Delhi District Court
Tarun Chauhan vs Sanjeev Chauhan on 16 November, 2019
IN THE COURT OF SH. SUSHANT CHANGOTRA
ADDITIONAL SENIOR CIVIL JUDGE (SHAHDARA)
KARKARDOOMA COURTS, DELHI.
Suit No.: 462/17
1. Tarun Chauhan
2. Varun Chauhan
Both son of Sh. Rajiv Chauhan
R/o C164, 1st Floor, Vivek Vihar,
Delhi110095.
......Plaintiffs
versus
1. Sanjeev Chauhan
S/o Late Sh. Balram Singh
2. Pooja Chauhan
W/o Sh. Sanjeev Chauhan
Both resident of: C164,
Ground Floor, Vivek Vihar,
Delhi110095.
.....Defendants
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
AND MESNE PROFITS AND DAMAGES
DATE OF INSTITUTION : 01.05.2017
DATE OF DECISION : 16.11.2019
JUDGMENT
1. The brief facts of the case of the plaintiffs as stated in the plaint are that defendant no. 1 the uncle and defendant no. 2 is aunt of Suit No.: 462/17 Tarun Chauhan & Anr. Vs. Sanjeev Chauhan & Anr Page No.1 of 18 plaintiffs.
2. The grand mother of plaintiffs namely Smt. Sushila Devi i.e. mother of defendant no. 1 and mother in law of defendant no. 2 was the exclusive owner of the property bearing no. C164, Vivek Vihar, Delhi and the same was self acquired property of Smt. Sushila Devi.
3. Smt. Sushila Devi allowed the defendants to reside on the ground floor of the aforesaid property being the son and daughter in law. The conduct and behaviour of the defendants was not good towards Smt. Sushila Devi and they wanted to grab the suit property. In compelling circumstances, Smt. Sushila Devi disowned and debarred the defendants from all her immovable and moveable properties by way of publication in daily newspaper 'Rashtriya Sahara' dated 08.08.2016. She also made various complaints to the police authorities against the defendants.
4. In the year 2010, Smt. Sushila Devi out of love and affection transferred the first floor and second floor of the suit property in the name of her daughter in law namely Smt. Madhu Bala i.e. mother of plaintiffs by way of registered gift deed. Since then the mother of plaintiffs is in exclusive and peaceful possession of the first floor and second floor of the suit property.
5. On 10.08.2016, Smt. Sushila Devi executed a registered will deed in respect of ground floor of suit property i.e. bearing no. C164, Vivek Vihar, Delhi in the name of both the plaintiffs i.e. Tarun Chauhan and Varun Chauhan. Thereafter, on 11.09.2016, the grandmother of Suit No.: 462/17 Tarun Chauhan & Anr. Vs. Sanjeev Chauhan & Anr Page No.2 of 18 plaintiffs namely Smt. Sushila Devi expired and by virtue of registered will deed dated 10.08.2016, plaintiffs became the exclusive owners of the ground floor of suit property.
6. Defendants requested the plaintiffs to allow them to reside at the ground floor of suit property as licensees. Thereafter, plaintiffs requested the defendants to vacate the ground floor of suit property, but they did not vacate the same. Instead of vacating the suit property, the defendants started creating hindrance in the peaceful life of the plaintiffs. They also lodged false and frivolous complaints against the plaintiffs and their family members with intention to grab the suit property.
7. Thereafter, plaintiffs sent legal notice dated 03.04.2017 to the defendants and terminated the license of the defendants and called upon them to remove their articles and to handover the vacant and peaceful possession of ground floor of the suit property. Defendants sent false and frivolous reply to the aforesaid notice.
8. Hence, the plaintiffs have filed the present suit and prayed for decree of mandatory injunction for directing the defendants to remove their articles from portion of suit property in which they are in possession i.e. ground floor of suit property. Secondly, plaintiffs have prayed for decree of permanent injunction for restraining defendants from creating third party interest in the suit property. Thirdly, plaintiffs have prayed for decree of mesne profits and damages damages @ Rs. 25000/ per month.
9. Defendants filed written statement and took preliminary Suit No.: 462/17 Tarun Chauhan & Anr. Vs. Sanjeev Chauhan & Anr Page No.3 of 18 objections i.e. the suit is not maintainable as the relief claimed in the suit is undervalued. The suit has not been properly valued for the purpose of court fees and jurisdiction. It has been pleaded that in the para no. 16 of the plaint, it has been stated that Smt. Sushila Devi during her lifetime also filed suit for possession against the defendants. As per para no. 10 of the aforesaid suit filed by Smt. Sushila Devi, the value of the said suit for the purpose of court fees and jurisdiction was mentioned as Rs. 90,00,000/. The present suit is only a suit for possession in the garb of the suit for mandatory injunction.
