Delhi District Court
Bhagwat Singh vs Rani on 25 March, 2025
THE COURT OF SH. ANKIT MITTAL: CIVIL JUDGE-01:
SOUTH WEST DISTRICT: DWARKA COURT: NEW DELHI
Unique case ID No: 381/24
CNR NO. DLSW030006362024
IN THE MATTER OF :
Shri Bhagwat Singh
S/o Sh. Har Kishan
R/o Ground Floor,
RZH-63A, Gali No.9, Raghu Nagar,
New Delhi-110045 ...Plaintiff
VERSUS
Ms. Rani
W/o Late Raj Kumar
D/o Sh Phool Chand
R/o H.No.7B/2, Hans Enclave
Vill. Naharpur, NH-8,
Gurugram, Haryana-122022 ...Defendant
Date of filing : 17.08.2020
Date of Institution : 19.03.2024
Date of pronouncing judgment : 25.03.2025.
SUIT FOR MANDATORY AND PERMANENT INJUNCTION
AND FOR RECOVERY MESNE PROFIT.
JUDGMENT.
By this judgment this Court shall dispose off a suit for
mandatory and permanent injunction and for recovery
mesne profit filed by the plaintiff against the defendant.
Before adjudicating upon the issues framed in the present
suit, it necessary to dwell upon the plethora of pleadings in
the present suit.
1. It is averred in the plaint that the plaintiff is the
Digitally signed
ANKIT MITTAL
by ANKIT
MITTAL Date: 2025.03.25
16:57:56 +0530
Civil Suit No. 381/24 Judgment dt. 25.03.2025 Page no. 1 of 31
landlord/owner of three storied house property bearing No.
RZH-63A, Gali No.9, Raghu Nagar, New Delhi-110045,
measuring 50 sq Yards out of Kh. No 18/23 situated at in
the revenue estate of village Dabri, Delhi.
2. It is averred in the plaint that the plaintiff purchased the
property from one Rishal Singh S/o Har Lal, Om Prakash
S/o Hari Singh, Niader S/o Rizak Ram all R/o Village
Dabri, Delhi Estate on 17.11.1980 for consideration.
3. It is further averred that the plaintiff purchased this
property out of his own income. He constructed his house
upto three stories. He has three sons and two daughters. He
got married all his children. He even brought up his three
nieces namely Ms. Jyoti, Vandana & Gunjan. It is relevant
to mention here that the plaintiff was employed with
Indian Post and retried as Clerk on 31.05.2019. The
plaintiff got married his nieces namely Jyoti and Gunjan.
Gunjan got married on 14.02.2020. The plaintiff bore all
the marriage expenses of his niece Gunjan.
4. It is averred that since defendant marriage with the son of
the plaintiff, plaintiff allowed the defendant to live in one
room set on the first floor of his house bearing No.
RZH-63A, Gali No.9, Raghu Nagar, New Delhi-110045,
measuring 50 sq Yards out of Kh. No 18/23 situated at in
the revenue estate of village Dabri, Delhi, more clearly
shown in site plan and photograph attached with the plaint.
5. It is further averred that the defendant used to come to suit
property only for one day per week. The plaintiff and his
son requested the defendant to live with his son
permanently but the defendant never acceded to their Digitally signed
by ANKIT
ANKIT MITTAL
Date:
MITTAL 2025.03.25
16:58:06
+0530
Civil Suit No. 381/24 Judgment dt. 25.03.2025 Page no. 2 of 31
requests. The husband of defendant was not at all happy
with her behavior and due to continue tension, he suffered
heart attack and died on 25.02.2016. At the time of
defendant marriage with the son of plaintiff, it was told
that the defendant was running a beauty parlor in
Gurugram and earning more than 25,000/- per month and
assured the plaintiff and her husband that after marriage
the defendant would shift the same in Delhi. But despite
assurance, the defendant did not accept the request of the
plaintiff and continued to run her parlor at Gurugram.
6. It is further submitted that the defendant has never resided
permanently in the accommodation i.e. one room, Kitchen,
toilet and bathroom on the first floor of the property
bearing no. RZH-63A, Gali No.9, Raghu Nagar, New
Delhi-110045, measuring 50 sq Yards out of Kh. No 18/23
situated in the revenue estate of village Dabri, Delhi of
plaintiff. After death of son of the plaintiff namely Raj
Kumar on 25.02.2016, the defendant has visited the
licensed accommodation rarely. The defendant has locked
the suit property just to extort some money from the
plaintiff.
7. It is further averred that that the plaintiff needs the
accommodation occupied by the defendant for their own
use. It is further submitted that in the vicinity of the
property of plaintiff, similar property/one room set, which
the defendant have kept locked since 2016 could fetch
more than Rs. 6,000/- per month to plaintiff. The defendant
has kept the same locked to harass and to extract money
from the plaintiff, which the defendant is not entitled to.
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8. It is further averred that the defendant had been harassing
the plaintiff for money. The defendant had been insisting
the plaintiff to sell out his house and give her share. The
defendant had created scenes, whenever she visited the
plaintiff at Raghu Nagar house. The plaintiff has made
written complaint dt.11.12.2019 to SHO PS Sagarpur.
9. Lastly on 18.07.2020, the defendant visited plaintiff house
to threatened him to kill him and implicate plaintiff, his
other family members including his younger sons namely
Sohan Lal & Satya Pal in false criminal cases of heinous
nature, if her demands of money/separate accommodation
was not met. The plaintiff/ his son have also made separate
written complaints dated 19.07.2020 & 22.07.2020 to SHO
PS Sagarpur to this effect.
10.It is averred that the plaintiff is not interested to allow the
defendant to keep locked the accommodation given to her,
anymore and terminate the license granted to her out of
love and affection. The plaintiff has also disowned the
defendant and her daughter from inheritance by
publication. It is also submitted that the plaintiff has came
to know that the defendant have approached property
dealers in the area and the defendant are trying to hand
over possession of the said property in her possession by
selling the same. In fact the defendant is not residing in the
suit property since 09.07.2016 and kept her locks in the
suit property. The plaintiff requested the defendant to
vacant the suit property and handover the physical
possession suit property to the plaintiff but of no use. The
plaintiff got sent and served a legal notice dated
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21/07/2020 on her known address by speed post and on her
WhatsApp number. It is also submitted that the defendant
through her counsel has replied the legal notice sent to her
vide reply dated 11.08.2020 received on 12.08.2020.
