009 was sent at wrong address to the defendant. Subsequently, the notice was sent at the correct address vide notice dated 03.09.2009 through registered AD as well as UPC. However, in the notice with regard to the suit property, kitchen was not mentioned for which notice/corrigendum was sent on 19.09.2009. The notice has been duly served upon the defendant but defendant neither replied nor complied with the same. It is averred that plaintiff has also sent a complaint to the employer of the defendant vide representation dated 26.08.2009. It is averred that the defendant has threatened to create third party interest in the suit property by letting out the suit property to some tenant. However, the defendant Page 3 of 19 Suit No.8802/16 Gurdayal Singh vs. Kuldeep Singh has got no right, title or interest in the suit property in any manner. Hence, plaintiff has filed the present suit.
6. Written statement was filed on behalf of defendant wherein he took preliminary objections stating that the suit of the plaintiff is not maintainable as the same is barred by resjudicata & without cause of action in favour of the plaintiff and against the defendant and the suit is liable to be dismissed under Order 7 Rule 11 CPC. It is submitted that the plaintiff had earlier filed a suit bearing no. 1185/06, which was a suit for mandatory injunction and mesne profits against the defendant and his family members and when the same was pending adjudication in the court of Ms. Suchi Shahmiri, then Civil Judge, KKD, Courts, Delhi, the same was referred to Mediation Centre, KKD Courts where the dispute was amicably settled on 13.08.2007. It is further submitted that in terms of settlement, plaintiff had executed a Will dated 21.08.2007 which was duly registered with the office of SubRegistrar, Delhi. Thereafter, the court of Ms. Suchi Shahmiri, CJ, KKD Courts, Delhi passed orders and disposed off the matter as compromised and decree sheet was also prepared. In terms of the settlement, the defendant, who is a Government servant, is residing in the suit property peacefully alongwith his family member. Even after giving statement in the court, that he will maintain decency and will not harass the defendants, the plaintiff after taking drinks, used to abuse the defendant and his family members. He also used to threaten the defendant that he will file a fresh suit against them and also used to misbehave with wife of the defendant. Defendant always kept his cool and calm and continued to give respect to the plaintiff, who is his father and never made any complaint against him. The defendant Page 4 of 19 Suit No.8802/16 Gurdayal Singh vs. Kuldeep Singh also instructed his family members not to say anything to the plaintiff, but the plaintiff continued abusing and maltreating the family of the defendant. It is further submitted that as the youngest son and daughter of the defendant are students, they needed conducive atmosphere for their study, therefore, the defendant took a small room for them on rent in the nearby locality and the defendant, his wife and other children continued residing in the suit property. It is further submitted that in view of the above settlement and statement in the court, the dispute between the plaintiff and the defendant had been settled finally and the plaintiff was to abide by the terms and conditions of the settlement. It is further submitted that after cancelling the registered Will at his own, which was executed by him in terms of mediation settlement, the plaintiff has not only breached the terms and conditions of the settlement, but is also playing fraud upon the court and has filed the present false suit without having any cause of action in his favour and against the defendant. Therefore, the suit of the plaintiff is liable to be rejected on this ground alone.
