Delhi District Court
Raghubir Singh vs Savitri on 31 May, 2025
IN THE COURT OF DISTRICT JUDGE-04,
(PRESIDED OVER BY: ANIL CHANDHEL)
WEST DISTRICT, THC, DELHI
CNR NO. DLWT01-009714-2017
RCA NO. 187/2017
&
CNR NO. DLWT01-010085-2017
RCA NO. 190/2017
Raghubir Singh,
S/o Late Sh. Hira Lal,
R/o H. No. A-/29-A,
Paschim Vihar,
New Delhi-110063. ....Appellant
Versus
Savitri,
W/o Late Sh. Rameshwar Dayal,
R/o A-1/29-A, Paschim Vhar,
New Delhi-110063 ...Respondent
REGULAR CIVIL APPEAL UNDER
SECTION 96 OF CODE OF CIVIL
PROCEDURE, 1908, AGAINST THE
JUDGMENT/DECREE DATED 21.08.2017,
PASSED BY LD. CIVIL JUDGE-06, WEST,
TIS HAZARI COURTS, DELHI IN CS NO.
45/2014.
&
REGULAR CIVIL APPEAL UNDER
SECTION 96 OF CODE OF CIVIL
PROCEDURE, 1908, AGAINST THE
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Raghubir Singh Vs. Savitri
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ORDER DATED 21.08.2017, PASSED BY
LD. CIVIL JUDGE-06, WEST, TIS
HAZARI COURTS, DELHI IN THE
COUNTER-CLAIM, FILED IN CS NO.
45/2014.
RCA NO.187/2017 INSTITUTED ON: 28.10.2017
RCA NO.190/2017 INSTITUTED ON: 09.11.2017
JUDGMENT RESERVED ON : 09.05.2025
JUDGMENT PRONOUNCED ON : 31.05.2025
Appearances:
Counsel for the Appellant : Mr. Pulkit Dandona
Ms. Kiran, Advocates.
Counsel for the Respondent : Mr. R. K. Saini,
Mr. Gyanesh Saini
Ms. Rekha Saini, Advocates.
INDEX
1. Introduction 3-4
2. Proceedings before the Court of 4-17
Ld. Civil Judge.
3. Submissions of the Parties. 17-19
4. The points for determination, 19-75
conclusions and the reasons for such
conclusions.
4.5. Whether the Appellant has proved 22-37
that the suit property was owned by
his father namely Late Hira Lal and
subsequently by him, in terms of the
registered Will dated 01.10.2001
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executed by late Hira Lal?
4.6. Whether the suit for mandatory 37-66
injunction was filed beyond the
period of limitation and its effect?
4.7. Whether the Counter-Claim of the
Appellant was wrongly rejected by 66-75
the Court of Ld. Civil Judge and if
yes, the consequences of the same?
5. Final Decision/Conclusion 75
JUDGMENT
1. Introduction:
1.1. By way of this common judgment, two Regular First
Appeals, filed under Section 96 of the Code of Civil
Procedure, 1908 against the judgment and decree dated
21.08.2017 and against the Order dated 21.08.2017, passed
by Ld. Civil Judge, West, Tis Hazari Courts, Delhi in Suit
No. 45/2014, are being decided.
1.2. The Respondent has filed a civil suit No. 45/2014 for
prayers of mandatory injunction and recovery of user
charges/mesne profits against the Appellant. The aforesaid
suit was decreed in favour of the Respondent and the
Appellant has challenged the aforesaid judgment and
decree dated 21.08.2017 by way of RCA No. 187/2017.
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1.3. The Appellant has filed the counter-claim in the aforesaid
Civil Suit No. 45/2018 for the prayers of declaration,
possession and permanent injunction. The Court of Ld.
Civil Judge-06 rejected the plaint under Order VII Rule 11
of the Code of Civil Procedure, 1908 by an Order dated
21.08.2017 and the Appellant has filed the RCA
No.190/2017 against the aforesaid Order of rejection of
plaint in the Counter-Claim.
2. Proceedings before the Court of Ld. Civil Judge:
It will be appropriate to recapitulate the proceedings before
the Court of Ld. Civil Judge and the same are being
summed up in brief in the paras stated hereinbelow:
2.1. The Respondent has filed the civil suit for the prayers of
mandatory and permanent injunction along with recovery
of user charges with regard to the suit property. The
averments made in the plaint by the Respondent/ Plaintiff,
are summed in sub-paras hereinbelow:
i. The Respondent/Plaintiff was wife of Late
Rameshwar Dayal, who was absolute owner of the
property bearing No. A-I/29-A, Paschim Vihar, New
Delhi. The aforesaid property comprises of ground
floor and Barsati floor situated over plot of land ad-
measuring 326.09 square meters approximately. The
aforesaid property was purchased by him in auction
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held by Delhi Development Authority, which was
confirmed in favour of Respondent’s husband vide
letter dated 05.07.1971, issued by Delhi
Development Authority. After payment of the sale
consideration, a Perpetual Lease Deed dated
25.11.1974 was executed by Delhi Development
Authority in favour of late Rameshwar Dayal.
ii. The DDA issued occupancy certificate to late
Rameshwar Dayal on 18.06.1986 and thereafter a
Conveyance-Deed dated 06.11.2001 was executed by
the DDA in favour of late Rameshwar Dayal, which
was duly registered on 12.11.2001. The Respondent’s
husband remained owner of the aforesaid property
till his death on 27.03.2006 and thereafter the
Respondent became the owner of the same by way of
succession.
iii. Late Rameshwar Dayal allowed his father, namely
Late Hira Lal and his brother, i.e., the Defendant, to
reside in the aforesaid property in question as
licensee being the family members. Late Hira Lal
used to reside in a room on the ground floor, wherein
he died on 13.03.2003 and after his death the
aforesaid room came into occupation of late
Rameshwar Dayal, however the Defendant’s
daughter used to sleep at night therein. The entire
ground floor except garage came into possession of
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late Rameshwar Dayal and the same was
subsequently occupied by the Respondent/Plaintiff,
wherein she had been residing along with her family.
iv. The Appellant/Defendant had been residing on the
first floor of the aforesaid property No. A-I/29-A and
garage of the ground floor with user of latrine as
licensee. After the death of late Rameshwar Dayal,
the Appellant/Defendant became licensee of the
Respondent/Plaintiff and he otherwise had no right,
title or interests in the property in question.
v. The activities of the Appellant/Defendant were
illegal and against the interest and benefit of the
Respondent/Plaintiff and her family. He was asked
several times to mend his ways but to no avail. He
got filed a Criminal Complaint case against the
Respondent/Plaintiff and her husband under Section
420/448 of IPC in the Court of Metropolitan
Magistrate, Delhi through his father late Hira Lal.
The false Criminal Complaint Case was filed by the
late Hira Lal at the instigation of the
Appellant/Defendant, who after death of late Hira
Lal had been pursuing the said criminal complaint
case. The Respondent/Plaintiff, after the death of her
husband, had been requesting the
Appellant/Defendant to withdraw the aforesaid false
complaint case but all had fallen on dump ears. In
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the beginning of last month, the Plaintiff finally
asked the Appellant/Defendant to withdraw the
complaint case and not to harass her but the
Appellant/Defendant did not pay any heed.
vi. The Respondent/Plaintiff, therefore, served a notice
dated 22.09.2011 upon the Appellant/Defendant, and
his license was terminated with immediate effect.
The Appellant/Defendant did not vacate the premises
in question after due service of the termination notice
and therefore the Respondent/Plaintiff filed the suit.
On the basis of above-mentioned averments, the
Respondent/Plaintiff had sought the prayers of mandatory
injunction for directions to Appellant/Defendant to remove
himself, his family and his provisions from the property No.
A-I/29-A, Paschim Vihar, New Delhi. The
Plaintiff/Respondent also sought the prayers of permanent
injunction and mesne profits/user charges.
2.2 The Appellant/Defendant was duly served with the summons
of the suit. The Appellant/Defendant filed the written
statement alongwith Counter-Claim in the matter. The
contentions raised by the Respondent in the written
statement and the Counter-Claim are being summed up in
brief in the paras hereinbelow:
i. The property in question was purchased by the
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Appellant‘s father, late Hira Lal, from the income
received from his firm under the name & style
Shrikrishan Jute House. Late Hira Lal used to operate
the firm business from 2887/3, Hardhyan Singh
Road, Karol, Bagh, New Delhi, where he had two
godowns at 162 and 163 at Harydhan Singh Road,
Gaffar Market, Karol Bagh, New Delhi.
ii. In the year 1973, late Hira Lal purchased the property
in question from D.D.A. and shifted to the above-
mentioned house. Late Hira Lal arranged the
marriage of late Rameshwar Dayal with
Plaintiff/Respondent in the year 1970. The marriage
of Defendant was held in 1979 in the property in
question and since then the Defendant had been
residing with his family in the Barsati floor situated
over the plot of land with his family.
iii. The relation between Rameshwar Dayal and his
father were normal in the year 1986 and his father
had trust and blind faith upon his honesty, but the
truth was entirely converse, as Rameshwar Dayal
was managing to procure title deeds of the suit
property in his name. The documents from DDA
were procured by the Respondent’s husband without
the knowledge of late Hira Lal. Late Hira Lal had
given the money for purchase of the property in________________________________________________________________
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question to the Respondent’s husband in name of late
Hira Lal, however the Respondent’s husband played
a fraud upon late Hira Lal and family and purchased
the same in his name. The aforesaid fact was kept
hidden from late Hira Lal during his lifetime and he
was led to believe that the consideration paid by him
was deposited to purchase the property in his name
and the same was his property. The Respondent/her
husband did not assert any rights in the property in
question during the lifetime of late Hira Lal. It was
disclosed only in the plaint that late Rameshwar
Dayal had been depositing the same in his name by
defrauding his father.
iv. The Respondent and her husband ill-treated late Hira
Lal and he had filed a complaint against the
Respondent and her husband U/s
448/420/427/341/506/323/34 of IPC vide complaint
No.389/1/01 dated 10.12.2001 which was pending
before the Ld. Metropolitan Magistrate, Tis Hazari
Court, Delhi. Late Hira Lala also recorded his
statement before the aforesaid Court.
v. Late Hira Lal, during his lifetime, debarred the
Respondent and her husband from inheriting his
estate. He further executed a registered Will dated
01.10.2001, wherein he bequeathed the property in________________________________________________________________
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question as well as other immovable property to the
Appellant, i.e., Raghubir Singh and therefore, the
Appellant had become the owner of the property in
question. The Respondent/Plaintiff was fully aware
of the pendency of the above mentioned complaint
case and for a period of about elven years, the
execution and existence of the said Will was well
within the knowledge of the Respondent as well as
her husband, however, neither of them challenged the
legality, authenticity and correctness of the same
before any competent Court of law and further prayer
for challenge against the aforesaid Will had become
barred by limitation.
vi. The Respondent/Plaintiff also misled the Court by
stating that no reply was given by the
Appellant/Defendant to Respondent/Plaintiff of the
notice, whereas the aforesaid notice was duly replied
vide reply dated 20.10.2011.
In terms of the remaining averments, the Appellant had
denied the averments of the Plaint. On the basis of the
above-mentioned averments, the Appellant had sought the
dismissal of the Respondent’s suit and further sought the
following prayers in the Counter-Claimant:
a. Decree of declaration of nullity with regard to
Conveyance Deed dated 06.11.2001;
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b. Decree of mandatory injunction for directions to the
concerned Sub-Registrar for cancellation of the
Conveyance Deed and in the alternative, the transfer
and assignment of the suit property in the name of
the Defendant as an absolute owner;
c. Decree for permanent injunction, with regard to the
property bearing No. A-I/29-A, Paschim Vihar, New
Delhi;
d. Decree for possession of the portion of the the
property bearing No. A-I/29-A, Paschim Vihar, New
Delhi, in possession of the Respondent.
2.3. The Respondent has filed the written statement to the
Counter-Claim of the Appellant and refuted the contentions
of the same and reiterated the averments of the plaint in her
suit.
2.4. On the basis of pleadings of the parties, the Court of Ld.
Civil Judge framed the following Issues on 04.12.2012 in the
suit:
i. Whether the plaintiff is entitled to the relief of
mandatory injunction, as prayed for? OPP.
ii. Whether the plaintiff is entitled to the relief of
permanent injunction, as prayed for? OPP________________________________________________________________
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iii. Whether the Plaintiff is entitled to mesne
profits/usage charges, if so, at what rate and for
what period??OPP
iv. Relief.