11.It is further averred that as the plaintiff is not willing to
permit the defendant to continue with the permission/
license to reside in the suit property and terminated the
license vide legal notice dated 21.07.2020, the defendant is
liable to pay the mesne profits for use and occupation of
the suit property @ Rs.6,000/ per month to the plaintiff.
12.Resultantly, plaintiff filed the present suit with the
following reliefs:
a) Mandatory injunction thereby directing the defendant,
her assignees, or any other person found in possession on
her behalf etc. to remove her house hold articles, furniture,
belonging etc. from one room, Kitchen, toilet cum
bathroom on the first floor of the property of plaintiff
property bearing No. RZH-63A, Gali No.9, Raghu Nagar,
New Delhi, built on plot measuring 50 sq. Yards out of Kh.
No 18/23 situated at in the revenue estate of village Dabri,
Delhi. More specifically shown in red colour in the
attached site plan.
b) For recovery of mesne profits @Rs.6,000/- per month
from the termination of license vide legal notice dated
21.07.2020 till vacating the suit property.
c) Permanent Injunction thereby restraining the defendant,
her agents, servants, relatives etc. from parting with
possession of the suit property more specifically shown in
red colour and interfering in the peaceful enjoyment of the
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remaining portion of the First Floor of the property bearing
property bearing No. RZH-63A, Gali No.9, Raghu Nagar,
New Delhi, built on plot measuring 50 sq. yards out of Kh.
No 18/23 situated at in the revenue estate of village Dabri,
Delhi, more specifically shown in green colour in the
attached site plan,
d) Any other relief
13.Defendant has appeared and filed the Written Statement.
In the Written Statement, it is submitted that the Suit under
reply, which has been filed at the behest of Plaintiff, is
nothing but a bundle of lies and grossly misconceived
notions which has no legal standing at all and the same has
been made to deny lawful rights of the Defendant and her
daughter.
14.It is further submitted that the present Suit is liable to be
dismissed on the ground alone that no element of Cause of
Action has been demonstrated or set forth by the Plaintiff
in the present Suit.
15.It is submitted that, it is the Plaintiff and his other family
members who have been harassing Defendant as well as
her daughter with malafide intent to deny the rights of their
husband/ father in the ancestral property which cannot be
permitted in the eyes of law.
16.It is further submitted that the present Suit is a piece of
clever drafting wherein the Plaintiff has tried to give a
colour of a cause of action which, in fact, does not exist in
reality. Hence, the present Suit is liable to be dismissed out
rightly. It is submitted that the Plaintiff does not have
either any locus or clear right to institute the present suit.
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17.It is submitted that by stretch of any imagination, the
premise in dispute cannot be stated to be a licensed
premises in as much as the same is nothing but the
"matrimonial home" of the Defendant. It is submitted that
it is an admitted fact at the instance of plaintiff only that
Defendant and her daughter have been illegally and
unlawfully ousted from the demised premises and have
been ignored from their basic, customary, constitutional as
well as statutory rights. It is stated that the Plaintiff shall
not at all be allowed to take away various customary,
constitutional as well as statutory rights given under
Cr.P.C, C.P.C, Hindu Marriage Act, Domestic Violence Act
etc to the Defendant and her daughter.
18.It is further submitted that the Defendant has a rightful
claim over the suit property as it being the matrimonial
home of the Plaintiff's son and the Defendant, wherein
they cohabited after the solemnization of their marriage,
and the Plaintiff shall not be allowed to dispossess
Defendant as well as her daughter from their lawful
possession and right over the property in the garb of the
claim of permissive license. It is further submitted that the
Plaint filed by the Plaintiff is clearly depicting that the
Plaintiff is trying to escape from his obligations/
responsibilities as well moral duties to maintain the wife of
his son and her daughter who is also the Plaintiff's
Granddaughter.
19.It is further submitted that as according to Section 2(s) of
Protection of Women from Domestic Violence Act, 2005,
the Defendant herein has all the rights to live in her
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matrimonial home along with her daughter.
20.Further, it is submitted that, as according to Section 19 of
the Hindu Adoption and Maintenance Act, 1956,
Defendant and her daughter is entitled to be maintained by
Plaintiff after the unfortunate and sad demise of
Defendant's husband who was also the Plaintiff's son and
the same cannot be denied by the Plaintiff.
21. It is submitted that contents of the Plaint are wrong, false
and hence denied. It is submitted that the son of the
Plaintiff was the husband of the Defendant herein and was
residing in the same address before his unfortunate and sad
demise. It is pertinent to mention herein that soon after the
demise of the husband of the Defendant, the Plaintiff
herein alongwith other members of the family started
harassing the Defendant herein and forced her to leave her
matrimonial home alongwith her minor daughter. Further,
it is denied that the Defendant used to come to Suit
property only for one day per week. It is further denied
that the Plaintiff and his son requested the Defendant to
live with his son permanently but the defendant never
acceded to their requests. It is vehemently denied that the
husband of Defendant was not at all happy with her
behavior and due to continued tension, he suffered heart
attack and died on 25.02.2016. It is further submitted that
after the solemnization of marriage of the Defendant with
the son of the Plaintiff, they both cohabited together in the
aforesaid premises and hence the same is the matrimonial
home of Defendant and the Defendant cannot be ousted
from the same. It is submitted that the Plaintiff since the
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very inception of marriage knew that Defendant has a
beauty parlour in Gurugram vide which she earns Rs.
15,000/- per month. It is further submitted that the
Petitioner always had a knowledge of the fact that the shop
cannot be shifted to New Delhi and he even agreed for the
same. It is further stated that there was no assurance given
from the side of Defendant and the decision of the
Defendant was respected and appreciated by the Plaintiff's
son which was not acceptable to the Plaintiff. It is denied
that the Defendant has never resided permanently in the
accommodation i.e. one room, kitchen, toilet and bathroom
on the first floor of the property bearing no. RZH-63A,
gali no.9, Raghu Nagar, New Delhi-110045, measuring 50
sq. yards out of kh. No 18/23 situated at in the revenue
estate of village Dabri, Delhi of Plaintiff. It is denied that
after the death of son of the Plaintiff namely Raj Kumar on
25.02.2016, the Defendant has visited the licensed
accommodation rarely. It is further vehemently denied that
the Defendant has locked the Suit property just to extort
some money from the Plaintiff. It is submitted that the
above-mentioned one room set is a matrimonial home of
Defendant where she cohabited with her husband, i.e., the
Plaintiff's son after the solemnization of their marriage and
cannot be treated as licensed premises by stretch of any
imagination. It is further submitted that the Defendant after
her marriage lived continuously in the demised premise
however, after the sad and unfortunate demise of Plaintiff's
son, the Plaintiff herein in connivance with other family
members started ill treating the Defendant and her
Civil Suit No. 381/24 Judgment dt. 25.03.2025 Page no. 9 of 31
daughter and forced her to leave the premises.