7. It is further submitted that the suit of the plaintiff is not maintainable as the plaintiff is not absolute owner of the suit property and he has suppressed and misrepresented material facts before this court. It is submitted that the entire suit property no. 103, Radhey Shyam Park, Delhi was purchased in the name of the plaintiff out of joint family funds. It is further averred that in the year 1993, in order to avoid future litigation, to save honour and goodwill of the family and for the benefit of family members, family arrangements took place orally and all the cosharers were given their respective shares in the said property i.e. H.No. 103, Radhey Shyam Park, Delhi. It is Page 5 of 19 Suit No.8802/16 Gurdayal Singh vs. Kuldeep Singh further submitted that the defendant was given land and he got the same constructed out of his own sources and income and has been residing therein as an absolute owner alongwith his family members. It is further submitted that because of escalating increase in market price of the property in the area, the intention of the plaintiff has become malafide and he wants to sell the entire property alongwith property of the defendant. It is further submitted that the defendant was never residing as licensee of the plaintiff in the suit property and therefore, plaintiff has no right to terminate his license and seek his eviction from the suit property. It is further submitted that the plaintiff has concealed the above facts and also the facts mentioned in para 1 abovestated, from this court, in order to get favourable relief and therefore his suit is liable to be dismissed on this ground also. It is further submitted that the suit of the plaintiff has been undervalued by him in order to avoid filing of proper court fee. It is submitted that the plaintiff had filed suit for mandatory injunction and mesne profits earlier and has amended the same for possession now, after objections raised in WS of the defendant. It is submitted that intention of the plaintiff was to avoid court fee earlier and even now also as he has undervalued the suit property. It is further submitted that the value of suit property is more than Rs. 30 lacs but the plaintiff has valued the same for Rs. 2.82 lacs only and has filed advalorem court fee on the same. It is submitted that the defendant has already submitted valuation report from government approved valuer showing the value of the suit property and the plaintiff may be directed to file court fee as per market value. It is submitted that suit for possession can proceed further only if the plaintiff pays the deficient court fee and the plaintiff may be directed to file requisite fee and in case of his Page 6 of 19 Suit No.8802/16 Gurdayal Singh vs. Kuldeep Singh failure, his suit is liable to be dismissed. It is further submitted that suit of the plaintiff is liable to be rejected for want of pecuniary jurisdiction of this court. The present market value of the suit property is more than Rs. 30 lacs which exceeds the pecuniary limit of this court and as such this court has no jurisdiction to entertain the present suit. It is further submitted that the plaintiff has filed wrong site plan with the suit and has shown incorrect dimensions in the same. It is submitted that defendant has filed correct site plan showing correct dimensions.
8. On merit, defendants denied the averments made in the plaint as wrong and sought the dismissal of the suit.
9. Plaintiff filed replication and controverted the allegations of defendant made in written statement and further reaffirmed the averments made in the plaint.
10.After completion of pleadings, following issues were framed:
1. Whether the plaintiff is entitled to a decree of mandatory injunction directing the defendant to vacate the suit property as prayed for? OPP
2. Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendant from creating any third party interest in the suit property as prayed for? OPP
3. Whether the suit of the plaintiff not maintainable in its present form? OPD
4. Whether the present suit is not properly valued for the purpose of jurisdiction and court fees? OPD
5. Relief.
Page 7 of 19Suit No.8802/16 Gurdayal Singh vs. Kuldeep Singh
11.Thereafter, matter was fixed for plaintiff's evidence. Here, it is relevant to mention, that during the pendency of the case, plaintiff Gurdayal Singh expired and an application under Order R. 3 CPC was moved for impleadment of other legal heirs as plaintiff and the said application was allowed vide order dated 07.08.2014. Thereafter, LR. No. 3 namely Balbir Singh examined himself as PW1. He has placed on record his testimony by way of affidavit Ex. PW1/A and also produced on record the following documents--
Ex. PW1/1 (OSR) Certified copy of Will
Ex. PW1/2 (OSR) Copy of death certificate of Sh.
Gurdyal Singh
Ex. PW1/3 Site plan
Ex. PW1/4 (OSR) (page A and Copy of the ownership documents B) Mark A Copy of FIR lodged against the defendant Ex. PW1/6 Copy of settlement before the mediation centre dated 31.08.2007 Ex. PW1/7 Copy of legal notice dated 20.08.2009 Ex. PW1/8 Copy of legal notice dated 30.09.2009 Ex. PW1/9 (OSR) (colly) Copy of house tax receipt Ex. PW1/10 Copy of corrigendum dated 19.09.2009 Ex. PW1/11 to Ex. PW1/13 Copy of postal receipts Ex. PW1/14 Copy of postal receipt (deexhibited)
12.LRs of plaintiff examined Sh. Raj Kumar as PW2 who is attesting witness of the Will Ex. PW1/1. He tendered his evidence by way of affidavit Ex. PW2/A and proved the document Ex. PW1/1 i.e. Will.
