IN THE COURT OF SH. SAURABH KULSHRESHTHA: CCJ:ARC(EAST):KARKARDOOMA COURTS: DELHI Suit no : 250/07 ID NO.02402C0441332006 Sh. [ENTITY], S/o Sh. Neksa Singh, R/o D-1047, Street No. 23, Bhajanpura, Delhi-53 Plaintiff Versus Sh. [ENTITY], S/o Sh. [ENTITY], R/o D-1047, Street No. 23, Bhajanpura, Delhi-53. Defendant SUIT FOR RECOVERY OF POSSESSION & DAMAGES AND PERMANENT INJUNCTION Date of institution of the Suit : 10.08.2006 Date on which judgment was reserved : 11.05.2012 Date of decision : 29.05.2012 Decision : Suit Decreed JUDGMENT
This is a suit for recovery of possession and damages and permanent injunction. The plaintiff claims himself to be the exclusive owner of the house bearing no. D-1047, Street No. 23, Bhajanpura, Delhi-53, which is stated to be the self-acquired property of the plaintiff as the same has been purchased and constructed by the plaintiff exclusively from his own funds.
[CASE NUMBER]
2. The plaintiff has further averred that the defendant is the real son of the plaintiff and being so the defendant was permitted to live free of cost as a licensee of the plaintiff in one room and one kitchen on the first floor of the aforesaid house with facilities of common toilet and bathroom constructed on the first floor of the afore said house (hereinafter referred to as the suit premises) and the defendant alongwith his wife and children started residing in the suit premises as a licensee of the plaintiff.
3. It is further the case of the plaintiff that the defendant, his wife and children have been misbehaving with the plaintiff and his unmarried daughter and therefore, the plaintiff has disowned the defendant, his wife and his children and the other two sons of the plaintiff namely Sh. [ENTITY] and Sh. [ENTITY] and has also severed all his relations with all of them.
4. The plaintiff has further pleaded that he has terminated/canceled/revoked the licence of the defendant. Legal notice dated 01.05.2006 calling upon the defendant to hand over the vacant and peaceful possession of the suit premises to the plaintiff was also served [CASE NUMBER] upon the defendant, however, the defendant neither replied the said legal notice nor complied with the conditions stipulated therein.
5. The plaintiff has further averred that after termination of licence the defendant has no right to occupy the suit premises and is liable to vacate the same. The plaintiff has sought recovery for possession in respect of the suit premises. The plaintiff has accordingly claimed damages of an amount of Rs. 12,200/- for the unauthorized use and occupation of the suit premises w.e.f. 01.06.2006 to 31.07.2006 @ Rs. 200/- per day. The plaintiff has also claimed pendente lite and future damages @ Rs. 200/- per day from 01.08.2006 onwards till the date of delivery of possession. The plaintiff has further prayed for a decree of permanent injunction restraining the defendant from inducting any other/third person in the suit premises.
6. The defendant appeared before the court pursuant to service of summons and filed his written statement. The defendant pleaded that the plaintiff is neither the owner of the suit premises nor he has got any interest in the suit premises. The defendant further averred that the property in question was purchased by the defendant out of his own income and his other two brothers had also contributed for the same and the defendant [CASE NUMBER] alongwith his two brothers are residing in the suit property. The plaintiff is not in physical possession of any portion of the suit property.
7. The defendant further pleaded that the mother of the defendant expired on 14.11.2000 and the plaintiff took her thumb impression on some papers without the knowledge of the defendant and his other brothers and fabricated a power of attorney dated 15.11.2000 purported to have been issued by the mother of the defendant in favour of the plaintiff and tried to dispose of the property bearing no. D-1019, Gali No. 23, Bhajanpura, Delhi-53 which was owned by the mother of the defendant. The defendant further contended that the defendant and his brother have filed a suit for declaration and permanent injunction against the plaintiff in this respect and the same is now pending in the court of Ld. ADJ, Delhi.
