Delhi District Court
Sh. Sanjay Kumar vs Sh. Moti Chand on 15 March, 2023
IN THE COURT OF MS. MONA TARDI KERKETTA,
ADDITIONAL DISTRICT JUDGE-1,
NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI
RCA No.24/2020
Case CNR No.DLNE01-003914-2019
1. SH. SANJAY KUMAR
S/O SH. MOTI CHAND
2. SMT. SEEMA DEVI
W/O SH. SANJAY KUMAR
3. MASTER RISHABH KUMAR
4. MASTER RACHIT KUMAR
BOTH SONS OF SH. SANJAY KUMAR
ALL R/O H.NO.A-397,
GALI NO.19, BRIJPURI,
DELHI-110094 .... Appellants
Versus
1. SH. MOTI CHAND
S/O LATE SHIVDHARI
2. SMT. PANNA DEVI
W/O SH. MOTI CHAND
R/O H. NO.A-397,
GALI NO.19, BRIJ PURI,
DELHI-110094 ..... Respondents
Date of Filing : 16.12.2020
Date of completion of Final Arguments : 18.01.2023
Date of Judgment-in-Appeal : 15.03.2023
Final Decision : Appeal Dismissed.
Appearances:
For Appellants : Ms. Priyanka Agarwal, LAC.
For Respondents : Sh. Deepak Arora and Sh. Parveen
Thukral, Advs.
JUDGMENT-in-APPEAL
1. This regular civil appeal has been preferred against the judgment/decree dated 06.10.2020 passed by the court of Ld. ASCJ/GJ/JSCC, NORTH-EAST, KARKARDOOMA COURT, DELHI whereby Ld. Trial Court decreed the suit of respondents/plaintiffs for the relief of permanent & mandatory injunction and recovery of damages/mesne profit against appellants/defendants.
2. For the sake of convenience, the parties shall be denoted as they were before Ld. Trial Court. Sh. Sanjay Kumar, Smt. Seema Devi, Master Rishabh Kumar and Master Rachit Kumar, appellants herein as defendants and Sh. Moti Chand & Smt. Panna Devi respondents herein be referred to as plaintiffs.
3. The brief facts as disclosed in the plaint are that plaintiff no.1 and 2 are husband and wife and plaintiff no.1 is the special power of attorney holder of plaintiff no.2. Defendant no.1 is the eldest son of plaintiffs, defendant no.2 is the wife of defendant no.1 daughter-in-law of plaintiffs and defendant no.3 and 4 are sons of defendant no.1 and 2 and grand sons of plaintiffs. Plaintiffs are joint owners of the property bearing H.No.A-397, Gali No.19, Brij Puri, Delhi-110094, constructed over a portion of the land measuring 100 sq. yards. The plot of land over which suit property is built, was purchased by plaintiffs vide two different GPA, agreement to sell, possession letter, all dated 16.01.1989. Initially the property consisted of two plots measuring 50 sq. yards each purchased by plaintiffs vide above mentioned documents dated 16.01.1989. Thereafter in the year 2000, construction over the same was raised by plaintiffs jointly making it as one big plot of 100 sq. yards out of their own funds. Defendants are residing in the property as licensee in the portion shown in red colour in the site plan consisting of one room, toilet, bathroom, kitchen, stairs, and open space in the common use of plaintiffs and defendants of property bearing H.No.A-397, Gali No.19, Brij Puri, Delhi- 110094, constructed over a portion of the land measuring 100 sq. yards (hereinafter referred to as suit property).
4. It is further stated that plaintiffs had spent a sum of Rs.4 lakhs in the marriage of defendant no.1 and 2 and also supported defendants financially for their living and clearing debts out of earnings of plaintiff no.1 and also by selling her jewellery by plaintiff no.2. As the family of defendant no.1 grew, plaintiff no.1 found it difficult to maintain them and expressed his inability to support and maintain them because of which the behaviour of defendants towards plaintiffs became cruel and they started pressurizing plaintiffs to sale off the entire property and give him a share.