Page 8 of 19Suit No.8802/16 Gurdayal Singh vs. Kuldeep Singh
13.Plaintiff summoned and examined Sh. Shyam Sunder as PW3. He has produced the summoned record i.e. Will dated 31.03.2009 Ex. PW1/1 executed by Sh. Gurdayal Singh and same is registered with the office of subregistrar. Evidence of the plaintiff was closed on 07.12.2017.
14.Defendant examined himself as DW1. He has placed on record his testimony by way of affidavit Ex. DW1/1 and also produced on record the following documents--
Ex. PW1/6 Mediation settlement dated
21.08.2007
Ex. DW/B (OSR) Certified copy of statement of
plaintiff, Gurdayal Singh
Ex. PW1/D3(OSR) Certified copy of statement of
defendant
Ex. DW1/D1 Will dated 21.08.2007
Ex. DW1/E (OSR) and Ex. Certified copy of order of the court DW1/F (OSR) and decree sheet Ex. PW1/3 Site plan Ex. DW1/1 (OSR) Reply of notice dated 24.02.2009 Ex. DW1/J (OSR) and Ex. Courier receipts DW1/K (OSR)
15.Defendant examined Smt. Charni as DW2. Defendant also summoned and examined Sh. Ram Tirath, Record Keeper as DW3. He produced summoned record i.e. a register pertaining to registration of Wills (OSR) and the Will dated 21.08.2007 is registered as document no. 2605 in book No. 3, Volume no. 811 on page 155 to 157 on 24.08.2007 in the register. Copy of the said document i.e. Will is Ex. DW3/A. Evidence of the defendant was closed on 24.07.2018.
Page 9 of 19Suit No.8802/16 Gurdayal Singh vs. Kuldeep Singh
16.Final arguments heard. Record is perused. I have given thoughtful consideration to the entire pleadings, evidence adduced, all the documents and to the entire record. Now, I shall give my issuewise findings which are as under:
Issue no. 1: Whether the plaintiff is entitled to a decree of mandatory injunction directing the defendant to vacate the suit property as prayed for? OPP
17.The onus to prove this issue rests upon plaintiff. According to the case of the plaintiff, he is the absolute owner of the suit property which is a part of property bearing H.No. 103, Radhey Shyam Park, Near Parwana Road, Delhi110051 and defendant is residing in the suit property i.e. on ground floor in one room and kitchen measuring about 175 sq. Yards. Plaintiff has sought eviction in the form of mandatory injunction against the defendant.
18.The very mediation settlement on which the decree dated Ex. PW2/D1 was passed reflects that deceased original plaintiff Sh. Gurdayal Singh, father of the defendant, was the absolute owner of the suit property in question and defendant was a licensee therein on ground floor. Defendant has claimed right to the suit property on the basis of the status quo decree passed on the basis of the mediation settlement Ex. PW1/6. According to the defendant, by virtue of the Will Ex. DW1/1 executed in his favour, he is the owner of the ground floor and he also has a status quo in his favour and hence, cannot be evicted from the property either by the plaintiff or by his legal representative. In this connection, at first it is to mention that vide the decree in question, defendant never became owner of the suit property. He did not get a life interest in the said portion either. Even if defendant claims that by virtue of the Page 10 of 19 Suit No.8802/16 Gurdayal Singh vs. Kuldeep Singh status quo decree based on consent of all parties, i.e. the original plaintiff (father of defendant) as well as the defendant, they are estopped from evicting him from the suit property on the ground floor and on the basis of such a plea if it is assumed for the sake of argument even though the decree in question nowhere expressly created any life interest in the defendant qua the suit property on ground floor that any indefeasible and indefinite right of status quo was created in his favour and the very existence of Will coupled with the decree in a way conferred a gift of the said property in his favour, he could have claimed any such life interest in his favour only if the decree in question Ex. PW2/D1 was got registered by him. It is a settled law that whenever any decree in itself creates any right in favour of any party to a suit in any immovable property of Rs. 100/ or more, it should be compulsorily registrable. Section 17 of the Registration Act, 1908 interalia provides that 17. Documents of which registration is compulsory
(a) Instruments of gift of immovable property.