22.It is further submitted that the daughter of the Defendant
also has all the right to be maintained by the Plaintiff,
being her granddaughter and the Plaintiff cannot shy away
from such responsibility after the death of her father, i.e.,
the son of the Plaintiff. It is further submitted that
defendant after the death of Plaintiff's son, i.e, her
husband, has only been requesting for support from
Plaintiff to take care of herself and her minor daughter.
However, the Plaintiff herein malafidely in connivance
with other family members, tortured the Defendant and her
daughter and forced them to leave the above-mentioned
premises, which indeed is also the matrimonial house of
the Defendant. It is vehemently denied that the Defendant
visited Plaintiff's house to threaten him to kill him and
implicate plaintiff, his other family members including his
younger sons namely Sohan Lal & Satya Pal in false
criminal cases of heinous nature, if her demands of
money /separate accommodation was not met. It is denied
that the Plaintiff has also disowned the Defendant and her
daughter from inheritance by publication. It is submitted
that by stretch of any imagination, Defendant and her
daughter cannot/shall not be stated to be provided with any
kind of license by the Plaintiff, to live in the said property,
in as much as, the same is the matrimonial home of the
Defendant. It is denied that the Defendant is not residing in
the suit property since 09.07.2016 and kept her locks in the
suit property.
23.Issues were framed as under:
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1. Whether the property bearing no.RZ-H-63A, Gali No.9,
Raghu Nagar, ad-measuring 50 sq.yds out of khasra
no.18/23 situated in the revenue of village Dabri, New
Delhi-110045 (in short, the said property) is the self
acquired or ancestral property of the plaintiff? OPD
2. Whether the defendant is having right of ownership over
one room set situated in the said property (in short, the suit
property) being her matrimonial home? OPD
3. Whether the defendant is a licensee of plaintiff in
respect of the suit property? OPP
4. Whether plaintiff is entitled to get permanent injunction,
as prayed for? OPP
5. Whether plaintiff is entitled to get mandatory injunction,
as prayed for? OPP
6. Whether plaintiff is entitled to get mesne profit at the
rate of Rs.6,000/-p.m. for use and occupation of the suit
property w.e.f. termination of licence of defendant through
legal notice dated 21.07.2020 till handing over the
possession of the suit property?
7. Relief.
24.The plaintiff has examined two witnesses on his behalf i.e.
the plaintiff Sh. Bhagwat Singy who stepped into the
witness box and examined himself as PW1. In his
testimony, PW1 tendered his evidence by way of affidavit
being Ex.PW1/A and he reiterated the contents of the
plaint and also relied upon the following documents:
1) Copy of GPA, Agreement to sell, affidavit are
Ex.PW1/1 (colly) (OSR).
2) Copy of receipt dt. 17.11.1980 is Ex.PW1/2 (OSR).
3) Copy of aadhar card, Voter I card, Pensioner I card, Sr.
Civil Suit No. 381/24 Judgment dt. 25.03.2025 Page no. 11 of 31
Citizen card and PAN card are Ex.PW1/3 (Colly) (OSR).
4) Site plan is Ex.PW1/4.
5) Copy of complaint dt.11.12.2019 is Ex.PW1/5 (Duly
stamped seen and returned).
6) Copy of complaint dt.19.07.2020 and 22.07.2020 are
Ex.PW1/6 (colly) (Duly stamped seen and returned).
7) Copy of legal notice, receipt and registered cover are
collectively Ex.PW1/7(colly).
25. In the cross-examination, he deposed as under:
"I had five children out of which one has expired and now
there are four children. Now I have two sons and two
daughters. I alongwith my two sons are presently living in
the building of which suit premises is part. No one except
the above mentioned are living in the building. My both
the sons are married and have children. Both have two
children each. Both sons are living alongwith their wives
and children in the same building. Both have their separate
kitchens. It is correct that the defendant after marriage
came to the suit premises alongwith my eldest son. It is
correct that I permitted them to live in the suit premises.
My eldest son is having one daughter. I do not remember
when the daughter of eldest son took birth. She was born
in the suit property while defendant was living in the suit
property. Daughter of defendant might be age of 8 to 9
years. My family is a joint family. (vol- my both the son
are living alongwith their family separately). The witness
is shown his complaint dt. 11.12.2019 Ex.PW1/5 to which
the witness states that I have mentioned that I have given
one room each to my three sons. I know the contents of
my evidence affidavit Ex.PW1/A. I can understand the
English a little bit. The witness is shown para 8 of
Ex.PW1/A. It is correct that I have not placed on record
any document showing demand of money by the
defendant. I signed my evidence affidavit Ex.PW1/A
before Oath commissioner. It is wrong to suggest that the
evidence affidavit Ex.PW1/A was not signed before the
Oath commissioner. It is wrong to suggest that the suit
premises in question is shared house hold of the defendant.
It is wrong to suggest that I am deposing falsely and I have
filed the present suit to harass the defendant and her
daughter."
Civil Suit No. 381/24 Judgment dt. 25.03.2025 Page no. 12 of 31
26.PW2 Sh. Ratan Lal, S/o. Late Sh. Dina Ram has tendered
the evidence by way of affidavit which is Ex.PW2/A and
also identified his signatures at point A and B on the
document Ex.PW1/1.
27.In the cross-examination, he deposed as under:
"I do not know the English language in which my
evidence affidavit has been drafted, however, the counsel
had explained the contents to me and then I signed the
same. It is wrong to suggest that affidavit has not been
read over to me and I was wrongly made to sign the same.