5. It is further stated that whenever plaintiffs asked defendant no.1 to support them with finances, he would start quarelling. The matter was reported even to police but no action was taken. Constrained by the misconduct of defendants, plaintiffs debarred them from all their movable and immovable assets and severed all their relations vide public notice dated 20.09.2015 published in the newspaper 'Rashtriya Sahara'. Plaintiffs asked defendant no.1 to vacate the suit property. However, defendant no.1 offered to pay Rs.10,000/- per month to plaintiffs towards maintenance and also undertook to pay the electricity and water charges separately on or before 5th day of every month and it was also agreed that the kitchen shall be separated but defendants backed out and misbehaved with plaintiffs.
6. It is further stated that plaintiffs got issued another public notice dated 15.10.2015 in the newspaper Rashtriya Sahara and asked defendants to vacate the house but defendants failed to vacate even after lapse of one month. It is further stated that on 02.12.2015, defendant no.1 fiercely quarreled with plaintiffs over the issue of vacating the house. Plaintiffs were constrained to send legal notice dated 03.12.2015 to defendants. After receiving the said notice, defendant no.2 threatened plaintiffs to implicate in false cases. Defendants replied the said notice vide reply dated 17.12.2015. As defendants failed either to vacate the suit property or to comply with the legal notice dated 03.12.2015, plaintiffs approached Trial Court by filing the suit. Plaintiffs prayed to pass the following reliefs in their favour and against defendants : -
6.1) A decree of mandatory injunction thereby directing defendants to remove themselves, their goods and articles from the suit property and handover the peaceful possession of the same to plaintiffs. 6.2) A decree of permanent injunction thereby restraining defendants from creating the third party interest, alienating or parting with the possession of the suit property and from interfering in the peaceful life of plaintiffs.
6.3) A decree of damages/mesne profit for an amount of Rs.90,000/- till filing of suit and further @ Rs.15,000/- per month till actual possession of the suit property is handed over to plaintiffs. 6.4) Cost of the suit.
7. Defendants contested the suit on the following grounds:
7.1) The value of the suit for the relief of possession is more than Rs.50 lakhs but plaintiffs neither valued the suit as per market value nor affixed the requisite court fees. As such, the plaint of plaintiffs is insufficiently stamped and the Trial court had no pecuniary jurisdiction to entertain and try the suit. In fact, the suit was liable to be returned for presentation to the Court of competent jurisdiction. 7.2) Plaintiffs have no locus standi to file the present suit. Plaintiffs have claimed their ownership on the suit property vide notarized GPA, Agreement to Sell, Receipt for payment, all dated 16.01.1989 executed by Sh. Mohd. Naseem Khan on behalf of Sh. Naimuddin vide GPA on 13.07.1988 in favour of plaintiffs in respect of two plots of 50 sq. yards each but not a registered sale deed. As such, plaintiffs have no right, title or interest in the suit property. (Ref: 2011 (4) Civil Court Cases 558 (S.C.), titled as Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr.) 7.3) The suit property is an ancestral property. Father of plaintiff no.1 namely Sh. Shiv Dhari and his brother namely Sh. Shanker Lal had purchased the house bearing no.373, Gali No.8, Shanti Mohalla, Gandhi Nagar, Delhi-110031 in the year 1974-75 jointly. After the death of Sh. Shivdhari, plaintiff no.1 had sold the share of his father to his brother Sh. Shankar Lal. Plaintiff no.1 had sold the jewelery of his mother and purchased the house no.377, Gali No.18, Brijpuri, Delhi in the year 1980- 81 from the amount received from the sale of the house no.373 and the jewelery of his mother. Thereafter, plaintiff no.1 had sold the house no.377, Gali No.18, Brijpuri, Delhi-94 and purchased the two plots (referred to the land underneath the suit property) measuring 50 sq. yards each in the year 1989 from one Mohammed Nasim by way of unregistered GPA, agreement to sell, receipt etc. 7.4) The old construction was demolished in the year 2000 and the house was constructed in stages till 2009. After demolition, plaintiffs were not capable of completing the construction of the house from their own earning as they were not working regularly due to bad health conditions after 2002.