In the case Kauleshwari Vs Surajnath Rai, AIR 1957 Patna, 456, it is held that a consent decree purporting to create gift requires registration under section 17 (1) (a) and is not exempt from registration under section 17 (2) (vi). Thus, in the case at hand, unregistered decree is not admissible in evidence.
19.In so far the Will dated 21.08.2007 Ex. DW1/D1 is concerned, the contents of which do not form a part of settlement but pursuant to the execution of which the status quo decree was passed, it is to observe that a Will is never irrevocable. During lifetime of a person he is free to execute as many Will as he pleases and an absolute owner can not be bound under law to execute a Will in favour of Page 11 of 19 Suit No.8802/16 Gurdayal Singh vs. Kuldeep Singh any person against his will and further create a bar from executing a new Will. Such intention can not be read in status quo decree either. A status quo may change with the change in circumstance. In the case at hand, situation changed with the allegation of plaintiff that defendant was not maintaining peace and keeping hazardous goods in the suit property an further that plaintiff had executed a new Will debarring him from any share in the suit property.
20.In the mediation settlement in question, as agreed to between original plaintiff and defendant, it is specified that plaintiff is the absolute owner of the property and hence, if such status quo was agreed to be created in favour of the defendant by virtue of the said decree (if at all thereby creating a lifeinterest to reside and enjoy that ground floor as owner) of the defendant, the same was necessary to have been registered but the same was never done by any of the parties to the said suit and settlement.
21.Moving further, as far as second Will in question dated 31.03.2009 Ex. PW1/1 is concerned, defendant cannot put reliance on the same to contest the present suit by claiming any right or interest in the property i.e. one room and kitchen on ground floor of the property no. 103, Radhey Shyam Park, Near Parwana Road, Delhi 110051. A Will comes into operation only after demise of the executant. Further, there can never be under law any prohibition on a person from executing a Will of his absolute property. A person may execute as any many Will as he wishes, during his lifetime. However, the terms and conditions of a Will are inconsequential and have no meaning as long as a person is alive. Hence, any Will, whether registered or unregistered, during lifetime of a person can be altered, varied or repudiated by the executant by preparing and Page 12 of 19 Suit No.8802/16 Gurdayal Singh vs. Kuldeep Singh executing a new Will. As long as person is alive, a Will remains a dead letter and becomes operational later on, i.e. after the demise of an executant. Hence, as long as plaintiff Gurdyal Singh was alive and as and when he field the present civil suit, the Will in question was not at all in operation. Once Will was not operational, there arises no question for any term or condition of the Will being binding on anyone. Further, plaintiff brought it to light himself that he had executed a second Will dated 31.03.2009 after the Will dated 21.08.2007 and hence, as per the law, the very execution of second Will, made the Will dated 21.08.2007 as redundant. The same never came into operation ever after demise of plaintiff as the same never saw the light of the day and died an untimely death due to execution of a subsequent Will. Once a licensee is always a licensee under law. Defendant was a licensee of plaintiff Gurdayal Singh and now after his demise, he becomes a licencee of the legal heirs of plaintiff, substituted as plaintiff here, and on whom the property devolved by virtue of the second Will. The legal heirs of the plaintiff namely Smt. Sita Rani, Sh. Inder Jeet Singh, Sh. S. Balbir Singh, Sh. S. Balvinder Singh, Smt. Rani and Smt. Manjeet Kaur have been substituted as plaintiffs and hence, now they are in the shoes of original plaintiff, who was the absolute owner of the property. In the mediation settlement itself, as executed between defendant and plaintiff Gurdayal Singh, it was agreed between both sides and admitted by defendant that plaintiff was absolute owner of suit property and that the same was his selfacquired property. As an absolute owner, plaintiff had every right to decide whom to permit to reside in his property and whom to be evicted. Defendant neither ever had any right in the property nor any right in the property was conferred on him by virtue of the status quo decree. The plea of the Page 13 of 19 Suit No.8802/16 Gurdayal Singh vs. Kuldeep Singh defendant in the present suit that suit property is ancestral property is devoid of merit in the light of his admission that plaintiff is the absolute owner of the property bearing no. 103, Radhey Shyam Park, Parwana Road, Delhi as recorded in the statement Ex. PW 1/D3 in the earlier suit 1185/06. Hence, the testimony of DW2 in this regard is of no avail and inconsequential.