The aforesaid Issues were framed only in the suit and no
issues were framed in the Counter-Claim.
2.5. The Respondent/Plaintiff led her evidence in the suit and has
examined three witnesses in support of her case. The
Respondent/Plaintiff herself appeared as PW-1. The PW-1
exhibited and relied upon the following documents in her
examination-in-chief:-
i. Exhibit PW-1/1: Site Plan.
ii. Exhibit PW-1/2: The copy of the letter dated
05.07.1971.
iii. Exhibit PW-1/3: The copy of Perpetual Lease
Deed dated 25.11.1974.
iv. Exhibit PW-1/4: The certified copy of the
Conveyance-Deed dated 06.11.2001.
v. Exhibit PW-1/5: The copy of house-tax receipt.
vi. Exhibit PW-1/6 & PW-1/7: The copy of death
certificate of Late Hira Lal & Late Rameshwar
Dayal.
vii. Exhibit PW-1/8: The certified copy of
application dated 04.12.2006.
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viii. Exhibit PW-1/9: The copy of the legal notice
dated 22.09.2011.
ix. Exhibit PW-1/10: Postal receipt.
x. Exhibit PW-1/11: A.D. Card.
The PW-1 was cross-examined by the Ld. Counsel for the
Appellant/Defendant and was discharged, upon conclusion
of her cross-examination.
2.6. The Respondent examined Ms. Sheela Singh as PW-2, who
was daughter of late Hira Lal and sister of the Appellant.
The PW-2 did not rely upon any documents in her
examination in chief. The PW-2 was cross-examined by the
Ld. Counsel for the Appellant/Defendant and was
discharged, upon conclusion of her cross-examination.
2.7. The Respondent examined official witness from Delhi
Development Authority as PW-3. The PW-3 has produced
the following documents in his examination in chief:-
i. Exhibit PW-3/A (OSR): The copy of Auction
Letter.
ii. Exhibit PW-3/B (OSR): Copy of Perpetual lease
dated 25.11.1974.
iii. Exhibit PW-3/C (OSR): Copy of Occupancy
certificate dated 18.06.1986.
iv. Exhibit PW-3/D (OSR): Conveyance deed dated
06.11.2001.
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The PW-3 was not cross-examined by the
Appellant/Defendant despite opportunity being given and
was discharged upon conclusion of his examination in chief.
2.8. The Appellant/Defendant also led his evidence in the suit
and examined seven witnesses in support of his case. The
Appellant/Defendant appeared as DW-1 and exhibited and
relied upon the following documents in his examination-in-
chief:
i. Exhibit DW-1/1: Will dated 01.10.2001.
ii. Exhibit DW-1/2: Publication of disowning Sh.
Rameshwar Dayal.
iii. Exhibit DW-1/3: Notice dated 22.09.2011.
iv. Exhibit DW-1/4: Dispatch postal receipt.
v. Exhibit DW-1/5: Copy of criminal complaint.
The Appellant/Defendant was cross-examined by the Ld.
Counsel for the Respondent/Plaintiff and was discharged,
upon conclusion of his cross-examination.
2.9. The Appellant/Defendant examined official witness from the
Office of Sub-Registrar-III, Asaf Ali Road, New Delhi as
DW-2. The DW-2 produced the office copy of Will dated
01.10.2001, which was already exhibited as Exhibit DW-1/1.
The DW-2 was cross-examined by the Ld. Counsel for the
Respondent/Plaintiff and was discharged, upon conclusion of
his cross-examination.
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2.10. The Appellant/Defendant examined official witness form the
office of Punjab Kesri Newspaper as DW-3. The DW-3
produced the official records of Exhibit DW-1/2, i.e., copy of
the newspaper dated 21.09.2001 regarding disowning Sh.
Rameshwar Dayal. The DW-3 was cross-examined by the
Ld. Counsel for the Respondent/Plaintiff and was
discharged, upon conclusion of his cross-examination.
2.11. The Appellant/Defendant examined official witness from the
Record Room(Criminal), THC, Delhi as DW-4. The DW-4
produced the records of criminal complaint No.381/1, filed
by late Hira Lal against Rameshwar Dayal. The DW-4
exhibited the photocopy of the original complaint dated
07.12.2001 as Exhibit DW-4/A (colly) and statement of late
Hira Lal dated 05.09.2002 as Exhibit DW-4/B (OSR)
(Colly). The DW-4 was cross-examined by the Ld. Counsel
for the Respondent/Plaintiff and was discharged, upon
conclusion of his cross-examination.
2.12. The Appellant/Defendant examined Mr. Mohan Lal Kalra as
DW-5. The DW-5 has relied upon the Exhibit DW-1/1 and
Exhibit DW-1/2 in his examination in chief. The DW-5 was
cross-examined by the Ld. Counsel for the
Respondent/Plaintiff and was discharged, upon conclusion of
his cross-examination.
2.13. The Appellant/Defendant examined Mr. Roshan Lal as
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DW-6. The DW-6 did not rely upon any documents in his
examination in chief. The DW-6 was cross-examined by the
Ld. Counsel for the Respondent/Plaintiff and was
discharged, upon conclusion of his cross-examination.
2.14. The Appellant/Defendant has examined another official
witness from the office of Sub-Registrar-II and he was also
numbered as DW-6. The aforesaid witness was examined on
11.05.2017 and the witness produced the record of the record
of registration of the Will dated 01.10.2001 as Exhibit DW-
6/A (OSR). The DW-6 was cross-examined by the Ld.
Counsel for the Respondent/Plaintiff and was discharged,
upon conclusion of his cross-examination. After examination
of the DW-6 on 11.05.2017, the Appellant closed his
evidence in the suit and the matter was posted for final
arguments.
2.15. The Counter-Claim never proceeded beyond the stage of
pleadings. The Appellant had filed an application under
Order VI Rule 17 of the Code of Civil Procedure, 1908 for
amendment of pleadings in the Counter-claim, whereby the
Appellant sought substitution of prayer for possession to
prayer for mandatory injunction. The aforesaid application
was dismissed by the Court of Ld. Civil Judge on 30.07.2013
and the Appellant was directed to make payment of ad-
valorem Court fees for the prayer of possession. The
Appellant had filed another application for recall of the
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Order dated 30.07.2013 and the aforesaid application
remained pending in the Counter-Claim, while the evidence
in the suit was concluded and even the final arguments were
concluded. Eventually on 21.08.2017, the Court of Ld. Civil
Judge dismissed the application under Section 151 of the
Code of Civil Procedure, 1908 and in terms of the same
Order, rejected the plaint in the Counter-Claim.
Subsequently, the Court of Ld. Civil Judge decreed the suit
for the prayers of mandatory injunction and mesne profits, in
terms of the impugned judgment and decree dated
21.08.2017.
3. Submissions of the Parties:
3.1. Ld. Counsel for the parties have addressed their arguments
on the appeal. Ld. Counsel for the Appellant has submitted
that the suit of the Plaintiff was filed beyond the period of
limitation. It is submitted that the limitation for suit for
mandatory injunction cannot be beyond three years from the
cause of action, which admittedly had arisen in the year
2001, when late Hira Lal had initiated the proceedings
against the husband of the Respondent. It is submitted that
the suit of the mandatory injunction has been filed after a
period of more than 10 years from the date of accrual of
cause of action. It is submitted that the Respondent did not
produce anything on record whereby it could be inferred that
the Respondent’s husband was capable of acquiring the suit________________________________________________________________
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property from his income without support of his father. It is
submitted that the Court of Ld. Civil Judge did not examine
the capacity of possession of the Defendant, and he had
never been a licensee. It is submitted that the plaint could
not have been rejected for the defect of valuation of one
prayer, while the other prayers of declaration and permanent
injunction were surviving in the plaint.
3.2. Ld. Counsel for the Respondent has submitted that there is
no infirmity in the impugned judgment/decree and Order. It
is submitted that the Appellant/Defendant failed to establish
the averments of the written statement about the suit
property being purchased from the income of late Hira Lal. It
is submitted that the fraud alleged in the written statement
was not proved by the Appellant/Defendant. It is stated that
the capacity of the Appellant/Defendant was only that of a
licensee and the license has duly been terminated, therefore,
the Respondent was entitled to seek mandatory injunction for
removal of the Appellant/Defendant from the suit property.
It is submitted that the plaint in the Counter-Claim was
correctly rejected and the prayers of the Counter-claim were
otherwise also barred by Res-judicata, once the issue in the
suit have substantively adjudicated and decided by way of
impugned judgment and decree. Ld. Counsel for the
Respondent has relied upon the following judgments:
i. Conrad Dias Vs. Joseph Dias : AIR1995Bombay 210;
ii. Arjan Dev Vs. Om Prakash: AIR 1992 Delhi 202;
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iii. Patel Naranbhai Jhinabhai Vs. Patel Gopaldas
Venidas: AIR 1992 Gujarat 340;
iv. E.P. George Vs. Thomas John: AIR 1984 Kerala 224.
4. The points for determination, conclusions and the
reasons for such conclusions:
4.1. The Respondent had filed the civil suit for the prayers of
mandatory injunction for removal of the Appellant/his family
and his provisions from the suit property. It is the case of the
Respondent that her husband was sole and absolute owner of
the property No.A-I/29-A, Paschim Vihar, New Delhi, in
terms of registered Conveyance Deed dated 06.11.2001 and
the suit property is first floor of the aforesaid property. It is
stated that the Appellant was residing in the suit property as
licensee and the acts of the Appellant were prejudicial to the
interests of the Respondent. It is stated that the Appellant had
initiated criminal case against the Respondent and her
husband through his father and after death of his father, the
Appellant had been pursuing the same. It is stated that the
Appellant was directed to withdraw the criminal complaint
against the Respondent, however the Appellant did not do
the needful and the Respondent terminated the license of the
Appellant and filed the suit for mandatory injunction along
with consequential prayer for recovery of user charges.
4.2. It is the case of the Appellant that his father, namely Late
Hira Lal, was owner of the No. A-I/29-A, Paschim Vihar,
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New Delhi and the sale consideration for the aforesaid
property was paid by late Hira Lal to the Respondent’s
husband for purchasing the same in the name of late Hira
Lal. It is stated that the Respondent’s husband played a fraud
and purchased the aforesaid property in his name without
disclosing the same to late Hira Lal. It is stated that the
aforesaid fraud was kept hidden from late Hiralal and he was
led to believe that money was deposited for purchase of the
No. A-I/29-A, Paschim Vihar, New Delhi in the name of late
Hira Lal. It is stated that late Hira Lal had executed a
registered Will dated 01.10.2001 in favour of the Appellant
and the Appellant became owner of the property No. A-I/29-
A, Paschim Vihar, New Delhi by virtue of the same and the
Appellant was never a licensee in the suit property. The
Appellant also preferred a Counter-Claim against the
Respondent, whereby he sought the prayers of declaration of
nullity with regard to the Conveyance Deed dated
06.11.2001. The Appellant also sought the prayers of
possession and perpetual injunction against the Respondent.
4.3. The Court of Ld. Civil Judge has held in the impugned
judgment that the Respondent proved the ownership of her
late husband and was thus owner of the suit property, as
being the sole legal heir of her husband. It is further held that
the Appellant failed to prove the contentions of the suit
property being purchased from the income of late Hira Lal or
about the fraud of the Respondent’s husband. The Court of
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Ld. Civil Judge further rejected the plaint in the Counter-
Claim of the Appellant for non-payment of the appropriate
Court fees for the prayer of possession.
4.4. In view of the submissions of the Ld. Counsels for the
parties and after consideration of the material on record, the
core issues for adjudication of both the appeals can be culled
out in terms of following points of determination:
i. Whether the Appellant has proved that the suit
property was owned by his father namely Late Hira
Lal and subsequently by him, in terms of the
registered Will dated 01.10.2001 executed by late Hira
Lal?
ii. Whether the suit for mandatory injunction was filed
beyond the period of limitation and its effect?
iii. Whether the plaint in the Counter-Claim of the
Appellant was wrongly rejected under Order VII Rule
11 of the Code of Civil Procedure, 1908, by the Court
of Ld. Civil Judge and if yes, the consequences of the
same?
The above-mentioned points of determination are being
discussed in detail in the paras mentioned hereinafter.
