Delhi District Court
Rifaqat Hussain vs Azra on 24 April, 2025
IN THE COURT OF SH. DEEPANKER MOHAN
DISTRICT JUDGE-04, SHAHDARA DISTRICT,
KARKARDOOMA COURTS, DELHI
CS No. 1454/2016
IN THE MATTER OF:
Rifaqat Hussain
Late F/o Abdul Gaffar,
R/o H.No.I-8B, 4th Floor,
Abul Fazal Enclave,
Thokar No.4, Jamia Nagar,
New Delhi-110025 .... Plaintiff
VERSUS
1. Smt. Azra
W/o Amir Ahmad
R/o Property/House No.288, Gali No.5,
New Kardampuri, Delhi-94 (Deceased)
Suit qua D-1 has already been abated vide order dated
17.02.2017.
2. Amir Ahmad
S/o Nisar Ahmad
R/o Property/House No.288, Gali No.5,
New Kardampuri, Delhi-94 .... Defendants
1. CS No. : 1454/2016
2. Under Section : Suit for ejectment,
recovery of mesne
profits, damages &
mandatory and
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signed by
DEEPANKER
DEEPANKER MOHAN
MOHAN Date:
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permanent injunction.
3. Date of institution : 01/02/2013
4. Reserved for judgment : 23/01/2025
5. Date of Judgment : 24/04/2025
JUDGMENT
1. Vide this judgment, this Court shall dispose of the suit for
ejectment, recovery of mesne profits, damages & mandatory,
permanent injunction filed by plaintiff against defendants on
01.02.2013.
AVERMENTS OF THE PLAINT
2. Plaintiff is absolute and legal owner of the premises
bearing No.288, comprising of Khasra No.381, situated in the
Village Kardampuri Illaqa Shahdara, measuring 40 sq. yards,
out of entire area of 100 sq. yards. Defendants no.1 and 2 are in
illegal possession of the suit property bearing no.288,
comprising of Khasra No.381, situated in the Village
Kardampuri Illaqa Shahdara. The defendant no.1 and 2 are
spouse and they were parent-in-laws of plaintiff as plaintiff had
married their daughter namely Smt. Noor Afsa Ansari.
3. Plaintiff had purchased the suit property from its previous
owner. The suit property consists of three floors i.e. ground
floor, first floor and terrace floor as shown in the site plan
attached with plaint.
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4. Defendants no.1 and 2 have got the possession of the suit
property on the basis of lease and license for temporary period.
5. In the year 1987, Anwar Hussain had purchased the suit
property from one Sh. Inderjit and he got the entire possession
of the suit property. Mr. Anwar Hussain had executed a
registered GPA and registered S.P.A. dated 24.04.1997 in favour
of his wife namely Smt. Ishrat and thereafter, she had sold the
suit property to one Mohd. Rais against consideration of
Rs.1,70,000/- vide registered G.P.A., Agreement to sell, Receipt
and Deed of Will all dated 18/08/1999.
6. Mohd. Rais had sold the suit property to Mohd. Munthir
on 21.02.2003 for a consideration of Rs.2,30,000/- vide
registered G.P.A., Agreement to sell and receipt all dated
21.02.2003. Thereafter, Mohd. Munthir had sold the suit
property to Mr. Salim on 14.02.2006 for a consideration amount
of Rs.2,60,000/- vide notarized G.P.A., Agreement to Sell and
receipt all dated 14/02/2006. Thereafter, on 11.05.2006, Mr.
Salim had sold the suit property to plaintiff for a sum of
Rs.2,65,000/- vide notarized G.P.A., Agreement to sell, Receipt
and Deed of Will all dated 11/05/2006. He had also handed over
peaceful and vacant possession of the suit property.
7. In the year 2007, defendants were in dire need of the
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DEEPANKER MOHAN
MOHAN Date:
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premises for a short period and plaintiff acceded the request of
defendant no.1 and allow them along-with their family members
to reside in the suit property for a short period without any
charges for its use and occupation. After the expiry of said
period, plaintiff requested the defendants to vacate the suit
property. Defendant no.1 requested plaintiff that she needs some
more time to vacate the suit property and plaintiff accepted the
request of defendant no.1. In the month of 2012, plaintiff again
requested the defendant no.1 to vacate the suit property but she
in connivance with defendant no.2 refused to vacate the same.
8. Plaintiff had sent a notice dated 22.05.2012 through his
advocate Mohd. Saif to defendants and the same was duly
served upon defendants through her daughter Ms. Gulista.
Defendant no.1 was called upon to vacate and hand over the
peaceful possession of the suit property within 15 days from the
receipt of the said legal notice and if they failed to do so, they
would be liable to pay the damages and mesne profits with
respect to the suit property for an amount of Rs.5,000/- per
month to the plaintiff but they did not comply with the said
notice.
9. When the suit was being filed by plaintiff, the market rent
of the suit property would be more than Rs.10,000/- per month
excluding the other charges. Plaintiff is entitled to get a sum of
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DEEPANKER MOHAN
MOHAN Date:
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Rs.10,000/- per month along with interest @ 24% per month as
mesne profit and damages towards the illegal use and
occupation of the suit property.
