Delhi District Court
Sh. Mathan Singh vs Sh. Ajay Kumar on 3 April, 2019
IN THE COURT OF ACJCCJARC, SHAHDARA, KARKARDOOMA
COURTS, DELHI
Presided By : Sudhir Kumar Sirohi, DJS
Civil Suit No: 540/17
Sh. Mathan Singh
S/o Late Sh. Hargyan Singh
r/o 1/I, Shastri Gali Babarpur,
Delhi110032 ... Plaintiff
Versus
1. Sh. Ajay Kumar
s/o Sh. Mathan Singh
2. Mrs. Anjali @ Anju
w/o Sh. Ajay Kumar
Both are r/o
r/o 1/I, First Floor, Shastri Gali,
West Babarpur, Shahdara,
Delhi110032 ... Defendants
SUIT FOR MANDATORY AND PERMANENT
INJUNCTION AND FOR DAMAGES
DATE OF INSTITUTION : 20.05.2017
DATE OF FINAL ARGUMENTS : 11.03.2019
DATE OF DECISION : 03.04.2019
JUDGMENT
1. The plaintiff had filed the present suit against defendants. By way of this suit, the plaintiff has sought relief for mandatory and permanent injunction Civil Suit No. 540/17 Mathan Singh Vs. Ajay Kumar & Ors.
Page No. 1 of 11and for damages.
2. In order to justify the grant of the aforesaid reliefs/prayer, the plaintiff has interalia pleaded in the plaint that plaintiff is senior citizen and is aged about 72 years and has been residing at the address i.e. H. No. 1/I, Shastri Gali, Babarpur, Delhi 110032. The defendant no. 1 is the son of the plaintiff and the defendant no. 2 is the daughter in law of the plaintiff, being the wife of the defendant no. 1. The plaintiff is the sole and absolute owner of property bearing no. 1/I, Shastri Gali, Babarpur, Delhi 110032, which he purchased in the year 12.02.1999 from Sh. Krishan Kumar Sharma S/o Sh. Kanwar Bhan Sharma, by virtue of registered SPA, Deed of Will, Agreement to sell all dated 12.02.1999, duly registered with the Sub Registrar. However, after purchasing the said property, the plaintiff constructed the said property time to time and presently it has been got constructed by a builder on collaboration in the month of June, 2012 from ground up to 4th floor and two floors i.e. second and third floors have been given to the builder as per collaboration agreement through registered deeds and the 4th floor is being used by elder son of plaintiff namely Sanjay.
3. It is further averred by the plaintiff that the defendants were married with each other in the month of November, 2014 and it is the third marriage of both the defendants. After marriage, the defendants showed their inability to have a rented accommodation and further showed their financial crises and requested the plaintiff to permit to stay at first floor of the said property as a licensee. The first floor in the property bearing no. 1/I, Shastri Gali, Babarpur, Delhi 110032, is hereinafter called the suit property. The behaviour of the defendants was not good towards the plaintiff earlier also, but after their Civil Suit No. 540/17 Mathan Singh Vs. Ajay Kumar & Ors.
Page No. 2 of 11marriage and on the joint request of the defendants, the plaintiff got agreed to allow them to reside at fist floor in the aforesaid property and the defendants came into possession of first floor of the property of the plaintiff as a licensee without any license fee, while the electricity and water charges were decided to be paid by the defendants separately. It is also pertinent to mention here that the defendant no. 1 was having a daughter namely Babu Vandana from his earlier marriage, but she was not being looked after by him, therefore, the plaintiff also started looking her after and bearing her all expenditure including foods, diet, nutrition, educational expenses etc.
4. It is further averred by the plaintiff that after passing of sometime, the behaviour of the defendants turned malafide towards the plaintiff and his wife and towards his property and they started harassing, humiliating, torturing and maltreating the plaintiff in a daily routine and even started demanding to transfer half share in the property of the plaintiff. In this regard, the plaintiff has already made a number of complaints to the concerned officials. Moreover, the plaintiff also disowned and debarred the defendants from his all movable and immovable properties and also severed his all relations from the defendants by way of publication of public notice dated 01.02.2016 in daily newspaper "Mahamedha" and asked both the defendants to vacate the first floor of the property of the plaintiff by moving their all belongings from there, but both became offending and had beaten the plaintiff mercilessly. Not only this, the matter was also reported to the police and MLC of the plaintiff was also prepared. It is further averred that the plaintiff has already suffered a lot of mental pain and agony and did not wish to continue their license to reside in first floor of his property and did not want to keep the defendants as licensee/permissive users, therefore, by virtue of legal notice dated Civil Suit No. 540/17 Mathan Singh Vs. Ajay Kumar & Ors.