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4.5. Whether the Appellant has proved that the suit property
was owned by his father namely Late Hira Lal and
subsequently by him, in terms of the registered Will
dated 01.10.2001 executed by late Hira Lal?
4.5.1. The Respondent has stated in the plaint that her husband was
the owner of the property No. A-I/29-A, Paschim Vihar, New
Delhi and suit property is first floor in the aforesaid property.
It is stated that the Respondent’s husband purchased the
aforesaid property in an auction conducted by the Delhi
Development Authority. It is stated that the title documents
of property No. A-I/29-A, Paschim Vihar, New Delhi,
including the allotment letter, the perpetual lease deed and
the registered conveyance deed, were executed by the Delhi
Development Authority in favour of the Respondent’s
husband. The Respondent appeared as a witness in the matter
and relied upon the documents of the property No. A-I/29-A,
Paschim Vihar, New Delhi, executed by Delhi Development
Authority in favour of her husband in the following manner:
i. Exhibit PW-1/2: The letter of allotment
dated 05.07.1971.
ii. Exhibit PW-1/3: The perpetual lease
deed dated 25.11.1974.
iii. Exhibit PW-1/4: Certified copy of the
Conveyance Deed dated 06.11.2001.
The Respondents also examined official witness from the
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Delhi Development Authority, i.e., PW-3, who produced the
documents in the name of Respondent’s husband from the
official record of DDA and the same are exhibited in the
following manner:
i. Exhibit PW-3/A (OSR): The Auction Letter
dated 05.07.1971.
ii. Exhibit PW-3/B (OSR): Copy of Perpetual
lease dated 25.11.1974.
iii. Exhibit PW-3/C (OSR): Copy of
Occupancy certificate dated 18.06.1986.
iv. Exhibit PW-3/D (OSR): Conveyance deed
dated 06.11.2001.
Thus, the title documents of the property No. A-I/29-A,
Paschim Vihar, New Delhi are executed in the name of
Respondent’s husband. The execution of the abovementioned
documents is favour of the Respondent’s husband was not
disputed, however it is stated by the Appellant that the
aforesaid documents are vitiated by fraud and are not
binding upon the Appellant or his father. Therefore, the
Respondent’s husband has to be concluded the owner of the
property No. A-I/29-A, Paschim Vihar, New Delhi (including
suit property) in terms of the registered Conveyance Deed
dated 06.11.2001, unless the Appellant proves that the
aforesaid registered conveyance deed dated 06.11.2001 is
vitiated by fraud and is not binding upon the Appellant or his
predecessor-in-interest, i.e., his father.
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4.5.2. The Appellant has stated in the para 4 of preliminary
objection and para 2 of the reply on merits of written
statement that late Hira Lal was owner of the property No.
A-I/29-A, Paschim Vihar, New Delhi and he had purchased
the same from DDA in 1973 from the income of his firm
named Shrikrishna Jute House. It is further stated in the
written statement that the amount of sale consideration was
paid by late Hiralal to the Respondent’s husband to purchase
the same in name of late Hiralal, however the Respondent’s
husband played a fraud upon late Hiralal and fraudulently
purchased the aforesaid property in his name. It is stated that
the aforesaid fact of purchase of property No. A-I/29-A,
Paschim Vihar, New Delhi in the name of Respondent’s
husband was kept hidden from late Hiralal during his life
time and he was led to believe that the amount, so given by
late Hiralal, was deposited to purchase the aforesaid property
in the name of late Hira Lal. It is stated that late Hiralal had
debarred the Respondent’s husband from inheriting his estate
and also initiated criminal proceedings against the
Respondent and her husband. It is stated that late Hiralal
executed a Will in favour of the Appellant, whereby the
property No. A-I/29-A, Paschim Vihar, New Delhi was
bequeathed in favour of the Appellant and the Appellant
became owner of the same, upon death of late Hiralal.
4.5.3. The Appellant has examined three witnesses, himself, the
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DW-5 and the DW-6 to prove the contentions about the sale
consideration being paid by late Hiralal and about the fraud,
stated to be played by the Respondent’s husband. The
testimonies of all three witnesses are entirely oral in nature.
It is submitted by Ld. Counsel for the Appellant that the
Respondent’s husband was merely 22 years old at the time of
the auction in the year 1971 and family did not have any
income, except from the firm of late Hiralal. It is further
submitted that the Plaintiff had not proved the financial
capability of her husband to purchase/acquire the property
No.A-I/29-A, Paschim Vihar, New Delhi, independent of the
firm business of late Hiralal. Though it has not been proved
by the Respondent that her husband was financially capable
of purchasing the property No. A-I/29-A, Paschim Vihar,
New Delhi, however that would not by itself be proof of the
fact that the money for purchase of aforesaid property was
paid by late Hiralal. The Conveyance Deed relied upon by
the Respondent is registered one and during the continuance
of its validity, the Respondent was not required to prove
anything more than the aforesaid document, which she
proved in terms of her testimony and testimony of PW-3.
The burden of proof of the facts, about the sale consideration
flowing from late Hiralal or a fraud being played by the
Respondent’s husband, was upon the Appellant in terms of
Section 102 of the Indian Evidence Act, 1872, as the
Appellant‘s case would fail, if no evidence at all were given
on either side.
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4.5.4. There is no documentary evidence of the fact that the father
of the Appellant, namely late Hiralal, provided the
consideration for purchase of the property No. A-I/29-A,
Paschim Vihar, New Delhi in his name. Though late Hiralal
had filed a criminal complaint against the Respondent’s
husband, however the same was filed in the year 2001,
whereas the property was firstly allotted in 1971 and
perpetual lease-deed of the same was executed in 1974. The
Appellant has stated in the written statement and Counter-
Claim that the suit property was purchased from the income
of the father, received from the father’s firm business.
However, it is stated in para No.13 of the affidavit of
evidence of the Appellant that late Hiralal used to reside as a
tenant in H. No. 2540, Gali No.6, Karol Bagh, Delhi and his
landlord paid him huge amount of pugree for vacating the
aforesaid tenanted property and the property No.A-I/29-A,
Paschim Vihar, New Delhi was purchased from the aforesaid
funds. The aforesaid contention was not mentioned in the
pleadings and the same further contradicts the Appellant’s
case itself, as set up in the pleadings that the sale
consideration was paid by late father from income generated
from his business. Both the aforementioned contentions
cannot be true at the same time and thus are mutually
destructive of each other.
4.5.5. The cross-examination of the DW-1 reveals that he did not
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have any personal knowledge about the facts relating to
purchase of the property No.A-I/29-A, Paschim Vihar, New
Delhi. The relevant part of the cross-examination dated
07.11.2016 is being reproduced hereinbelow:
“…….It is wrong to suggest that there was no
document of title in favour of Sh. Hira Lal in respect
of the suit property. There was no document of title in
the name of Sh. Hira Lal in respect of suit property. It
is wrong to suggest that Sh. Hira Lal was not the
owner of the suit property. It is wrong to suggest that
I am deposing falsely to this effect. I do not know if in
1971, the plot underneath the superstructure was
auctioned by the DDA. I do not know if the said
auction was held in favour of Rameshwar Dayal. Vo.
I was a small child at that time.
I might have seen 16-17 years of age at that time. I
am 63 years at present but I do not remember the
year in which I was born. I do not know if a
perpetual lease deed was executed on 25.11.1974 in
the name of Sh. Rameshwar Dayal as I was child. It
is correct that on 06.11.2001, DDA has executed a
conveyance deed in the name of Sh. Rameshwar
Dayal, who is the husband of the Plaintiff…..”
“………….There is no document on record to show
that my father had paid money to Sh. Rameshwar
Dayal for purchase of the suit property. It is wrong
to suggest that Sh. Rameshwar Dayla ha not got the
documents of the title of the suit property executed in
his name fraudulently.”
“Q. In the written statement in para no.2 on merits, you
have stated that the suit property was purchased by
the father by earing of M/s Krishna Jute house and
in your affidavit Ex.DW1/A, in para no. 13, you have
stated that the suit property was purchased by
obtaining funds from the owner of his tenanted
premises 2540, Gali No.6 Bedan Pura, Karol Bagh,
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A. The fact stated in my affidavit is correct. ……”
“……..I came to know about the title documents in the
name of Sh. Rameshwar Dayal after filing of criminal
complaint by my father against him. I came to know
about the documents in the year 2001. At this stage,
witness is confronted with para 16 of affidavit Ex.DW-
1/A wherein it is stated in point X1 to X2, where it is
recorded that the witness came to know of the title
documents in the year 2011…….”
The DW-1, states in the cross-examination that he was a
child/ not major at the time of purchase/acquisition of
property in question. He does not state in his testimony that
the money was supplied/given by the late father in his
presence. Further, when the Appellant was confronted with
the new averment introduced in para No.13 of the affidavit,
about the source of money paid by late Hiralal, the DW-1
states that the statement made in the affidavit was correct.
The aforesaid statement discredits his contentions in the
written statement about the sale consideration being paid
from the income from the business. Further, the new facts,
spelled out in evidence about the sale consideration being
paid from money received by late Hira Lal for vacating the
property on rent, are beyond pleadings.
4.5.6. The Hon’ble Supreme Court in, “Bacchaj Nahar v Nilima
Mandal and Anr., MANU/SC/8199/2008 :
2008:INSC:1072 : (2008) 17 SCC 491″, has held that any
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can-not be permitted or looked into. The relevant
observations of the Hon’ble Court in the aforementioned
judgment are being reproduced hereinbelow:
“12. The object and purpose of pleadings and issues is to
ensure that the litigants come to trial with all issues
clearly defined and to prevent cases being expanded
or grounds being shifted during trial. Its object is also
to ensure that each side is fully alive to the questions
that are likely to be raised or considered so that they
may have an opportunity of placing the relevant
evidence appropriate to the issues before the court for
its consideration. This Court has repeatedly held that
the pleadings are meant to give to each side intimation
of the case of the other so that it may be met, to enable
courts to determine what is really at issue between the
parties, and to prevent any deviation from the course
which litigation on particular causes must take.
13. The object of issues is to identify from the pleadings
the questions or points required to be decided by the
courts so as to enable parties to let in evidence
thereon. When the facts necessary to make out a
particular claim, or to seek a particular relief, are not
found in the plaint, the court cannot focus the
attention of the parties, or its own attention on that
claim or relief, by framing an appropriate issue. As a
result the defendant does not get an opportunity to
place the facts and contentions necessary to repudiate
or challenge such a claim or relief. Therefore, the
court cannot, on finding that the plaintiff has not
made out the case put forth by him, grant some other
relief. The question before a court is not whether there
is some material on the basis of which some relief can
begranted. The question is whether any relief can be
granted, when the defendant had no opportunity to
show that the relief proposed by the court could not be
granted. When there is no prayer for a particular
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relief and no pleadings to support such a relief, and
when defendant has no opportunity to resist or oppose
such a relief, if the court considers and grants such a
relief, it will lead to miscarriage of justice. Thus it is
said that no amount of evidence, on a plea that is not
put forward in the pleadings, can be looked into to
grant any relief.”
4.5.7. It has been held by Hon’ble High Court of Delhi in
“Prakash Rattan Lal v Mankey Ram,
MANU/DE/0107/2010 : 2010 DHC 266″ that the objective
of the pleadings is to bind the parties to a specific stand and
the same would be frustrated if the Court permitted evidence
beyond pleadings of the parties. The relevant observations of
the Hon’ble Court are being reproduced hereinbelow:
“4. The sole purpose of pleadings is to bind the parties to
a stand. When the plaintiff makes certain allegations,
the defendant is supposed to disclose his defence to
each and every allegation specifically and state true
facts to the court and once the facts are stated by
both the parties, the court has to frame issues and
ask the parties to lead evidence. It is settled law that
the parties can lead evidence limited to their
pleadings and parties while leading evidence cannot
travel beyond pleadings. If the parties are allowed to
lead evidence beyond pleadings then the sacrosancy
of pleadings comes to an end and the entire purpose
of filing pleadings also stand defeated. The other
purpose behind this is that no party can be taken by
surprise and new facts cannot be brought through
evidence which have not been stated by the
defendant in the written statement. The law provides
a procedure for amendment of the pleadings and if
there are any new facts which the party wanted to
bring on record, the party can amend pleadings, but
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without amendment of pleadings, a party cannot be
allowed to lead evidence beyond pleadings.”