10. The defendants also took objections that the plaintiffs have not come to the court with clean hands and have suppressed material facts from this court. The plaintiffs do not have locus standi to file the present suit as they do not have legal rights, title or interest in the suit property.
11. On merits, it has been pleaded that the suit property was purchased by Sh. Balram Singh i.e. father of defendant no. 1 vide deed of agreement to sell dated 27.03.1981 executed by Smt. V. Rangamani in favour of Smt. Sushila Devi i.e. mother of defendant no. 1. The suit property was constructed upto two and half storeys by father of defendant no. 1 from his own funds. Sh. Balram Singh died on 04.01.1986. Smt. Sushila Devi was housewife till her death. The defendants have been residing on the ground floor of suit property since the solemnization of their marriage in the year 1995. The mother of defendant no. 1 namely Smt. Sushila Devi had made a family settlement titled as "Vasiyatnama" which was written on 07.04.2007. It was prepared in order to avoid any Suit No.: 462/17 Tarun Chauhan & Anr. Vs. Sanjeev Chauhan & Anr Page No.4 of 18 dispute in future. In the said settlement, the possession of defendants was acknowledged by Smt. Sushila Devi. Defendants are in continuous and uninterrupted possession and enjoyment of the suit property since their marriage in the year 1995. They had perfected their title to the suit property by adverse possession. Defendant no. 1 has also been paying the electricity and water bills of the suit property since the year 1996. Defendant no. 1 has also been taking rent from time to time from the different tenants since 2007. Defendant no. 1 has also been doing maintenance work in the suit property from time to time from his funds. Defendants denied the remaining averments of plaint and prayed that suit may be dismissed.
12. The plaintiffs filed replication to the written statement and denied the averments of the written statement and reiterated the contents of the plaint.
13. From the pleadings, following issues were framed:
(i) Whether plaintiffs are entitled for decree of mandatory injunction as prayed for? OPP
(ii) Whether plaintiffs are entitled for decree of permanent injunction as prayed for? OPP
(iii) Whether plaintiffs are entitled for damages/ mesne profits? If so, at what rate and for which period? OPP
(iv) Whether suit is not maintainable in the present form? OPD Suit No.: 462/17 Tarun Chauhan & Anr. Vs. Sanjeev Chauhan & Anr Page No.5 of 18
(v) Whether plaintiffs have suppressed material facts? OPD
(vi) Whether defendants have become owner of the suit property by way of adverse possession? OPD
(vii) Relief.
(viii) Whether the suit property was purchased by father of defendant no. 1 and Smt. Sushila Devi was not the owner of the suit property? OPD
(ix) Whether mother of defendant no. 1 Smt. Sushila Devi had executed family settlement titled as vasiyatnama written on 07.04.2007? OPD
(x) Whether Smt. Sushila Devi had any right to execute the will dated 10.08.2016 in favour of plaintiff? OPD
14. The plaintiffs stepped into witness box as PW1 and PW2. PW1 Sh. Tarun Chauhan tendered his affidavit Ex.PW1/1 and relied upon documents Ex. PW1/A to Ex. PW1/G and Mark A. PW2 Sh. Varun Chauhan also tendered his affidavit Ex. PW2/1 and relied upon documents Ex. PW1/A to Ex. PW1/G and Mark A. Thereafter, they closed PE on 26.04.2019.
15. Defendant no. 1 examined himself as DW1. He tendered his affidavit Ex. DW1/A and relied upon documents Mark A to D and Ex. DW1/1 to Ex. DW1/14.