Page No. 3 of 1125.04.2017, the plaintiff terminated the license of the defendants to reside in the suit property/first floor of his property an called upon the defendants to vacate the same by removing their all belongings from the suit property within the time period as given under the notice, but the defendants neither removed their belongings from the suit property nor sent and reply to the legal notice. It was also conveyed to the defendants that if they after the expiry of period given under the notice, continued the use of the suit property, then they should be termed as unauthorized occupant and should be liable to pay a sum of Rs. 10,000/ per month as damages for use and occupation charges, (apart from electricity and other charges), for illegal and unauthorized use and occupation of the premises, which is the prevailing rate of rent in the area for the same kind of premises, hence the plaintiff is also entitled for damages. The plaintiff has left with no other option except to file the present suit as he is apprehending creation of third party interest in the suit property. Hence, the present filed by the plaintiff.
Written statement on behalf of defendant.
5. Summons were issued against the defendant no. 1 and 2 vide order dated 20.05.2017 and defendant no. 1 was served on 26.05.2017 but did not appear therefore he was proceeded exparte vide order dated 10.05.2018 and written statement was filed on behalf of defendant no. 2 alleging that the suit is without cause of action and the plaintiff has no right, title or interest in the suit property. Moreover, the premises in question is matrimonial house of defendant no. 2 being the wife of defendant no. 1 and defendant no. 1 gave amount in construction of the property.
6. After completion of proceedings, following issues were framed Civil Suit No. 540/17 Mathan Singh Vs. Ajay Kumar & Ors.
Page No. 4 of 11vide order dt. 05.07.2018:
1. Whether the plaintiff is entitled to the decree of mandatory injunction against the defendants as prayed in prayer 'A'? OPP
2. Whether the plaintiff is entitled to the decree of permanent injunction against the defendants as prayed in 'B'? OPP
3. Whether the plaintiff is entitled to the damages against the defendants for the sum of Rs. 10,000/, as prayed? OPP
4. Whether the plaintiff is entitled to the cost?
OPP
5. Whether the suit is without cause of action? OPD2
6. Whether the suit is bad for nonjoinder and misjoinder of proper and necessary party?
OPD2
7. Whether the plaintiff has no right, title or interest in the suit property? OPD2
8. Relief.
7. Plaintiff in order to prove her case examined himself as PW1 and relied upon the following documents.
a) evidence by way of affidavit as Ex.PW1/A
b) Registered SPA, Deed of Will Agreement to sell and receipt is Ex.PW1/1 (OSR) (colly) executed by Mr. Krishan Kumar Sharma in favour of plaintiff dated 12.02.1999.
c) Site plan is Ex.PW1/2, Civil Suit No. 540/17 Mathan Singh Vs. Ajay Kumar & Ors.Page No. 5 of 11
d) Copy of legal notice dated 25.04.2017 is Ex.PW1/3,
e) Copy of postal receipts (colly) is Ex.PW1/4,
f) police complaint to DCP GTB Enclave is PW1/5 (OSR),
g) copy of MLC is Ex.PW1/6 (OSR),
h) copy of Aadhar Card is Ex.PW1/7 (OSR) and
i) publication in newspaper dated 01.02.2016 is Ex.PW1/8, Plaintiff was cross examined by Ld. counsel for defendant no. 2.
8. Defendant no. 2 in order to prove her defence has examined herself as DW2 and relied upon the following documents:
a) evidence by way of affidavit Ex.DW2/A,
b) FIR no. 222/2016 PS Welcome Delhi Ex.PW2/1,
c) FIR no. 352/2017 PS Welcome Delhi Ex.PW2/2,
d) Medical report of witness Ex.PW2/3,
e) electricity bill Ex.DW2/4 and
f) gas connection documents Ex.PW2/5.
She was cross examined by the counsels of other party.