7.5) Defendant no.1 spent about Rs.6,00,000/- for construction and renovation of the house from his own earnings. He earned the said income from the business of survey after passing of 12 th class in 1998. Defendant no.1 also used to sit with his father at the dry cleaning shop since the age of 12 years. He also paid Rs.80,000/- for repair and renovation of the shop in August, 2012; Rs.10,000/- for water connection in the month of August/September, 2015. Hence, the suit property is not self-acquired by plaintiffs. Defendant no.1 is the co-owner and has a legal right, title, interest in the suit property.
7.6) Plaintiffs have not come with clean hands and concealed the true and correct facts from the Hon'ble Court. Defendant no.1 is running his business from the suit property in the name of M/s Aqua Care & Maintenance Enterprises. Defendant no.2 is also doing the work of ironing clothes from the suit property.
7.7) Defendants are neither licensee nor unauthorized occupants in the suit property and hence the claim of mesne profits/damages is not maintainable.
7.8) The present suit is bad for mis-joinder and non-joinder of the necessary parties. Plaintiffs have impleaded the minor children as defendant no.3 and 4 without appointing their Guardian under the provisions of law through Court for suing them.
7.9) Plaintiffs are not entitled to the equitable relief of injunction.
8. Plaintiffs filed the replication to the written statement of defendants in which they reiterated the facts of the plaint and denied the contents of defendant's written statement.
9. Vide order dated 08.06.2018, Ld. Trial Court was pleased to frame the following issues :
9.1) Whether the plaintiffs are entitled to the relief of mandatory injunction as prayed for ? OPP 9.2) Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for ? OPP 9.3) Whether the plaintiffs are entitled to mesne profits / damages for an amount of Rs.90,000/- till filing of the suit and further @ Rs.15,000/- per month till the handing over of the actual possession of the suit property to the plaintiffs ? OPP 9.4) Whether this Court has no pecuniary jurisdiction to try the present suit? OPD 9.5) Whether the plaintiffs have no locus standi as they are not the owners/landlords to the suit property? OPD 9.6) Whether the suit property is ancestral property? OPD 9.7) Relief.
10. In order to prove their case, plaintiff no.1 examined himself as PW-1 and tendered his evidence by way of affidavit Ex.PW-1/A and relied upon the following documents :
a) Ex.PW-1/1 : Copy of notarized SPA dated 01.03.2016 (OSR).
b) Ex.PW-1/2 : Copy of his voter ID card (OSR).
c) Ex.PW-1/3 : Copy of registration form slip, GPA,
agreement to sell, receipt dated 16.01.1989
in favour of plaintiff no.2 (OSR).
d) Ex.PW-1/4 : Copy of registration form slip, GPA,
agreement to sell, receipt dated 16.01.1989
in favour of plaintiff no.1 (OSR).
e) Ex.PW-1/5 : Copy of electricity connection slip in
favour of plaintiff no.2 dated 21.12.2000
(OSR).
f) Ex.PW-1/6 : Copy of electricity bills in the name of
plaintiff no.2(OSR).
g) Ex.PW-1/7 : Copy of MTNL Bill in the name of
plaintiff no.2.
h) Ex.PW-1/8 : Original four photographs.
i) Ex.PW-1/9 : Copy of Hindi Newspaper "Dainik Jagran"
dated 12.01.2016 (OSR).
j) Ex.PW-1/10 : Copy of public notice dated 20.09.2015 (OSR).
k) Ex.PW-1/11 : Copy of public notice dated 15.10.2015 in Rashtriya Sahara.
l) Ex.PW-1/12 : Copy of application to SHO PS Gokal Puri.
(OSR).
m) Ex.PW-1/13 : Copy of legal notice dated 03.12.2015.
n) Ex.PW-1/14 : Copy of reply dated 17.12.2015.
o) Ex.PW-1/15 : Copy of police complaint to Commissioner of Police, DCP-NE, Delhi, SHO, PS Gokal Puri, Vide DD No. 776 dated 13.01.2016 (OSR).
p) Ex.PW-1/16 : Copy of five speed post receipts dated 13.01.2016 (OSR).
q) Ex.PW-1/17 : Copy of rejoinder notice dated 15.01.2016 (OSR).
r) Ex.PW-1/18 : Copy of two speed post receipts. (OSR).
s) Ex.PW-1/19 : Original site plan.
t) Ex.PW-1/20 : Copy of police complaint to Commissioner
of Police, DCP, NE, SHO PS Gokal Puri,
Vide DD No.76B dated 21.04.2016 (OSR).
u) Mark A : Copy of three speed post receipts dated
21.04.2016.
v) Mark B : Copy of settlement dated 12.04.2016.
w) Ex.PW-1/23 : Copy of RTI dated 19.05.2017 with postal
order dated 19.05.2017.
v) Ex.PW-1/24 : Copy of reply of RTI dated 13.06.2017.