16. DW2 Sh. K. R. Verma deposed that defendant no. 1 is brother in law (jija) of his son in law namely late Sh. Parveen Kumar. On Suit No.: 462/17 Tarun Chauhan & Anr. Vs. Sanjeev Chauhan & Anr Page No.6 of 18 07.04.2007, he alongwith Parveen Kumar went to C164, Vivek Vihar, Delhi for a family meeting and several relatives of plaintiffs and defendants were present. Smt. Sushila Devi was owner of property no. C 164, Vivek Vihar, Delhi and during her life time she wanted to allocate the share of Sh. Sanjeev Chauhan and Rajeev Chauhan so that there may not be any dispute between them later on. Sh. Sanjeev Chauhan was residing on the ground floor and Sh. Rajeev Chauhan alongwith family and Smt. Sushila Devi was residing on the first floor. The second floor was lying vacant. Already oral family settlement had taken place between all of them to the effect that Sh. Sanjeev Chauhan was to get ground floor and Sh. Rajeev Chauhan was to get the first floor and Smt. Sushila Devi had reserved the second floor for herself. One Om Milan resident of Agra was also present in that morning and the aforementioned settled was reduced into writing. He had seen the will dated 07.04.2007 already Ex. DW1/7 which bears his signature at point A and signature of his son in law Parveen at point B. The said document Ex. DW1/7 was read over to all of them including Smt. Sushila Devi which bears signature of Smt. Sushila Devi at point C.
17. DW3 Sh. Amit Chandel tendered his affidavit Ex. DW3/A and relied upon document Ex. DW1/7. DW4 Sh. Rajiv Chauhan deposed that defendant no. 1 is his younger brother. He did not remember the date, month or year when the property no. C164, Vivek Vihar was purchased nor he was aware of the name of the vendor. He also does not know the date, month or year when the property was Suit No.: 462/17 Tarun Chauhan & Anr. Vs. Sanjeev Chauhan & Anr Page No.7 of 18 constructed on the suit property. He was not aware who had constructed. He deposed that he had neither purchased nor constructed it. No settlement had taken place between himself, his mother and Sanjiv Chauhan with respect to property no. C164, Vivek Vihar. He identified his signature in vatsiyatnama Ex. DW1/7 at point X and X1. He did not remember the date or month when document Ex. DW1/7 was executed.
18. DW5 Smt. Madhu Bala also identified her signature on document Ex. DW1/7 at point Y. She also did not remember the date or month when Ex. DW1/7 was executed. Then, counsel for defendants closed DE on 15.10.2019.
19. I have heard the arguments of Ld. Counsels for both the parties. I have also gone through the evidence on record carefully. The issue wise findings are as follows : ISSUE NO. 1, 8, 9 & 10
20. The onus to prove issue no. 1 was on plaintiffs and onus to prove issues no. 8 to 10 was on defendants. The discussion of all the abovementioned issues is interconnected. Therefore, I will discuss all the issues together.
21. The case of plaintiffs is that their grandmother Smt. Sushila Devi was the owner of the ground floor of the property no. C164, Vivek Vihar, Delhi and the defendants were permitted to reside in it by her. Thereafter, Smt. Sushila Devi executed a registered will dated 10.08.2016 in favour of plaintiffs and bequeathed the aforementioned property to Suit No.: 462/17 Tarun Chauhan & Anr. Vs. Sanjeev Chauhan & Anr Page No.8 of 18 plaintiffs. Subsequently, Smt. Sushila Devi passed away on 11.09.2016 and the plaintiffs became owners by virtue of will dated 10.08.2016. Thereafter, the plaintiffs allowed the defendants to reside in the suit property as licensees.
22. The case of plaintiffs to the extent of execution of will dated 10.08.2016 in their favour as well as qua existence of relationship of licensee and licensor with defendants has been specifically denied. Admittedly, Smt. Sushila Devi had terminated the license in favour of defendants and she had also instituted a suit for possession of same property against them. Therefore, it was imperative for the plaintiffs to establish that they had become owners by virtue of will dated 10.08.2016.
23. Section 68 of Indian Evidence Act specifically provides that a will can be proved by examining the attesting witness. It is reproduced as under : "68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
[provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the Suit No.: 462/17 Tarun Chauhan & Anr. Vs. Sanjeev Chauhan & Anr Page No.9 of 18 person by whom it purports to have been executed is specifically denied.]"
24. Section 68 of the Evidence Act specifically provides that the execution of the will can only be proved by examining attesting witnesses and even in case of registered will examination of attesting witnesses is necessary to prove its execution.
25. The plaintiffs have not examined the attesting witnesses of the will Ex. PW1/B. PW1 Sh. Tarun Chauhan had tendered the said will in his evidence which was objected to by the defendants on the mode of proof. Therefore, it is apparent that plaintiffs have not proved the will as per law.
26. In Sudhir Engineering Company Vs. NITCO Roadways Ltd. 1995 II AD Delhi 189, the Hon'ble High Court of Delhi held that, "The mere marking of an exhibits does not dispense with the proof of documents". Since the document Ex. PW1/B cannot be read in evidence, therefore, mere exhibition of the document as Ex. PW1/B is irrelevant.