8. It was further stated by the defendant that the plaintiff is not doing any work since 1979 and has no independent source of income apart from income from ancestral property and monthly rent. The defendant further stated that he took up employment on a temporary basis with MCD since 1984 and he was regularized in the year 1990 and the entire payment for the purchase of the suit property was made by the defendant and his [CASE NUMBER] 4 of 26 brothers as the plaintiff was unemployed since 1979.
9. The defendant denied that he was inducted as a licencee in respect of the suit premises. The defendant denied that he is in unauthorized occupation of the suit premises. The defendant further denied that he is liable to pay any damages to the plaintiff. The defendant further averred that the value of the suit premises is more than Rs. 5 lacs and therefore the suit has not been valued properly for the purpose of court fees and jurisdiction. The defendant prayed for dismissal of the suit on merits also.
10. Plaintiff filed replication and denied the averments of the written statement of the defendant and simultaneously reiterated and reaffirmed the contents of the plaint.
11. On the basis of the pleadings of the parties, vide order dated 01.10.2010, the following issues were framed in this case:
1. Whether the General Power of Attorney dated 15.11.2000 is forged and fabricated ? OPD
2. Whether the defendant is in occupation of the suit property as a licensee ? OPD
3. Whether the plaintiff is entitled to a decree of possession as prayed [CASE NUMBER] for in the plaint ? OPP
4. Whether the plaintiff has not approached the court with clean hands ? OPP
5. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for in the plaint ? OPP
6. Whether the plaintiff is entitled to any damages ? If so, at what rate and for what period ? OPP
7. Whether the defendant is owner of the suit property ? OPD
8. Relief.
12. In order to prove his case the plaintiff examined himself as PW 1 and deposed on the lines of the plaint. As against this the defendant examined himself as DW 1 and deposed on the lines of the written statement. The defendant also examined his brother Sh. [ENTITY] as DW 2.
13. I have heard the Counsel for the parties and have given due consideration to the rival contentions and carefully perused the record. My issue-wise findings are as follows:
Issue no. 1:
14. The question to be answered is as to whether the [CASE NUMBER] Power of Attorney dated 15.11.2000 is forged and fabricated or not.
15. As per the version of the defendant the GPA dated 15.11.2000 was purportedly issued by the wife of the plaintiff and mother of the defendant in respect of the property bearing no. D-1019, Gali No. 23, Bhajanpura, Delhi-53. The said property is not the subject matter of the present suit. The present suit is in respect of the property bearing no.
D-1047, Street No. 23, Bhajanpura, Delhi-53.
16. Therefore, there is no requirement for returning any finding in respect of the said GPA dated 15.11.2000 purported to have been issued by the wife of the plaintiff in favour of the plaintiff in respect of the property bearing no. D-1019, Gali No. 23, Bhajanpura, Delhi-53.
17. Moreover, the said GPA has not been exhibited at all in the present suit. Further DW-1 has stated that the defendant had filed a suit for declaration and for injunction in respect of the said GPA and the same was settled before the Mediation Center and in terms of the said settlement a decree was passed by the Ld. ADJ, Delhi.
[CASE NUMBER]
18. Hence there is no need for returning any finding on this issue. This issue is irrelevant and extraneous for the decision of the present suit. In these facts and circumstances, this issue does not survive for consideration and hence the the same is deleted/ struck out in terms of the provisions of [SECTION] [ACT].
19. The questions to be answered are as to whether the defendant was inducted in the suit premises as a licensee and whether the plaintiff is entitled to recover possession of the suit premises.
20. The defendant contended that he is the owner of the property. An issue was framed as to whether the defendant is the owner of the suit property. The onus to prove this issue was on the defendant. However the defendant has miserably failed to establish that the defendant is the owner of the suit property. No evidence has been led by the defendant on this count and no document has been produced by the defendant before the court in support of this claim.
21. As against this the plaintiff has also claimed that he is the [CASE NUMBER] 8 of 26 owner of the suit property. PW-1 deposed on the lines of the plaint. PW-1 has deposed that he is the sole and absolute owner of the suit property having purchased the same from its erstwhile owner. The title/ sale documents are copy of GPA dated 03.03.1986 which is Ex. PW1/1, copy of the agreement to sell dated 03.03.1986 which is Ex. PW1/2, copy of Will dated 03.03.1986 which is Ex. PW1/3, copy of receipt dated 03.03.1986 for an amount of Rs. 40,000/- which is Ex. PW1/4. The site plan of the suit property is Ex. PW1/5. The plaintiff has therefore, claimed that he had purchased the suit property and constructed the same out of his own funds.