11. Plaintiff no.1 was cross-examined by learned counsel for defendants. Vide order dated 03.04.2019, plaintiff's evidence was closed on the statement of plaintiff no.1.
12. Subsequent thereto, the matter was fixed for defendant's evidence. However, despite numerous opportunities, defendants did not lead any evidence in support of their case. The Trial Court was constrained to close defendant's evidence vide order dated 20.02.2020.
13. Subsequent thereto, the matter was fixed for final arguments. After hearing the final arguments, Ld. Trial Court concluded that suit of plaintiff deserved to be decreed against defendants on the following grounds:
13.1) Defendants did not deny execution of the title documents in favour of plaintiffs. The judgment of Suraj Lamp case will not affect the transfer of property done through agreement to sale and GPA executed in genuine transaction and would operate only prospectively. Admittedly, the land underneath the suit property was purchased by plaintiffs in the year 1989 and since then they have been in possession thereof. Hence, it is wrong to say that the transfer documents Ex.PW-1/3 and Ex.PW-1/4 were executed to cover up a sham transaction. Furthermore, the Hon'ble Supreme Court has also observed that such unregistered documents are being continued to be treated as existing agreement of sale and nothing prevented the affected parties from getting registered Deeds of Conveyance to complete their title; the said SPA/GPA/Will transactions could also be used to obtain specific performance or to defend possession under Section 53A of Transfer of Property Act.
13.2) Plaintiffs succeeded in proving that the suit property was validly purchased from the previous owner. On the other hand, defendants failed to prove that no titular rights were conveyed to plaintiffs on execution of these documents. Resultantly, the plea of defence that plaintiffs are not the owners of the suit property was rendered baseless. 13.3) Defendants failed to lead any evidence to prove their defence or that any HUF of the family was in existence, which allowed plaintiffs to use the fund for acquiring the property. Even otherwise, all ancestral properties are not necessarily HUF property.
13.4) A suit for mandatory injunction was permissible where the license stood terminated and the title of plaintiff was not in dispute. The frame of the suit for Mandatory Injunction was proper and there was no fault in the valuation arrived at the purposes of Court fees and jurisdiction. 13.5) On the basis of evidence led, a sum of Rs.8,000/- per month as damages/mesne profit would be appropriate.
14. Grounds of appeal are as under:
14.1) As per Government Record, the suit property is Gram Sabha land as such the suit filed by plaintiffs is itself not maintainable. Plaintiffs concealed that the suit property is situated upon the land which belongs to Gram Sabha. As the suit property is a part of Gram Sabha land, thus Gram Sabha/Union of India was a necessary party to the suit but plaintiffs did not implead it in the array of parties.
14.2 ) Ld. Trial Court failed to consider that the suit filed by plaintiffs is not properly valued for the purpose of jurisdiction and court fees.
14.3 ) Defendants have been in uninterrupted possession of the suit property since last more than 20 years and by virtue of law of adverse possession, defendants become owner of the suit property. 14.4) Ld. Trial Court failed to consider that plaintiff no.1 without knowledge of plaintiff no.2 filed special power of attorney and due to this reason plaintiff no.2 could not appear before the Court, whereas plaintiff no.2 is/was not interested to get the suit property vacated from defendants. 14.5) Ld. Trial Court failed to consider that the suit of plaintiffs was not maintainable in its present form.
14.6) The impugned judgment and decree are not proper as plaintiffs did not file any genuine title documents to prove their ownership in the suit property. Plaintiffs failed to file any other documents such as mutation document, house tax receipt etc. showing their ownership in the suit property.