27. The plaintiffs have failed to prove that they had become owners of the suit property i.e. ground floor of C164, Vivek Vihar, Delhi.
28. On the other hand, the defendants had tendered a will Ex. DW1/7. The attesting witnesses of the said will namely DW2 Sh. K. R Verma identified his signatures on the said will. He stated that the said will was executed in his presence and Smt. Sushila Devi had signed on it Suit No.: 462/17 Tarun Chauhan & Anr. Vs. Sanjeev Chauhan & Anr Page No.10 of 18 after understanding the same. Nothing material came out in his cross examination to create doubt the authenticity of his deposition as well as about the execution of the will Ex. DW1/7.
29. As per aforementioned will Smt. Sushila Devi had bequeathed the ground floor of property no. C164, Vivek Vihar, Delhi in favour of defendant no. 1.
30. Though, the defendants have pleaded and set up a case that the said will is infact a family settlement, however, the complete perusal of said will shows that the deceased Smt. Sushila Devi proclaimed herself to be the owner of property no. C164, Vivek Vihar, Delhi and wanted to bequeath separate portions to each of his sons.
31. The defendants are relying upon the said will Ex. DW1/7 and they cannot rely upon the same document in parts. As per said will, the deceased stated herself to be the owner of suit property. Once the defendants claim title by virtue of said will, they cannot say that it was correct in parts. Moreover, the property can be transferred by way of family settlement with respect to partition/ settlement of preexisting rights. Whereas, the said will Ex. DW1/7 categorically states that Smt. Sushila Devi was the owner of the said property.
32. In paragraph no. 4 of the written statement, the defendants admitted that Smt. Sushila Devi had permitted them to reside on the ground floor of suit property. Therefore, they have admitted the existence of relationship of licensee and licensor between them and Smt. Sushila Suit No.: 462/17 Tarun Chauhan & Anr. Vs. Sanjeev Chauhan & Anr Page No.11 of 18 Devi at the time when Smt. Sushila Devi had permitted them to reside on the ground floor. Section 116 of the Indian Evidence Act bars the licensee from denying the title of licensor. Therefore, there is no force in the argument of defendants to the extent that Smt. Sushila Devi was not the owner of suit property and the document Ex. DW1/7 is infact a settlement deed.
33. Though the defendants have failed to prove their defence as mentioned above, however, as discussed above the deceased Smt. Sushila Devi had bequeathed ground floor of property no. C164, Vivek Vihar, Delhi in favour of defendant no. 1 by virtue of will Ex. DW1/7. On the other hand, the plaintiffs have failed to prove that the deceased had executed a will subsequent to execution of will Ex. DW1/7.
34. Thus, in view of the aforementioned discussion, it has to be concluded that plaintiffs have failed to prove that they are the owners of ground floor of property no. C164, Vivek Vihar, Delhi.
35. As far as the question of existence of fresh license between plaintiffs and defendants is concerned, it has to be considered that admittedly Smt. Sushila Devi had filed the suit for possession against the defendants, but the said suit was unsuccessful. It is highly improbable that the plaintiffs who claim themselves to be the successors in interest of deceased Smt. Sushila Devi would have permitted the defendants to reside in the same property without executing any document. They have not specified even the date, month or year when the fresh license Suit No.: 462/17 Tarun Chauhan & Anr. Vs. Sanjeev Chauhan & Anr Page No.12 of 18 agreement came into existence. Therefore, it has to be concluded that the plaintiffs have failed to prove to the preponderance of probability that they had inducted the defendants as licensees.
36. Accordingly, issue no. 1 & 10 are decided against the plaintiffs and issues no. 8 & 9 are decided against the defendants.ISSUE NO. 2
37. Onus to prove this issue was on plaintiffs. In discussion of issues no. 1, 8, 9 & 10, it has already been held that plaintiffs have failed to prove their title of the suit property and on the contrary the defendant no. 1 has proved his title to the preponderance of probability. Therefore, decree of permanent injunction for restraining the defendants from alienating the suit property cannot be passed.
Accordingly, this issue is decided against the plaintiffs and in favour of defendants.ISSUE NO. 3
38. Onus to prove this issue was on plaintiffs. In discussion of issues no. 1, 8, 9 & 10, it has already been held that plaintiffs have failed to prove their title of the suit property as well as existence of relationship of licensor and licensees between them and defendants. Accordingly, the plaintiff is not entitled to any damages/ mesne profits.