22. Photocopies of the documents were produced and exhibited by PW 1. There is nothing substantial in the cross-examination of PW-1 which could persuade this court to disbelieve his testimony on this count. DW 1 stated in his cross examination that he came to know after filing of the present suit that the documents of the suit property are in the name of the plaintiff. DW 1 further stated that he had not filed any complaint in this respect.
23. The defendant has stated that he had purchased the suit property out of his own funds. However no details were disclosed as to [CASE NUMBER] who was the previous owner, what was the sale consideration, what was the date of purchase etc. The defendant stated in his cross-examination that he does not remember as to how the suit property was purchased. He further stated that he does not know the date and the time on which the documents were executed. He admitted that he has not filed any documents regarding purchase of the suit property. He further stated that he cannot produce the said documents. Thus no documents were produced by the defendant to show that the defendant is the owner of the suit property.
24. The defendant further examined DW-2 who is the other son of the plaintiff. However DW-1 stated in his cross-examination that he does not know from whom the suit property was purchased by the defendant. He stated that he does not know the consideration amount. He further stated that he does not know in whose name the property stands. He further stated that he has not seen the title documents of the suit property. He further stated that he has been dispossessed from the suit property forcibly by his father about 5 to 6 years back. He further stated that in an earlier case he had deposed that the suit property is in the names of all the three sons of the plaintiff. He further stated that at that time he was told that the property was in his name and therefore, he had stated so and now as on date he does know [CASE NUMBER] as to who is the actual owner of the suit property. Thus his testimony does not help the defendant.
25. Counsel for the defendant has argued that the permission to place on record these title/ sale documents was granted to the plaintiff vide order dated 09.10.2009 subject to the condition that he shall prove that the originals have been lost. PW-1 stated in his cross-examination that the original documents have been lost. However he did not remember the exact date and month of the loss of the said documents. He also did not remember as to whether he had lodged any FIR in respect of the loss of the said documents or not. But the fact of the matter is that he stated on oath before the court that he has lost the original documents and I have no reason to disbelieve the same. The substance of the order was that if loss of original documents is established then secondary evidence would be permitted. The mere fact that the complaint has not been proved on record would not ipso facto render the said documents inadmissible in evidence and more so when the defendant has failed to produce any title documents in his favour. Moreover the defendant has not been able to establish that the documents of the plaintiff are forged or fabricated.
[CASE NUMBER] 11 of 26
26. The defendant has therefore not been able to establish any right, title or interest in respect of the suit property. On the other hand the plaintiff has produced sale/ title documents namely agreement to sell, receipt and Will in respect of the suit property in support of his claim of ownership.
27. However Counsel for the defendant has placed reliance on the judgment titled as [ENTITY] & Industries (P) Ltd. v. State of Haryana reported as 183 (2011) DLT 1 (SC). In the said judgment it was held by the Hon'ble Supreme Court that SPA/GPA/WILL transactions are not `transfers' or `sales' and that such transactions cannot be treated as completed transfers or conveyances. There is no dispute about the proposition that execution of these documents may not be be treated as a complete sale and concluded transfer of the property.
28. However the Hon'ble Supreme Court in the said judgment [ENTITY] & Industries (P) Ltd. v. State of Haryana itself held that " they can continue to be treated as existing agreements of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said `SA/GPA/WILL transactions' may also be used [CASE NUMBER] to obtain specific performance or to defend possession under [SECTION] of [ACT]. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities. We make it clear that if the documents relating to `SA/GPA/WILL transactions' has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision "
29. This shows that these documents coupled with delivery of possession create some interest in the property in favour of transferee. He is entitled to protect his possession. Moreover the Power of Attorney executed in his favour can also not be cancelled in view of [SECTION] of the [ACT].