At this stage, the witness is shown the para 2 of his
evidence affidavit i.e. Ex.PW2/A and after seeing the
same, he states that the contents of para no.2 is true. It is
correct that no documentary proof qua the purchase of plot
done by me has been filed on record. Presently, I am
retired Govt. servant, however, I used to work in Govt. of
India Press, Maya puri Delhi. At this stage, the witness is
shown the para 5 of his evidence affidavit i.e. Ex.PW2/A
and after seeing the same, he states that the contents of
para no.5 is true. It is correct that no documentary proof
qua tenancy of my property has been filed by me on
record. It is correct that I have rented out my premises
mentioned in the para no.5 of evidence affidavit to one Sh.
Manohar Lal and not to my children. It is wrong to suggest
that I am deposing falsely".
28.The defendant has examined one witness i.e. Smt. Rani,
the defendant who stepped into the witness box and
examined herself as DW1. In her testimony, DW1 tendered
her evidence by way of affidavit being Ex.DW1/A and he
reiterated the contents of the WS.
29.In the cross-examination, he deposed as under:
"I am 12th pass. I am running a shop of beauty parlour. I
am running the shop since before my marriage. I know
english little bit. I do not know the contents of affidavit
DW-1/A. I am living with my parents at the address given
above. I do not know if plaintiff is the owner of suit
Civil Suit No. 381/24 Judgment dt. 25.03.2025 Page no. 13 of 31
property. I have not filed any case against the plaintiff. It is
correct that I have not regularly resided in the suit
property. (Vol. I cannot travel to Gurugram for earning my
livelihood for self and my daughter). It is wrong to suggest
that plaintiff or his family have never ill treated me. It is
wrong to suggest that I have made false complaints against
the plaintiffs or his family members or that I have called
anti-social elements to threaten the plaintiff. It is correct
that my father in law permitted me to live in the suit
premises. It is correct that I am surviving on the income
from my beauty parlour business. It is wrong to suggest
that I have made false allegations against the plaintiff. It is
wrong to suggest that I am deposing falsely".
30.DE was closed on 26.10.2024 and final arguments were
heard.
Issue-wise findings as under:
31. ISSUE NO.1: Whether the property bearing no.RZ-
H-63A, Gali No.9, Raghu Nagar, ad-measuring 50 sq.yds
out of khasra no.18/23 situated in the revenue of village
Dabri, New Delhi-110045 (in short, the said property) is
the self acquired or ancestral property of the plaintiff?
OPD
32.It has been contended on the behalf of the defendant that
the suit property is the ancestral property, therefore
plaintiff doesn't have absolute right over it, hence it was
submitted that plaintiff's suit for mandatory injunction
should be dismissed solely on this ground only.
33.It is relevant to mention here that, it is a well settled
principle of law of evidence which enjoins upon the party
to prove the fact which he relies on and in that sense, an
obligation is cast upon the party and if he fails to discharge
that obligation, adverse consequences will follow and will
have to face the repercussions of the same. Thus, the onus
to prove that suit property is the ancestral property was
Civil Suit No. 381/24 Judgment dt. 25.03.2025 Page no. 14 of 31
upon the defendant to prove. Pertinently, defendant has
failed to lead any evidence be it oral or documentary for
proving her contention that the suit property is ancestral
property and she has also equal ownership right over it.
34.At this point, it is relevant to mention the judgment passed
by the Hon'ble Supreme Court of India in the case tilted as
"A. B. Govardhan Vs. P. Ragothaman Civil Appeal Nos.
9975-9976 of 2024 @ SLP (Civil) Nos. 5034-5035 of
2019 wherein it has discussed the principles of
appreciation of Law of Evidence. The relevant paragraphs
are reproduced herein as under:
"...Fact remained that the respondent admitted to having
executed Exhibit P-1 (the Agreement) and that the
signature(s) thereon were his, in the Proof Affidavit dated
01.03.2010 as also cross examination dated 08.03.2010.
No doubt, he (respondent) has denied its voluntary
execution and contended that it was under coercion and
threat, but no evidence was brought or led by him to
support this plea. The Division Bench opined, correctly,
that “It is true that there was no supporting evidence
adduced by him to show as to how he was threatened and
forced to execute Ex.P1.”
Pausing here, we may emphasize that for every fact which
is pleaded, there has to be evidence, either oral or
documentary, to substantiate the same. A bald averment or
mere statement by a defendant bereft of evidentiary
material to back up such averment/statement takes such
defendant’s case nowhere. While deciding a statutory
appeal under Section 116A of the Representation of the
People Act, 1951 against an order of the Gauhati High
Court rejecting an Election Petition, this Court in Kalyan
Kumar Gogoi v Ashutosh Agnihotri, (2011) 2 SCC 532
commented that the term ‘evidence’ is used colloquially in
different senses:
“33. The word “evidence” is used in common parlance in
three different senses: (a) as equivalent to relevant, (b) as
equivalent to proof, and (c) as equivalent to the material,
on the basis of which courts come to a conclusion about
Civil Suit No. 381/24 Judgment dt. 25.03.2025 Page no. 15 of 31
the existence or non-existence of disputed facts. Though,
in the definition of the word “evidence” given in Section 3
of the Evidence Act one finds only oral and documentary
evidence, this word is also used in phrases such as best
evidence, circumstantial evidence, corroborative evidence,
derivative evidence, direct evidence, documentary
evidence, hearsay evidence, indirect evidence, oral
evidence, original evidence, presumptive evidence,
primary evidence, real evidence, secondary evidence,
substantive evidence, testimonial evidence, etc.”
35.It is further to place reliance upon the landmark judgment
of the Hon’ble High Court of Delhi passed in the case
titled as “Sagar Gambhir vs Shri Sukhdev Singh Gambhir
And Anr.” 241 (2017) DLT 98 (DB) wherein the discussed
the concept of HUF after the enactment of, “the Hindu
Succession Act,1956.” The relevant paragraphs are
reproduced herein as under:
“6. What is an HUF, how does an HUF come into
existence, how can the properties be the properties of HUF
and whether ancestral properties are HUF properties are
aspects which I have considered in detail in the judgments
in the cases of Sunny (Minor) & Anr. Vs. Sh. Raj Singh
and Ors., 225 (2015) DLT 211 and Surender Kumar Vs.
Dhani Ram and Ors., 227 (2016) DLT 217. In these
judgments, I have referred to and relied upon the ratios of
the judgments of the Supreme Court in the cases of
Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 and
Commissioner of Wealth Tax, Kanpur and Others Vs.