14.7) The title documents being unregistered and unstamped in terms of Section 35 of Indian Stamp Act and Section 17(1) of Indian Registration Act, could not have been read in evidence. 14.8) Suit property was an ancestral property and the land beneath was purchased out of the HUF fund. Defendant no.1 also contributed in building, developing and maintaining the suit property out of his own funds.
14.9) Ld. Trial Court failed to appreciate that plaintiffs categorically failed to establish the relationship of licensee and licensor between the parties. Ld. Trial Court failed to consider the evidence led by defendants to the effect that defendants are not licensee of plaintiffs and they are residing in the suit property on the basis of independent title.
15. The court heard the arguments submitted on behalf of parties and perused the record with the assistance of learned counsels for the parties.
16. Points of determination:
Based on aforesaid grounds, the points for determination are framed as under:
A. Whether the findings and conclusions drawn by Ld. Trial Court are bad in eyes of law and legally not sustainable and impugned judgment and decree dated 06.10.2020 are liable to be set aside?
B. Whether plaintiffs were not entitled to the reliefs claimed in the plaint?
17. Now the court shall deal with the aforesaid points for determination.
Point A of determination: Whether the findings and conclusions drawn by Ld. Trial Court are bad in eyes of law and legally not sustainable and impugned judgment and decree dated 06.10.2022 are liable to be set aside ?
18. Defendants argued that as they have been in uninterrupted possession of the suit property since last more than 20 years and by virtue of law of adverse possession, they became owner of the suit property. Defendants further argued that the suit property was situated in Gram Sabha land and as it belonged to Gram Sabha, plaintiffs could not have become owner of the suit property and without joining the Gram Sabha/Union of India as a party to the suit, the suit of plaintiffs was not maintainable.
In this regard, it is observed that these pleas were never taken by defendants before Ld. Trial Court and for the first time, defendants claimed so in the present appeal, therefore, reversal of impugned judgment and decree dated 06.10.2022 is not permissible on these grounds. Further, the court finds that there is no iota of evidence to prove that the suit property formed a part of Gram Sabha land and for the same reason, joinder of Gram Sabha or Union of India was not necessary in the array of parties by plaintiffs to maintain their suit.
19. Defendants further argued that the suit of plaintiffs was not maintainable in its present form and it was not properly valued for the purpose of jurisdiction and court fees. On these aspects, this court finds that Ld. Trial Court rightly decided these issues and no infirmity is found. The suit of plaintiffs in the capacity of owners for eviction of defendants being gratuitous licencee, from the suit property by way mandatory injunction is very much maintainable and therefore, the suit was properly valued and requisite court fees were affixed by plaintiffs. (Ref: Sant Lal Jain Vs. Avtar Singh(1985)2 SCC 332; Maria Margarida Sequeria Fernandes & Ors. Vs. Erasmo Jack De Sequeria,(2012) 5 SCC 370; Gian Chand Vs. Shri Ram Chander,(RSA No.69/2014; Puneet Chadha Vs. B.K. Chadha CRP No.152/2009, decided on 01.12.2009;Sunil Sharma Vs. Smt. Uma Sharma(166/2004) . The arguments of defendant that Ld. Trial Court failed to consider that plaintiff no.1 without knowledge of plaintiff no.2 filed special power of attorney and due to this reason plaintiff no.2 could not appear before the Court, whereas plaintiff no.2 is/was not interested to get the suit property vacated from defendants are irrelevant and not essential for the purpose of deciding the present appeal.
20. Now dealing with remaining important grounds taken in the appeal. Defendants argued that plaintiffs did not file any genuine title documents to prove their ownership in the suit property and the title documents filed being unregistered and unstamped in terms of Section 35 of Indian Stamp Act and Section 17(1) of Indian Registration Act, could not have been read in evidence. On the other hand, plaintiffs controverted the same reiterating the findings of Ld. Trial Court as proper and just.