30. Adverting to the facts of the present case the plaintiff has therefore, some interest in the suit property. He was also given possession of the suit property by virtue of the documents in question. There is a clear covenant in the agreement to sell Ex. PW1/2 in this respect that the vacant possession was delivered to the plaintiff. The necessary concomitant is that after execution of the said documents the plaintiff entered into the [CASE NUMBER] 13 of 26 possession of the suit property.
31. Further more even if the alleged title documents are not taken into account the electricity bills Ex. PW1/7 to Ex. PW1/10 are in the name of the plaintiff. The house tax receipts Ex. PW1/11 to Ex. PW1/13 are in the name of the plaintiff. The water bill of Delhi Jal Board Ex. PW1/14 and Ex. PW1/15 are in the name of the plaintiff. Copy of Election I-card of the plaintiff is Ex. PW1/16. Copy of the gas connection receipt Ex. PW1/17 is also in the name of the plaintiff.
32. The defendant also admitted in his testimony that initially the water and electricity connection was in the name of the plaintiff but the plaintiff got the same disconnected later on. The defendant/ DW 1 further stated that the electricity connection in the name of the plaintiff was installed in the suit premises in the year 1986. DW 1 further stated that the suit property was purchased in the year 1986. DW-1 further stated in his cross-examination that he does not remember as to whether he had taken the water connection stating that the plaintiff is the owner of the suit property and after obtaining NOC from the plaintiff. DW-1 was further confronted with the letter dated 14.07.2004 of Delhi Jal Board which is marked as [CASE NUMBER] 14 of 26 mark-A wherein it is so recorded. However, he could not explain the said letter. At any rate he did not expressly deny the said letter. Hence adverse inference ought to be drawn against him.
33. All these facts clearly establish that it was the plaintiff who first came in possession of the suit premises under the claim of ownership rights. The plaintiff has therefore established his superior possessory rights in respect of the suit property.
34. In this respect reference may also be made to the judgment titled as [PRECEDENT] decided by the Hon'ble High Court of Delhi on 01.03.2012 wherein it was held:
" Of course, the judgment in the case of [ENTITY] (Supra) squarely applies against the respondent/plaintiff in the facts of the present case because the documents in question executed in favour of the respondent/plaintiff are dated 25.9.2001 and the amended provision of [SECTION] of the [ACT] came into force just one day before i.e. on 24.9.2001, however, it would at best mean that ownership rights as is normally known would not rest with the respondent/plaintiff, however, possessionary rights of the suit property cannot be disputed to be [CASE NUMBER] that of the respondent/plaintiff. These possessory rights were created in the year 2001 itself by means of the documents executed in favour of the respondent/plaintiff. In a suit for possession a plaintiff has to show better title i.e. entitlement than that of the defendant and in the present case, besides the fact that respondent/plaintiff has shown a better entitlement to possession by virtue of the documents dated 25.9.2001 executed in her favour, the appellants/defendants themselves do not have any equities in their favour inasmuch as qua both the flats purchased by them rights have been exercised. Thus, even if the respondent/plaintiff fails to prove the ownership rights stricto sensu to the extent of entitlement of possession, the appellants/defendants cannot defend the suit for possession once no title or interest in the suit property is claimed by them. The respondent/plaintiff, therefore, need not strictly prove, that a license deed ought to have been executed before the suit for possession could be filed by respondent/plaintiff. A license is merely a right to enter and exit a property and for which there is no deed which is required to be drawn up "
35. It is well settled that the standard of proof in civil cases and criminal cases is different. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the [CASE NUMBER] 16 of 26 benefit of every reasonable doubt. The plaintiff in a civil suit has to merely establish his case on the touchstone of preponderance of probabilities. As per [SECTION] of the [ACT], a fact is said to be proved when the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. The court has to weigh the conflicting probabilities and decide whether the preponderance is in favour of the fact asserted by the plaintiff. Thus if the evidence of the plaintiff outweighs that of the defendant and persuades the court to believe the same to be more probable and true than that of the defendant then it can be held that the plaintiff has proved his case by preponderance of probability. Reference may be made to the judgments titled as [PRECEDENT] and [PRECEDENT].
