Delhi District Court
Jagdish Khanduja vs Mr. Jatinder Khanduja on 29 August, 2016
IN THE COURT OF DR. ARCHANA SINHA
ADDL. DISTRICT & SESSIONS JUDGE
(CENTRAL) 03, THC, DELHI
Date of institution : 30.10.2004
Judgment reserved on : 20.08.2016
Judgment delivered on : 29.08.2016
New CS No. 16493/16 ( Old CS No. 63/2016)
Jagdish Khanduja
S/o Late Sh. Nand Lal Khanduja
R/o Ground Floor, 29/152,
West Patel Nagar, Delhi ....Plaintiff
Versus
Mr. Jatinder Khanduja
S/o Late Sh. Nand Lal Khanduja
R/o Third Floor, 29/152,
West Patel Nagar, Delhi ....Defendant
J U D G M E N T
1.This is a suit for possession, recovery of damages and mesne profits & permanent injunction filed by Sh. Jagdish Khanduja, the plaintiff against Sh. Jatinder Khanduja, the defendant
2. The brief resume of the facts of the case is that plaintiff claims to be the owner of property bearing No. 29/152, West Patel Nagar, Delhi, by virtue New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 1 of registered Gift Deed dated 10101997, executed by Sh. Nand Lal Khanduja, his father, in his favour with respect to the entire built up property consisting of three floors, submitting that he was not only favorite child of his father but he has spent a substantial amount from his own funds towards the construction of the entire property.
Also that vide letter dated 25032003 of the Land and Development Office, the mutation of the leasehold rights of the suit property in his name has been taken place.
3. Further that even after the execution of the said Gift Deed, in his favour, his father was of the opinion that he should not turn any of his brothers residing there, out of the said property, during his life time and that is why he has allowed all his brothers including Sh. Jatinder Khanduja, his brother, the defendant who resides on the third floor of the said property (hereinafter referred as the suit property).
4. Further that, in the year 1998, the defendant came to know about the execution of the said Gift Deed vide which the entire property including the third floor in his possession was devolved upon the plaintiff then he started colluding with the other brothers, lodging false and frivolous complaints against him and even went upon to the extent of fighting physically on petty issues with sole motive to pressurize Sh. Nand Lal Khanduja, his father, to gift the third floor of the said property in his favour.
5. And that due to abovestated behaviour of the defendant, the plaintiff New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 2 has sent a legal notice dated 08092004 to the defendant for handing over the vacant physical possession in his occupation failing which to pay the damages and misuse charges from 01102004 till the handing over the possession to him but after service of the said notice, the defendant did not vacate the premises rather he has sent his reply dated 27092004 containing false and flimsy pleas.
6. Also that the defendant has filed two suits one for partition and another for cancellation of Gift Deed.
Hence, the plaintiff has filed the present suit against the defendant seeking a decree of possession in his favour and against the defendant in respect of third floor portion of the premises bearing No. 29/152, West Patel Nagar, Delhi and damages/mesne profit @ Rs. 7,500/ per month till the defendant handing over vacant and physical possession of the suit property and also seeking a decree for permanent injunction against the defendant, thereby restraining him from creating any third party interest and/or parting with the possession of the suit property.
7. In the contrapleadings by way of the written statement filed on behalf of the defendant, he has taken the preliminary objections questioning locus standi of the plaintiff to file the suit and of no cause of action submitting that the third floor of the property belongs to the defendant and that the plaintiff has no right, title or interest/claim or concern with that part of the property, also that the suit was not properly valued for the purpose of court fees and New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 3 jurisdiction as price of the third floor was more than 10 lacs.
8. On merits, the contents of para nos. 1 to 7 and 9 to 13 of the plaint are denied and para nos. 7 & 8 were stated as matter of record. It is submitted that the defendant has inherited undivided 1/4 th share in the property and is in occupation of the third floor of the said property as co owner with exclusive possession of that third floor.
9. Further that, Sh. Nand Lal Khanduja son of Sh. Jetha Nand Khanduja was the absolute and exclusive owner of the property bearing No. 29/152, West Patel Nagar, Delhi and the property is a fourstoreyed building consisting of ground, first, second and third floor built up on an area of 100 Sq. Yds., and it was allotted to late Sh. Nand Lal Khanduja, the father of the parties, by the President of India, vide regd. Lease Deed & Conveyance Deed dated 29 071966 and that Sh. Nand Lal Khanduja died on 20072000, whereas his wife predeceased him on 28041992.
10. Further that during his life time Sh. Nand Lal Khanduja allowed the parties to the suit and his other two sons, to construct a fourstoreyed building on the plot of land after demolishing the old structure and in order to avoid any controversy he has settled the portion/floor falling to the share of each parties to the suit and two other brothers and such oral family settlement was reduced into writing allocating and settling 1/4 th share to each of the sons and to make it clear that floor allocated and settled to the share of his sons will be constructed by him from his source and finance and as per deed of family New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 4 settlement executed by Sh. Nand Lal Khanduja, the ground floor had gone to the plaintiff, the first floor to Sh. Surjit Khanduja, second floor to Sh. Ajit Khanduja and third floor to the defendant and as per such family settlement each of his son has contributed to the construction of the floor falling to and settled in his share and each of his brothers will own the same and will have full ownership rights in the same.
11. Further that after the death of father of the parties in the year 2000, the defendant and other brothers approached the plaintiff for executing a registered & proper partition deed, in terms of the family settlement but the same was avoided by the plaintiff on one or the other pretext and thus, after the death of their father, all the sons of the deceased Sh. Nand Lal Khanduja have inherited the property in equal share i.e. 1/4 th share to each.
12. Further that Sh. Surjit Khanduja along with his brother ( defendant herein) filed a suit for partition against the plaintiff and another brother and also another suit for cancellation of the Gift Deed dated 10101997. Thus, it was submitted that defendant is having 1/4 th share in the property and is in possession of the third floor of the said property as per the family settlement and as such the plaintiff has no locusstandi to file the present suit, thus it was prayed that the suit may be dismissed.
13. On the basis of the pleadings, vide order dated 25.04.2008, following issues were framed: New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 5 ISSUES (1) Whether suit has not been valued properly for the purpose of court fee and jurisdiction? OPD (2) Whether Sh. Nand Lal Khanduja had executed a valid Gift Deed in respect of property No. 29/152, West Patel Nagar, in favour of plaintiff? OPP (3) Whether defendant is in occupation of the IIIrd floor of the property in his own rights as an exclusive owner in terms of family settlement arrived at? OPD (4) Depending upon findings of the above issues, whether plaintiff is entitled to decree of possession in respect of IIIrd floor of the property? OPP (5) Whether plaintiff is entitled to decree of damages/mesne profits at the rate of 7,500/ per month or any other rate and for what period? OPP (6) Whether plaintiff is entitled to decree of permanent injunction as prayed for? OPP (7) Relief
14. To discharge the burden laid on the parties on the issues of controversy, the plaintiff has examined himself as PW1, who produced his evidence by way of an affidavit Ex.PW1/A and relied upon the documents i.e. photocopy of legal notice dated 08092004 Mark A, photocopy of reply dated 27092004 Mark B & the original site plan Ex. PW1/3.
During the crossexamination, he was put with the documents i.e. Lease Deed dated 25.11.1965 Mark PW1/D1, Conveyance Deed dated 25.11.1965 Mark PW1/D2, Family Settlement Mark PW1/D3, Police Complaint dated 1202199 Mark PW1/D4.
15. Further, the plaintiff has examined Sh. Pradeep Suri, LDC, from the office of the SubRegistrarII, Janakpuri, New Delhi, who brought the summoned record in respect of Gift Deed dated 10101997 bearing New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 6 registration No. 8181 dated 28101997 Ex. PW2/1A ( already Ex. PW3/1).
16. Further, the plaintiff has examined Sh. Manoj Kumar as PW3, who has filed his evidence by way of an affidavit Ex.PW3/A and relied upon the document i.e. Gift Deed dated 10101997 Ex. PW3/1.
17. The defendant has examined himself as DW1 and he has produced his evidence by way of an affidavit Ex.DW1/A. Further, the defendant has examined Sh. Rajiv Khanduja, as DW2, Sh.
Prem Malik, as DW3, Smt. Kamla Verma, as DW4, Sh. Rakesh Sharma, as DW5, they have filed their evidence by way of affidavits Ex. DW2/A, DW3/A, DW4/A, DW5/A respectively.
18. I have gone through the records meticulously and have given my thoughtful considerations of the contentions of Smt. Kamlesh Mahajan, Ld. Counsel for the plaintiff and Sh. Rajbir Bansal, Ld. Counsel for the defendant, in the light of the records and the evidence placed with the file.
19. My issuewise findings are as under : Issue No. (1) Whether suit has not been valued properly for the purpose of court fee and jurisdiction? OPD The onus of proving the issue no. (1) is laid on the defendant.