21. It is observed that to prove their ownership in the suit property, plaintiffs relied upon title documents of the suit property executed in their favour exhibited as Ex.PW1/3 and Ex.PW1/4. These title documents were proved as per law by producing their original in the court. Defendants questioned plaintiffs' ownership rights over the suit property by taking plea that no title, right or interest in the suit property was conveyed to plaintiffs based on said unstamped and unregistered documents and not being a sale deed. It is observed that on the one hand, defendants claimed that plaintiffs could not have become owner of the suit on the basis of Ex.PW-1/3 & Ex.PW-1/4 but on the other hand, defendants also claimed that the suit property was an ancestral property and the same was purchased from the HUF funds. Defendants in fact nowhere disputed execution of these documents in favour of plaintiffs for purchasing the land underneath the suit property. In the opinion of this court as defendants admitted purchase of the land underneath the suit property by plaintiffs, they were not entitled to challenge the legality and validity of transfer documents.
22. From Para nos. 26 & 27 of the judgment titled as Suraj Lamp & Industries Ltd. Vs. State of Haryana 2011(4) RCR(Civil) 669, it is clear that certain protections have been granted to GPA/Agreement to sell transactions entered into prior to the date of judgment. This judgment will not affect validity of transfer documents of plaintiffs in genuine transactions. Ld. Trial court rightly held that the Hon'ble Superior Courts clearly stated that such unregistered documents are being continued to be treated as existing agreement of sale and nothing prevented the affected parties from getting registered Deeds of Conveyance to complete their title; the said SPA/GPA/Will transactions could also be used to obtain specific performance or to defend possession under Section 53A of Transfer of Property Act or to claim possession of the suit property as at least right to suit property would stand transferred to person in whose favour such documents have been executed. (Ref: Maya Devi Vs. Lalta Prasad, Civil Appeal No.2448, DOD 19.02.2014; O.P. Aggarwal & Anr. Vs. Akshay Lal & Ors. 188(2012) DLT 525).
23. Defendants argued that Ld. Trial Court failed to appreciate that plaintiffs could not establish the relationship of licensee and licensor between the parties and to consider the evidence led by defendants that defendants are not licensee of plaintiffs but residing in the suit property on the basis of independent title.
24. Section 52 of the Indian Easement Act, 1882 defines the term ''License". A license as defined in the said section does not create or transfer any interest in an immovable property. A Licensee's possession is only permissive and he can be thrown out at any time. (Ref: Sultan Begum Vs. Prem Chand AIR 1997 SC 1006). Further, a child lives with his parents in the house of the parents under a permissive possession and not strictly as a Licensee. No rights akin to the rights of a licensee are available to a child. (Ref: Ramesh Kumar Handoo Vs. Binay Kumar Basu, (2007) ILR 10 Delhi 79).
25. As discussed above, it is proved on record that plaintiffs are the owner of the suit property and not defendants. Defendants are not claiming any tenancy rights in the suit property and they are living in the suit property belonging to plaintiffs at their sweet will only in the capacity of licensee. Living in the suit property for several years, does not create any legal right in favour of defendants to the effect that their license cannot be revoked at all. Defendants did not lead any evidence and in cross- examination of plaintiff no.1, defendants failed to extract any admission of plaintiffs or to rebut the claims of plaintiffs. It is wrongly stated by defendants that Ld. Trial Court did not consider their evidence to prove that they are not residing in the suit property as licensee but by virtue of their independent right in the suit property.
26. Defendants further argued that the suit property was an ancestral property and the land beneath was purchased out of the HUF fund; defendant no.1 also contributed in building, developing and maintaining the suit property out of his own funds.
27. It is observed that defendants did lead any evidence to prove their pleas that father of plaintiff no.1 and his brother had purchased the house bearing no.373, Gali No.8, Shanti Mohalla, Gandhi Nagar, Delhi- 110031 in the year 1974-75 jointly and after the death of his father, plaintiff no.1 sold the share of his father to his father's brother or that plaintiff no.1 had sold the jewelery of his mother and purchased the house no.377, Gali No.18, Brijpuri, Delhi in the year 1980-81 from the amount received from the sale of the house no.373 and the jewelery of his mother. Thereafter, plaintiff no.1 had sold the house no.377 and purchased the two plots (referred to the land underneath the suit property) measuring 50 sq. yards each in the year 1989 from one Mohammed Nasim by way of unregistered GPA, agreement to sell, receipt etc.