The averment about the source of the sale consideration was
a material one and once the same was stated to be income
from the business in the written statement, a new averment
about the same to be from a different source, in the affidavit
of evidence is beyond pleadings. The aforesaid averment
should have been stated first in the written statement and
cannot be permitted to be raised for first time in evidence as
a surprise, when the averment made in the pleadings is a
different or contrary one. Though as a matter of fact, there is
nothing on record to conclude that any money was received
by late Hira Lal for vacating any property on rent and the
aforesaid contention has otherwise also not been proved.
Further, introduction of the aforesaid contention also
discredits the averment in the written statement that the sale
consideration was paid from the income received from firm’s
business. Again, there is no evidence about the nature of the
business of the firm or income thereof, which could be used
for purchasing the property in question. Therefore, the
examination in chief and the cross-examination of DW-1,
read together, do not lead to proof of the fact that the sale
consideration of the property No. A-I/29-A, Paschim Vihar,
New Delhi, was paid by the Late Hiralal or of the fact that
the Respondent’s husband had played a fraud upon his father.
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4.5.8. The Appellant has also examined the DW-5, who was
brother of late Hira Lal. The DW-5 has stated in his
examination in chief in para 7 about the purchase of the suit
property and the aforesaid para is being reproduced
hereinbelow:
“7. That Sh. Rameshwar Dayal, above named, son of
Hira Lal had no source of income as he was
dependent upon his father. He had cordial relations
till the year 1986 therefore, Sh. Hira Lal had blind
faith of honesty on Sh. Ramehwar Dayal (his son)
above named, therefore, he used to give the
consideration for the purchase of the plot of the suit
property which was auctioned by the Government.
Sh. Hira Lal had told his son Rameshwar Dayal that
he shall purchase the suit plot auctioned by D.D.A.
in the name of Sh. Hira Lal above named, but he
concealed the facts and purchased the same in his
personal name, by playing a fraud upon his father.
He continued taking money from his father for the
construction of the entire building on the suit plot
also without disclosing that he had purchased the
suit plot in his own name…..”
The abovementioned oral averments are generic in nature
and they do not spell out the date, time, period, manner of
payment or amount of the same. The cross-examination of
the DW-5 further reveals that the witness was not aware
about the material particulars of the payment, stated to have
been made by late Hiralal by giving money to late
Rameshwar Dayal. The relevant part of the cross-
examination of DW-5 dated 08.12.2016 is being reproduced
hereinbelow:
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“……I cannot tell the date, month and year as to
when the above property was sold in auction. It is
wrong to suggest that Sh. Rameshwar Dayal was the
partner in the business firm of Sh. Hira Lal. I do not
remember the date, month and year, when Hira Lal
gave money to Sh. Rameshwar Dayal for purchase of
property in suit. I do not remember the amount and
the dates when the amount was given to Sh.
Rameshwar Dayal by Sh. Hira Lal. I do not
remember as to how many times Sh. Hira Lal had
paid money to Sh. Rameshwar Dayal. I do not know
the total amount paid by Sh. Hira Lal to Sh. Ramesh
Dayal. The money was given in my presence to Sh.
Rameshwar Dayal. It is wrong to suggest that no
money was given to in my presence to Sh.
Rameshwar Dayal…..”
The DW-5 does not corroborate the allegations of money
paid by late Hiralal to Respondent’s husband besides making
oral generic averments. The witness is not aware of the
material particulars of the aforesaid payment in terms of
date, time, mode of payment or the amount thereof.
Therefore, even the testimony of DW-5 does not prove the
contentions of the written statement.
4.5.9. The Appellant has further examined the son in law of late
Hira Lal as DW-6. The relevant paras of the examination-in-
chief of the DW-6, pertaining to the payment of sale
consideration, are being reproduced hereinbelow::
“4. That Shri Hira Lal had purchased the plot in suit
with his own funds. Only mistake committed by him
was that he paid the money to Rameshwar Dayal for
the purchase of the plot in question and he
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dishonestly and by concealment purchased the plot in
question is his own name. Even, the funds for the
construction of the building over the plot question
was entirely paid by Shri Hira Lal father-in-law of
the Plaintiff from his own funds.
5. That Since the entire payment was made by cash by
Hira Lal to Rameshwar Dayal (his son) therefore, no
written documents were prepared by Hira Lal under
the signature of his son.
6. That Rameshwar Dayal has defrauded his father by
purchasing the plot in question in his own name by
concealing the fact that he has purchased the same in
his own name.”
The aforesaid facts, stated in the examination in chief of the
DW-6 are generic oral averments without corroboration of
the material particulars of the payment in terms of time, date,
period or amount of money and the witness has further not
spelled out the basis of his knowledge in the entire
examination in chief. The witness does not state that the
aforesaid payment was made in his presence. The cross-
examination of the DW-6 reveals that he did not spell out the
relevant particulars beyond generic allegations. Interestingly
the witness himself states that he was married to the daughter
of late Hira Lal in the year 1972, whereas the property in
question was alloted by DDA in the year 1971. Therefore,
the DW-6 also does not prove the contentions of the written
statement about the payment of the sale consideration made
by late Hira Lal or the fraud played by the Respondent’s
husband.
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4.5.10. The testimonies of the DW-1, DW-5 and DW-6 do not prove
the contentions of the written statement. Neither the factum
of payment of sale consideration provided by late Hiralal is
proved nor the allegation of fraud played by the
Respondent’s husband to purchase the suit property in his
name is proved. Therefore, the Appellant failed to prove that
late Hiralal was the owner of the property No. A-I/29-A,
Paschim Vihar or that the Conveyance Deed dated
06.11.2001 was vitiated by fraud or was not binding upon
the Appellant or his father.
4.5.11. The Appellant had also claimed that late Hira Lal executed a
Will dated 01.10.2001, whereby the property in question,
i.e., the property No.A-I/29-A, Paschim Vihar was
bequeathed in his favour. Since late Hiral Lal was not the
owner of the aforesaid property, therefore, the Will dated
01.10.2001 did not confer the title of the same upon the
Appellant. Moreover, the aforesaid Will has also not been
proved by the Appellant in his evidence.
4.5.12. The Will dated 01.10.2001 is an unprivileged Will and is
duly registered. An unprivileged Will is required to be
attested by two witnesses and has to be executed in the
manner stated in Section 63 of the Indian Succession Act,
1925. It is prescribed in Section 68 of the Indian Evidence
Act, 1872 that if a document is required by law to be
attested, it shall not be used as evidence until one attesting
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witness at least has been called for the purpose of proving its
execution, if there be an attesting witness alive, and subject
to the process of the Court and capable of giving evidence.
Even in case of a registered Will, the requirement of
examination of the attesting Witness is not dispensed with.
The Plaintiff has neither examined any attesting Witness of
the aforementioned Will nor stated the reason for such non-
examination. The death or incapability of the attesting
witness to appear and depose has also not either been
pleaded or established on record. Though the Appellant has
proved the factum of registration of the Will dated
01.10.2001 through the official witness, i.e., DW-6, however
the due attestation and valid execution of the aforesaid Will
has not been proved, in terms of Section 68 of Indian
Evidence Act, 1872 and Section 63 of Indian Succession Act,
1925. Since the ownership of late Hira Lal was not proved,
therefore, discussion on the proof of his Will is merely
academic.
4.5.13. Therefore, the first point of the determination is answered in
the negative and it is held that the Appellant has failed to
prove the ownership of his father or his ownership as stated
in the written statement. It has been further proved that the
Respondent’s husband was the owner of the property
No.A-I/29-A, Paschim Vihar, New Delhi. The suit property
is the first floor of the aforesaid property and therefore, the
Respondent’s husband was the owner of the same and upon
his death, the Respondent became the co-owner of the same,
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as being one of the legal heirs of her late husband.
4.6. Whether the suit for mandatory injunction was filed
beyond the period of limitation and its effect?
4.6.1. Though, the Appellant has not specifically pleaded the bar
of limitation in the written statement, in reference to the
prayer of mandatory injunction, however in terms of
Section 3 of the Limitation Act, 1963, the Court has to
adjudge the factum of limitation even in absence of any
such defence pleaded by the Defendant. Section 3 of the
Limitation Act, 1963 is being reproduced hereinbelow:
“3. Bar of limitation:
(1) Subject to the provisions contained in sections 4 to
24 (inclusive), every suit instituted, appeal
preferred, and application made after the
prescribed period shall be dismissed, although
limitation has not been set up as a defence.”
Thus Section 3(1) of the Act of 1963 imposes an obligation
upon the Court to dismiss a suit filed beyond limitation,
even if the Defendant does not plead the defence of
limitation. The aforesaid position of law has been upheld by
the Hon’ble Supreme Court of India in the recent judgment
passed in “S. Shivraj Reddy (Died) thr his L.Rs. and
Ors. Vs. S. Raghuraj Reddy and Ors.:
AIR2024SC2897″, wherein the Hon’ble Supreme Court
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has also discussed and relied upon the previous judgments
on the issue. The relevant observations of the Hon’ble Court
in the aforesaid judgment are being reproduced
hereinbelow:
15. In the facts and circumstances of the case, we find
that the reasoning given by the learned Division
Bench while dismissing LPA No. 47 of 2002, that
the learned Single Judge ought not to have
considered the question of limitation as the
Defendants did not choose to raise the plea of
limitation in the trial Court is ex- facie erroneous.
Law in this regard has been settled by this Court
through a catena of decisions. We may refer to the
judgment in the case of V.M. Salgaocar and Bros.
v. Board of Trustees of Port of Mormugao and Anr
MANU/SC/0241/2005 : 2005:INSC:172 : (2005) 4
SCC 613, wherein this Court held as follows:
20. The mandate of Section 3 of the Limitation
Act is that it is the duty of the court to
dismiss any suit instituted after the
prescribed period of limitation irrespective
of the fact that limitation has not been set
up as a defence. If a suit is ex facie barred
by the law of limitation, a court has no
choice but to dismiss the same even if the
Defendant intentionally has not raised the
plea of limitation.
21. This Court in Manindra Land & Building
Corpn. Ltd. v. Bhutnath Banerjee
[ MANU/SC/0259/1963 : 1963:INSC:126 :
(1964) 3 SCR 495: AIR 1964 SC 1336]
held (AIR para 9): Section 3 of the
Limitation Act enjoins a court to dismiss
any suit instituted, appeal preferred and
application made, after the period of
limitation prescribed therefor by Schedule
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I irrespective of the fact whether the
opponent had set up the plea of limitation
or not. It is the duty of the court not to
proceed with the application if it ismade
beyond the period of limitation prescribed .
The Court had no choice and if in
construing the necessary provision of the
Limitation Act or in determining which
provision of the Limitation Act applies, the
subordinate court comes to an erroneous
decision, it is open to the court in revision
to interfere with that conclusion as that
conclusion led the court to assume or not
to assume the jurisdiction to proceed with
the determination of that matter. (emphasis
supplied)
16. Thus, it is a settled law that even if the plea of
limitation is not set up as a defence, the Court has
to dismiss the suit if it is barred by limitation.”
Therefore, the Court is duty bound to consider the question
of limitation, even in the absence of any objection of the
Defendant. The Court of Ld. Civil Judge has not considered
or deliberated upon the issue of limitation in reference to
the prayer of mandatory injunction. The Appellant has
stated in the memo of appeal (ground II) that the suit of the
Respondent was barred by limitation. The first appeal is
extension of the proceedings in the suit and this Court,
being the first Appellant Court has to consider the issue of
limitation, in terms of Section 3 of the Act of 1963.
4.6.2. The Respondent has filed civil suit against the Appellant for
the principal prayer of mandatory injunction for his
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removal from the suit property. The Limitation Act, 1963
does not prescribe the period of limitation for institution of
suit for mandatory injunction and therefore such a suit has
to fall under Article 113 of Limitation Act 1963, which is
being reproduced hereinbelow:
Description of suit Period of Time from which
limitation period begins to run
Any suit for which no Three years. When the right to sue
period of limitation is accrues.
provided elsewhere in
this Schedule.
In terms of the Article 113 of the Act, as mentioned
hereinabove, the suit for mandatory injunction can be filed
within a period of 3 years from the date, when the right to
sue accrues. So, the relevant point from which the
limitation is to be reckoned for instituting a suit for
mandatory injunction is when the right to sue accrues.