20. The defendant has raised the preliminary objections taken in the W.S. that the price of the third floor of the property was not less than 10 lacs and New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 7 ad valorem court fees ought to have been paid at least on Rs. 10 lacs and thus, the suit was not properly valued for the purpose of court fees and pecuniary jurisdiction.
21. In the suit, the plaintiff has claimed his right of possession regarding third floor of the property and the suit has been valued for the purpose of court fees and jurisdiction for possession it has been valued for Rs. 3,07,500/ and for damages and mesne profits claimed @ Rs. 7,500/ and for current value for the month of October, 2004, it was fixed at Rs. 7,500/ totaling thereby a valuation of the suit as 3,15,000/, pleading that the total court fees of Rs. 5,420/ ad valorem has been affixed. Also it has been undertaken to file further court fees as per the claim and damages/mesne profits to be determined by the Hon'ble Court.
22. It is observed that except the mere plea taken in preliminary objection of the W.S., the defendant has not produced any evidence to prove as to how the property was valued for not less than Rs. 10 lacs and thus, the plea remained mere plea, not established on record by the defendant in any manner.
Whereas, in the W.S., in reply on merits, in para 13, it is pleaded that the market value of the first floor was not less than Rs. 10 lacs whereas the case is relating to the third floor of the property and nothing has been said regarding the value of third floor, to contradict the plea of the plaintiff regarding the valuation of the suit in his plaint. Similarly, DW1 in his affidavit New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 8 inevidence Ex. DW1/A in para 10 deposes regarding the value of first floor and nothing is deposed regarding the value of third floor of the property that was in question of the suit.
23. Thus, the defendant has miserably failed to prove his preliminary objection taken in WS regarding the value of the suit for the purpose of court fees, to disprove the plea of the plaintiff valuing the suit for Rs. 3,15,000/ and the court fees, ad valorem @ 3,15,000/ have already been affixed on record. Further, so far as jurisdictional aspect is concerned, on raising of the pecuniary jurisdiction of the District Courts upto Rs. 2 Crores vide notification recently issued, regarding the pecuniary jurisdiction on the plea of valuing, no observations are required for jurisdiction of the court as otherwise also, the suit falls within the pecuniary jurisdiction of District Courts. Thus, it is not established on record by the defendant as to how the suit is not valued properly for the purpose of court fees and jurisdiction, therefore, the issue No. 1 is decided in negative and against the defendant and goes in favour of the plaintiff.
24. Issue No. 2 shall be taken up after issue No. 3 & along with issue nos. 4, 5 & 6 as onus to prove them is laid on the plaintiff and the findings on issue No. 2 shall have the bearing to determine issue No. 4, 5 & 6.
Issue No. (3) Whether defendant is in occupation of the IIIrd floor of the property in his own rights as an exclusive owner in terms of family settlement arrived at? OPD The onus of proving the issue no. (3) is laid on the defendant.
New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 925. The defendant to contest the claim of the plaintiff for possession of the third floor of the property has raised the plea that the defendant has inherited undivided 1/4th share in the property and is in occupation of the third floor of the said property as coowner with exclusive possession of that third floor because Sh. Nand Lal Khanduja S/o Sh. Jetha Nand Khanduja who was the absolute and exclusive owner of the entire property bearing No. 29/152, West Patel Nagar, Delhi, consisting of ground, first, second and third floor, built up on an area of 100 Sq. Yds., being it was allotted to him by the President of India, vide regd. Lease Deed & Conveyance Deed dated 29071966, has died on 20072000 and his wife predeceased him on 28041992, during his life time allowed the parties to the suit and his other two sons, to construct the property in a fourstoreyed building, after demolishing the old structure and in order to avoid any controversy he has settled the portion/floor falling to the share of each parties to the suit and two other brothers and such oral family settlement was reduced into writing allocating and settling 1/4 th share to each of the sons and to make it clear that floor allocated and settled to the share of his sons will be constructed by him from his source and finance and as per deed of the family settlement, the ground floor had gone to the plaintiff, the first floor to Sh. Surjit Khanduja, second floor to Sh. Ajit Khanduja and third floor to the defendant.
Also that as per such family settlement each of his sons has contributed to the construction of the floor falling to and settled in his share and each of his brothers including the defendant has owned the same in their New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 10 full ownership rights, thereby the defendant is in occupation of third floor of the property in his own rights as an exclusive owner in terms of family settlement arrived at.
26. To established these facts, the defendant in para nos. 14 & 15 of his affidavitinevidence Ex. DW1/A, in verbatim to the pleadings in WS has deposed that :
'in order to avoid any controversy said Sh. Nand Lal Khanduja settled the portion/floor failing to the share of each of the parties to suit and two other brothers ( each son of the deceased Nand Lal Khanduja) and at the time of construction of the building the father of the parties to the suit reduced the oral family settlement into writing allocating and setting one floor to each of his sons, and made it clear that the floor allocated and settled to the share of his sons will be constructed by him from his own source and finance. I say that as per the deed of family settlement executed by Sh. Nand Lal Khanduja, the first floor portion was settled in favour of Sh. Surjit Khanduja, ground floor was settled in favour of the plaintiff and the second floor was given and settled and fallen to the share of the other brothers of the defendant and third floor was settled and given to the defendant. I say that in the family settlement deed, it was made clear by the settler Sh. Nand Lal Khanduja that each of the sons will contribute to the construction of the floor falling to and settled in his share and he will own the same and will use the same as his own and will have full ownership rights in the same'.
'I say that as per the family settlement arrived at, each of the parties to the suit contributed onwards the construction of the floor falling to his respective share and are in occupation of the same and are living at the floor falling to his share ever since the property has been reconstructed and has an absolute right of ownership in the same'.New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 11
27. During the course of crossexamination, DW1 has admitted that the written settlement was on plain paper and not on the stamp paper and also that the original of such written settlement is not filed on record of this case. Also to the question of the date, month & year of the execution of such settlement, DW1 has answered that he had 'no idea' and he did not know the date, month and year of execution of the settlement. It is also admitted that none of the four brothers converted their respective floors in their name during the life time of their father.
28. In support of such depositions the defendant has produced Sh. Rajiv Khanduja, his son as DW2, who in para 8 of his affidavitinevidence Ex. DW2/A reproduced the same depositions regarding family settlement and allocation of separate floors to all the four sons of Sh. Nand Lal Khanduja, thereby deposing that third floor was allocated to the defendant and his family. DW2 has admitted that para 8 to 12, 14 & 15 of his affidavitinevidence are not written in this case (WS), meaning thereby is that these were beyond pleadings.
To the question as to when the family settlement was prepared, he has answered, 'on 12091999'. It was admitted that no such date is written in such family settlement and that no such date is written in Jawab Dava i.e. WS. It is also admitted that he was not present at the time of preparation of such family settlement. It was also admitted that such family settlement was never filed before any governmental authorities like MCD etc. New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 12 Thus, it is clear that regarding the facts of execution of family settlement, DW2 had produced only a hearsay evidence.
29. The defendant has produced one Sh. Prem Malik, his brotherinlaw ( Sister's husband) as DW3 in proving the execution of the family settlement. In para 5 & 6 of his affidavitinevidence Ex. DW3/A, he has deposed that in the year 199798 he has prepared a family settlement in his own handwriting as per the directions of his fatherinlaw and as per such family settlement it was agreed to invest the money on the construction of all the four respective floors by all the brothersinlaw and that third floor of the property was allocated to the defendant and that the said floor was constructed by him out of his own funds.
It was deposed that the original copy of said family settlement was kept by the plaintiff.
During the crossexamination, DW3 has admitted that Sh. Nand Lal Khanduja had four daughters apart from his sons and that at the time of family settlement these four daughters were not present, meaning thereby is that consent or no objection of four daughters not obtained to any such alleged family settlement by dividing the property into 1/4 th share to each of his four sons of Sh. Nand Lal Khanduja.
It is worth to mention that in the suit No. 321/03 filed for partition by the defendant along with his other brothers, all the sisters had moved an application & they were impleaded in the array of parties.
New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 13It was admitted by DW3 that the family settlement was not registered or notarized.
To the question regarding the original document of family settlement, he has answered that it was left by him with family in the presence of all the members when they were siting at the time of preparation of family settlement, however in the deposition by way of affidavit, he deposed that it was kept with plaintiff.
Regarding the contradiction of the facts of keeping the original of the family settlement by the plaintiff stated in para 5 of the affidavitinevidence and the depositions in the court that the original was left with the family in the presence of all the members, this witness has answered that Sh. Jagdish Khanduja, the plaintiff was the Karta of the family and all the things are kept by the Karta of the family for the family. Regarding the plaintiff as to how the plaintiff, was called as Karta, despite his fatherinlaw and his eldest son, the defendant, were present in the family, this witness explained that I called the plaintiff as the 'Karta' as he was educated.