9. Defendant has also examined Mr. Sodan Singh, Section Office, BSES Distt. Nand Nagri as DW3 who has deposed that he is the summoned witness in this matter and has brought the record of electricity connection bearing CA no. 151087136 in the name of Mr. Ajay son of Mr. Mathan Singh r/o 1/I, UGF, Khasra no. 556/308 Shashtri Gali, Babarpur, Delhi32 and the record on the basis of which the electricity connection was provided to Mr. Ajay. Documents with respect to the electricity connection of the abovesaid CA number is Ex.DW3/1 (colly) and Section 65 B certificate issued by Mr. Mukesh Tyagi with respect to the documents Ex.DW3/1 (colly) is Ex.DW3/2. He was cross examined by the Ld. counsel of plaintiff.
10. I have heard the arguments addressed by counsel for the plaintiff Civil Suit No. 540/17 Mathan Singh Vs. Ajay Kumar & Ors.
Page No. 6 of 11Mr. Sachet Sharma and Ld. Counsel for he defendant no. 2 Mr. V. K. Azad.
Issue wise discussion:
11. Now undersigned is deciding issues. Issue no. 1, 5, 6 and 7 will be decided by common discussion as all are interrelated. Issue no.1 Whether the plaintiff is entitled to the decree of mandatory injunction against the defendants as prayed in prayer 'A'? OPP Issue no. 5 Whether the suit is without cause of action? OPD2 Issue no.6 Whether the suit is bad for nonjoinder and misjoinder of proper and necessary party?OPD2 Issue no.7 Whether the plaintiff has no right, title or interest in the suit property? OPD2 The plaintiff has deposed that he is the sole owner of the property and filed the documents of the property i.e. registered SPA executed by Mr. Kishan Kumar Sharma in favour of plaintiff dated12.02.1999, registered deed of will of Mr. Kishan Kumar Sharma dated 12.02.1999 in favour of plaintiff, agreement to sell dated 12.02.1999 executed by Mr. Kishan Kumar Sharma in favour of plaintiff and receipt of Rs. 50,000/ executed by Mr. Kishan Kumar Sharma in favour of plaintiff. Defendant on the another hand has taken the ground that plaintiff is not the owner of the property, the house is matrimonial home and the amount was given by her husband in construction of the house but during cross examination defendant no. 2 deposed that she does not have any documentary proof to show that the plaintiff is not the owner of the property and it was told to her by her husband means it is a hearsay evidence. During cross examination, DW2 also deposed that her husband is residing with her but despite this fact, defendant no. 1/husband has not been called as a witness by the defendant no. 2. While on the another side the plaintiff has placed the documents of property in his favour. Defendant no. 2 has also taken defence that her husband gave amount in construction of the floor in question but during cross examination defendant no. 2 deposed that her husband and Jeth had given Civil Suit No. 540/17 Mathan Singh Vs. Ajay Kumar & Ors.
Page No. 7 of 11amount in construction of the floors but she does not have any documentary proof for the same. Defendant no. 2 has not even bothered to call her husband as a witness who is presently residing with her.
12. Section 52 of Indian Easement Act defines licence as under: "Licence defined" Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or any interest in the property, the right is called a licence".
13. But the relation between the plaintiff and defendant is not of licensor and licensee in strict sense. "Concept of permissive possession is different from concept of a licensor. 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 (Ramesh Kumar Handoo Vs. Binay Kumar Basu: RSA 286/07 dated 19.11.2007 Hon'ble High Court of Delhi authored by HMJ Mr. Pradeep Nandrajog" and the same view was also affirmed in the judgment of Virender Kumar and Ors Vs Jaswant Rai and Ors. Hon'ble High Court of Delhi 10.03.2011 authored by HMsJ Indermeet Kaur.
14. In terms of abovesaid judgments, when there is no licensor licensee relationship between the plaintiff and the defendants as the plaintiff allowed defendants i.e. his son and daughter in laws to live in his house and defendants were in permissive possession, therefore, the benefit of Section 60 of Indian Easement Act is not available to the defendants, though, the Civil Suit No. 540/17 Mathan Singh Vs. Ajay Kumar & Ors.
Page No. 8 of 11defendant no. 2 has taken defence that the amount was given for construction of the said floor by her husband. Even otherwise also to get the benefit of Section 60 (b) of Indian Evidence Act three conditions have to be fulfilled:
(i) the licencee executed work of a permanent character,
(ii) he did so acting upon the licence, and
(iii) he incurred expenses in doing so.
Therefore, when the licence itself was not existing in favour of defendants, therefore, the question of benefit of Section 60 (b) does not arise at all and the defence that her husband gave amount in construction of house is of no use to defendant no. 2.