Accordingly, this issue is decided against the plaintiffs and in favour of defendants.
Suit No.: 462/17 Tarun Chauhan & Anr. Vs. Sanjeev Chauhan & Anr Page No.13 of 18 ISSUE NO. 4
39. Onus to prove this issue was on defendants. No arguments was advanced on this issue. The issue pertains to form of the suit i.e. whether suit for mandatory injunction was maintainable or not? The said issue has to be decided on the basis of pleadings. The case of plaintiffs was on the premise that there existed relationship of licensor and licensee between the parties. The plaintiffs have failed to prove their right to seek removal/ eviction of the defendants. Therefore, this issue has become inconsequential. Accordingly, it is disposed off as not pressed.ISSUE NO. 5
40. Onus to prove this issue was on defendants. Neither any argument has been advanced by defendants in this respect nor any evidence has been highlighted.
41. The defendants have failed to show to the preponderance of probability that plaintiffs have suppressed material facts. Accordingly, this issue is decided against the defendants.ISSUE NO. 6
42. Onus to prove this issue was on defendants. The defendants have pleaded that they have become owners by virtue of adverse possession. In T. Anjanappa v. Somalingappa (SC) 2006(2) RCR (Rent) 593, it has been held that, 12. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be Suit No.: 462/17 Tarun Chauhan & Anr. Vs. Sanjeev Chauhan & Anr Page No.14 of 18 adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that this possession was hostile to the real owner and amounted to denial of his title to the property claimed.
For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property.
13. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse. It is on the basis of this principle that it has been laid down that since the possession of one coowner can be referred to his status as coowner, it cannot be considered adverse to other coowner.(See Vidya Devi v. Prem Prakash and Ors., 1995(3) RRR 65(SC): 1995(4) SCC 496).
14. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to he adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful owner's title Suit No.: 462/17 Tarun Chauhan & Anr. Vs. Sanjeev Chauhan & Anr Page No.15 of 18 e.g. Trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession.
15. "Adverse possession "means a hostile possession which is expressly or impliedly in denial of title of the true owner. Under Article 65 of the Limitation Act, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. (See Annasaheb v. B.B. Patil, 1995(2) RRR 370 : AIR 1995SC 895 at 902).
16. Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that Suit No.: 462/17 Tarun Chauhan & Anr. Vs. Sanjeev Chauhan & Anr Page No.16 of 18 he had no title at all.
17. An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner(that is, with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it. Thus, if A is in possession of a field of B's, he is in adverse possession of it unless there is something to show that his possession is consistent with a recognition of B's title. (See Ward v. Carttar (1866) LR 1 Eq. 29). adverse possession is of two kinds, according as ti was adverse from the beginning, or has become so subsequently. Thus, if a mere trespasser takes possession of A's property, and retains it against him, his possession is adverse ab initio. But if A grants a lease of land to B, or B obtains possession of the land as A's bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position. Adverse possession not only entitled the adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, but also, if the adverse possessor remains true owner, and thus converting the possessor into the owner, or of depriving the true owner of his right of action to recover his property and this although the true owner is ignorant of the adverse possessor being in occupation. (See Rains v. Buxion, 1880(14) Ch D 537).
22. It is well recognised proposition in law that mere Suit No.: 462/17 Tarun Chauhan & Anr. Vs. Sanjeev Chauhan & Anr Page No.17 of 18 possession however long does not necessarily mean that it is adverse to the true owner................"
43. The defendants have infact admitted that they were inducted as licencees by Smt. Sushila Devi. There is no pleading that when their possession became open and hostile qua Smt. Sushila Devi. On the contrary the defendants had claimed themselves to be owner by virtue of deed Ex. DW1/7.
44. Thus, it has to be concluded that defendants have miserably failed to prove their defence of ownership by way of adverse possession. Accordingly, this issue is decided against the defendants.
RELIEF
45. In view of the findings given on aforementioned issues , the suit of plaintiffs is dismissed with costs. Decree sheet be prepared. File be consigned to record room after due compliance.
(Announced in the open court) (SUSHANT CHANGOTRA) 16th November, 2019 ASCJ (SHAHDARA), KKD Digitally signed by SUSHANT CHANGOTRA SUSHANT CHANGOTRA Date: 2019.11.16 15:59:29 +0530 Suit No.: 462/17 Tarun Chauhan & Anr. Vs. Sanjeev Chauhan & Anr Page No.18 of 18