It is observed that regarding the education no comparison chart of education is placed on record or was informed during the trial. This witness has admitted that he had not prepared the photocopy of the family settlement and that in his presence the photocopy was not distributed among brothers.
This witness has again answered that he had handed over the original to the plaintiff.
New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 1430. It is observed that DW3 Sh. Prem Malik could not stand true on his depositions made in para 5 & 6 in his affidavitinevidence regarding the facts of keeping the original copy of the family settlement with the plaintiff as he had material contradictions in his testimony during crossexamination as he has deposed that the original document of family settlement was 'left with the family' in the presence of all the members and his stand to hand it over to the plaintiff as Karta was not substantiated, nor he has deposed anything regarding the word Karta in his affidavit, or regarding the fact of preparing of photocopies of such family settlement and distribution of the photocopy to all the brothers.
Further, according to DW2 such family settlement was prepared on 12 091999 by his uncle Sh. Prem Malik but according to Sh. Prem Malik, DW3 such family settlement was prepared in the year 199798 as per his affidavit inevidence, whereas in crossexamination he answered that he could not tell the date, month and years and even the range of the years, the family settlement was prepared. Accordingly to the defendant examined as DW1, he was not aware of the date, month and year of preparation/execution of such family settlement.
31. Now come to the documentary evidence i.e. the family settlement Mark PW1/D3, on the basis of which the defendant claims to be the in occupation of third floor of the property in his own right as an exclusive owner in terms of the family settlement arrived at.
New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 1532. On appreciation of the documentary evidence i.e. family settlement Mark PW1/D3, it is observed that:
i) This is undated document
ii) This is written on the plain paper, unstamped, unregistered and even not notarized.
iii) The original of such document has not been produced on record by the defendant and this document is a photocopy document.
33. On appreciation of ocular evidence produced by the defendant, the date, month and year of its execution is not 'certain'. According to DW1, he had 'no idea' about the date, month and year it was prepared.
According to DW2, as per para 15 of his evidence Ex.DW2/A, the family settlement was in the year 1997 but during the cross examination, the family settlement was prepared on 12.09.1999.
As per DW3, who claims to be the writer of such document, as per para 5 of his affidavit Ex.DW3/A, he prepared the family settlement in his own handwriting in the year 199798, as per the directions of his fatherinlaw and all his brothersinlaw including the plaintiff and the defendant. In his cross examination, he has stated that he did not remember on which day and date and in which month, the family settlement was executed. About the year recording of family settlement, he has answered :
'I do not remember the year. I cannot even say in the range of year during which the family settlement was recorded'.New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 16
It is observed that DW3 could not stand firm to his stand taken in his depositions made in para 5 of his affidavit Ex.DW3/A on the test of cross examination regarding the year or range of years of execution of the family settlement in question, though he claimed to be the author of such document.
34. Thus, regarding the exact date, month and year of the execution of the family settlement, the witnesses produced by the defendant could not inform about the date of execution of such document and when the document itself is undated, it creates a doubt of its execution on a particular date, month or year. The date & year of the family settlement is a vital & material fact as the plaintiff has produced a regd. Gift Deed dated 10101997 claiming donation of the property in his name.
35. Ld. Counsel for the defendant has submitted that the date of execution of family settlement Mark PW1/D3 can be assumed from the document Mark PW2/D4 i.e. a police complaint signed by four brothers including the plaintiff and the defendant on 12.02.1999 in which it is stated that all the brothers have arrived at a settlement ( faisla) amongst the brothers qua the property and that the word 'settlement' has been referred the family settlement Mark PW1/D3 and thus, the date of such settlement was 12.02.1999 and it can be inferred from the document Mark PW2/D4, the complaint.
36. According to the abovenoted contention of Ld. Counsel of the defendant, the family settlement was executed on 12.02.1999 but according to New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 17 DW3 on which the defendant is heavily relying to prove the execution of such settlement submitting that the family settlement was prepared by DW3, the settlement was executed in the year 199798.
Therefore, the defendant was not sure as to whether it was executed in the year 19971998 as deposed by DW3 or in the year 1999 as per document Mark PW2/D4. Thus, due to the contradictory ocular evidence of defendant on the point of date of execution of the family settlement & on the face of the undated document & the supporting document Mark PW3/D4, the defendant has failed to prove the date, month, year & even the period of execution of such document.
37. It is noted that DW3 in his crossexamination has deposed that he (Sh.
Nand Lal) was not used to talk to his soninlaw much as he was not used to openly and frequently talk to his soninlaw i.e. me (DW3)'. These facts create a doubt as to how Sh. Nand Lal opted DW3 one of his 4 sonsinlaws to prepare the alleged family settlement, if he was not open and frequent to talk to him.
Thus, the defendant could not establish on record as to when exactly the family settlement was executed. Even on the basis of preponderance of all probabilities, the date, month and year of the execution of the family settlement could not be proved.
38. Admittedly, the family settlement Mark PW1/D3 is on a plain paper, an unstamped one, unregistered and even not a notarized document.
New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 1839. Ld. Counsel for the plaintiff has raised the contentions that the family settlement Mark PW1/D3 is inadmissible in evidence and no reliance can be placed on any such settlement in view of the law settled in case titled as Bankey Bihari Vs. Surya Narain @ Munnoo, 2004(11) SCC, 393.
40. It is observed that the family settlement is allegedly allocating the shares of the parties in an immovable property and on the basis of such share the defendant is claiming ownership for his respective portion allegedly allocated to him and thus, such document by nature is mandatory to be registered under section 17 of the Registration Act, 1908 and as such document Mark PW1/D3 is not a registered document that required registration, therefore, without registration, it is inadmissible in evidence.
41. Further, the document Mark PW1/D3 does not bear the stamps required under the Indian Stamp Act, to vest any right in any immovable property to anyone, thus, it does not have an effect of a valid document, enforceable in law.
42. Admittedly, the defendant has not produced the original of the family settlement Mark PW1/D3 and this piece of documentary evidence is produced as secondary evidence.
As per Indian Evidence Act, secondary evidence is dealt under section 63 of the Act that reads as under:
New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 1963. Secondary Evidence -
Secondary evidence means and includes.
1. Certified copies given under the provisions hereinafter contained;
2. Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy and copies compared with such copies;
3. Copies made from or compared with the original;
4. Counterparts of documents as against the parties who did not execute them;
5. Oral accounts of the contents of a document given by some person who has himself seen it.
Thus, to produce a document as secondary evidence, the document should fall within the abovenoted 5 categories.
43. Also, for admissibility of secondary evidence, the requirements of Section 65 of Indian Evidence Act is a mandate to make such secondary evidence 'admissible' in law.
Section 65 reads as under:
65. Cases in which secondary evidence relating to documents may be given -
Secondary evidence may be given of the existence, condition or contents of a document in the following cases:
(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it;
(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) When the original has been destroyed or lost, or when the New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 20 party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d)When the original is of such a nature as not to be easily movable;
(e) When the original is a public document within the meaning of Section 74;
(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;
(g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collections.
In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
44. Firstly, if original of the secondary evidence is stated to be in power and possession of the person against whom the document is ought to be produced then the person has to plead/state in his pleadings /contra pleadings (WS) as to in whose power and possession a particular document is. Apparently, the defendant has nowhere stated in his WS that the original family settlement was not in his power and possession or that it was in power and possession of the plaintiff.
Secondly, for admissibility, notice in writing is must, calling upon the other party to produce it.
New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 21Admittedly, no such notice has been given to the plaintiff by the defendant, calling upon the plaintiff to produce it. Thirdly, as per view/comments in Sarkar on evidence VolumeI, 1993 page 1972 ( reprint), it must definitely be proved that the document is in possession of the opposite party.
45. On appreciation of evidence of defendant, it is observed that the defendant through the ocular evidence of his witnesses DW1 & DW3 could not with certainty stated that the original of family settlement Mark PW1/D3 was in possession of the plaintiff and it is admitted that no notice as mentioned in section 65 of the Indian Evidence Act, requiring the plaintiff to produce the original was ever given at any point of time, to make the secondary evidence of the document in question admissibleinevidence as per section 65 of the Indian Evidence Act.
It is not the case of the defendant that the original of document Mark PW1/D3 has been destroyed or lost or cannot be produced in reasonable time. Also the document is not registered and therefore, no certified copy could be obtained to make it admissible.
Thus, as per section 65 of the Indian Evidence Act, as the case of the defendant is not falling within subclauses (a), (b), (c), or (d) or even (e) or (f), the document Mark PW1/D3 is not admissible as secondary evidence for the want of not fulfilling the requirements of section 65 of the Indian Evidence Act, 1872.