4.6.3. Ld. Counsel for the Appellant has submitted that late
Hiralal had instituted criminal proceedings against the
Respondent’s husband way back in the year 2001. It is
submitted that late Hiralal debarred the Respondent’s
husband by issuing a declaration in the newspaper and also
served a notice upon the Respondent’s husband in the year
2001. It is submitted that late Hiralal also executed a Will
dated 01.10.2001, in favour of the Appellant, with regard to
the property No.A-I/29-A, Paschim Vihar, New Delhi. It is
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stated that Appellant and his late father were not the
licensees in the aforesaid property and had always been in
possession of the same as the persons claiming/professing
absolute ownership in the same, which is evident from the
proceeding instituted by late Hiralal, in the year 2001 and
continued by the Appellant after death of his father. It is
submitted that the right to sue had accrued to the
Respondent’s husband in the year 2001 and the suit was
filed after a period of more than 10 years from the date of
accrual of cause of action and therefore, was filed beyond
the prescribed period of limitation.
4.6.4. Ld. Counsel for the Respondent has submitted that the suit
has been filed against a licensee, whose license was duly
terminated by way of a legal notice dated 22.09.2011 and
the suit was filed immediately upon the termination of
license. It is submitted that the Appellant has failed to prove
the contentions of ownership of late Hiralal or alleged fraud
of the Respondent’s husband. It is submitted that except the
unproven averments of ownership, no other capacity was
pleaded by the Appellant in relation to possession of the
suit property and therefore, the same was permissive, as
being of the family member and did not become hostile to
the Respondent, till the termination of the license and the
suit has been filed promptly upon the termination of the
license.
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4.6.5. The suit filed by the Respondent is not one for possession
and has been filed for the prayer of mandatory injunction. It
has been held by the Hon’ble Supreme Court of India in,
“Sant Lal Jain Vs. Avtar Singh (12.03.1985): 1985 INSC
53: MANU/SC/0295/1985″, that a licensor can institute
and maintain suit for mandatory injunction against a
licensee for obtaining the possession. The relevant
observations of Hon’ble Court are being reproduced
hereinbelow:
“6. Now the parties are bound by the following factual
findings recorded by the learned Additional District
Judge in the first appeal namely: (1) that the
appellant who had become the sole proprietor of
M/s. Jain Motors in 1967 through at the time of the
lease of the property by the original owner Lt. Col.
Sadan Singh to M/s. Jain Motors in 1963 he was
only one of its partners, was the lessee of the
property; (2) that the respondent had become a
licensee of the suit shed under the appellant when
the appellant was in possession of the whole of the
demised premises including the suit shed as tenant
under the original owner; (3) that the licence in
favour of the respondent has been revoked before
the institution of the present suit and (4) that
subsequent to the decision in the first appeal on
7.12.1978, the respondent had purchased the entire
property from the original owner by a sale-deed
dated 27.8.1979. In these circumstances, there is no
merger of the lease of the whole property by its
original owner in favour of the appellant by reason
of the sale of the entire property by the original
owner in favour of the respondent or of the licence
given by the appellant to the respondent which had
been revoked prior to the date of the suit. The lease
in favour of the appellant continues, and it is not
disputed that under the Act of 1949 referred to
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above, even the tenant of a vacant land in Patiala
town cannot be evicted therefrom except in
accordance with the provisions of that Act. In K.K.
Verma and Anr. v. Union of India and Anr.
MANU/MH/0102/1954 : AIR1954Bom358 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 and Ors.
MANU/JK/0044/1964 : AIR 1964 J & K 99 it has
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
Section 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. On the other
hand, if the licensor causes huge delay
the court may refuse the discretion to
grant an injunction on the ground that
the licensor had not been diligent and is
that case the licensor will have to bring a________________________________________________________________
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suit for possession which will be governed
by Section 7(v) of the Court Fees Act.
7. In the present case it has not been shown to us
that the appellant had come to the court with the
suit for mandatory injunction after any
considerable delay which will disentitle him to the
discretionary relief. Even if there was some delay,
we think that in a case of this kind attempt should
be made to avoid multiplicity of suits and the
licensor should not be driven to file another round
of suit with all the attendant delay, trouble and
expense. The suit is in effect one for possession
though couched in the form of a suit for
mandatory injunction as what would be given to
the plaintiff in case he succeeds is possession of
the property to which he may be found to be
entitled. therefore, we are of the opinion that the
appellant should not be denied relief merely
because he had couched the plaint in the form of a
suit for mandatory injunction.”
(highlighting added)
The above-mentioned mentioned proposition of law has
been reaffirmed and followed in the subsequent judgment
of the Hon’ble Supreme Court of India in, “Joseph
Severance and Ors. Vs. Benny Mathew and Ors.:
(2005)7SCC667: MANU/SC/0664/2005″, and the relevant
observations of the Hon’ble Court are being reproduced
hereinbelow:
“7. There was no specific plea taken by the defendants
that the suit should be one for recovery of
possession and the suit for injunction is not
maintainable. In fact, before the trial court and the
first appellate Court the stress was on something
else i.e. the effect of Section 60 of the Indian
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Easements Act, 1882 (in short the ‘Easements Act‘)
and the alleged non-maintainability of the suit on
the ground of non-joinder of necessary parties.
Before the High Court the plea was taken for the
first time that the suit was not maintainable being
one for mandatory injunction and for prohibitory
injunction and not one for recovery. Strictly
speaking the question is not a substantial question
of law, but one whose adjudication would depend
upon factual adjudication of the issue relating to
reasonableness of time. The correct position in
law is that the licensee may be the actual
occupant but the licensor is the person having
control or possession of the property through his
licensee even after the termination of the licence.
Licensee may have to continue to be in
occupation of the premises for sometime to wind
up the business, if any. In such a case licensee
cannot be treated as a trespasser. It would depend
upon the facts of the particular case. But there
may be cases where after termination or
revocation of the licence the licensor does not
take prompt action to evict licensee from the
premises. In such an event the ex-licensee may
be treated as a trespasser and the licensee will
have to sue for recovery of possession. There can
be no doubt that there is a need for the licensor
to be vigilant. A licensee’s occupation does not
become hostile possession or the possession of a
trespasser the moment the licence comes to an
end. The licensor has to file the suit with
promptitude and if it is shown that within
reasonable time a suit for mandatory injunction
has been filed with a prayer to direct the licensee
to vacate the premises the suit will be
maintainable.
8. It is to be noted that in the instant case the High
Court has nowhere held that the explanation, as
offered by the plaintiffs, was not acceptable.
Without so holding, the High Court only took note
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of the period after which the suit was filed. The
basic issue is whether the suit was filed within a
“reasonable time”.
(highlighting & underlining added)
4.6.6. Therefore, it can be concluded from the above referred
judgments that a licensor can maintain a suit for mandatory
injunction, instead of filing the suit for possession, against
the licensee, however the same should be filed with
promptitude after termination of such license and without
any unreasonable delay. If the aforesaid proposition is read
alongwith Article 113 of the Limitation Act, 1963, the delay
in any case should not be more than 3 years from the date
of accrual of cause of action, i.e., from the date of
termination of license or from the date, when the possession
of the licensee became hostile to the licensor.
4.6.7. The facts of the present case are required to be assessed in
terms of the law discussed hereinabove. The Respondent
has stated in the plaint that the Appellant and his father
were licensees of the Respondent’s husband. It is stated that
the Respondent’s father-in-law, late Hiralal, was residing on
the ground floor of property No. A-I/29A, Paschim Vihar,
New Delhi and the Appellant was residing on the first floor
of the aforesaid property, i.e., the suit property, as being
family members. It is stated that the Appellant had become
the licensee of the Respondent in the suit property on the
death of Respondent’s husband. It is stated that the
activities of the Appellant were against the interest of the
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Respondent, which he did not rectify despite being asked
by the Respondent. It is stated that the Appellant did not
withdraw the criminal complaint case filed by late Hira Lal
and therefore his license was terminated. No specific date
has been mentioned in the plaint as to when the Appellant
was inducted into the possession by the Respondent’s
husband. The property No. A-I/29A, Paschim Vihar, New
Delhi was purchased in the year 1971 and it is mentioned
in the written statement that Late Hira Lal was residing in
the property since 1973 and the Appellant was residing in
the property since 1979. The Respondent has neither
disputed the same nor stated any other date of induction of
the Appellant into possession and therefore, the possession
of the Appellant of the suit property, i.e., first floor of
property No. A-I/29A, Paschim Vihar, New Delhi, has been
established from the year 1979.
4.6.8. The Appellant has denied the capacity of being a licensee
and asserted title in the suit property through his father. It
is stated in the written statement that late Hiralal was the
owner of the property No. A-I/29-A, Paschim Vihar, New
Delhi and upon his death, the Appellant became the owner
of the same, by virtue of a Will dated 01.10.2001. However,
the Appellant has neither proved the ownership of his father
nor proved the Will dated 01.10.2001.
4.6.9. It is stated in the written statement that late Hira Lal had
debarred the Respondent’s husband from inheriting his
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estate and had filed a criminal complaint dated 10.12.2001
against the Respondent and her husband under Section
448/420/427/341/506/323/34 of Indian Penal Code, 1860.
The Appellant has examined DW-4, the official witness,
who has produced the record of the aforementioned
complaint case, filed by late Hira Lal against the
Respondent and her husband. The record of the aforesaid
complaint case is Exhibit DW-4/A (colly) and Exhibit DW-
4/B (OSR)(Colly). In the aforesaid complaint, i.e., Exhibit
DW-4/B (OSR)(Colly), Late Hira Lal claimed to be lawful
owner in possession of the property No.A-1/29A, Paschim
Vihar, New Delhi-110063. It is further stated in the
aforesaid complaint that late Hira Lal had purchased the
aforesaid property from DDA in the year 1973 from income
of his Firm. It is stated that the Respondent’s husband was
in illegal possession of a substantive part of the ground
floor of the aforesaid property No.A-I/29A, Paschim Vihar,
New Delhi. It is also mentioned in the complaint that late
Hira Lal had debarred the Respondent’s husband from his
estate by issuing a declaration in a newspaper and further
executed a Will dated 01.10.2001 in favour of the
Appellant. The relevant paragraphs of the complaint dated
07.11.2001 are being reproduced hereinbelow:
“1. That the applicant is a peace-loving and law abiding
senior citizen of India and residing at A-1/29A, Paschim Vihar,
New Delhi-110063.
2 That the applicant is the lawful owner in possession of
the abovesaid property. The applicant had purchased this
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property from DDA in the year 1973 from the earning of his
firm namely M/s. Sri Krishna, Jute House at 2887/3, Hardyan
Singh Road, Karol Bagh, New Delhi, the measuring area of the
property is about 400 sq.yds. including basement measuring
15×27′, five rooms, three toilets and a kitchen in the Ground
Floor, and one Barasati on first floor.
3. That the applicant is in possession of one room
measuring area 10×12′ and one toilet only. However, the
younger son of the applicant Raghuvir Singh is residing on the
first floor i.e. on Barsati, Remaining portion of the whole
property is in illegal possession of the accused Rameshwar
Dayal, including basement.
4. That the applicant has spent considerable amount on the
marriage of the accused/Respondent. The Applicant has also
spent handsome amount on the marriage of the children of the
accused.
5. That it is pertinent to mentioned that the applicant is
running a business of sale purchase of Curtains, Sofa Clothes,
Jute mating, Door mates, bed covers. etc. at 2887/3, Hardhyan
Singh Road, Karol Bagh, Delhi in the name and style of M/s. Sri
Krishna Jute House, which is on rental basis. It is also
pertinent to mention here that in the year 1-4-1999 the
applicant entered into a partnership with the accused regarding
firm M/s Sri Krishna Jute House. The applicant is also having
the shop/godowns at 162 & 163, 1st Floor Gaffar Market,
Hardhyan Singh Road, Karolk Bagh, New Delhi on rental basis.
6. That in the year about 1970, the accused was got
married with Savitri Kalra, according to Hindu rites and
customs, where the applicant had spend huge amount and had
given 100 tola gold to the daughter-in-law at the time of the
marriage. The marriage was solemnized with the pump and
show. Since then the accused was residing with the applicant
and one room was given to the accused for the new wedded
couple. The accused was second oldest son in the family. The
accuseds were residing at the abovesaid address, since then and
their children were born out of this wedlock namely (1) Vinod
(2) Deepak and a baby, all are married at present. However,
Vinod Kumar and Deepak are also residing with their family at
the abovesaid address.”
