Delhi District Court
Smt. Subhadra Kumari vs Sh. Vijay Kumar Tiwari on 2 June, 2014
Suit No. 40/14/08
IN THE COURT OF MS. SMITA GARG,
ADDITIONAL DISTRICT JUDGE03, WEST,
TIS HAZARI COURTS, DELHI.
Suit No. 40/14/08
In re:
Smt. Subhadra Kumari
W/o Sh. Ram Chander Tiwari
D/o Late Sh. Rameshwar Tiwari
R/o EXB35, BE Block, Gali No.1,
Hari Nagar, New Delhi110064 ......Plaintiff
Versus
Sh. Vijay Kumar Tiwari
S/o Sh. Jai Mangal Tiwari
R/o H. No. BE146/A, Hari Nagar
New Delhi110064 ......Defendant
Date of institution of suit : 02.12.2008
Date of reserving judgment : 28.05.2014
Date of judgment : 02.06.2014
JUDGMENT:
1. This judgment shall decide the suit for possession, mesne profits and permanent injunction filed by the plaintiff as well as the counterclaim preferred by the defendant seeking declaration of Subhadra Kumari Vs. Vijay Kumar Tiwari Page No. 1/17 Suit No. 40/14/08 his ownership rights in respect of the property bearing house no. BE146/A, Hari Nagar, New Delhi110064 (hereinafter referred to as 'Suit Property').
2. The case of the plaintiff is that her parents Late Sh. Rameshwar Tiwari and Late Smt. Jitni Devi were the absolute owners of the suit property and they expired on 21.12.1990 and 04.02.1991 respectively. Since both of them died intestate, the plaintiff, being their only child, inherited the suit property. According to the plaintiff, the defendant, who is the son of her paternal uncle (chacha) and is in occupation of a portion of the suit property, propounded a false Will of Late Sh. Jitni Devi in his favour in order to deprive her of the suit property and filed a probate petition under Section 276 & 278 of Indian Succession Act, 1925. The said petition was dismissed by the Ld. Additional District Judge on 15.09.2007. The judgment of Ld. Additional District Judge was sustained by the Hon'ble High Court on 28.05.2008 in FAO No. 450 of 2007. It has been stated that after the dismissal of his petition, the defendant was bound to vacate the portion of the suit property under his occupation but he failed to do so. The plaintiff thus served him with a legal notice dated 21.10.2008 through registered post asking him to Subhadra Kumari Vs. Vijay Kumar Tiwari Page No. 2/17 Suit No. 40/14/08 vacate the suit property. Instead of complying with the notice, the defendant started approaching the property dealers with a view to create third party interest in the suit property. The plaintiff was therefore constrained to institute the present suit seeking the following reliefs:
(a) a decree for recovery of possession of the portion of the suit property alongwith its fittings and fixtures in her favour;
(b) a decree for mesne profits for the unauthorized use and occupation of the suit property alongwith interest at the rate of 18 % per annum against the defendant; and
(c) a decree for injunction thereby restraining the defendant from creating any third party interest in the suit property.
3. Upon being served with the summons, the defendant filed his written statement cum counterclaim averring that since the parents of the plaintiff had no male child, he was brought up by them as their own son and he had been residing with them at house no. EXB35, BE Block, Gali No. 1, Hari Nagar, New Delhi since childhood. The parents of the plaintiff took care of Subhadra Kumari Vs. Vijay Kumar Tiwari Page No. 3/17 Suit No. 40/14/08 his educational expenses as well as other necessities. During his life time, Late Sh. Rameshwar Tiwari had got included the name of the defendant in the ration card and had also opened a joint account in the post office with him. Sh. Rameshwar Tiwari died intestate on 21.12.1990 and after his death, the defendant alongwith Smt. Jitni Devi went to their native place at Balia, UP for performing his last rites. However, Smt. Jitni Devi became unwell and had to be brought back to Delhi for her treatment. Smt. Jitni Devi also expired on 04.02.1991. After her death, disputes arose between the parties in respect of the movable and immovable assets left behind by the parents of the plaintiff. With the intervention of the respectable elders of the family, a family settlement/panchayati faisla was arrived at between the parties on 21.03.1991 according to which the property bearing no. EX B35, BE Block, Gali No. 1, Hari Nagar, New Delhi was given to the plaintiff and the suit property came to the share of the defendant. Arrangement regarding the other movable and immovable properties left behind by the parents of the plaintiff was also made. In pursuance to the said settlement, the parties shifted to their respective properties. In the year 1992, the plaintiff approached the defendant and asked him to hand over the original title documents of the suit property to her on the Subhadra Kumari Vs. Vijay Kumar Tiwari Page No. 4/17 Suit No. 40/14/08 pretext that she wanted the same for her personal purposes. Later on, the defendant came to know that the