New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 2246. It is worth mentioning that the plaintiff and the defendant along with other two brothers are litigating the issue of property in question i.e. bearing No. 29/152, West Patel Nagar, Delhi, in a number of litigations as apart from the present case in five other matters vide CS No. 165/03, CS No. 312/03, CS No. 321/03, CS No. 316/03 & CS No. 86/09 wherein the document Mark PW1/D3 was the bone of contentions and the plaintiff of this case was one of the parties either as plaintiff or as defendant or one of the defendants & in none of the cases, the original of such document was produced on judicial record .
47. In this case, the testimony of DW3 who was the alleged writer/author of the document i.e. family settlement Mark PW1/D3, was shaky on the aspects/facts regarding as to who kept the original and his testimony Ex. DW3/A was impeached on the test of crossexamination when he has answered a question regarding the original of such document by saying that the original of the alleged family settlement was kept with the family. His testimony was shaky on the point as to whether the original was handed over to the plaintiff by him or to the members of that family or that he handed it over to plaintiff at any point of time.
48. Moreover, the factum of handing over the original of such document to the plaintiff was 'beyond the pleadings' as brought by the defendant as in his WS no such facts regarding handing over the original of family settlement, to the plaintiff or that it was in power & possession of the plaintiff, were mentioned in such contrapleadings of the defendant.
New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 2349. It is well settled principle of law that the facts testified in the evidence of any witness that are beyond pleadings are inadmissible in law and cannot be relied upon.
50. For these observations, the reliance is placed on the cases titled as Kalyan Singh Chauhan Vs. C.P. Joshi, cited as 2011 (1) RCR (Civil) 865 in which a plethora of judgments in the cases titled as Sri Mahant Govind Rao v. Sita Ram Kesho,(1898) 25 Ind. App. 195; M/s. Trojan & Co. v. RM. N.N. Nagappa Chettiar, AIR 1953 SC 235; Raruha Singh v. Achal Singh & Ors.; AIR 1961 SC 1097; Om Prakash Gupta Vs. Ranbir B. Goyal, AIR 2002 SC 665; Ishwar Dutt Vs. Land Aquisition Collector & Anr., AIR 2005 SC 3165; and State of Maharashtra v.
Hindustan Construction Company Ltd., (2010) 4 SCC 518, were discussed and it was observed that:
'the court cannot consider any fact which is beyond the pleadings of the parties' on discussing the observations made in case titled as Ram Sarup Gupta (dead) by L.Rs. v. Bishun Narain Inter College & Ors., AIR 1987 SC 1242, it was held as under:
It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered.
It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it.
The object and purpose of pleading is to enable the adversary party to know the case it has to meet........ In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question.New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 24
51. The certified copy of judicial records of the suit no. 321/2003 Ex.
DW1/P2 titled as Sh. Surjit Khanduja & Ors., Vs. Sh. Jagdish Khanduja & Ors., shows that a suit for partition on the basis of the document i.e. family settlement Mark PW1/D3 was filed by the defendant along with his brothers Sh. Surjit Khanduja against the plaintiff and Sh. Ajit, their fourth brother and such suit was dismissed on 09032007 for want of prosecution by the Court of Sh. Daya Prakash, Ld. ADJ, Delhi and also the defendant has not taken any further steps for reviving the same to pursue the matter on the basis of such document, leads to an adverse inference against the defendant regarding execution of any such document.
In such case also, as per list of documents filed on 18032003 by the plaintiffs (including the defendant herein) only a photocopy of the family settlement was filed.
52. Further, Ld. Counsel for the defendant has argued that as per the testimony of DW3, the original of the family settlement was handed over to the family and to the plaintiff as the 'Karta' of the family. It was argued that as per DW3, the plaintiff used to be treated as 'Karta' by the family. It is an admitted fact that Sh. Nand Lal Khanduja, the father of the parties was alive and was senior most member of the family and the defendant was also the eldest son out of the four sons of Sh. Nand Lal Khanduja where as the plaintiff was the younger one and in no common parlance, the plaintiff could be treated as Karta of the family to receive the original of the family settlement on behalf of the family .
New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 25It was argued that DW3 called the plaintiff as Karta on the basis of his education as he was the 'most educated person' in the family.
53. During the course of evidence and the arguments, it was clarified that the education of all the four brothers was almost 'similar' as the plaintiff was under matriculation as similar to that of his eldest brother, the defendant. It is observed that the explanation given for the term 'Karta', on the basis of education for the plaintiff was not only beyond the 'pleadings' but was not as per the general norms of definition of 'Karta' in a family particularly when the senior most member i.e. Sh. Nand Lal Khanduja, their father, was alive at the time of alleged family settlement and the defendant was eldest of all his sons.
Thus, the contentions of Ld. Counsel for the defendant on the aspect of contradiction in the testimony of DW3 regarding handing over the original of family settlement to the family means the plaintiff as Karta for the reasons of his education more than anyone in the family, were not tenable nor it is in the pleadings and no evidence has been produced to show the comparison of the educations of all the members of the family of the parties to the suit, at the time of execution of alleged family settlement.
54. Further, the defendant has raised the contention that he has spent the expenses for construction of such floor as per such family settlement but not even an iota of evidence has been produced by the defendant to prove that any such expenses were borne by him for construction of third floor, nor any specific date, month or year or the period has been mentioned for New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 26 construction of third floor by the defendant or regarding the construction of any of the floors of the property in question.
Nothing has been shown that the alleged family settlement was acted upon by the parties and the defendant had moved any request to any governmental authorities on the basis of facts shown for paying the taxes etc. exclusively for third floor of the property in question.
55. Therefore, the defendant has miserably failed to establish the execution of the family settlement & to prove that he was in occupation of the third floor of the property in his own rights as an exclusive owner in terms of family settlement arrived at.
Thus, the issue No. 3 is decided in negative against the defendant and in favour of the plaintiff.
56. Issue No. 2.
(2) Whether Sh. Nand Lal Khanduja had executed a valid Gift Deed in respect of property No. 29/152, West Patel Nagar, in favour of plaintiff? OPP The onus of proving this issue is on the plaintiff.
57. For claiming the relief of possession of the third floor of the property, the plaintiff has pleaded that late Sh. Nand Lal Khanduja, his father has executed a regd. Gift Deed dated 10101997 Ex. PW2/1A also Ex. PW3/1, in his favour, qua the entire property bearing No. 29/152, West Patel Nagar, Delhi.
New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 2758. To establish his claim and to prove the Gift Deed dated 10101997, the plaintiff has examined himself as PW1 and produced his ocular evidence Ex. PW1/A, deposing in para Nos. 3 & 4 of such affidavitinevidence, that his father had executed a Gift Deed dated 10101997, in his favour which was duly registered and that after the execution of the said Gift Deed, vide letter dated 25032003, the Land & Development Office, intimated him about the mutation of the leasehold rights of suit property in his favour. The site plan of the property has been exhibited as PW1/3.
59. Further, one Sh. Gaurav Kumar, an LDC, from the office of Sub Registrar is examined as PW2, who has proved the registration of the Gift Deed, vide registration no. 8181, in Additional book No. 1, Volume 8896, on pages 131136 on 28101997. Certified copy of the same was exhibited as PW3/1 and another copy of the records produced from the Office of Registrar was Ex. PW2/1A.
This witness was crossexamined on the point of two stamps at points 'A' & 'B' on the certified copy of the document, in addition to the stamps affixed in the original Gift Deed of such record. The witness has clarified that such stamps are affixed on the copy certified from original at the time of providing the copy of the same to a private person. Through the explanation PW2 has clarified the reasons for the two additional stamps at points 'A' & 'B' affixed on the certified copy Ex. PW3/1.
The witness was also questioned on the signatures of Sh. S.K. Khanduja at point 'C' encircled in red on the copy & that it was not available New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 28 on the original record produced by the witness copy of which was Ex. PW2/1A.
During the course of arguments, it was clarified by Ld Counsel for the plaintiff that such signatures of Sh. S.K. Khanduja were affixed by Sh. S.K. Khanduja when he received its copy in the case vide CS No. 390/2001 for declaration, filed by him against the plaintiff and thus, the copy of such certified copy contains his signatures on such copy.
60. On perusal of the documents of CS No. 390/2001, it is observed that a copy of the certified copy of the Gift Deed is placed in such record that contains 'no signatures' of Sh. S.K. Khanduja and the copy of certified copy was exactly same as of the copy of the original record Ex. PW2/1A. In such record, there was one application dated 26022003, moved on behalf of the defendant ( the plaintiff therein) to the effect of an information disclosing that in token of receipt of the copy of Gift Deed, Sh. S.K. Khanduja, the plaintiff of that case has affixed his signatures on the certified copy of Gift Deed.
61. Thus, the difference of stamps at point 'A' & 'B' and signatures of Sh.
S.K. Khanduja at points 'C' on copy of the Gift Deed, which was exhibited as Ex. PW3/1 at the time of examination of PW3, the attesting witness, is well explained and justified on comparison of the original record of Gift Deed produced from the Office of SubRegistrar, in which the registration had taken place for the Gift Deed in question and the original Gift Deed produced by the plaintiff who also placed a copy from the original Gift Deed that was exactly New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 29 same as that of Ex. PW2/1 produced by PW2.