15. Defendant no. 2 has called DW3 Mr. Sodan Singh as a witness in her defence with respect to electricity connection in favour of defendant no. 1 at the suit premises and DW3 has brought the documents on basis of which the electricity connection was granted to the defendant no. 1 and those are the documents executed by Mr. Kishan Kumar Sharma in favour of plaintiff and NOC of the plaintiff for installing the electricity meter in favour of defendant no. 1 (Ex.DW3/1 Colly) in which it has been mentioned that plaintiff is the actual owner of the property. Therefore, from the documents filed by the plaintiff and documents brought on record by the defendant no. 2 it is on record that plaintiff is the absolute owner of the property and defendant no. 1 or defendant no. 2 do not have any right in the property and as defendant no. 1 does not have any right in the property and suit property is self owned property of plaintiff, therefore, the property is not the matrimonial home of defendant no. 2.
Civil Suit No. 540/17Mathan Singh Vs. Ajay Kumar & Ors.
Page No. 9 of 1116. Plaintiff has sent legal notice dated 25.04.2017 (Ex.PW1/3) to the defendants withdrawing the permission to live in suit premises and even by the filing of the present suit, the plaintiff has withdrawn permission from the defendants to live in the suit property, therefore, the defendants do no have any right to stay in the suit premises. Accordingly, the plaintiff has discharged the onus of first issue and defendant no. 2 has failed to discharged the onus of 5, 6 and 7 issue.
Issue No. 2 Whether the plaintiff is entitled to the decree of permanent injunction against the defendants as prayed in 'B'? OPP
17. As the issue no. 1 is decided in favour of plaintiff and the testimony of plaintiff remained unchallenged with respect to defendant no. 1 being exparte, in the absence of any defence in favour of defendant no. 2 as dealt in discussion of issue no. 1 and in light of the fact that defendant no. 1 and 2 does not have any right in the suit premises, therefore, the plaintiff has discharged the onus of the present issue.
Issue No. 3 Whether the plaintiff is entitled to the damages against the defendants for the sum of Rs. 10,000/, as prayed? OPP
18. Plaintiff has not led any evidence to show that the suit property or equivalent property as that of suit property can fetch the monthly rent of Rs. 10,000/. Even the plaintiff has not mentioned on what basis he came to figure of Rs. 10,000/ for unauthorized occupation of the suit property by the defendants. Accordingly, the issue is decided against the plaintiff as plaintiff failed to discharged the onus of this issue.
Issue no. 4 Whether the plaintiff is entitled to the cost? OPP Civil Suit No. 540/17 Mathan Singh Vs. Ajay Kumar & Ors.
Page No. 10 of 1119. As the issue no. 1 and 2 have been decided in favour of the plaintiff, therefore, plaintiff is entitled to the cost.
Relief.
20. In view of the abovesaid discussion, the suit of the plaintiff is decreed and the plaintiff is entitled to the decree of mandatory injunction in favour of the plaintiff and against the defendants thereby directing the defendants to vacate first floor in the property bearing no. 1/I, Shashtri Gali, Babapur Delhi32 as shown in red colour in the site plan Ex.PW1/2 and hand over actual physical possession of suit property i.e. first floor in the property bearing no. 1/I, Shashtri Gali, Babapur Delhi32 as shown in red colour in the site plan Ex.PW1/2 which is in possession of defendant no.1 and 2 as shown in red colour in the site plan (Ex.PW1/2). Decree of permanent injunction has also been passed in favour of plaintiff and against the defendant no. 1 and 2 restraining the defendant no. 1 and 2 from creating any third party interest in the suit property i.e. first floor in the property bearing no. 1/I, Shashtri Gali, Babapur Delhi32 as shown in red colour in the site plan Ex.PW1/2. Plaintiff is also entitled to the cost. Pending applications, if any, stands disposed off. Upon preparation of the decree sheet by the Reader, the file shall be consigned to the record room.
Announced in open Court (Sudhir Kumar Sirohi)
today on 03.04.2019 Administrative Civil Judge
SHD/KKD Courts/Delhi
Digitally signed
by SUDHIR
KUMAR
SIROHI
SUDHIR Location:
KUMAR Shahdara
Karkardooma
SIROHI Courts, Delhi
Civil Suit No. 540/17 Date:
Mathan Singh Vs. Ajay Kumar & Ors.
Page No. 11 of 11 2019.04.03
15:24:59 +0530