22.The mediation settlement which was foundation of status quo decree nowhere stipulates for any condition on the plaintiff for execution of any Will. It rather talks about the power and ability of plaintiff in the capacity of absolute owner to execute a Will , in the manner as he likes and out of his own free will. The terms and conditions of Will neither find any discussion in the settlement nor the same were incorporated as part of decree. As per the settlement, the Will to be executed was to be honoured by all including plaintiff and defendant. However, it can not be lost sight of that mere execution of a Will does not guarantee a right of anything to the beneficiary in the Will, as Will comes into effect only on death of executant and can be replaced any moment prior to death of executant. The settlement decree in itself did not confer any right under Will on the defendant and it could not and did not bar the plaintiff from execution of fresh Will.
23.In support of his case, plaintiff has relied on the ownership document of property Ex. PW1/4. As far as defendant is concerned, though it is argued on his behalf that the property was purchased out of ancestral property funds and hence, apart of ancestral property and not selfacquired property of plaintiff, such a plea is not sustainable. No document has been filed and proved on behalf of defendant as could establish his stake/claim to the property as a Page 14 of 19 Suit No.8802/16 Gurdayal Singh vs. Kuldeep Singh coparcener. Moreover, such an argument does not hold water as in the settlement Ex. PW1/6 itself, it has been admitted by him that plaintiff was absolute owner of property, which was selfacquired.
24.When the case at hand was filed, it was not field on the strength of execution of any Will, as neither of Will had become operational at that time and rather the case was filed in the capacity of plaintiff as an absolute owner. However, during pendency of suit, original plaintiff (executant of Wills) expired. A plea has been taken by the defendant that original Will as stated by plaintiff to be subsequent one, was never produced in the court. In this regard, it is to mention that this Will was relied by none other than the executant himself during his lifetime. Hence, execution of Will Ex. PW1/1 can not all be challenged by the defendant. Further, this is a registered Will and the certified copy of the Will was duly summoned form the registrar office and proved on record. Hence, I find no merit in the submission of the defendant. It is amusing to note further that execution of this Will in itself was not disputed by defendant himself and rather he took a fancy plea that original Will was torn by plaintiff but he led no evidence in this regard. He did not even state any date on which Will was torn and his source of knowledge of the same and his version does not at all inspire confidence and comes out as a cock and bull story, made with a view to strengthen his defence. Moreover, one of the attesting witness of the Will Ex. PW1/1 appeared and deposed that late Sh. Gurdayal Singh executed the Will dated 31.03.2009 during his life time and same is last Will of Late Sh. Gurdayal Singh. During crossexamination, PW2 stated that he had signed the Will Ex. PW1/1 as attesting witness on the asking of late Sh. Gurdayal Singh. He also deposed Page 15 of 19 Suit No.8802/16 Gurdayal Singh vs. Kuldeep Singh that he appeared before the Registrar around 11:00 AM. Moreover, no suggestion was given to PW2 that he was not attesting witness of the Will Ex. PW1/1 or that Will Ex. PW1/1 was not executed by the original plaintiff late Sh. Gurdayal Singh. Hence, the Will Ex. PW1/1 is duly proved as per law.
25.Further, mere contribution in the construction of suit property does not confer any right to claim share in the suit property or a right to reside in the suit property. Moreover, defendant has not brought anything on record to show his contribution in the suit property. It has been held by the our own Hon'ble High Court in a case titled as Virender Kumar & Anr. vs. Jaswant Rai & Anr. RSA No. 46/2011 has held in para 7 that: "..........Even assuming that the defendant had raised money to construct the rooms on the first floor, it would not by itself give any right to the defendant in the land beneath as raising of the super structure would not have made him owner of the suit land........".