plaintiff had sold the suit property to an intending purchaser for a sale consideration of Rs. 1.5 lac and had also received a sum of Rs. 75,000/ as earnest money through Guru Nanak Property Dealer, Hari Nagar. The defendant immediately objected to the transaction whereupon the plaintiff returned the bayana amount to the purchaser. After about three years, the defendant came to know that Late Smt. Jitni Devi had executed a Will bequeathing all her movable and immovable properties in his favour and had kept the same in the custody of one Sh. Hare Ram Pandey. After acquiring the knowledge of the Will, the defendant filed a probate petition bearing no. 44 of 2006 but it was dismissed by the Ld. Additional District Judge on 15.09.2007. FAO No. 450 of 2007 and SLP No. 5029 of 2009 preferred by the defendant before the Hon'ble High Court of Delhi and Hon'ble Supreme Court of India were also dismissed on 28.05.2008 and 25.02.2009 respectively and taking advantage of the same, the plaintiff filed the present suit. According to the defendant, by virtue of the family settlement dated 21.03.1991 between the parties, he has become the absolute owner of the suit property and the plaintiff is estopped from claiming any right therein Subhadra Kumari Vs. Vijay Kumar Tiwari Page No. 5/17 Suit No. 40/14/08 since the family settlement was duly accepted and acted upon by the parties. Though the defendant admitted that the legal notice dated 21.10.2008 was served upon him but he denied that he was in unauthorized occupation of the suit property or that he was liable to pay damages for the use and occupation thereof to the plaintiff. It was also denied that the defendant ever tried to create any third party interest in the suit property. While praying for the dismissal of the suit, the defendant sought a decree of declaration in the counterclaim for declaring him to be the absolute owner of the suit property.
4. The plaintiff filed her replication cum written statement to the counter claim on 01.05.2009. She denied the execution of family settlement between the parties and stated that even otherwise, the said settlement had no value in the eyes of law being an unregistered document. She denied that Late Smt. Jitni Devi had executed any Will in favour of the defendant or that the defendant was entitled to be declared the owner of the suit property on the basis of family settlement dated 21.03.1991.
5. On 27.07.2009, following issues were framed: (1) Whether the plaintiff is entitled to a decree of possession of the suit property?OPP Subhadra Kumari Vs. Vijay Kumar Tiwari Page No. 6/17 Suit No. 40/14/08 (2) Whether the plaintiff is entitled to any mesne profit/damages? If so, at what rate and for what period?OPP (3) Whether the plaintiff is entitled for permanent injunction?OPP (4) Whether the defendant is owner of the suit property by virtue of Panchayati Faisla dated 21.03.1991, as claimed by him in his Written Statement?OPD (5) Whether the defendant is entitled to the declaration, as claimed in the prayer clause of his Counter Claim?OPD (6) Relief.
6. In support of her case, the plaintiff appeared in the witness box as PW1. She led evidence on affidavit (Ex. PW1/A) wherein she supported the averments of the plaint and proved the following documents:
i) Plaint as Ex. PW1/1;
ii) Site plan of the suit property as Ex. PW1/2;
iii) Copy of mutation letter dated 25.11.2008 received by Subhadra Kumari Vs. Vijay Kumar Tiwari Page No. 7/17 Suit No. 40/14/08 her from the Assistant, Assessor and Collector, MCD as Ex. PW1/3;
iv) Certified copy of the judgment dated 15.09.2007 passed by the Ld. Additional District Judge in Probate Petition No. 44/06 as Ex. PW1/4;
v) Certified copy of the judgment dated 28.05.2008 passed by the Hon'ble High Court in FAO No. 450/2007 as Ex. PW1/5;
vi) Certified copy of the order dated 23.02.2009 passed by
the Hon'ble Supreme Court in SLP No. 5029
of 2009 as Ex. PW1/6;
vii) Certified copy of the application dated 27.10.1993 filed
by the defendant under Section 27 (4) & (5) of Delhi Rent Control Act before the Ld. Additional Rent Controller as Ex. PW1/7;
viii) Certified copy of order dated 30.04.1999 passed by Ld. Rent Controller on the objections preferred by the defendant in execution petition no. 44/98 titled 'Subhadra Kumari Vs. Anil Kumar Suri' as Ex. PW1/8 and certified copy of order dated 24.03.2000 passed by the Ld. Rent Control Tribunal in RCA No. 307/99 as Ex. PW1/9;
Subhadra Kumari Vs. Vijay Kumar Tiwari Page No. 8/17 Suit No. 40/14/08
ix) Copy of affidavit of Smt. Jitni Devi stated to have been filed by the defendant with BSES as Ex. PW1/10 and the copy of ration card as Ex. PW1/11;
x) Copy of legal notice dated 21.10.2008 alongwith the postal receipt and AD card as Ex. PW1/12, Ex. PW 1/13 and Ex. PW1/16 respectively; and
xi) Copy of electricity and water bill of the suit property in her name as Ex. PW1/14 and Ex. PW1/15 respectively.