Chander Sen and Others, (1986) 3 SCC 567 and which
hold that inheritance of ancestral properties after passing
of the Hindu Succession Act, 1956 does not result in the
property being held as HUF property and that the property
inherited after 1956 is inherited as a self-acquired
property. The different scenarios of how an HUF property
comes into existence have been dealt with in detail in the
judgment in the case of Sunny (Minor) & Anr. (supra) with
reference to pre 1956 and post 1956 positions. Also,
general and vague averments without specifying what
were the ancestral properties inherited and that too without
Civil Suit No. 381/24 Judgment dt. 25.03.2025 Page no. 16 of 31
stating that they were inherited by a person before 1956
cannot result in creation of HUF and its properties and
which aspect I have dealt in the judgment passed recently
titled as Mrs. Saroj Salkan Vs. Mrs. Huma Singh and Ors.
The relevant paras of the judgment in the case of Surender
Kumar (supra) are paras 4 to 13 and these paras read as
under and which also reproduce the ratios of the earlier
judgments of the Supreme Court:-
“4. Plaintiff claims that as a son of defendant no.1 and as a
grandson of late Sh. Jage Ram, plaintiff is entitled to his
share as a coparcener in the aforesaid suit properties on the
ground that the properties when they were inherited by late
Sh. Jage Ram were joint family properties, and therefore,
status as such of these properties as HUF properties have
continued thereby entitling the plaintiff his rights in the
same as a coparcener.
The Supreme Court around 30 years back in the judgment
in the case of Commissioner of Wealth Tax, Kanpur and
Others Vs. Chander Sen and Others, (1986) 3 SCC 567,
held that after passing of the Hindu Succession Act, 1956
the traditional view that on inheritance of an immovable
property from paternal ancestors up to three degrees,
automatically an HUF came into existence, no longer
remained the legal position in view of Section 8 of the
Hindu Succession Act, 1956. This judgment of the
Supreme Court in the case of Chander Sen (supra) was
thereafter followed by the Supreme Court in the case of
Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 wherein
the Supreme Court reiterated the legal position that after
coming into force of Section 8 of the Hindu Succession
Act, 1956, inheritance of ancestral property after 1956
does not create an HUF property and inheritance of
ancestral property after 1956 therefore does not result in
creation of an HUF property.
In view of the ratios of the judgments in the cases of
Chander Sen (supra) and Yudhishter (supra), in law
ancestral property can only become an HUF property if
inheritance is before 1956, and such HUF property
therefore which came into existence before 1956 continues
as such even after 1956. In such a case, since an HUF
already existed prior to 1956, thereafter, since the same
HUF with its properties continues, the status of joint
Hindu family/HUF properties continues, and only in suchCivil Suit No. 381/24 Judgment dt. 25.03.2025 Page no. 17 of 31
a case, members of such joint Hindu family are
coparceners entitling them to a share in the HUF
properties.
On the legal position which emerges pre 1956 i.e before
passing of the Hindu Succession Act, 1956 and post 1956
i.e after passing of the Hindu Succession Act, 1956, the
same has been considered by me recently in the judgment
in the case of Sunny (Minor) & Anr. vs. Sh. Raj Singh &
Ors., CS(OS) No.431/2006 decided on 17.11.2015. In this
judgment, I have referred to and relied upon the ratio of
the judgment of the Supreme Court in the case of
Yudhishter (supra) and have essentially arrived at the
following conclusions:-
(i) If a person dies after passing of the Hindu Succession
Act, 1956 and there is no HUF existing at the time of the
death of such a person, inheritance of an immovable
property of such a person by his successors-in-interest is
no doubt inheritance of an „ancestral‟ property but the
inheritance is as a self-acquired property in the hands of
the successor and not as an HUF property although the
successor(s) indeed inherits „ancestral‟ property i.e a
property belonging to his paternal ancestor.
(ii) The only way in which a Hindu Undivided
Family/joint Hindu family can come into existence after
1956 (and when a joint Hindu family did not exist prior to
1956) is if an individual‟s property is thrown into a
common hotchpotch. Also, once a property is thrown into
a common hotchpotch, it is necessary that the exact details
of the specific date/month/year etc of creation of an HUF
for the first time by throwing a property into a common
hotchpotch have to be clearly pleaded and mentioned and
which requirement is a legal requirement because of Order
VI Rule 4 CPC which provides that all necessary factual
details of the cause of action must be clearly stated. Thus,
if an HUF property exists because of its such creation by
throwing of self- acquired property by a person in the
common hotchpotch, consequently there is entitlement in
coparceners etc to a share in such HUF property.
(iii) An HUF can also exist if paternal ancestral properties
are inherited prior to 1956, and such status of parties qua
the properties has continued after 1956 with respect to
properties inherited prior to 1956 from paternal ancestors.
Once that status and position continues even after 1956; of
Civil Suit No. 381/24 Judgment dt. 25.03.2025 Page no. 18 of 31
the HUF and of its properties existing; a coparcener etc
will have a right to seek partition of the properties.
(iv) Even before 1956, an HUF can come into existence
even without inheritance of ancestral property from
paternal ancestors, as HUF could have been created prior
to 1956 by throwing of individual property into a common
hotchpotch. If such an HUF continues even after 1956,
then in such a case a coparcener etc of an HUF was
entitled to partition of the HUF property.”
36.Thus, from deducing legal principles from the aforesaid
judgment, it can be said that it is not enough to aver a
mantra, so to say, in the plaint simply that a joint Hindu
family or HUF exists. Detailed facts as required by Order
VI Rule 4 CPC as to when and how the HUF properties
have become HUF properties must be clearly and
categorically averred. Such averments have to be made by
factual references qua each property claimed to be an HUF
property as to how the same is an HUF property, and, in
law generally bringing in any and every property as HUF
property is incorrect as there is known tendency of litigants
to include unnecessarily many properties as HUF
properties, and which is done for less than honest motives.