“11. That aggrieved with the behaviour of the accused no.1 and
2 in a routine manner, the applicant was not only mentally
harassed, tortured or insulted before the friends and society of
the applicant, the accused no.2 did not allow to enter the
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friends of the applicant in the house of the complainant,
whenever the complainant passes through the room of the
accused person, she used filthy language and start stricts words
against the complainant, resulting which the life of the
complainant became miserable, the complainant approached to
his counsel Mrs. Jyotana, Advocate and published a public
notice in a news Paper “Punjab Kesari” dated 21.09.2001
wherein the complainant had severed all relations from the
accused no. 1 & 2 and debar from the movable and immovable
properties and also dissolved the partnership Deed, regarding
firm M/s Sri Krishna Jute House dated 01.04.1999. which is
annexed herewith as ANNEXURE:D.
12. That the complainant had given a complaint to this effect
in police station, Karol Bagh and Paschim Vihar and also
registered copy regarding the harassment, threatening and ill-
intention to occupy by accused no.1 residence and the business
before the Chief Justice of India, Supreme Court of India, copy
to the National Human Rights and C.P. which is annexed
collectively as ANNEXURE:E.
13. That the applicant, after giving the public notice in a
daily news paper has also executed a Will in faovur of Sh.
Raghubir Singh, the younger son, in which he has made his last
Will and in para-12 of this Will has specifically mentioned and
exclude the accused no.1 from the movable, immovable
properties and business and last funeral expenses etc. Will is
annexed herewith as ANNEXURE F. The Will is registered with
the office of the Registrar, Delhi, on 25-10-2001.
14. That a legal notice was served upon the applicant through
accused No.1 which he has specifically mentioned that the
accused no.1 has come know from, reliable sources regarding
the dissolution of partnership firm in first notice dated
29.09.2001 and in the last para of the second notice he has
mentioned that the accused no.1 has come to know from reliable
para sources and in the last para where he has mentioned
“immediately on the service of this notice and arrange for some
other residence for your, latest by 15 days from the service of
this notice, annexed as ANNEXURE G & H through Advocate
V.K. Mishra. Reply to the abovesaid notice was given/sent to the
accused no.1 and his counsel through counsel of the applicant.
15 That in the year 1999 (in the month of January), the
accused no.1 has asked for the registry of the house on the
ground that for taking loan from the back against the registery
for the business purpose, so that the business can be advanced
and new customers may be invited by purchasing novelties
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regarding the furnishing etc. etc., to which the applicant agreed
and hand over the registery of the house. Till day, the registery
is with the accused no.1 on asking to return back the accused
has refused several times and retained the documents without
the consent of the applicant.”
“Prayer:
It is, therefore, prayed that the accused persons
may kindly be punished in accordance with the law,
under the fact and circumstances of the case, as
mentioned hereinabove.
It is further prayed that the accused persons may
kindly be ordered to vacate the premises as they have
entered lawfully and now remaining in the premises
unlawfully without the consent of the applicant and
further for dishonestly inducing the applicant and obtain
the registry of the house and be punished for house
trespassing, an cheated the applicant.
It is further prayed that the accused person be
punished for criminal intimidation, ultimately
causes/hurt with common intention.
It is further prayed that the accused person may
kindly be punished in accordance with the law be
summoning and then tried and punished.”
Though the aforesaid complaint is full of grammatical
errors, however the objective of the reproduction of the
above-mentioned complaint is to understand the nature of
allegations, in order to infer the intention of the
complainant therein. Though the allegations in the aforesaid
complaint may not have been proved, however the gravity
of the aforesaid allegations categorically reveals that late
Hira Lal did not acknowledge any right of the Respondent’s
husband in the property No.A-I/29A, Paschim Vihar, New
Delhi. Late Hira Lal claimed himself to be the owner of the
property No.A-I/29A, Paschim Vihar, New Delhi and had
further claimed to have bequeathed the same to the
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Appellant. He had further termed the Respondent and her
husband to be trespassers in the aforesaid property and had
further initiated an action to set the criminal law in motion
against the Respondent and her husband for retaining the
possession of the property in question. If the aforesaid
allegations are read in totality, the aforesaid allegations are
in complete denial of and an open challenge to any right,
title or interest of the Respondent’s husband in the property
No.A-I/29-A, Paschim Vihar, New Delhi.
4.6.10. Late Hira Lal also appeared as a witness for recording of
his pre-summoning evidence in the aforementioned
criminal case and his statement was recorded in the
aforesaid complaint case on 05.09.2002. The aforesaid
statement dated 05.09.2002, i.e., Exhibit DW4/B (OSR)
(colly), is being reproduced hereinbelow:
“Statement of Heera Lal Kalra, aged 81 years,
S/o Lae Sh. Nanak Chand, R/o A-1/29,A,
Paschim Vihar, New Delhi-53.
ON SA.
I purchased in 1973 the abovesaid property from
DDA. I purchased the abovesaid property from
the earning of my firm under the name and style
Shri Krishan Joot House at 2887/3, Hardyal
Singh Road, Karol Bagh. The house is
comprising 5 rooms, 3 toilets on ground floor
measuring 400 sq. yards including basement
15×27, and one barsati on first floor. I am in
possession of 10×20. My son Rameshwar Dass
(accused) has illegally occupied the remaining
rooms of the abovesaid property. In the year 99,
the partnership was executed with the accused
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regarding firm M/s Krishana Joot House. I also
had 2 godowns at 162 and 163, first floor,
Hardyal Road, Gaffar Market, Karol Bagh on all
rental basis. About in the year 1970, Rameshwar
Dayal (accused) got married to Savitri Kalra.
I had gifted about 100 tola gold to Savitri Kalra
(accused) at the time of marriage. Since then,
both are residing in the above stated property.
However, only one room was given to the
accused persons at the time of their marriage.
But gradually, they have illegally occupied 4
rooms without my consent. At present 2 sons
namely Vinod Kumar and Deepak Kumar
(Grandsons) are residing with them.
My younger son Raghuvir Singh is residing in
barsadi along with 3 daughters, who is
maintaining to me presently for the last about 4/5
years. The accused persons No. 1 and 2
behaviour has been changed. The accused No.2
used filthy language on the pretext or other,
accused No.2 did not allow you used the toilet
which suit me due to old age.
In the year 1997, accused No. 2 picked a quarrel
on a petty matter by saying ‘Kaam Ka No Kaaz
Ka Dushan Annaaj Kaa, Budha Kanhi Ka
Marta Bhi Nahi, Baitha Baith Rotian Torta Rehta
Hai’. On asking she shouted and snatched my
aspects and thrown on the floor. I gave a legal
notice to the accused no.1 which is Annexure ‘D’
and also legal notice Annexure ‘A’ which are
Ex.CW1, and the notice Annexure ‘C’ is mark
‘A’. The newspaper Punjab Kesri dated 21/09/01
wherein I had severed all the relations in
accused No.1 and 2 and debart them from the
property and also executed bill on 25/2/01 on the
office of Registrar Delhi and got registered and
I had also made a complaint to this effect in P.S.
Karol Bagh. I have also made a resolution
partnership with Rameshwar Dayal regarding
the firm M/s Krishan Jott House, Hardyan Singh
Road, Karol Bagh and gave notice to the firm of
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the Registrar also.
Further examination is deferred on the request of
Counsel as witness has not been brought the
original documents.
RO & AC MM:Delhi
Sd/- 05.09.2009"
If the errors of grammar are ignored, then in terms of the
above-mentioned statement, late Hiralal had affirmed the
allegations of the complaint and denied any title/right of the
Respondent/her husband in the property No. A-I/29A,
Paschim Vihar, New Delhi.
4.6.11. The pendency of the aforesaid complaint or the recording
of statement of late Hiralal in the aforesaid case was not
disputed by the Respondent. Ld. Counsel for the
Respondent has submitted that the aforesaid criminal
complaint was filed by late Hiralal, and the present suit was
not filed against Hiralal and the limitation will not start
running against the Respondent for obtaining possession
from the Appellant, by the aforesaid criminal action
initiated by his late father. This Court is in disagreement
with the aforesaid submission of Ld. Counsel for the
Respondent for the reason that the Respondent had herself
stated in para No.5 of the plaint that the aforesaid complaint
was filed by Appellant through his father. It is stated that
the aforesaid complaint was filed by late Hiralal at behest________________________________________________________________
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and at the instigation of the Appellant. It is further stated in
the plaint that after the death of late Hiralal, the Appellant
was pursuing the aforesaid complaint against the
Respondent and her husband and eventually the license was
stated to be terminated only for the reason that the
Appellant did not withdraw the aforesaid complaint. The
Respondent has herself filed certified copy of the
application dated 04.12.2006, whereby the Respondent has
sought discharge in the aforesaid criminal complaint case.
It is stated in the aforesaid application that the Respondent’s
husband was the owner of the property in question in terms
of registered Conveyance Deed. It is stated that late Hiralal
was not the owner of the suit property and therefore did not
have any authority to execute the Will. Therefore, the
Respondent was aware that the Appellant was pursuing the
complaint and claiming himself to be owner of the suit
property, in terms of the Will dated 01.10.2001. The
contents of the application for discharge, i.e., Exhibit PW-
1/8, are being reproduced hereinbelow:
“In the Court of Ld. M.M., Rohini Delhi.
In the matter of:
Heera Lal S/o Sh. Nanak Chand.
Versus.
1. Rameshwar Dayal
2. Savitri.
P.S. Paschim Vihar
Criminal Complaint
________________________________________________________________
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RCA No. 187/2017 & 190/2017 Page No. 55 of 75
U/s 448/420/427 IPC
DOH: 04.12.2006.
Application U/s 258 Cr.P.C. for stopping the
proceedings against the accused person.
Most respectfully showeth:
1. That in the above mentioned case the complaint
was filed by Heera Lal U/s. 448/420/427 IPC
against Rameshwar Dayal son of the
complainant and Smt. Savitri W/o. Sh.
Rameshwar Dayal on the basis of false and
frivolous accusation and the order for
summoning of both the accused was passed by
the Hon’ble Court accordingly. Both the accused
were summoned U/s 448/420/427 IPC on
28.10.2005 to appear by 22.09.2006.
2. That the complainant Heera Lal has since
expired and accused Rameshwar Dayal his son
also expired. Now the only accued in this case,
who is facing trial is Smt. Savitri W/o. Late Sh.
Rameshwar Dayal.
3. That complainant has been filed on flimsy
grounds. The documents filed along-with the
complaint are also false and right to ownership
of the house has been suppressed. Whereas Late
Sh. Rameshwar Dayal is the owner of the
property and he has got registered conveyance
deed in his possession to this effect. The
photocopy of the said deed is attached herewith
for ready reference.
Furthermore, the alleged will said to have been
executed by the Testator Heera Lal is uncalled
for because of the facts that the said Late Heera
Lal had no power to execute the said Will.
Because he was not owner of the property with
regard to which he has executed a will.
4. That in this case evidence produced by the
complainant has become non-existing.
5. After the death of Heera Lal (Complainant Sh.
Raghuvir Singh has been substituted as
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RCA No. 187/2017 & 190/2017 Page No. 56 of 75
complainant vide order dated 13.02.2004 and at
present the said case is going on in the name of
title of Raghuvir Singh Vs. SavitriPRAYER
In the circumstances, it is respectfully prayed that in
the presence of non-existing evidence the proceedings
against Smt. Savitri may kindly the stopped and
accused Savitri be discharged in the interest of
justice.”
In terms of the aforesaid application, the Respondent on the
date of the application, i.e. on 04.12.2006 was aware of the
proceedings in the criminal case as well as the nature of
claim made by the late Hira Lal in the aforesaid criminal
complaint, which was being pursued by the Appellant, on
the aforesaid date. Therefore on 04.12.2006, the
Respondent was aware that the Appellant had disputed her
right, title and possession of the property No. A-I/29-A,
Paschim Vihar, New Delhi (including the suit property) and
claimed himself to be owner of the same, in terms of the
Will dated 01.10.2001.
4.6.12. The Respondent has not pleaded or claimed ignorance of
any of the acts of late Hira Lal or Appellant’s supporting
role in the same. The Respondent has been cross-examined
on the aspects of the proceedings and notices issued by late
Hira Lal to the Respondent’s husband. The cross-
examination of the DW-1 is being reproduced hereinbelow:
“….I can not the tell the date of birth of my husband Sh.