On the other hand, the defendant examined himself as DW1. He also led evidence on affidavit (Ex. DW1/A) testifying the averments of the written statement as well as the counterclaim. He placed on record the Panchayati Faisla/Family Agreement dated 21.03.1991 as Ex. DW1/1. The defendant also examined his father Sh. Jai Mangal Tiwari as DW2. Sh. K.G. Tarsem and Sh. Surjeet Singh, stated to be the scribe and witness of the Panchayati Faisla were also examined as DW3 and DW4 respectively.
7. I have heard the counsel for both the parties and perused the record.
8. My issuewise findings are as follows: Subhadra Kumari Vs. Vijay Kumar Tiwari Page No. 9/17 Suit No. 40/14/08 Issues No. 1, 4 & 5: "(1) Whether the plaintiff is entitled to a decree of possession of the suit property?OPP (4) Whether the defendant is owner of the suit property by virtue of Panchayati Faisla dated 21.03.1991, as claimed by him in his Written Statement?OPD (5) Whether the defendant is entitled to the declaration, as claimed in the prayer clause of his Counter Claim?OPD"
The above issues are being decided together as they are inseparably interwoven with each other.
The case of the plaintiff is that after the death of her parents, who died intestate, she being the sole ClassI heir became the owner of all their movable and immovable properties including the suit property and that since the defendant, who is her cousin brother and is in occupation of a portion of the suit property, failed to vacate the same despite the termination of his license vide legal notice dated 21.10.2008, she was constrained to approach the court. On the other hand, the defendant has asserted the right of ownership over the suit property on the basis of a Panchayati Subhadra Kumari Vs. Vijay Kumar Tiwari Page No. 10/17 Suit No. 40/14/08 Faisla/Family Settlement stated to have been executed between the parties on 21.03.1991. The execution of the said family settlement has been denied by the plaintiff.
It is not in dispute that at the time of death of the parents of the plaintiff in the year 199091, one Sh. Anil Kumar Suri was in occupation of a portion of the suit property in the capacity of a tenant. The said tenant had filed an application for deposit of rent under Section 27 of Delhi Rent Control Act before the Ld. Additional Rent Controller against the plaintiff and the defendant in the year 1993. In that petition, the defendant had moved an application (Ex. PW1/7) under Section 27 (4) & (5) of the Act on 27.10.1993 wherein he took the stand that he had been unnecessary impleaded because he was merely collecting rent on behalf of Smt. Jitni Devi, mother of the plaintiff, and that he had already sent a notice dated 06.07.1993 to the tenant asking him to pay rent to the plaintiff as she was the sole legal heir of Late Smt. Jitni Devi. The said application was posterior in time to the execution of the alleged family settlement dated 21.03.1991. If the defendant had become the absolute owner of the suit property by virtue of family settlement dated 21.03.1991, one fails to understand as to why he had asked the tenant to pay rent to the Subhadra Kumari Vs. Vijay Kumar Tiwari Page No. 11/17 Suit No. 40/14/08 plaintiff.
It is also an admitted position between the parties that after obtaining an eviction order against the above said tenant, the plaintiff had filed an execution petition bearing no. 44/98 wherein the defendant had preferred objections under Order 21 Rule 101 read with Section 151 CPC. The said objection petition was dismissed by the Ld. Rent Controller vide order dated 30.04.1999 (Ex. PW1/8). A perusal thereof shows that in his objection petition, the defendant had claimed ownership over the suit property on the basis of a Will alleged to have been executed in his favour by the mother of the plaintiff. No whisper with regard to the family settlement dated 21.03.1991 was made by him in the objections. Had the family settlement dated 21.03.1991 been executed between the parties, the defendant would have certainly relied upon the said family settlement in order to assert his claim of ownership over the suit property in addition to the Will.
It is further a matter of record that the defendant had instituted a probate petition bearing no. 44/06 on 18.03.1995 in respect of the abovementioned Will dated 01.02.1991. The said petition was Subhadra Kumari Vs. Vijay Kumar Tiwari Page No. 12/17 Suit No. 40/14/08 dismissed vide judgment dated 15.09.2007 (Ex. PW1/4) which has attained finality. A perusal of the above judgment shows that even in the probate petition, the defendant failed to mention about the existence of the alleged family settlement dated 21.03.1991.