10. Defendants no.1 and 2 do not permit the plaintiff to visit
the suit property and they are also trying to create third party
right or interest in the suit property. Plaintiff is left with no other
efficacious remedy except to file the present suit.
SERVICE OF SUMMONS
11. Vide order dated 07.02.2013 summons of the present suit
was issued upon defendants no.1 and 2. Summons had been
duly served upon defendants no.1 and 2 on 04.05.2013. Upon
receipt of summons, defendants no.1 and 2 along with their
counsel put their appearance in the present matter and file their
written statement on 14.08.2013.
AVERMENTS OF THE WRITTEN STATEMENT FILED BY
DEFENDANTS NO.1 & 2
12. Defendants no.1 and 2 pleaded that plaintiff has
suppressed material facts from this Court, therefore, the present
suit is liable to be dismissed with heavy cost. They pleaded that
plaintiff has no locus-standi to file the present suit as he has no
right, title or interest in the suit property and defendant no.2 is
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DEEPANKER
DEEPANKER MOHAN
MOHAN Date:
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the actual and absolute owner in possession of the suit property
being the bonafide purchaser. Defendant no.2 pleaded that he
had purchased the suit property from its previous owner Sh.
Saleem on 11.05.2006 who had handed over the physical
possession of the same and had also executed GPA, agreement
to sell, affidavit, receipt for consideration in favour of defendant
no.2 and also handed over all the chain documents regarding his
ownership right to him. At the time of purchasing the property
in question, the said plot was measuring 40 sq. yards having its
boundary wall and temporary room and defendant no.2 had got
constructed the ground floor, first floor and second floor on the
aforesaid plot with his hard-earned money.
13. On 13.03.2012, plaintiff came to the suit property in the
absence of defendants and had stolen all the chain of title
documents (as mentioned in para no.4 to 8 of plaint) including
the documents which were in favour of defendant no.2. When
the defendant no.2 searched the said documents, it came into his
knowledge that plaintiff had come to the property and had taken
all the documents with him. Defendants no.1 and 2 demanded
the said documents from plaintiff but he never returned the same
and gave assurance to return the same on one pretext or the
other.
14. Plaintiff is a property dealer and he had prepared false
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DEEPANKER
DEEPANKER MOHAN
MOHAN Date:
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and fabricated GPA, agreement to sell, receipt, Will etc. by
forging the signatures of Saleem and by arranging the
photograph of Saleem. It is pleaded that plaintiff has no cause of
action to file the present suit and prayed for its dismissal with
heavy costs. The defendants are illiterate and gentle persons and
it is the plaintiff who has taken the advantage of illiteracy of
defendants and had committed forgery with the sole motive to
grab their property.
15. The suit has not been properly valued as the present
market value of the suit property is more than Rs.50 lakhs and
as such this Court has no jurisdiction to try and entertain the
present suit.
16. Plaintiff is not entitled for any relief as he is not the
owner of the suit property. After completion of the construction
work of the property in question, defendants came to know that
the land on which the property is situated vested to the
Government.
AVERMENTS OF THE REPLICATION
17. On 06.09.2014, replication to the written statement of
defendants was filed wherein plaintiff denied the averments of
the written statement and re-affirmed the averments of the
plaint.
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DEEPANKER by DEEPANKER
MOHAN
MOHAN Date: 2025.04.24
18:46:26 +0530
18. Plaintiff had filed an application under Order VI Rule 17
read with Section 151 CPC for amendment of plaint vide which
plaintiff wants to amend the valuation of the suit for the relief of
possession for the relief of possession from Rs.5,50,000/- to
Rs.18,26,800/-. The said application was allowed vide Order
dated 23/10/2013. The amended plaint along-with Court fee of
Rs.10,000/- was taken on record. On 22/02/2014, Ld. Counsel
for defendants made submissions that defendants do not want to
file fresh written statement. Thereafter, replication was filed on
06/09/2014.
FRAMING OF ISSUES
19. Upon completion of pleading, following issues were
framed on 17.07.2015 which are mentioned as under:-
1. Whether plaintiff has concealed the material facts and if
so to what effect? OPD
2. Whether plaintiff did not have any cause of action and
locus-standi to file the present suit against the defendants? OPD
3. Whether plaintiff fabricated and forged GPA, Agreement
to Sell, Receipt and Will by forging the signatures of defendant
no.2 and if so to what effect? OPD
4. Whether plaintiff did not properly valued the suit
property for the purpose of court fees and jurisdiction? OPD
5. Whether plaintiff is entitled for decree of ejectment and
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DEEPANKER
DEEPANKER MOHAN
MOHAN Date:
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recovery of possession against the defendants? OPP
6. Whether plaintiff is entitled for decree of recovery of
damages, mesne profit, as prayed? OPP
7. Whether plaintiff is entitled for decree of permanent
injunction, as prayed? OPP
8. Whether plaintiff is entitled for mandatory injunction?
OPD
9. Relief.
EVIDENCE LED BY THE PLAINTIFF
20. Plaintiff to prove his case examined three witnesses i.e. (i)
Himself as PW-1, (ii) Sh. Shameem Ahmad as PW-2 and (iii)
Sh. Abdul Majid as PW-3.