26.The license of defendant to reside in the suit property was revoked specifically by legal notice Ex. PW1/7 wen the notice claiming possession from defendant was got served by the plaintiff. Moreover, the licence of the defendant to reside in the suit property has come to an end by filing of this suit by the plaintiff against him
27.Considering the abovesaid discussion and in the light of facts and circumstances, there is no substance in the written argument of the defendant and devoid of merits. This issue is decided is decided in favour of plaintiff and against the defendant. Plaintiff is entitled to a decree of mandatory injunction as directing the defendant to vacate the suit property i.e. one room and kitchen situated on ground floor Page 16 of 19 Suit No.8802/16 Gurdayal Singh vs. Kuldeep Singh of property bearing no. 103, Radhey Shyam Park, Near Parwana Road, Delhi110051 as shown in red colour in the site plan and handover vacant and peaceful physical possession of the property to the plaintiff.
Issue no. 2: Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendant from 3rd party interest in the suit property as prayed for?
28.The onus to prove this issue is also on the plaintiff. Plaintiff has also sought permanent injunction against defendant, as restraining him from creating any third party interest in the property. As in the discussion in issue no. 1, it has been concluded that the defendant was, infact, in the property as licensee of the plaintiff. He is, therefore, restrained from creating third party interest in the suit property i.e. one room and kitchen situated on ground floor of property bearing no. 103, Radhey Shyam Park, Near Parwana Road, Delhi110051 as shown in red colour in the site plan. Issue stands decided in favour of the plaintiff and against the defendant.
Issue No.3: Whether the suit of the plaintiff is not maintainable in its present form? OPD
29.The onus to prove this issue rest upon the defendant. No evidence has been led as to how the suit of the plaintiff is not maintainable in its present form. Even no argument has been on advanced on this aspect. It has been mentioned in the written statement that the suit of the plaintiff is not maintainable as plaintiff is not absolute owner. However, this averment of defendant is devoid of merit. Plaintiff has proved his ownership documents Ex. PW1/4. Moreover, defendant himself admitted in the statement Ex. PW1/D3 that his father (original plaintiff) is the absolute owner and property in Page 17 of 19 Suit No.8802/16 Gurdayal Singh vs. Kuldeep Singh question is his selfacquired property. Thus, defendant has failed to prove this issue. Accordingly, issue no. 3 is decided against the defendant and in favour of the plaintiff.
Issue No.4: Whether the present suit is not properly valued for the purpose of jurisdiction and court fees? OPD
30.This onus to prove this issue rest on the defendant. It is the case of the defendant that the plaintiff should have valued the suit as per the market value of the property as the relief actually being sought by the plaintiff is that of possession. It is further stated that as the property is worth over Rs. 30,00,000/, the suit should have been valued for that amount, which in turn would take the suit out of the pecuniary jurisdiction of the present court. However, no evidence has been led by the defendant to prove that the value of the suit property is more than Rs. 30,00,000/.
31.Moreover, it is settled law that a suit for possession need not be filed in such situations and that a suit for mandatory injunction lies against a licensee after the licence is revoked. Once the plaintiff is the owner of the suit property, the defendant would only be gratuitous licencees and the suit for permanent and mandatory injunction would be maintainable against the defendant in view of the judgment of the Supreme Court in the case of Sant Lal Jain v. Avtar Singh (1985) 2 SCC 332 and Joseph Severance & Ors v. Mathew & Ors. JT 2005 (7) SCC 667 and 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 licencee by the owner of the property.
Page 18 of 19Suit No.8802/16 Gurdayal Singh vs. Kuldeep Singh
32.The defendant in the instant matter was permissive user or licensee.
The plaintiff was thus justified in filing a case of mandatory and permanent injunction against him. Issue thus stand decided in favour of the plaintiff and against the defendant.
Relief
33.Relief is granted in terms stated herein above. The Plaintiff is also entitled to costs. It is so ordered. Let a decree sheet be prepared in the aforesaid terms. File be consigned to Record Room after due compliance.
Judgment dictated and announced in Open Court on29.09.2018 Digitally signed Muneesh Garg by MUNEESH GARG CJ/EAST/29.09.2018 MUNEESH Location:
Karkardooma GARG Courts, Delhi Date:
2018.10.03 17:37:22 +0530 Page 19 of 19