The failure of the defendant to plead the existence of the alleged family settlement dated 21.03.1991 in all the above said proceedings makes it manifest that no such family settlement was ever executed between the parties and thereby no reliance can be placed upon the depositions of Sh. Jai Mangal Tiwari (DW2), Sh. K.G. Tarsem (DW3) and Sh. Surjeet Singh (DW4), who were examined by the defendant to prove the family settlement dated 21.03.1991. The other circumstances which weigh against the defendant are that the title document of the suit property are admittedly in the custody of the plaintiff; that the suit property has already been mutated in the municipal records in the name of the plaintiff; and that the defendant had failed to pursue his objections and to challenge the said mutation. The case of the plaintiff that no such family settlement was executed between the parties is more convincing in view of the fact that she being the sole classI legal heir had inherited all the movable and Subhadra Kumari Vs. Vijay Kumar Tiwari Page No. 13/17 Suit No. 40/14/08 immovable properties left behind by her parents and there was no need for her to enter into a family settlement with the defendant and his father so as to relinquish her right of inheritance in their favour in respect of some of the properties. From the foregoing discussion, it is clear that the defendant has miserably failed to prove his defence.
Though I have already come to the conclusion that no family settlement dated 21.03.1991 was ever executed between the parties but even if, for the sake of arguments, it is assumed that the said settlement was executed between the parties, the same does not help the case of the defendant. The terms of the settlement clearly demonstrate that it is not merely a record or a memorandum prepared after the family arrangement had already been made but manifestly effects partition of the properties by metes and bounds allocating specific share and properties to one party and extinguishing the rights of the other in the said properties. Though the document has the nomenclature of family settlement but it is in essence a partition deed and can not be looked into for the want of registration under Section 17 (2) of the Registration Act, 1908 in view of the law laid down by the Hon'ble Supreme Court in Kale Vs. Dy. Director of Subhadra Kumari Vs. Vijay Kumar Tiwari Page No. 14/17 Suit No. 40/14/08 Consolidation, (1976) 3 SCC 119. The doctrine of estopple would also not apply against the plaintiff because neither the terms of the alleged family settlement dated 21.03.1991 can be said to be fair and equitable nor the plaintiff had received any benefit thereunder.
According to the plaintiff, the license of the defendant to reside in the suit property was revoked by her vide legal notice dated 21.10.2008. The factum of service of the said notice upon the defendant is not in dispute. After the termination of license, the status of the defendant in respect of the suit property is not more than that of an unauthorized occupant and thus the plaintiff is clearly entitled to a decree for possession of the suit property against him.
Issues no.1, 4 & 5 are, therefore, decided in favour of the plaintiff and against the defendant.
Issues No. 2: "(2) Whether the plaintiff is entitled to any mesne profit/damages? If so, at what rate and for what period?OPP"
Subhadra Kumari Vs. Vijay Kumar Tiwari Page No. 15/17 Suit No. 40/14/08 The onus of proving the above issue was cast upon the plaintiff. Since I have already come to the conclusion while deciding the issues no.1, 4 & 5 that the defendant is an unauthorized occupant in respect of the suit property, there can be no doubt that the plaintiff is entitled to recover damages/mesne profits for the illegal and unauthorized use and occupation of the suit property by him. Though the plaintiff has claimed mesne profits/damages at the rate prevailing in the area but she has not disclosed the said rate. No evidence has been led by either of the party in respect of the quantum of damages. In my opinion, for the determination of the same, an inquiry under Order 20 Rule 12 CPC is required to be conducted. This issue is thus kept open.
Issues No. 3: "(3) Whether the plaintiff is entitled for permanent injunction?OPP"
It is the case of the plaintiff that after being served with the notice dated 21.10.2008, the defendant had started negotiating with the property dealers of the area with a view to create third party interest in the suit property. Though the defendant has stated that he never tried to create third party interest in the suit property but there is no gain saying that the plaintiff, who is the Subhadra Kumari Vs. Vijay Kumar Tiwari Page No. 16/17 Suit No. 40/14/08 owner of the suit property, shall suffer irreparable loss and injury if the defendant succeeds in doing so. Since the balance of convenience also lies in favour of the plaintiff, the above issue is decided in favour of the plaintiff and against the defendant. Relief: In the light of my findings on issues no. 1, 3, 4 & 5, the suit of the plaintiff qua the reliefs of possession and permanent injunction is decreed and the defendant is directed to handover the vacant and peaceful possession of the property bearing house no. BE146/A, Hari Nagar, New Delhi110064 to the plaintiff and he is also restrained from creating any third party interest therein. For the relief of recovery of damages/mesne profits, an inquiry under Order 20 rule 21 CPC shall be conducted. The counterclaim preferred by the defendant is also dismissed. Decree sheet be prepared accordingly.
Announced in the open court (Smita Garg)
on 02.06.2014 Addl. District Judge03 (West)
Tis Hazari Courts, Delhi.
Subhadra Kumari Vs. Vijay Kumar Tiwari Page No. 17/17