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Rameshwar Dayal. I can not tell even the year of theh
birth of my husband. My husband was studying in
Ramjas School no. 5, Karol Bagh, New Delhi. I can not
tell the date of his admission in the school and upto
which year he studied in the said school. The age of my
husband was about 22-23 years at the time of his
marriage with me. He had studied upto 11 th class. I can
not ell when he completed his studies upto 11th class.
I never participated in the business run by my
father in law Sh. Hira Lal. I had not concern with the
business of my father in law Sh. Hira Lal. I can not tell
the date, month and year when my husband joined in
the business of my father in law above named. I can not
tell whether the business of my father in law was his
sole properitorship prior to the joining of my husband
with him. I have not brought any proof regarding the
extent of interest of my husband in the business of his
father mentioned above. I have no proof of his annual
income regarding the aforesaid interest of my husband
in the business of his father. My husband has a bank
account in his name. The name of the bank is
Allahabad Bank, Karol Bagh, New Delhi and Mridula
Bank situated in front of the shop of my father in law. I
can not telly anything regarding the title deeds of the
property in which the business was being run of Hira
Lal. Vol. my husband and Sh. Raghubir Singh were
partners in the business of their father, later on the
share of my husband was increased to 60% and the
defendant was exluded from the partnership business. It
is correct that prior to joining of my husband in
partnership with Sh. Hira Lal, he (Hira Lal) was the
sole proprietor of his business. I have no proof
regarding the terms and conditions of the partnership
business mentioned above between my husband and Sh.
Hira Lal today. I have not filed any proof of income of
my husband in the court file. It is wrong to suggest that
Hira Lal used to earn his entire income from his
aforesaid business and he used to incur all expenses of
his family. It is correct that my husband was the elder
son of Late. Sh. Hira Lal and defendant was his
younger son. It is correct that the relations between my
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husband and his father were cordial. It is wrong to
suggest that Sh. Hira Lal used to pay all kinds of
expenses regarding the purchase of all kinds of goods,
property etc. I can not tell the age of my father in law
at the time of my marriage. I got married with Sh.
Rameshwar Dayal in the year 1970. Sh. Hira Lal died
at the age of 85 years in the year 2003. Hira Lal was
hail and hearty till the age of his death. However, he
was enjoying indifferent health for a period of one year
immediately before his death. It is correct that we had
strained relations with Sh. Hira Lal for about one
year prior to his death. It is correct that Sh. Hira lal
had disowned husband from his property in the
month of September, 2001 by issuing a notice to him
and by news publication. It is correct that the said
publication was published in Punjab Kesari, Hindi
Newspaper of Delhi. I do not know if my husband had
replied the aforesaid notice and news publication. It is
correct that Sh. Hira Lal had lodged several reports
against my husband for a long time because we had
frequent quarrels with each other. It is correct that
Sh. Hira Lal had started lodging aforesaid report
since the year 2001 against me and my husband in the
police station, Paschim Vihar. It is correct that Sh.
Hira Lal had filed a complaint case against me and
my husband in the court of Ld. Metropoliton
Magistrate under section 420 IPC. It is correct that
Sh. Hira lal died during the pendency of the aforesaid
criminal case.
Q. Is it correct that after the death of Sh. Hira lal
above named, the name of the defendant Raghubir
Singh was substituted in the said complaint case?
(Objected to by Ld. Counsel for the Plaintiff).
A. It is correct.
It is wrong to suggest that so long Hira Lal was
alive I and my husband had concealed the title deeds
of the suit property from the knowledge and perusal
of Sh. Hira Lal. No notice was given to Late. Sh. Hira
lal and Sh. Raghubir Singh, the defendant regarding
the claim of ownership in the suit property and for
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recovery of possession and mesne profits during the
life time of Sh. Hira Lal. It is correct that Sh. Hira
Lal had not other property for his residence other
than property in suit. It is also correct that during his
life time Sh. Hira Lal his entire family members
including the family members of my husband and that
of the family members of the defendant used to reside
in the suit property. It is wrong to suggest that all of
us were living jointly in the suit property. Vol. We
were living separately in our respective portions of the
property in suit. It is wrong to suggest that the suit
property was purchased for the use, occupation and for
residential purposes for the entire family members of
Late Sh. Hira Lal, jointly. It is wrong to suggest that my
husband was not financially sound to purchase the suit
property was purchased by Sh. Hira Lal bty paying the
entire price of the same from his own pocket from his
self earned income. It is wrong to suggest that my
husband had fraudulently and dishonestly got the
property purchased in his own name by concealment of
the fact that he had deposited the entire funds received
from his father for the purchase of the same in the
name of hira Lal. It is wrong to suggest that instead of
purchasing the suit property in the name of Sh. Hira
Lal he purchased the same in his own name and
concealed the same from his father till his lifetime. It is
wrong to suggest that suit is false and bogus. It is
wrong to suggest that the plaintiff had not right, title or
interest, whatsoever in the suit property. It is wrong to
suggest that I am deposing falsely…”
Thus, the PW-1 has admitted in the cross-examination that
late Hira Lal had filed a criminal complaint against her
husband. She has admitted that late Hira Lal had debarred
the Respondent’s husband from inheriting his properties by
issuing a declaration in the newspaper in the year 2001 and
a legal notice was issued to her husband by late Hira Lal. It
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is stated by the PW-1 that no notice was given to Hira Lal
or the Appellant regarding the claim of ownership in the
suit property or for recovery of possession during the life
time of late Hira Lal.
4.6.13. Thus, in terms of the consolidated reading of the criminal
complaint filed by late Hiralal and pursued by the
Appellant, the statement made by late Hiralal, the averment
made by the Respondent in Exhibit PW-1/8 and the cross-
examination of PW-1, it can be concluded that though the
Appellant did not prove the ownership of late Hira Lal,
however it has been proved on record that late Hira Lal as
well as the Appellant had been acting against the interests
of the Respondent/her husband by filing multiple
complaints, issuing notices in the newspaper and pursuing
criminal proceedings since the year 2001. The Respondent
has herself stated in para 5 of the plaint that the Appellant
had filed the criminal complaint through his father. It is
stated that the aforesaid false criminal complaint case was
filed at the instigation of the Appellant and the Appellant
was pursuing the same after the death of late Hira Lal.
Therefore, it has been proved on record that late Hira Lal
and the Appellant were claiming ownership in the suit
property admittedly from the year 2001. The Appellant has
not only claimed ownership in the suit property, however
has also challenged the right and title of the Respondent/her
husband by pursuing the complaint filed by late Hiralal.
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One of the prayer of aforesaid criminal complaint is to
punish the Respondent for being a trespasser in the property
in question and the challenge to the ownership or rights of
the Respondent cannot be any more open, hostile and
informed than the same, after she started participating in the
aforesaid proceedings.
4.6.14. The acts of late Hiralal and the Appellant were in complete
denial of and an open challenge to the rights and title of the
Respondent’s husband and of the Respondent. The nature
of claim and possession of late Hiralal and the Appellant
became adverse to the Respondent’s husband, when they
started to openly assert title in the property No. A-I/29-A,
Paschim Vihar, New Delhi (including the suit property) and
initiated the criminal proceedings against the Respondent
and her husband by terming them to be trespassers in
property No. A-I/29-A, Paschim Vihar, New Delhi. The
Respondent does not dispute the knowledge of the aforesaid
acts of her late father-in-law and of the Appellant. The
Respondent has herself filed an application in the year 2006
for discharge in the criminal matter and therefore, she had
the knowledge of the averments of the complaint made by
her father-in-law and pursued by the Appellant against her
interests. Once, the Appellant openly asserted title in the
suit property, challenging the rights of the Respondent/ her
husband, he did not remain to be a licensee, even if no
action was taken by the Respondent’s husband or by the
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Respondent. The capacity of the Appellant as a licensee,
even if any, was forfeited by him, when he challenged the
title of the Respondent’s husband and of the Respondent
and admittedly the last point of the same, in terms of the
knowledge of the Respondent is in the year 2006, when she
filed the application for discharge on 04.12.2006, wherein
she had controverted the claims of ownership of late Hiralal
and challenged the Will executed by him.
4.6.15. Therefore, sending a legal notice in the year 2011, will not
create cause of action for obtaining the possession on the
basis of termination of license, when the acts of the
Appellant/his father, challenging the ownership of the
Respondent were open, hostile and writ large between the
period from 2001 to 2006. In such a case, only recourse
available to the Respondent was to immediately file the suit
for mandatory injunction either in 2001 itself or within a
reasonable time thereafter. The suit was not filed in the year
2001, thereafter late Hiralal passed away on 13.03.2003 and
Respondent’s husband also passed away on 27.03.2006 and
still the suit was not filed. The Appellant was substituted as
LR of the complainant in the complaint case on 13.02.2004
and the Respondent was summoned in the aforesaid case on
28.10.2005 to appear on 22.09.2006. The aforesaid dates
are evident from the Exhibit PW-1/8. The Respondent was
aware of Appellant’s contentions of ownership, as is
evident from her application for discharge dated 04.12.2006
and the present suit has only been filed in the year 2011.
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The suit has been filed after a period of 10 years from the
year 2001 and even after a period of 5 years, after filing of
the application for discharge.
4.6.16. Therefore, in terms of law laid down by the Hon’ble
Supreme Court of India, in Sant Lal Jain (supra) and
Joseph Severance (supra), the present suit for mandatory
injunction can-not be said to have been filed with
promptitude and without any unreasonable delay. No
explanation for delay has been provided. Moreover, even if
the limitation has to computed from the 04.12.2006, the suit
has been filed beyond the period of 3 years from the date of
accrual of cause of action, in terms of Article 113 of the
Limitation Act, 1963. The only recourse available in such a
case was to institute a suit for possession and not one for
mandatory injunction.
4.6.17. The Court of Ld. Civil Judge did not consider the issue of
limitation with regard to the prayer of mandatory injunction
and the impugned judgment and decree is not sustainable to
that extent.
4.6.18. Though the suit has been filed for mandatory injunction and
not for possession and no request for treating the same as
suit for possession has been made, however can the same
be considered as a suit for possession. The Plaintiff has
valued the suit for mandatory injunction for Rs.130/-for the
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jurisdiction of the Court. A suit for possession has to be
valued according to value of the subject-matter, i.e., the
market value of the suit property, in terms of Section 7(v)
of the Court Fees Act, 1870. The suit property comprises of
an area ad-measuring 326.09 sq. meters. Though, the suit
property is semi-constructed with the ground floor and
Barsati first floor, however the market value of the suit
property, ad-measuring 326.09 sq. meters, would
apparently be more than Rs.3,00,000/- (Rupees Three
Lakhs only) even in the year 2011 and the same would not
be maintainable before the Court of Ld. Civil Judge.
Further it is not clear, as to what would be market value of
the suit property in order to infer as to whether the same
would fall within the jurisdiction of this Court or not.
Therefore, this Court is not inclined to treat the suit for
mandatory injunction as a suit for possession. Accordingly,
the Respondent/Plaintiff was not entitled to prayer of
mandatory injunction, as the same was barred by limitation.
4.6.19. The Respondent has also prayed for recovery of user
charges. The Court of Ld. Civil Judge has granted user
charges @ Rs.10,000/- per month, however no basis has
been considered for concluding the aforesaid amount. It has
been stated by the parties that the suit property is semi-
constructed and the Appellant is in possession of Barsati on
the first floor. No evidence has been led as to what amount
the aforesaid construction in such unfurnished state would
earn as rent. No comparison of similarly situated properties
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has been made out on record to understand the amount of
mesne profit/rent for the area in possession of the
Appellant. The first prayer has been held to be barred by
limitation and the second prayer is also dependent upon the
first prayer. The mesne profits can-not claimed if the prayer
for possession has become time barred. The cause of action
had arisen in the year 2001 and the suit for possession can
be filed within 12 years. Whether such a suit would be
within limitation or to what an extent, the Plaintiff would
be entitled to benefit of limitation under Section 14 of the
Limitation Act, 1963, are the questions, which can be
suitably adjudicated and adjudged in the suit for possession.
The aforesaid questions would also affect the period for
which the Respondent would be entitled to claim mesne
profits. Therefore, in so far as the entitlement of
Respondent for mesne profits is concerned, this Court is in
respectful disagreement with the conclusion of the Court of
Ld. Civil Judge for the reason that the specified rate of
mesne profits was not proved and the substantive prayer
was barred by limitation.