Whereas prior to passing of the Hindu Succession Act,
1956 there was a presumption as to the existence of an
HUF and its properties, but after passing of the Hindu
Succession Act, 1956 in view of the ratios of the
judgments of the Supreme Court in the cases of Chander
Sen (supra) and Yudhishter (supra) there is no such
presumption that inheritance of ancestral property creates
an HUF, and therefore, in such a post 1956 scenario a mere
ipse dixit statement in the plaint that an HUF and its
Civil Suit No. 381/24 Judgment dt. 25.03.2025 Page no. 19 of 31
properties exist is not a sufficient compliance of the legal
requirement of creation or existence of HUF properties
inasmuch as it is necessary for existence of an HUF and its
properties that it must be specifically stated that as to
whether the HUF came into existence before 1956 or after
1956 and if so how and in what manner giving all requisite
factual details. It is only in such circumstances where
specific facts are mentioned to clearly plead a cause of
action of existence of an HUF and its properties, can a suit
then be filed and maintained by a person claiming to be a
coparcener for partition of the HUF properties.
37.Hence, it can be said that defendant has miserably failed to
prove that suit property was ancestral property and she is a
co owner by virtue of that fact. That, upon the applying the
aforesaid legal reasoning to given factual matrix,
admittedly the case of defendant is based upon mere bald
assertions which she has failed to substantiate with any
sort of evidence be it oral or documentary. It is pertinent
to mention here that defendant’s side has failed to ask even
a single question or suggestion qua the nature of the suit
property from the plaintiff/PW1. Thus, defendant’s side
made a fatal mistake in not putting her defence qua
ancestral property to the plaintiff when he entered into
witness box, hence completely discredited the defendant’s
version that the suit property is a ancestral property.
38.In view of the aforesaid discussion, it can be said that
defendant has failed to prove that she was the co owner
with the plaintiff by virtue of suit property being an
ancestral property. Accordingly, the aforesaid issue is
Civil Suit No. 381/24 Judgment dt. 25.03.2025 Page no. 20 of 31
decided in favour of plaintiff and against the defendant.
Issue no.2: Whether the defendant is having right of
ownership over one room set situated in the said property
(in short, the suit property) being her matrimonial home?
OPD
39.Further, it was argued on the behalf of the defendant that
present suit is not maintainable since she being the widow
of deceased husband (plaintiff’s son), she has every right
to stay in the suit property which is her matrimonial home,
therefore plaintiff has no right to evict her under the garb
of the permissive license as the defendant has cohabited
with the plaintiff’s son at the suit property after her
marriage with him. It was further argued that plaintiff
should not be allowed to dispossess defendant as well as
her daughter from their lawful possession of the suit
property.
40.It is relevant to mention the judgment passed by the
Hon’ble High Court of Delhi in the case titled as, ”
Madalsa Sood vs Maunicka Makkar & Anr. on 10
December, 2021 wherein it discussed precisely the same
law point, which is being argued on the behalf of the
defendant. The relevant paragraphs of the judgment is
reproduced as under:
“14. It would be apposite to reproduce the view taken by
the Supreme Court in Satish Chander Ahuja (supra) on
what would satisfy the need to adopt procedure established
by law, to seek the eviction of an “aggrieved person”.
“124. Drawing the analogy from the above case, we are of
the opinion that the expression “save in accordance with
the procedure established by law”, in Section 17(2)of the
2005 Act contemplates the proceedings in the court of
competent jurisdiction. Thus, suit for mandatory and
permanent injunction/eviction or possession by the owner
Civil Suit No. 381/24 Judgment dt. 25.03.2025 Page no. 21 of 31
of the property is maintainable before a competent court.
We may further notice that in sub-section (2) the
injunction is “shall not be evicted or excluded from the
shared household … save in accordance with procedure
established by law”. Thus, the provision itself
contemplates adopting of any procedure established by
law by the respondent for eviction or exclusion of the
aggrieved person from the shared household. Thus, in
appropriate case, the competent court can decide the claim
in a properly instituted suit by the owner as to whether the
women need to be excluded or evicted from the shared
household. One most common example for eviction and
exclusion may be when the aggrieved person is provided
same level of alternate accommodation or payment of rent
as contemplated by Section 19 sub-section (f) itself. There
may be cases where the plaintiff can successfully prove
before the competent court that the claim of the plaintiff
for eviction of the respondent is accepted. We need not
ponder for cases and circumstances where the eviction or
exclusion can be allowed or refused. It depends on facts of
each case for which no further discussion is necessary in
the facts of the present case. The High Court in the
impugned judgment has also expressed opinion that suit
filed by the plaintiff cannot be held to be non-maintainable
with which conclusion we are in agreement.”
(emphasis added)
Nor does the right of residence allowed to aggrieved
person extend to her insisting on the right of residence in a
particular premises. Section 19 of the DV Act provides for
an alternate accommodation being given to the aggrieved
person of the same level in certain circumstances. In fact
even in Satish Chander Ahuja (supra) relied upon by the
learned counsel for the defendants, the judgment of a
Division Bench of this Court in Eveneet Singh Vs.
Prashant Chaudhari 2011 SCC OnLine Del 4651 in para
14 was quoted with approval as under:
“14. It is apparent that clause (f) of sub-section (1) of
Section 19 of the Act is intended to strike a balance
between the rights of a daughter-in-law and her in-laws, if
a claim to a shared residence by the daughter-in-law
pertains to a building in which the matrimonial home was
set up belongs to her mother-in-law or father-in-law.”
Civil Suit No. 381/24 Judgment dt. 25.03.2025 Page no. 22 of 31
The Supreme Court in para 90 of its judgment in Satish
Chander Ahuja (supra) further observed as under:
“90. Before we close out discussion on Section 2(s), we
need to observe that the right to residence under Section
19 is not an indefeasible right of residence in shared
household especially when the daughter-in-law is pitted
against aged father-in-law and mother-in-law. The senior
citizens in the evening of their life are also entitled to live
peacefully not haunted by marital discord between their
son and daughter- in-law. While granting relief both in
application under Section 12 of the 2005 Act or in any
civil proceedings, the Court has to balance the rights of
both the parties. The directions issued by the High Court
in para 56 adequately balance the rights of both the
parties.”
(emphasis added).
41.In the light of findings given by the Hon’ble High Court of
Delhi, the aforesaid contention raised by the defendant qua
her indefeasible right to stay in the suit property on the
ground that the same is being matrimonial home is hereby
dismissed. Hence, aforesaid issue is decided in favour of
plaintiff and against the defendant.
ISSUE NO.3:Whether the defendant is a licensee of
plaintiff in respect of the suit property? OPP
ISSUE NO.4: Whether plaintiff is entitled to get
permanent injunction, as prayed for? OPP
ISSUE NO.5: Whether plaintiff is entitled to get
mandatory injunction, as prayed for? OPP
42.The aforesaid issues are taken up together as they are
interconnected with each other. In order to avoid repetition
and confusion, all the aforesaid issues are decided together.