62. Thus, the registration of the Gift Deed dated 10101997 is duly proved through the ocular evidence of PW2 with the supporting documentary evidence Ex. PW2/1A.
63. Further, the plaintiff has examined one Sh. Manoj Kumar, one of the two attesting witnesses of the Gift Deed, as PW3 to prove the execution & registration of the Gift Deed, who has tendered his testimony by way of his affidavit Ex. PW3/A and testified that he has reached the office of Sub Registrar, Janakpuri Delhi & Sh. Nand Lal has executed a regd. Gift Deed dated 10101997 Ex. PW3/1, in the office of the SubRegistrar.
64. On appreciation of the evidence of PW3, it is observed that, PW3 has testified that the Gift Deed, consisted of 6 pages, was duly typed/prepared by one Sh. H.K. Babber, Advocate, on the instructions of Sh. Nand Lal, in his presence and that the Gift Deed was duly read over to Sh. Nand Lal by him and thereafter, deceased Sh. Nand Lal first put his thumb impression and signed in order on the same and his signatures on such Gift Deed was at points A1 to A5 and the deceased Sh. Nand Lal had put his thumb impression and signatures in order at the end of left side page and thereafter he has appended his signatures on the Gift Deed on points 'A', 'B' & 'C' and that thereafter, Sh. H.K. Babbar, Advocate appended his signatures on the Gift Deed and also that thereafter Sh. Nand Lal appeared before the Sub Registrar, Janakpuri, Delhi and the Gift Deed was executed by Sh. Nand Lal New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 30 at the office of the SubRegistrar.
65. It is observed that this witness was crossexamined at length but on the material points regarding the execution, the attestation and the registration of the Gift Deed in the office of the SubRegistrar and about the presence and signing of the Gift Deed by the executant and two attesting witnesses including him and on the point of signatures appended by them on the Gift Deed, the witness remained unrebutted and unimpeached. He informed his education as 12th pass but detailed that he knew that the Gift Deed is to be executed by Sh. Nand Lal in favour of Sh. Jagdish Khanduja with respect to the property in question also that the persons who signed the Gift Deed were present before the SubRegistrar on the date of execution and registration of the Gift Deed.
It is observed that the witness has denied the suggestion given to him on behalf of defendant, regarding the physical state of the executant Sh. Nand Lal, as suggested to him that at the time of execution of the Gift Deed Sh. Nand Lal was hard of hearing, having acute loss of sight, was not able to walk and was suffering from several ailments, because of his old age and was having lack of understanding.
66. Thus, on appreciation of the evidence of the plaintiff, it is observed that the plaintiff is able to succeed in establishing the facts of execution, attestation and the registration of the Gift Deed Ex. PW3/1, by the executant Sh. Nand Lal in favour of Sh. Jagdish Khanduja, the plaintiff, in the presence New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 31 of two attesting witnesses Sh. Manoj Kumar, PW3 and Sh. H.K. Babbar, an Advocate, in the office of the SubRegistrar, Janakpuri, Delhi.
67. The Gift Deed Ex. PW3/1 has been challenged on behalf of the defendant, on three counts that:
i) the executant Sh. Nand Lal was not physically or mentally fit to understand the execution of the Gift Deed due to his old age, and several ailments,
ii) the executant Sh. Nand Lal was not having legal capacity to execute the Gift Deed in favour of plaintiff as the property in question was allotted to him by the President of India through L & DO for the lease of 99 years and he was a lessee with respect to the property in question &
iii) the Gift Deed was executed in violation of the terms and conditions of the lease deed as no permission was obtained by the lessee before transfer of the property by the mode of Gift Deed.
68. So far as the first plea is concerned, it is regarding the illhealth and bad physical status of the executant of Gift Deed at the time of execution of the same, due to old age of Sh. Nand Lal. On appreciation of the evidence led by the parties, it is observed that the plea is taken by the defendant first time during the course of evidence as such facts are not available in the pleadings (WS) of the defendant and thus, these facts are beyond the pleadings, therefore, not admissibleinevidence in view of settled proposition of law as settled in case titled as Ram Sarup Gupta (dead) by L.Rs. v. Bishun Narain Inter College & Ors., AIR 1987 SC 1242 and other authorities mentioned above on this point ( Supra).
New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 3269. Further, if such plea, is treated as a counter challenge to execution of the gift deed then also the defendant was under the onerous duty to prove such plea taken, as per the law of evidence. But unfortunately the defendant has not disclosed the exact age of Sh. Nand Lal, in 1997 when the Gift Deed was allegedly executed, though the defendant is eldest of his four sons. Also no medical documents have been placed on record in evidence to prove the plea that Sh. Nand Lal was hard of hearing, having acute loss of sight, was not able to walk and was suffering from several ailments, because of his old age and was having lack of understanding, as suggested to PW3, who blatantly denied the suggestion put to him.
70. It is worth to mention that all the abovenoted facts relating to physical & mental status of the executant Sh. Nand Lal were such facts which could be easily proved through medical documents, particularly about alleged several ailments and it is the case of the defendant that his father until his death in July, 2000 was residing in the same property in question and thus, he must be aware of the details & having the medical documents, if any, to support his plea regarding the health status of his father, particularly when he was the eldest son of Sh. Nand Lal, the executant.
71. As per the evidence Act, the onus of proving the facts are on the party who takes the plea. Also it is a well settled principle of law as settled in case titled as Gopal Krishnaji Ketkar V/s Mohamed Haji Latif & Ors. cited as AIR 1968 SC 1413, wherein it was observed that :
New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 33'Even if the burden of proof does not lie on a party the court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to reply upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issue in controversy and to rely upon the abstract doctrine of onus of proof. ..."
72. To the contrary, DW3 Sh. Prem Malik, one of the brothersinlaw of the defendant and one of the sonsinlaw of the executant had answered the questions during his crossexamination that in 199798 he ( Sh. Nand Lal) was not much active physically but 'his mental condition was all right in 1997 98, his eyesight was all right but he used to read and write through spectacle, and that 'he was not used to talk to his soninlaw much as he was not used to openly and frequently talk to his soninlaw i.e. me (DW3)'.
73. It is observed that the specific answer regarding the physical and mental status of Sh. Nand Lal, the fatherinlaw of DW3 shows the contrary to the facts, stated by the defendant to challenge the physical and mental capacity of Sh. Nand Lal, executant of Gift Deed, at the time of execution of the Gift Deed in the year 1997.
74. Ld. Counsel for the plaintiff has relied upon the following authorities, in support of her contention that the execution and registration of Gift Deed has duly been proved on record as per law:
i) Brij Raj Singh Vs. Sewak Ram, 1999(4) SCC 331
ii) Ashokan Vs. Lakshmikutti, 2007 (13) SCC 210 New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 34
75. In accordance with the settled proposition of law, the execution of the Gift Deed in question, its presentation for registration by the executant and its attestation by two witnesses, out of whom one was examined to prove the Gift Deed, the requirements of section 123 of Transfer of Property Act, has been complied with to prove the execution and registration of the Gift Deed Ex. PW3/1, through the ocular evidence of PW1 to PW3 and supporting documents on record.
76. On the basis of above facts and circumstances, appreciated on the basis of the evidence of the parties, it is observed that the defendant has failed to establish his challenge to the Gift Deed on the first count above mentioned.
77. Now so far as the second and third counts/grounds of the defendant to challenge the Gift Deed is concerned, regarding the legal capacity of a lessee for transfer of his leasehold rights and of the prior permission of such transfer, the question of legal capacity of executing the Will or a Gift by a lessee who has been allotted an immovable property by the Govt. of India or State Government, as the case may be, has been considered at length in a number of times, by the Hon'ble High Courts of different States and even by the Apex Court.
One of such cases, I have gone through is Sh. Pawan Kumar Aggarwal & Others Vs. State of West Bengal & Ors., W.P. no.
New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 3517025(W) of 2013, in which, after considering the following authorities on such legal point:
i) State Bengal & Anr., Vs. Kailash Chandra Kapoor & Ors., (1997) 2SCC 387,
ii) Smt. Kanta Devi Aggarwal & Ors., Vs. State Bengal & Anr., Cal L.T. 1999 (1) HC 345,
iii) Pankaj Madhogarhia Vs. State Bengal & Anr., 2007 (4) CHN 215,
iv) DDA Vs. Vijaya C Gurshaney, (2003) 7 SCC 301
v) Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana, (two cases) cited as (2009) 7 SCC 363, (2012) 1 SCC 656, the issue of bequeathing by Will or donating by Gift Deed, the leasehold rights of an immovable property allotted either by Govt. of India or by Govt. of State, was queried upon within the provisions of Transfer of Property Act, and in the light of lease terms enumerated within the lease deed by a lessee to its blood relations or to stranger and the procedure permitted for mutation of any such transfer of the property in favour of the transferee regarding the leasehold rights of the lessee, considered at length in minute details.