4.7. Whether the Counter-Claim of the Appellant was
wrongly rejected by the Court of Ld. Civil Judge and if
yes, the consequences of the same?
4.7.1. The Appellant had filed the Counter-Claim for the
following prayers:
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a. Decree of declaration of nullity with regard to
Conveyance Deed dated 06.11.2001;
b. Decree of mandatory injunction for directions to the
concerned Sub-Registrar for cancellation of the
Conveyance Deed and in the alternative, the transfer
and assignment of the suit property in the name of
the Defendant as an absolute owner;
c. Decree for permanent injunction, with regard to the
property bearing No. A-I/29-A, Paschim Vihar, New
Delhi;
d. Decree for possession of the portion of the the
property bearing No. A-I/29-A, Paschim Vihar, New
Delhi, in possession of the Respondent.
The Court of Ld. Civil Judge rejected the Counter-Claim
under Order VII Rule 11 of the Code of Civil Procedure,
1908 for the reasons that the Appellant did not make
payment of the requisite Court fees for the prayer of
possession.
4.7.2. The Counter-Claim has been filed on the same pleadings,
which constituted the defence of the Appellant in the written
statement. Ideally both the suit and the Counter-Claim
should have been tried together in a consolidated manner,
however, the Counter-Claim never proceeded beyond the
stage of pleadings. The Appellant had filed an application
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under Order VI Rule 17 of the Code of Civil Procedure,
1908 for amendment of the prayer of possession to the
prayer of mandatory injunction. The aforesaid application
was dismissed by the Court of Ld. Civil Judge on 30.07.2013
and the Appellant was directed to make payment of ad-
velorem Court fees for the prayer of possession. The
Appellant had filed another application for recall of the
Order dated 30.07.2013 and the aforesaid application
remained pending in the Counter-Claim, while the evidence
in the suit was concluded and even the final arguments were
concluded. Eventually on 21.08.2017, the Court of Ld. Civil
Judge dismissed the application under Section 151 of the
Code of Civil Procedure, 1908 and subsequently in the same
Order, rejected the plaint in the Counter-Claim.
4.7.3. Though the Counter-Claim was rejected for non-payment of
the appropriate Court fees for one of the prayers, however
there were other prayers in the Counter-Claim, which
survived irrespective of the defect of non-payment of the
Court fees for the prayer of possession, however the
aforesaid aspect was not discussed by the Court of Ld. Civil
Judge. The Appellant was in possession of first floor of the
property No. A-I/29-A, Paschim Vihar, New Delhi, whereas
the Respondent was in possession of ground floor of the
property No. A-I/29-A, Paschim Vihar, New Delhi. The
Appellant has sought declaration of nullity with regard to
the Conveyance Deed dated 06.11.2001, which pertains to
the entire property No. A-I/29-A, Paschim Vihar, New
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Delhi, i.e., the area in possession of the Appellant as well as
the area in possession of the Respondent. Even in the
absence of the Appellant not being entitled to the claim
possession of ground floor of the property, he was entitled
to maintain the suit for prayer of declaration, which
affected his right to retain the possession of the first floor of
the aforesaid property.
4.7.4. The Hon’ble Supreme Court of India has held in, “Sejal
Glass Ltd. Vs. Navilan Merchants Pvt.
Ltd.:AIR2017SC4477″, that a plaint cannot be rejected in
parts. The relevant observation of the Hon’ble Court are
being reproduced hereinbelow:
“6. It is settled law that the plaint as a whole alone can
be rejected Under Order VII Rule 11. In Maqsud
Ahmad v. Mathra Datt & Co.,
MANU/LA/0042/1936 : A.I.R. 1936 Lahore 1021 at
1022, the High Court held that a note recorded by
the trial Court did not amount to a rejection of the
plaint as a whole, as contemplated by the Code of
Civil Procedure, and, therefore, rejected a revision
petition in the following terms: There is no
provision in the Code of Civil Procedure for the
rejection of a plaint in part, and the note recorded
by the trial Court does not, therefore, amount to the
rejection of the plaint as contemplated in the Code
of Civil Procedure.”
“10. This cannot elevate itself into a Rule of law, that
once a part of a plaint cannot proceed, the other
part also cannot proceed, and the plaint as a
whole must be rejected Under Order VII Rule 11.
In all such cases, if the plaint survives against
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certain Defendants and/or properties, Order VII
Rule 11 will have no application at all, and the suit
as a whole must then proceed to trial.”
Therefore, the plaint in the Counter-Claim could not have
been rejected completely for non-payment of Court fees for
one of the prayers while there being no infirmity of valuation
associated with the other prayers of the Counter-Claim.
4.7.5. Though the aforesaid rejection of plaint in the Counter-
Claim, for non-payment of Court fees for one of the prayers,
may have not been correct, however the fate of the Counter-
Claim was sealed by the judgment passed in the suit. The
Counter-claim was founded upon the same pleading and
contentions, which constituted the defence of the Appellant
in the written statement. It is stated in the counter-claim that
Late Hiralal was owner of the property No.A-I/29-A,
Paschim Vihar, New Delhi and he had paid the sale
consideration of the same. It is stated that the aforesaid sale
consideration was given to the Respondent’s husband to
purchase the aforesaid property in the name of late Hiralal,
however the Respondent’s husband fraudulently purchased
the same in his own name and kept the aforesaid fact hidden
from late Hiralal. It is stated that late Hiralal was led to
believe during his lifetime that the aforesaid sale
consideration was deposited for purchase of the property No.
A-I/29-A, Paschim Vihar, New Delhi in the name of late
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Hiralal. It is further stated that late Hiralal had executed a
registered Will dated 01.10.2001, whereby the property No.
A-I/29-A, Paschim Vihar, New Delhi was bequeathed in
favour of the Appellant and he had become owner of the
same, upon death of his father. The Counter-claim was
founded on the same facts and contentions, which
constituted the defence of the Appellant in the written
statement and the same were duly adjudicated and decided
between the parties by way of final judgment/decree in the
suit. The matter is issue in the Counter-Claim was directly
and substantially was in issue in the suit between the parties
and the aforesaid matter in issue was heard and finally
decided by the Court in the suit. Therefore, the subsequent
adjudication of the same in the Counter-Claim is barred
under Section 11 of the the Code of Civil Procedure, 1908.
4.7.6. The plea of res-judicata requires consideration of the
pleadings, issues and decision in the previous suit. It has
been held by the Hon’ble Supreme Court of India in
“Sathyanath & Anr. Vs. Sarojamani (06.05.2022): 2022
INSC 529″, that the plea of res judicata, in appropriate
cases, can be decided without trial as a preliminary Issue,
when it is neither a disputed question of fact nor a mixed
question of law and fact (para 30 of the judgment). In the
present case, the matter in issue revolves around the suit and
counter-claim and the entire pleadings, issues and evidence
led in the suit are before this Court or were before the Court
of Ld. Civil Judge. The material or evidence to considered
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for deciding the plea of res-judicata in the present case is
before this Court and aforesaid plea can be decided on the
basis of the same, without remanding the matter back. The
issue of fact to be adjudicated in the Counter-claim is
whether late Hiralal paid the sale consideration for
purchasing the property in question and whether his son
played a fraud upon him and purchased the property in his
name. The aforesaid facts and contentions were
comprehensively adjudicated within the scope of the suit and
the Appellant had led extensive evidence to prove the same,
which was discussed in detail in discussion under the first
point of determination in para 4.5 hereinabove. The aforesaid
discussion is being relied upon here, however the same is not
reproduced in order to avoid repetition. In terms of
discussion on first point of determination, it is evident that
the Appellant had failed to prove that his father was owner of
the property in question or that the Respondent’s husband
played any fraud upon him to purchase the property in
question in his own name. The proof of the aforesaid facts
was foundational to the prayers of the Counter-Claim. The
aforesaid questions of facts in the suit and decision thereon
has become res-judicata for the Counter-Claim and further
adjudication of the same in the Counter-Claim was barred by
Section 11 of the Code of Civil Procedure, 1908.
4.7.7. Besides the bar of res judicata, the Counter-Claim has
another challenge to surmount. The prayer of declaration of
conveyance deed dated 06.11.2001 was the substantive
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prayer of the Counter-claim and the same was barred by
limitation. The Appellant has stated in his cross-examination
in the suit that he had come to know about the aforesaid
conveyance deed in the year 2001. The Respondent has also
filed the certified copy of the application for discharge in the
criminal proceedings, commenced by late Hiralal and
continued by the Appellant upon his death. In the aforesaid
application dated 04.12.2001, i.e., Exhibit PW-1/8, the
Respondent had stated that her husband had become owner
of the property in question by virtue of registered
conveyance deed. It is stated in para No.3 of the aforesaid
application that the Respondent’s husband was owner of the
property in question by virtue of registered conveyance deed
and the copy of the same was annexed with the application.
The Appellant has not disputed the filing of the aforesaid
application or the copy of the conveyance deed annexed with
the same. In fact the Appellant himself states in the cross-
examination in the suit that he came to know about the
conveyance deed in the criminal proceedings, initiated by
his father. Therefore, the Appellant was well aware of the
registered conveyance deed in question from the year 2006
onwards, yet he did not seek any immediate action against
the same. The limitation for right to seek declaration in terms
of Article 58 of the Limitation Act, 1963 is 3 years from the
time, when the right to sue first accrues. In terms of
admission of the Appellant, in the cross-examination in the
suit, the right to sue had accrued to him in the year 2001.
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Further the right to sue definitely accrued to the Appellant on
04.12.2006, when the application for discharge was filed by
the Respondent, wherein the copy of the conveyance deed
was filed. The Counter-Claim was filed on 27.12.2012 and
therefore, the Counter-Claim was barred by limitation for the
prayer of declaration. Though it could be said that the
question of limitation is not evident from the plaint in the
Counter-Claim, however the same is evident from the
admission of the Appellant in the cross-examination in the
suit as well as from the Exhibit PW-1/8. Whether the plaint
is rejected under Order VII Rule 11 of CPC or the Counter-
Claim is dismissed by considering the issue of limitation and
res-judicata as preliminary points/issues, as discussed
hereinabove, the end result of both the situations is that the
Counter-claim is not maintainable.
4.7.8. Therefore, even if the Counter-claim could not have been
rejected only for the non-payment of Court fees for the
prayer of possession, the same still would not survive once
the adjudication in the suit had concluded in terms of final
judgment and decree. Further, the only surviving prayer of
declaration was also barred by limitation, as discussed
hereinabove. Accordingly, this Court is not inclined to
interfere with Order of the Court of Ld. Civil Judge, in so far
as the rejection of Counter-claim is concerned.
4.8. Thus, in terms of answers on the points of determination, as
discussed hereinabove, the suit for mandatory injunction was
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barred by limitation and is liable to be dismissed, whereas
the Order of rejection of plaint in the Counter-claim does not
warrant any interference.
5. Final Decision/Conclusion:
5.1. In terms of the discussion/reasons stated hereinabove, the
RCA No. 187/2017 is allowed and the impugned judgment
and decree dated 21.08.2017, passed by Ld. Civil Judge-06,
West, Tis Hazari Courts, Delhi in CS SCJ No.45/2014 (New
Case No.11139/2016), is hereby set aside and the suit of the
Respondent/Plaintiff is dismissed. The Decree sheet be
drawn accordingly.
5.2. In terms of the discussion/reasons stated hereinabove, the
RCA No.190/2017 is dismissed and the impugned Order
dated 21.08.2017 for rejection of plaint in the Counter-
Claim, filed in CS No.45/2014 (11139/2016), passed by Ld.
Civil Judge-06, West, Tis Hazari Courts, Delhi is affirmed.
5.3. The TCR files are directed to be sent back to Court of Ld.
Civil Judge-06, West, THC, Delhi, alongwith a copy of this
Judgment for information. The Appeal files be consigned to
the record room after due compliance.
Digitally signed
by ANIL
ANIL CHANDHEL
CHANDHEL Date: 2025.05.31
17:06:55 +0530
Announced in the open Court (ANIL CHANDHEL)
today on 31st of May, 2025 DISTRICT JUDGE-04
WEST DISTRICT
THC/DELHI/31.05.2025
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Raghubir Singh Vs. Savitri
RCA No. 187/2017 & 190/2017 Page No. 75 of 75