36. Further the Hon'ble Supreme Court in the judgment titled as "[PRECEDENT] held:
[CASE NUMBER] 17 of 26 " Being a civil case, the plaintiff cannot be expected to prove his title be - yond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus the plaintiff's burden of proof can safely be deemed to have been dis- charged "
37. In this background the version of the plaintiff appears to be more probable as the plaintiff has established that he came in possession of the suit property prior to the defendant under the claim of an independent interest in the suit property and he has a better title and a better claim for possession. The defendant on the other hand has not been able to establish any independent right, title or interest in the suit premises nor the possession of the defendant in the suit premises cannot be traced back to any independent right, title or interest in respect of the suit property. The necessary concomitant is that the defendant came in possession of the suit premises having being inducted as a licencee by the plaintiff in the suit premises. The plaintiff has therefore, established by preponderance of probabilities that the defendant was inducted as a licencee in the suit premises.
[CASE NUMBER] 18 of 26
38. Now under [SECTION] of the [ACT] a licencee is estopped from challenging the title or the right of possession of the licencor. [SECTION] of the [ACT] reads as under:
" 116 . Estoppel of tenant; and of licensee of person-in- possession. - No tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord or such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the license of the person-in-possession thereof. shall be permitted to deny that such person had a title to such possession at the time when such license was given."
39. In the judgment titled as [PRECEDENT] the Hon'ble Supreme Court held:
" The respondent was a licensee, and he must be deemed to be always a licensee. It is not open to him during the subsistence of the licence or in the suit for recovery of possession of the property instituted after the revocation of the licence to set up title to the property in himself or anyone else. It is his plain duty to surrender possession of the property as a licence and seek [CASE NUMBER] his remedy separately in case he has acquired title to property subsequently through some other person. He need not do so if he has acquired title to the property from the licensor or from some one else lawfully claiming under him, in which case there would be clear merger. The respondent has not surrendered possession of property to the appellant even after the termination of the licence and the institution Or the suit. The appellant is, therefore, entitled to recover possession of the property "
40. In the judgment titled as [PRECEDENT] it was held:
" The status of the father of defendants Nos. 1 and 2 in the house, being that of a licensee, the status of defendants Nos. 3 and 4 being sons of defendant No. 1, could not have been better than the status of the father of defendants Nos. 1 and 2 and the defendants were estopped from denying the title of the plaintiff to the house in suit under [SECTION] of the [ACT] "
41. In view of this clear principle enshrined under [SECTION] of the [ACT] the defendant is estopped from challenging the title of the plaintiff and his right to recover possession. The defendant therefore [CASE NUMBER] must hand over the possession of the suit premises to the plaintiff on termination of his licence.
42. PW 1 has categorically deposed that legal notice dated 01.05.2006 was served upon the defendant thereby, terminating his licence. The legal notice is Ex. PW1/6. Postal receipt and courier receipt are Ex. PW1/6A and Ex. PW1/6B respectively. Hence, the legal notice dated 01.05.2006 is deemed to have been served upon the defendant in the ordinary course. Nothing contrary has been established by the defendant. The license therefore stood terminated on the service of the legal notice. Even otherwise the filing of the present suit amounts to an express termination of the licence of the defendant. Moreover the defendant did not reply to the said legal notice and hence adverse inference ought to be drawn against the defendant on that count.
43. I therefore hold that the license of the defendant stood terminated on service of legal notice dated 01.05.2006. After termination of the licence of the defendant the status of the defendant in the suit premises is that of an unauthorized occupant/trespasser and the defendant is liable to handover the vacant possession of the suit premises to the plaintiff. The [CASE NUMBER] plaintiff is therefore entitled to recover the possession of the suit premises from the defendant.