The onus to prove the aforesaid issues are upon the
plaintiff.
43.It is relevant to mention the landmark judgment passed by
the Hon’ble Supreme Court of India in the case titled as
Civil Suit No. 381/24 Judgment dt. 25.03.2025 Page no. 23 of 31
“Sant Lal Jain vs Avtar Singh 1985 AIR 857″, wherein it is
discussed the scope of relief for eviction in the cases of
licensor-licensee relationship. The relevant paragraphs of
judgment is reproduced as under:
“…. In K.K. Verma & Anr. v. Union of India & Anr.,(13
Chagla, C.J. presiding over a Division Bench has observed
that in India a landlord can only eject his erstwhile tenant
by recourse to law and by obtaining a decree for
ejectment. In Milkha Singh v. Dvna & Ors.,(2) it has (1)
AIR 1954 Bombay 358 (2) AIR 1964 Jammu & Kashmir
99.
189
been observed that the principle once a licensee always a
licensee would apply to all kinds of licences and that it
cannot be said that the moment the licence it terminated,
the licensee-s possession becomes that of a trespasser. In
that case, one of us (Murtaza Fazal Ali, J.) as he then was
speaking for the Division Bench has observed:
“After the termination of licence, the licensee is under
clear obligation to surrender his possession to the owner
and if he fails to do so, we do not see any reason why the
licensee cannot be compelled to discharge this obligation
by way of a mandatory injunction under s. 55 of the
Specific Relief Act. We might further mention that even
under English law a suit for injunction to evict a licensee
has always been held to be maintainable.
Where a licensor approaches the court for an injunction
within a reasonable time after the licence is terminated, he
is entitled to the injunction….”
44.Hence, it can be said that for availing the relief of
mandatory injunction, it is essential to establish the
existence of jural relationship of licensor and licensee
between the parties and the termination of licensee either
by lapse of time or by notice served by the licensor.
45.Further, it is relevant to mention Section 101 of the Indian
Evidence Act, 1872 which defines ” burden of proof” and
laid down that the burden of proving a fact always lying
Civil Suit No. 381/24 Judgment dt. 25.03.2025 Page no. 24 of 31
upon the person who asserts the facts. Until such burden is
discharged, the other party is not required to be called
upon to prove his case. The court has to examine as to
whether the person upon whom the burden lies has been
able to discharge his burden. Until he arrives at such
conclusion, he cannot proceed on the basis of weakness of
other party. Further, Section 58 of the Indian Evidence Act
contained that no fact need to be proved in any
proceedings which parties thereto or their agents agree to
admit at the herein, or which, before the hearing, they
agree to admit by any writing under their hands or which
by any rule of pleadings enforce at the time they are
deemed to have admitted by their pleadings.
46.The basic premise of the plaintiff’s case is that he is the
absolute and lawful owner of the suit property and
permitted the defendant to reside in one room set on the
first floor of suit property on the license basis after her
marriage to the plaintiff’s son. It was further submitted that
defendant used to come to suit property only for one day
per week after her marriage and never resided permanently
with his son in aforesaid portion of the suit property.
Further, it was submitted that upon the death of the
plaintiff’s son, defendant has rarely visited the suit
property and has locked her portion of suit property in
order to extort some money from the plaintiff. It was
submitted on the behalf of the plaintiff that he is under
constant apprehension that defendant can sell her portion
of suit property to third party therefore he was constrained
to file the present suit for seeking mandatory and
Civil Suit No. 381/24 Judgment dt. 25.03.2025 Page no. 25 of 31
permanent injunction.
47.Further, in order to prove his claim of ownership over the
suit property, apart from himself(PW1), plaintiff has also
examined PW2 Sh. Ratan Singh which deposed that
plaintiff and himself purchased their respective plots from
the same owner on the same day and also deposed the
factum relating to consideration amount of Rs. 3000/- was
paid by the plaintiff to the owner for purchasing the suit
property in the year 1980 in his presence.
48.During examination in chief of the plaintiff, he deposed
the contents of his plaint in his evidence affidavit ie Ex.
PW1/A. Further, plaintiff has also remained fairly
consistent to his version in his cross-examination, since
defendant’ side failed to elicit any major contradiction
from him, therefore was unable to impeach his credibility
as witness. Further, plaintiff was also able to establish and
prove his better possessory title of the suit property on the
basis of documentary evidence i.e. copy of GPA, copy of
agreement to sell and affidavit Ex.PW 1/1 ( OSR),copy of
receipt Ex. PW1/2 (OSR) which was executed between
plaintiff and previous seller of the suit property. Further,
plaintiff have also filed documents such as copy of Aadhar
Card, Voter ID card, Sr. Citizen Card and PAN Card
exhibited collectively Ex. PW1/3 (Colly) (OSR) in order to
show the actual possession of the suit property.
49.It is pertinent to mention here that defendant failed to ask
again even a single question or suggestion qua the better
possessory title of the plaintiff or questioned his
documents placed on record in his entire cross
Civil Suit No. 381/24 Judgment dt. 25.03.2025 Page no. 26 of 31
examination, thus it can be said that the testimony of the
plaintiff went unrebutted qua his title over the suit
property. Further, it is significant to note that defendant in
her cross examination admitted she was permitted to live
in the suit property by her father in law ie plaintiff, thus
admitting the gratuitous stay in the suit property.
50.Thus, it can be said that plaintiff has been successful prima
facie in establishing his better possessory title over the suit
property on the basis of aforesaid documents placed on
record by him and admissions made by the defendant.
51.Therefore, in the light of discussion in afore-going paras, it
can be said that the plaintiff has better possessory title of
the suit property and there is nothing on record to infer that
the defendant has any interest, title or claim over the suit
property. Further, it is relevant to mention that all the
contentions regarding the claims of defendant qua right in
the suit property has already been dismissed in
aforementioned paras of the judgment and same has not
been repeated here. Thus the only inference which can be
drawn in view of the pleadings and evidence led is that the
plaintiff is entitled to the possession of the same and the
position of defendant cannot be better than licensee as she
has not put any other defence for explaining her possession
of the suit property. Since, the license of defendant has
been terminated by the legal notice dated 21.07.2020,
which was duly served upon the defendant, as reply to that
legal notice Ex. PW1/8 is also on record, therefore the
plaintiff is entitled to possession of the suit property from
the licensee defendant Rani. Accordingly, issue no. 3 to 5
Civil Suit No. 381/24 Judgment dt. 25.03.2025 Page no. 27 of 31
are decided in the favour of the plaintiff and against the
defendant.