78. It was settled as a proposition of law after a long and lengthy observations of the Hon'ble Calcutta High Court, on taking into consideration the provisions of law under which such transfer has taken place, the settled propositions in the other noted cases of the similar nature and the provisions of the law in question by which the leasehold rights qua such property has been bequeathed by Will, donated by Gift or transfer by other means, with or without permission of the Govt., that the transfer by the lessee under the periodic lease whether of 99 years or 999 years, of leasehold rights, to other person is not invailid but certain conditions have to be complied with in New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 36 consonance with the lease terms by the transferee, prior to such transfer for obtaining permission or even after such transfer, in post permission at the time of mutation of such leasehold rights in his name, while seeking permission for mutation from the concerned Govt. whether it is Govt. of India or Govt. of State.
79. Different propositions were settled for depositing of certain amount/fee or complying of certain conditions in cases where such transfer has taken place to a blood relations or to a stranger. And that such mutation is permitted, to the transferee, on compliance of the conditions imposed and the transferee shall be permitted to hold the property in his name for the balance period of lease years and subject to the lease conditions stated in the lease deed or stated in the mutation issued to such person. One of such conditions is that the property shall be held as one unit and would not be transferable by the transferee who shall be treated as transferred lessee and shall be subject to the conditions laid in lease deed/conveyance deed or in the mutation order.
80. Ld. Counsel for the plaintiff has relied upon the following authorities, in the case between Sh. Vijaya C Gursahaney & DDA,
i) titled as Vijaya C Gursahaney Vs. DDA, cited as 1994 (2) AD ( Delhi) 770, when the case was before the Hon'ble High Court of Delhi &
ii) titled as DDA Vs. Vijaya C Gursahaney cited as 2003 AIR (SC) 3669, when the case was before the Hon'ble Supreme Court of India, in support of her contentions that the transfer by a lessee of his leasehold rights of an immovable property, allotted by Govt. of India, to him New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 37 under the lease deed to his blood relations or to a nonblood relation i.e. a stranger, was not invalid, however certain conditions were imposed, as per the terms of lease deed regarding demand of 50% of unearned increase in the value of the property raised by DDA at the time of substitution of the name of such transferee at the place of original lessee, was found justified by the Hon'ble Supreme Court when such transfer was by way of Will in which the probate was granted by a District Court in probating the property in question to a stranger, in nonblood relation of the testator/lessee.
81. Ld. Counsel for the defendant has countered the contentions submitting that the authorities relied upon is not applicable to the case of Gift Deed as the cases abovereferred was relating to the Will and the allottee was the DDA.
82. On careful perusal of the evidence of the parties, in the light of the case law above referred and the law settled in Pawan Aggarwal's case (supra) regarding the proposition of law for mutation of leasehold rights of a lessee to another person, whether to the blood relations or to nonblood relations, by way of bequeathing such leasehold rights by a lessee by way of Will or by donating by the instrument of the Gift Deed, makes it clear that the name of such transferee has been mutated in the records of the Govt., whether Central Govt. or State Govt., but only in terms of lease deed under which such property was allotted and the transferee in whose name such transfer either by way of Will or Gift has been made by the original lessee, New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 38 shall step in the shoes of the lessee to whom the property was allotted and such transferee shall be subject to all the lease terms as enumerated in lease deed/conveyance deed and the transferee shall hold such leasehold rights for the balance period of lease and under the conditions of mutation order vide which his name was mutated in the records.
83. In the abovenoted proposition of law, in the instant case, on execution of Gift Deed Ex. PW3/1, by Sh. Nand Lal, the lessee, in favour of one of his four sons namely Sh. Jagdish Khanduja, the plaintiff, thereby transfers his leasehold rights and such leasehold rights shall be for the balance period of lease years and the plaintiff shall hold such leasehold rights, stepping in the shoes of his father Sh. Nand Lal, the original lessee, and shall be subject to the terms & conditions of the Lease Deed dated 25.11.1965 Mark PW1/D1 as well as Conveyance Deed dated 25.11.1965 Mark PW1/D2 and also shall be subjected to the conditions imposed in the mutation order No. L& D/P.SIII/219 dated 25032003, according to which 'the subdivision of the property will not be allowed at any stage'.
84. Ld. Counsel for the defendant has raised the contention that the transfer of the leasehold rights/property was invalid as no permission was taken from the Govt. of India.
85. It is observed that in the case of Pawan Aggarwal cited above (supra), the issue of permission was also considered and in case of Will or Gift Deed a post permission after execution of such instrument was discussed New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 39 in reference to the application for mutation before the concerned authorities is moved for substitution of the name of such transferee who either is bequeathed of the property by way of Will or donated by way of an instrument of the Gift Deed. Such issue was also taken into consideration, impliedly in case of Vijaya C Gurshaney case about the conditions/penalty to be imposed by the concerned Govt./authority who had allotted the property in question, at the time of mutation of the name of such person/transferee, whether he is a blood relation or nonblood relation as there was an issue of revenue of the State was involved.
86. In the instant case, after the execution of a regd., instrument of Gift Deed by the lessee Sh. Nand Lal in favour of Sh. Jagdish Lal Khanduja, the plaintiff, on his application dated 08012003, the mutation in the record has been carried out on the same terms and conditions as laid down in the lease deed executed on 29071966 by the original lessee. Also in terms of lease clauseI (IX), he was held liable to pay the amount of penalty of Rs. 100/ for belated intimation for the change of transfer and with the conditions that,
i) subdivision of the property will not be allowed at any stage,
ii) he would be liable to pay Govt. dues as and when demanded by the Govt.
87. Thus, the mutation in his name on the basis of the Gift Deed was allowed to the plaintiff by the Govt. who allotted the lease in favour of the original lessee, by imposing the penalty for late intimation and subject to the New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 40 conditions on which such leasehold rights were mutated in the name of the plaintiff with regard to the property in question and the issue of seeking prior permission before execution of the Gift Deed i.e. an instrument of transfer by the mode of donation 'without consideration' to a blood relation by the lessee, sets at rest.
88. Thus, in view of the above observations on facts and law, the third count of the defendant to challenge the Gift Deed that the Gift Deed was executed in violation of the terms and conditions of the lease deed as no permission was obtained by the lessee before transfer sets at rest, the moment, the mutation order was issued permitting the transfer of the leasehold rights in the name of the plaintiff/transferee on imposing penalty for late intimation.
89. Ld. Counsel for the defendant has raised a contention that all the four sons of the lessee Sh. Nand Lal were entitled for 1/4 th share each in the property as being inherited from their deceased father and that the plaintiff cannot hold the entire property.
90. It is worth noting that in case of a Will, it was observed by the Apex Court in case titled as Pentakota Satyanarayana Vs. Pentakota Seetharatnam VII (2005) SLT 423, that mere circumstances of the deprivation of all or few of the natural heirs should not raise any suspicion because the whole idea behind execution of Will is to interfere with the normal New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 41 line of succession and so, natural heirs would be debarred in every case of the Will.
As a corollary to the abovenoted position of bequeathing an immovable property by a testator to his favourite or donating the same by an instrument of Gift Deed to one of many legal heirs, chosen by the person holding the leasehold rights in whose favour an allotment of such property by way of lease/conveyance deed has been made, is not a proposition that is a new to the law and in number of cases such facts have been discussed wherein the natural legal heirs question the Will or Gift on the ground that the holder of the immovable property choosing one or few of his natural heirs or even go to the extent of bequeathing or donating the property to a non blood/stranger despite the fact he has his natural heirs.
But the proposition of law in case of intestate succession under section 8 of Hindu Succession Act, 1956 is different to a situation where the person holding the immovable property has chosen to transfer his leasehold rights to one or the few of his natural heirs or even to a stranger and such transfers/mutations are not held invalid on the ground that each of the sons should get equal shares or that such transfer was invalid or illegal only because it has allowed one or few or none of the legal heirs.
It is worth noting that it is an admitted case of the defendant that Sh. Nand Lal had 8 children i.e. four sons and four daughters and two of them are now deceased leaving three sons and three daughters alive to claim intestate New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 42 succession along with the other legal heirs of deceased sons/daughters but after donation by way an instrument of regd. Gift Deed during the life time of the lessee, the issue of intestate succession of any of the shares to any of the legal heirs, sets at rest.
91. Ld. Counsel for the defendant has raised an issue that Sh. Nand Lal was not absolute and exclusive owner of the property in question and thus, having no legal capacity to execute the gift deed, for his leasehold rights, in favour of the plaintiff.