44. There is nothing on record to show that the plaintiff has approached the court with unclean hands.
45. Accordingly, issues no. 2, 3, 4 & 7 are decided in favour of the plaintiff and against the defendant.
Issue No. 5 :
46. The question to be answered is as to whether the plaintiff is entitled to the permanent injunction claimed.
47. The plaintiff has established that he has a better title to the suit premises than the defendant and the defendant has failed to establish that he has any right, title or interest in respect of the suit premises. Further since the defendant was inducted in the suit premises by the plaintiff as a licencee, therefore the defendant has no right to dispute the title of the plaintiff or his right to possession of the suit premises. The defendant is therefore liable to handover the vacant possession of the suit premises to the plaintiff.
[CASE NUMBER] 22 of 26
48. The defendant thus cannot induct any third person in the suit premises nor can he create any third party interest in respect of the suit premises or part with the possession of the suit premises to any third party. Hence the plaintiff is entitled to a permanent injunction to that effect.
49. This issue is therefore also decided in favour of the plaintiff and against the defendant.
Issue No. 6 :
50. The question to be answered is as to whether the plaintiff is entitled to any damages or not.
51. The plaintiff has established that he has a better title to the suit premises than the defendant and the defendant has failed to establish that he has any right, title or interest in respect of the suit premises. Further since the defendant was inducted in the suit premises by the plaintiff as a licencee, therefore the defendant has no right to dispute the title of the plaintiff or his right to possession of the suit premises. The defendant is therefore liable to handover the vacant possession of the suit premises to the plaintiff.
[CASE NUMBER] 23 of 26
52. The status of the defendant after termination of his licence was reduced to that of an unauthorized occupant/ trespasser. Even after termination of license the defendant has used and occupied the suit premises without any authority of law and hence the defendant is liable to pay damages to the plaintiff.
53. The plaintiff has claimed damages @ Rs. 200/- per day w.e.f. 01.06.2006. There is nothing in the cross-examination of the PW-1 or in the testimony of DWs with respect to the quantum of damages. The testimony of PW-1 on this count has therefore gone unrebutted. Moreover the rate of damages claimed by the plaintiff does not appears to be penal or unconscionable rather it appears to be reasonable in the facts and circumstances of the case.
54. Accordingly, defendant is liable to pay damages to the plaintiff for the unauthorized use and occupantion of the suit premises @ Rs. 200/- per day per day w.e.f 01.06.2006 to 31.07.2006 amounting to Rs. 12,200/-. The plaintiff is also entitled to pendente lite and future damages at a consolidated rate of Rs. 6000/- per month from the date of institution of [CASE NUMBER] the suit till the date of handing over of the vacant and peaceful possession of the suit premises to the plaintiff.
55. This issue is therefore also decided in favour of the plaintiff and against the defendant.
RELIEF
56. A decree of possession is therefore passed in favour of the plaintiff and against the defendant directing the defendant to handover the vacant possession of the suit premises i.e. one room and one kitchen on the first floor of the aforesaid house with facilities of common toilet and bathroom constructed on the first floor of the house bearing no. D-1047, Street No. 23, Bhajanpura, Delhi-53, as shown in red colour in the site plan Ex. PW 1/5, to the plaintiff.
57. A decree of an amount of Rs. 12,200/- towards pre suit damages is also passed in favour of the plaintiff and against the defendant. The plaintiff is also entitled to pendente lite and future damages at a consolidated rate of Rs. 6000/- per month from the date of institution of the suit till the date of handing over of the vacant and peaceful possession of the [CASE NUMBER] 25 of 26 suit premises to the plaintiff.
58. A decree of permanent injunction is also granted in favour of the plaintiff and against the defendant restraining the defendant from creating any third party interest in respect of the suit premises and from inducting any third person in the suit premises and from parting with the possession of the suit premises to any third person apart from the plaintiff.
59. The suit is decreed in these terms in favour of the plaintiff and against the defendant. Costs of the suit are also awarded in favour of plaintiff and against the defendant. Decree sheet be prepared accordingly. The decree qua the pendente lite and future damages/ mesne profits shall not be prepared till balance court fee on the amount as on the date of decree is paid. Thereafter, file be consigned to record room.
Announced in the open (SAURABH KULSHRESHTHA) Court on 29.05.2012 CCJ/ARC(East) (Judgment contains 26 pages.) KARKARDOOMA COURTS, DELHI [CASE NUMBER] 26 of 26