28. For argument sake, even if it is assumed that plaintiff no.1 had purchased the land beneath the suit property in the manner as mentioned above and because of which defendant no.1 has a claim in the capacity of legal heir, still the suit property continues to be self-acquired property of plaintiffs. In the judgment of Commissioner of Wealth Tax, Kanpur etc. V. Chander Sain, AIR 1986 SC1756 and Yudhister Vs. Ashok Kumar AIR 1987 SC558 , it has been held that even if a male Hindu receives property from parental ancestors, unless there exists HUF, the property which is inherited by a male Hindu from his parental ancestors, will be individual property/self-acquired property in his hands of course the inheritance should be after coming into existence of the Hindu Succession Act, 1956. Relying upon the said judgment, even if defendant no.1 did receive funds after selling the ancestral property, the same was self-acquired in his hands as much as the funds were received after passing of Hindu Succession Act 1956. Defendants can have no right, title or interest in the funds which plaintiff no.1 received from the ancestral property or in the plot or property purchased from the income received from the ancestral assets. Thus, suit property is a separate and self- acquired property of plaintiffs.
29. Further, defendants did not lead any evidence to prove that the suit property was constructed or renovated or repaired by them. Even if it is presumed that defendants had contributed in the construction of the suit property however it does not confer any right or title in the suit property as it is well settled that mere construction of a superstructure cannot give rise to an interest in the land beneath the superstructure. Defendants nowhere pleaded that they are licensee in the suit property and they had raised a permanent construction acting upon license after incurring expenditure so as to avail the benefit of section 60(b) of the Easement Act. The plea of contribution in construction of the suit property without there being any documentary evidence, can in no manner confer any title or right upon defendants in the suit property. Defendants could not prove that the old construction was demolished in the year 2000; the house was constructed in stages till 2009; after demolition, plaintiffs were not capable of completing the full construction from their own funds after 2002. Hence, it came on record that there was no joint family fund or the suit property was purchased out of the joint family fund or defendant no.1 had contributed in building, developing or repairing the suit property.
30. Now dealing with revocation of license and award of mesne profit. At the outset, it is observed that defendants have not challenged the findings of Ld. Trial Court on these aspects in the present appeal. However, whether Ld. Trial Court arrived at the right conclusion on these issues needs to be looked into. The notice of revocation of license dated 03.12.2015 along with postal receipts, Ex.PW-1/13 and Ex.PW-1/15 were placed on record. Defendants had replied to the same vide reply dated 17.12.2015. Even otherwise, it is well settled that no separate notice is required to terminate the license as filing of the suit by plaintiffs was itself an express revocation of the licence of defendants by plaintiffs. (Ref:
Chiddi Ram Vs. Ram Das Foundation RSA No. 12/2007 Dated 06.04.2011). Hence, the court is satisfied that the license of defendants was duly terminated by plaintiffs.
31. Ld. Trial Court held that the date of termination of license of defendants shall be calculated from the date of legal notice dated 03.12.2015 Ex.PW-1/13 and assessed quantum of damages as per prevailing rental income @ Rs.8,000/- per month from the date of legal notice dated 03.12.2015 till vacation of the suit property by defendants. As the period and the rate of mesne profit/damage as assessed by Ld. Trial Court have not been challenged or any grievance raised by defendants so the same have to be treated as correct and justified and in fact, no infirmity is found in the findings of Ld. Trial Court on these aspects.
32. POINT B: Whether plaintiffs were not entitled to the reliefs claimed in the plaint ?
In view of the discussion and findings returned on the point A of determination, the claims of defendants that plaintiffs are not entitled for any relief as claimed in the plaint, are found without merits.
33. Conclusion :-
The points of determination are accordingly answered in favour of respondents/plaintiffs and against appellants/defendants. This court finds no perversity or illegality in the judgment and decree dated 06.10.2020 and the same are confirmed by this court as well.
Consequently, the present appeal stands dismissed, leaving the parties to bear their own costs.
34. Record of the Ld. Trial Court be returned with the copy of this judgment.
35. Appeal file be consigned to record room, after completion of necessary formalities.
Announced in the open court MONA TARDI KERKETTA
on this 15th day of March, 2023 Addl. District Judge(NE)-01
Karkardooma Courts, Delhi