92. Ld. Counsel for the plaintiff has countered the contention that it is an admitted case of the defendant that Sh. Nand Lal was an absolute and exclusive owner of the property in question, also that apart from the lease deed, a conveyance deed was also executed by the Govt. of India in favour of Sh. Nand Lal, according to which Sh. Nand Lal becomes the purchaser after making of the payment/consideration to the vendor i.e. Govt. of the amount asked to pay at the time of allotment and that such amount has been duly paid through the receipt appended along with the documents of allotment.
93. Here, I would like to refer a history of litigation faced by the plaintiff with the defendant or against the plaintiff by the defendant or interse the four sons of Sh. Nand Lal, the original lessee;
New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 43Sr. No. Case No. Titled Nature of suit /Case Date of Date of Result institution Decision
1. Cr. Comp case Surjeet Khanduja Vs. Jagdish U/S 406/506/34 IPC Case File 171202 Dismissed on merits Weeded out Khanduja & Ors.
2. 390/01 Surjeet Khanduja Vs. Jagdish Declaration qua first 051201 270803 Dismissed as withdrawn Khanduja floor
3. 321/03 Surjeet, Jatinder Khanduja Vs. Partition 210303 090307 Dismissed for non prosecution Jagdish Khanduja, Ajit,Leela, Sunita, Poonam & Naresh
4. 134/03 Surjeet Khanduja & Ors. Cancellation of Gift 210403 090307 Dismissed for non prosecution (312/03) (Ajit,Jatinder) Vs. Jagdish Deed Khanduja & Ors. ( Leela, Sunita, Poonam, Naresh)
5. 165/03 Jagdish Khanduja Vs. Surjeet, Mandatory & Permanent 22.05.03 281005 sinedie Ajit & Jatinder Khanduja. Injunction
6. 316/03 (353/03) Jagdish Khanduja Vs. Surjeet Possession, damages/ 260503 270907 Consent decree (compromise) Khanduja mesne profit (I flr.)
7. 40/04 Jagdish Khanduja Vs. Jatinder, Possession, damages/ 301004 Present case Khanduja. mesne profit (III flr.)
8. 86/09 Jagdish Khanduja Vs. Jatinder, Permanent & Mandatory 240309 080711 Decreed Exparte.
(Appl. U/O 9 Rule 13
Madhu, Rajiv & Sudhir Injunction
CPC dismissed on 13
Khanduja. 0410 & Appeal by
Hon'ble High Court on
250511 with liberty for
regular appeal, never
filed.
94. It is observed that the defendant not only in the instant case but in the previous cases as plaintiff or defendant has pleaded that Sh. Nand Lal was the absolute & exclusive owner of the property in question.
In suit No. 390/01, it is pleaded that the suit property is in the name of late Sh. Nand Lal, the father of the plaintiff.
In suit No. 312/03, Sh. Jatinder Khanduja, the defendant of present case as plaintiff No. 3 in such case pleaded in para 2 that Sh. Nand Lal Khanduja was the absolute and exclusive owner of the property.
New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 44In suit No. 321/03, Sh. Jatinder Khanduja, the defendant of present case as plaintiff No. 2 in such case pleaded in para 2 that Sh. Nand Lal Khanduja was the owner of the property.
In suit No. 165/03, Sh. Jatinder Khanduja, the defendant of present case as defendant No. 3 in such case pleaded in para 5 of WS that Sh. Nand Lal Khanduja was the absolute and exclusive owner of the property.
In suit No. 40/04 (New No. 63/16), Sh. Jatinder Khanduja, the defendant of this present case pleaded in para (on merits) No. 12 of WS that Sh. Nand Lal Khanduja was the absolute and exclusive owner of the property.
95. During the course of evidence, the DWs have admitted that Sh. Nand Lal, the father of the parties was absolute owner of the property and the defendant who is heavily relying on the unstamped, unregistered family settlement written on the plain paper and in such paper, it is recited that Sh. Nand Lal was the absolute and exclusive owner of the property in question, thus, the contention of Ld. Counsel for the defendant that Sh. Nand Lal Khanduja, who has allegedly executed the Gift Deed was not having the legal capacity to do so as he was not the absolute owner of the property, is contrary to the stand of the defendant taken in his pleadings since the beginning of series of litigations including the present one.
New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 4596. One Sh. Surjit Khanduja, one of the three sons (now alive) of Sh. Nand Lal Khanduja, (other two are the parties to the suit) in suit No. 316/03 (353/03) titled as Jagdish Khanduja Vs. Surjeet Khanduja for possession, damages/ mesne profit regarding a portion of the property, as plaintiff of that suit, has admitted the execution of the Gift Deed Ex. PW3/1 by his father, during his life time.
97. Thus, in view of the abovenoted observations on facts and law, all the three counts/grounds abovementioned taken by the defendant, to question the validity of Gift Deed, do not subsist either on the point of legal/physical capacity of the lease or on the point of requirement of obtaining prior permission by Sh. Nand Lal, the lessee, to execute the instrument of regd. Gift Deed.
98. Thus, it is established by the plaintiff on record that Sh. Nand Lal Khanduja had executed a valid Gift Deed in respect of property No. 29/152, West Patel Nagar, in favour of plaintiff.
Therefore, issue No. 2 is decided in favour of the plaintiff and against the defendant.
99. Issue Nos. 4(4) Depending upon findings of the above issues, whether plaintiff is entitled to decree of possession in respect of IIIrd floor of the property? OPP The onus to prove this issue is on the plaintiff.
100. As issue No. 2 is decided in favour of the plaintiff. By holding the New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 46 conclusion that Sh. Nand Lal Khanduja had executed a valid Gift Deed in respect of property No. 29/152, West Patel Nagar, in favour of plaintiff, the plaintiff being the holder of leasehold rights qua the entire suit property as one unit, in view of the mutation orders, passed by L& DO, the authority who is now the lessor/vendor on behalf of the President of India and on the basis of such Gift Deed, the leasehold rights qua the property has been transferred in the name of the plaintiff, substituting the name of Sh. Nand Lal Khanduja, the original lessee, thus, the plaintiff is entitled for the possession of the suit property i.e. third floor as shown red in site plan Ex. PW1/3, from the defendant and the plaintiff shall hold such leasehold rights qua the property in question, in single unit, subject to the terms and conditions of the Lease deed/Conveyance deed vide which the property was initially allotted to Sh. Nand Lal Khanduja.
101. Ld. Counsel for defendant has raised the contentions that the allotment of the property was made to Sh. Nand Lal Khanduja in the capacity of a displaced person, migrated from Pakistan and no one can have better title than that of Sh. Nand Lal Khanduja, the original allottee.
102. It is observed that after the mutation of the property in question in the name of the plaintiff substituting the name of Sh. Nand Lal Khanduja, as per the application of law, he is stepping into the shoes of Sh. Nand Lal Khanduja, his father, the original allottee and the plaintiff shall also hold the same lease hold rights qua the property and as per the terms and conditions stated New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 47 therein the Lease Deed/Conveyance Deed and has to keep the entire property as one unit that cannot be divided as per the mutation orders. But such legal position also makes the plaintiff entitled for the possession for the entire property and the contention that it was allotted to a displaced person has nothing to do with the leasehold rights held by the plaintiff under the instrument of regd. Gift Deed vide which Sh. Nand Lal Khanduja, a displaced person to whom such property was allotted, as he has transferred his leasehold rights by donation vide Gift Deed without consideration in favour of the plaintiff.
103. As per the settled proposition of law the property in question was allotted to a displaced person under such law under a policy of Govt. of India vide which the consideration amount for allotment/purchase of the property to Sh. Nand Lal Khanduja was settled as per such policy and after purchase on making such payment as asked for such allotment, the lessee becomes the purchaser, though he was bound to the terms of lease deed and conveyance deed signed by Sh. Nand Lal Khanduja, the allottee and consequently the plaintiff, the transferee by virtue of Regd. Gift Deed shall be bound by the terms and conditions of the Lease Deed/Conveyance Deed.
104. Ld. Counsel for the defendant has argued that an amount has been contributed for construction of such property when it was reconstructed after demolition of the previous structure. No evidence has been led to that effect and the defendant is only relying on the family settlement Mark A and in view New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 48 of the conclusion drawn on issue No. 3 to that effect, the defendant's contentions on this aspect cannot be upheld.
105. Even for the sake of arguments, it is assumed that the document of family settlement Mark A could have been read, then also on the face of valid registered Gift Deed executed on 10101997 by virtue of which Sh. Nand Lal Khanduja, has already transferred his leasehold rights qua the entire property, then also any such settlement was of no effect as it was allegedly had taken place in the year 1998 or 1999 and after the execution of the Gift Deed, any arrangement qua the suit property made by Sh. Nand Lal Khanduja, who has already donated the property vide Gift Deed on 10101997 to the plaintiff, was of no legal consequence so far as the defendant is concerned.
Thus, the contentions on behalf the defendant raised during the course of arguments cannot be upheld on the face of facts established on record and the proposition of law qua the suit property.
Thus, issue No. 4 is decided in affirmative & in favour of the plaintiff and against the defendant.