ISSUE NO.6: Whether plaintiff is entitled to get mesne
profit at the rate of Rs.6,000/-p.m. for use and occupation
of the suit property w.e.f. termination of licence of
defendant through legal notice dated 21.07.2020 till
handing over the possession of the suit property?
52.The status of the defendant as licensee was terminated by
the plaintiff vide legal notice dated 21.07.2020. Further, it
was specifically averred in the legal notice that in case
defendant fails to vacate the premises within 15 days from
the date of receipt of the notice, then she will be liable to
pay the mesne profits in respect of portion of the suit
property @ Rs. 6000/- per month held by her to the
plaintiff. The defendant has failed to show her lawful
possession and thus, the plaintiff is entitled to mesne
profits/use and occupation charges from 05.08.2020 ie 15
days from the receipt of notice.
53.At this juncture, it will be appropriate to place reliance
upon the judgment passed by the Hon’ble High Court of
Delhi in the case of Arya Orphanage Vs. Mr. Alfred G
Wuerfel CS(OS) 2439/2001 dated 27.11.2008 wherein it
was held that mesne profits are to be determined on
account wrongful continuation of occupation after
termination of tenancy / license and the same should be
computed at the rate which the property might have
fetched at the relevant time.
54.The plaintiff has prayed for the amount of Rs. 6000/- per
month on the account of mesne profits of the suit property
held by the defendant from the date of termination of
license vide legal notice dated 21.07.2020 till the handing
Civil Suit No. 381/24 Judgment dt. 25.03.2025 Page no. 28 of 31
over the possession of the suit property.
55.In the present matter the plaintiff has not led any specific
evidence in respect of the calculation done by him for
calculating mesne profits @ Rs. 6000/- per month in
respect of portion of suit property. Plaintiff has simply
pleaded and deposed that he is entitled to mesne profits at
the rate of Rs. 6000/- per month qua the portion of the suit
property held by the defendant. However, in the case of
M.C. Aggarawal Vs. Sahara India 183 (2011)DLT 105, the
Hon’ble High Court of Delhi has been pleased to hold that
in such circumstances, the court could take resort to the
provisions of Section 57 and 114 of the Indian Evidence
Act and grant appropriate relief.
56.In the present matter, admittedly the defendant has one
room set on the first floor of the suit property ie House no.
RZH 63-A, Gali No. 9, Raghu Nagar, New Delhi
measuring 50 square yards out of khasra number 18/23
situated in Village Dabri. Further, considering the suit
property is being used for residential purpose and
prevailing rental rates of properties in nearby areas of the
suit property and relations of the parties in the given
factual matrix, In the opinion of this Court, the ends of
justice will be met if the prayer for mesne profits is
allowed at the rate of Rs 3000/- in respect of suit property
from 05.08.2020. I am, therefore, inclined to grant mesne
profits to the plaintiff at the rate of Rs. 3000/- per month
from date 05.08.2020 till the date of vacation of the suit
property by the defendant.
57.Further, in respect of interest on mesne profits, the Hon’ble
Civil Suit No. 381/24 Judgment dt. 25.03.2025 Page no. 29 of 31
High Court of Delhi in the case of Arya Orphanage
(supra) was pleased to hold that interest is an integral part
of mesne profits and therefore the same has to be allowed
in the computation of mesne profits itself. Plaintiff would
thus be entitled to grant of interest on mesne profits. I,
therefore, grant interest to the plaintiff at the rate of 7% per
annum on the mesne profits so granted from the date of
filing of the suit till the date of gaining possession from
defendant. This issue is, therefore, decided accordingly in
favour of the plaintiff and against the defendant.
RELIEF.
58.In view of the aforesaid discussions and findings, this
Court is of the considered opinion that plaintiff has proved
his case and therefore, he is entitled for the following
relief:
(i) Decree of mandatory injunction passed in favour of the
plaintiff and against the defendant Rani for removing her
belongings from one room set on the first floor of the
plaintiff property i.e. RZH-63A, Gali No.9, Raghu Nagar,
New Delhi built on plot measuring 50 square yards out of
Kh.No. 18/23, situated in Revenue Estate of Village Dabri,
Delhi as mentioned in the red portion of the site plan
Ex.PW1/4 within three months from the date of decree.
(ii) The plaintiff is entitled for the decree of mesne profits
against the defendant @ Rs. 3000/- per month at the rate of
interest 7% per annum from date 05.08.2020 till the date of
vacation of the suit property by the defendant.
(iii) Decree of permanent injunction passed in favour of
the plaintiff and against the defendant Rani thereby Digitally
signed by
ANKIT ANKIT
Date:
MITTAL
MITTAL 2025.03.25
16:58:21
+0530
Civil Suit No. 381/24 Judgment dt. 25.03.2025 Page no. 30 of 31
restraining her or any other person claiming through her
from parting with the possession of the suit property i.e.
one room set on the first floor of the plaintiff property
bearing no. RZH-63A, Gali No.9, Raghu Nagar, New
Delhi built on plot measuring 50 square yards out of
Kh.No. 18/23, situated in Revenue Estate of Village Dabri,
Delhi as mentioned in the red portion of the site plan
Ex.PW1/4, to any third person apart from the plaintiff and
also defendant is permanently retrained from interfering in
the peaceful enjoyment of remaining portion of the first
floor of the suit property.
(iv) The plaintiff is also entitled for costs of the suit.
59.Decree sheet be drawn accordingly after the payment of
deficient court fees, if any.
60.File be consigned to record room after necessary
compliance.
ANNOUNCED IN THE OPEN
Digitally
COURT ON 25.03.2025.
signed by
ANKIT ANKIT
Date:
MITTAL
MITTAL 2025.03.25
16:58:34
+0530(ANKIT MITTAL)
CIVIL JUDGE-01(SW)/DWARKA COURTS
NEW DELHICivil Suit No. 381/24 Judgment dt. 25.03.2025 Page no. 31 of 31