106. Issue Nos. 5(5) Whether plaintiff is entitled to decree of damages/mesne profits at the rate of 7,500/ per month or any other rate and for what period? OPP The onus to prove this issue is on the plaintiff.
107. For establishing the entitlement for the relief of damages/mesne New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 49 profits at the rate of Rs. 7,500/ per month, the plaintiff has relied upon the pleadings in para 10 of the plaint and similar para 10 of the affidavitin evidence Ex. PW1/1A of the plaintiff examined as PW1, who has brought the contents of such para of the plaint in verbatim in his depositions. It is observed that to the depositions made in para 10 nothing has been questioned to impeached such testimony of PW1.
108. Further, it is observed that during the course of trial vide separate statement, Ld. Counsel for the plaintiff has withdrawn the word 'damages ' from the list of the claims in prayer (b) of the plaint and it is prayed that the issue No. 5 may be considered for mesne profit i.e user and occupation charges claimed @ Rs. 7,500/ per month and thereupon the relief claimed for damages was dropped on such request on behalf of the plaintiff.
109. Ld. Counsel for the plaintiff has relied on the law settled in case titled as Girdhari Lal Vs. Kailash Chander & Ors., 1998 (71) DLT 177, in support of her contention that in the absence of any contra evidence by the defendant, the mesne profit could be granted as claimed by the plaintiff.
110. The position of law is absolutely clear as per Order 14 CPC that for the facts in dispute by the parties, if any issue is framed on the disputed facts, the party on whom the onus is laid to prove such facts is under a legal duty and obligation to prove such facts.
111. On appreciation of evidence, it is observed that the plaintiff has New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 50 claimed the mesne profit on the premises that the defendant had no legal right to use the said property and the plaintiff has every right to claim the mesne profit to compel the defendant to remove his belongings from the suit property.
It is the case of the plaintiff that the defendant was in occupation of the third floor of the property being one of the four sons of Sh. Nand Lal, his father and Sh. Nand Lal executed a Gift Deed dated 10101997 in favour of the plaintiff and after execution of such Gift Deed a mutation of the leasehold rights of the suit property had taken place vide letter dated 25032003. Also that his father, the executant of Gift Deed was of the opinion that the plaintiff should not turn any of his brothers out of the said property during his life time and as an obedient son, he had respected the words of his father and allowed his brothers including the defendant to stay in the property.
112. Thus, it is clear from the record that the defendant was in permissive use of the third floor of the property and he was occupying such property earlier with the permission of Sh. Nand Lal, his father, who was the holder of the leasehold rights under the lease deed and conveyance deed executed in his favour at the time of allotment of the property and after execution of the regd. Gift Deed in favour of plaintiff by him, the defendant was in permissive use of the property, of the plaintiff who became of the holder of leasehold rights on substitution of his name at the place of his father, in the Govt. records, in terms of the mutation order/letter dated 25032003.
New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 51113. It is not the case of the plaintiff that after the death of his father, he had raised any objection or had withdrawn his permission from the defendant for use and occupation or has asked for any user and occupation charges from the defendant, since the day the leasehold rights were mutated in his name.
According to the plaintiff, on coming to known about the execution of the Gift Deed, in the year 1998, the defendant's possession became adverse as he started colluding with his other brothers and started lodging frivolous and false complaints.
In the series of litigations amongst the brothers after the death of their father, Sh. Nand Lal, there was a criminal complaint case filed against the plaintiff that was dismissed on merits vide order dated 07122001. Thereafter, there were three other cases filed against the plaintiff by the defendant along with his other brothers in the civil courts but there is no averments on record that at any point of time the permissive use of the defendant was withdrawn or the defendant was asked to pay the user/occupation charges or that any amount towards use and occupation of the premises were paid.
114. For the termination of permission a notice was served upon and the present suit was filed for dispossession of the defendant to adopt the due process of law and in view of the findings on issue no. 4, the plaintiff was found entitled for possession of the third floor of the property occupied by the defendant.
New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 52115. It is an admitted fact, brought during the trial that another brother Sh.
Surjit and the family of the third brother Sh. Ajit (now deceased) are occupying the first and second floor of the property in question and nothing has been brought on record to show that the plaintiff is getting user and occupation charges from them as holder of the leasehold rights for those portions of the property as according to mutation orders, for the entire property that shall be treated as one unit, the plaintiff is holder of lease hold rights.
116. The abovenoted facts either established on record or admitted, makes it clear, that the defendant was not in unauthorized use and occupation as was in permissive use since the inception of the his occupation in the third floor of the property nor he was paying any user and occupation charges.
117. In case titled as Ratilal Thakordas Tamakhuwala & Anr. V/s Vithaldas Magandas Gujarathi cited as 1985 (1) RLR, the term 'mesne profits' within the provisions of Section 2 SubRule 12 of CPC means :
'Those profits which the person in wrongful possession of any property actually receives or might have received or have diligently received therefrom together with interest on such profits'.
Thus, for proving the liability qua 'mesne profits' against the defendant, the plaintiff had to prove that the defendant was in 'wrongful possession' in the property in question whereas the defendant was admittedly in the permissive use of possession in a portion of the property.New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 53
118. Further, the authority of Girdhari Lal's case relied upon by the plaintiff for claiming the mesne profits @ Rs. 7,500/ per month regarding the facts relating to the quantum of mesne profit, on the basis of no contra evidence was absolutely based on different and distinguishable facts as the property in question therein was of the purchaser under the sale of a plot of land against the execution of valid sale deed and the mesne profit asked for from the person occupying the same unauthorizedly as trespasser into the land and the defendants were claiming their title on the basis of adverse possession.
119. Moreso, In this case, the plaintiff has not adduced any evidence to show on what basis he has calculated the amount of Rs. 7,500/ per month as user/occupation charges, for a portion in the property for which he was holding the leasehold rights by virtue of regd. Gift Deed without consideration, executed by his father, the original allottee of the property and his leasehold rights are subject to the terms and conditions as laid down in the lease deed executed on 25111965 by its lessor and thus, on the basis of no contra evidence, he cannot calculate the magic figure of Rs. 7,500/ per month to be claimed as mesne profits from the defendant, who was in permissive use of the occupation and possession, since the day of his possession in the property allotted to his father.
120. Therefore, the plaintiff could not establish its case for recovery of mesne profit as claimed for.
Thus, issue No. 5 is decided in negative and against the plaintiff.
New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 54 121. Issue No. 6(6) Whether plaintiff is entitled to decree of permanent injunction as prayed for? OPP The onus to prove this issue is on the plaintiff.
122. As issue No. 2 has been decided in favour of the plaintiff and it is held that the plaintiff is the holder of leasehold rights qua the entire property bearing No. 29/152, West Patel Nagar, New Delhi and the defendant is in possession and occupation of the third floor of the property and issue No. 3 is decided against the defendant holding that he is not in occupation of third floor of the property as an exclusive owner in terms of alleged family settlement arrived at, and issue No. 4 has been decided in affirmative in favour of plaintiff that he is entitled for the decree of possession of the third floor of the property occupied by the defendant, thus, the plaintiff is successful to prove that he has a legal right of possession of the third floor of the property in question.
Also the defendant is admittedly in possession of third floor of the property in question, thus the balance of convenience tilts in favour of plaintiff and it is explicit that in case the defendant who is in possession of the third floor of the property and against whom the right of possession of such floor has been upheld in favour of the plaintiff then the plaintiff may suffer irreparable loss, in case the defendant parts with possession or creates any third party interest of the portion in his possession of the property or transfers or alienates the portion in his occupation, during the period, he is in possession until the possession is handed over to the plaintiff.
New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 55123. Therefore, the plaintiff is entitled for permanent injunction as prayed for against the defendant thereby, restraining the defendant from creating any third party interest or parting with the possession of the third floor of the property, in any manner.
Thus, issue No. 6 is decided in affirmative and in favour of the plaintiff and against the defendant.
124. Issue No. 7Relief In view of the findings on issue nos. 1 to 6, the suit of the plaintiff is hereby decreed against the defendant accordingly.
Accordingly, the plaintiff is entitled for:
(i) A decree for possession in favour of the plaintiff and against the defendant in respect of the third floor portion of the premises bearing No. 29/152, West Patel Nagar, New Delhi as show red in the site plan Ex PW1/3.
(iii) A decree of permanent injunction in favour of the plaintiff and against the defendant thereby restraining the defendant from creating third party interest and/or parting with possession of the suit premises, in any manner.
The parties are to bear their own costs.
Decree sheet be drawn accordingly.
File be consigned to record room.
Announced In the open Court (Dr. Archana Sinha)
29 day of August, 2016 Addl. District Judge(Central03)
rd
Tis Hazari Courts/Delhi
29.08.2016.
New CS No. 16493/16 ( Old CS No. 63/2016) Jagdish Khanduja Vs. Jatinder Khanduja Page No. 56