21. PW-1/plaintiff filed his evidence affidavit on the line of
averments mentioned in the plaint. On 27.01.2016, PW-1
tendered his evidence by way of affidavit as exhibited as
Ex.PW1/1 and also relied on documents which were exhibited
as Ex.PW1/A to Ex.PW1/F and marked as Mark PW1/G and
PW1/H. On 22.08.2017 and 20.11.2027, PW-1 was cross
examined by Ld. Counsel for defendant.
22. PW-1 deposed that suit property is consisted three floors.
He deposed that he did not know whether the suit property
consisted of four floors since he did not go very recently. He
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DEEPANKER MOHAN
MOHAN Date:
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deposed that he never resided there. He deposed that Mohd.
Saleem was considered as the brother of defendant no.1. He
deposed that Anwar Hussain introduced Saleem to him, who had
sold the property to him. He deposed that firstly met with Mohd.
Saleem at his house in Kardampuri. He deposed that there was
none at that time when he met him. He deposed that he paid
cash to him. He deposed that he did not remember the dates of
such payments and Anwar Hussain was there when he paid
these amounts at Okhla.
23. PW-1 deposed that he did not have any special receipt for
paying the amount to Salim. He denied that the suit property
was never in the possession of his vendor Salim nor himself. He
deposed that in the year 2007, he was in the possession before
he parted the possession of defendants. He deposed that
presently, the property consisted of superstructure of four floors.
He deposed that he had constructed ground and first floor and a
toilet and a room above the first floor in the year 2009. He
deposed that no plan was obtained from MCD. He deposed that
he put the defendants into possession in the suit property in the
year 2007. He deposed that Nabi was the contractor who built
the same. He deposed that he did not have any documents for
having purchased any constructions material and the payments
to the labour.
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24. PW-1 deposed that the property was given to him by
Salim in the year 2006. He deposed that the documents were not
prepared in his presence. He deposed that he has filed the site
plan which was got prepared by his Counsel after its inspection.
He admitted that he used to visit the property as the son-in-law
of defendants. He deposed that he could not say if an FIR was
registered against him with PS Jyoti Nagar but SI Illa Khan of
said PS had once called him and took his statement regarding
the said property and told him that he would call him again
whenever, he required. He deposed that the property has a bore-
well which was put by him on the road without any permission.
25. PW-2 Sh. Shameem Ahmad filed his evidence affidavit.
On 19.02.2018, PW-2 tendered his evidence by way of affidavit
as exhibited as Ex.PW2/A. On 13.03.2018, he was cross
examined by Ld. Counsel for defendant.
26. PW-2 deposed that the suit property was built by the
plaintiff when he came there. He deposed that it was built
around two floors. He deposed that at present, it consisted of
three or three and a half floors. He deposed that he knew the
plaintiff since his marriage with the daughter of defendant. He
deposed that he had met Salim who used to roam around in the
area. He deposed that he could not tell the Khasra/property
number of the house. He deposed that he could not tell the name
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DEEPANKER MOHAN
MOHAN Date: 2025.04.24
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of the father of Salim nor his address and the names of his wife
and children. He deposed that he was not present when the
documents were prepared by Salim in alienating the property.
He denied that the defendant had purchased the property,
however, he admitted that the property was constructed by Nabi
Ahmad who had come to the Court. He does not know whether
plaintiff used to visit the house of defendant or not but both
were living in the same locality. He does not know whether
plaintiff divorced the daughter of defendant after committing
such theft or not.
27. PW-3 Sh. Abdul Majid filed his evidence affidavit. On
19.02.2018, PW-3 tendered his evidence by way of affidavit as
exhibited as Ex.PW3/A. On 13.03.2018, he was cross examined
by Ld. Counsel for defendant.
28. He deposed that he did not participate in the sale
transaction concerning to the suit property. He deposed that he
knew Ameer Ahlmad present in the Court. He deposed that he
had been living in the property in question for past 10 years or
so. He deposed that he did not know who was the contractor
who built. He denied that Nabi Ahmad was the contractor who
built the property at the expenses of defendant. He deposed that
he could not say the year when the plaintiff came to the property
but it was 10-12 years ago. He deposed that he knew one Salim.
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DEEPANKER by DEEPANKER
MOHAN
MOHAN Date: 2025.04.24
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He deposed that he did not know the Khasra number of the
property. He deposed that it was around 40 sq. yards area. He
denied the suggestion that the defendant purchased the property
from Salim. He did not know whether the plaintiff divorced the
daughter of defendant after committing such theft or not.
29. Plaintiff evidence was closed vide order dated
12.11.2018.
EVIDENCE LED BY THE DEFENDANTS
30. Defendants to defend their case have examined three
witnesses i.e. (1) Sh. Amir Ahmad as DW-1, (2) Sh. Anwar as
DW-2 and (3) Sh. Nabi Ahmed as DW-3.
31. DW-1 Sh. Amir Ahmad filed his evidence affidavit. On
04.05.2019, DW-1 tendered his evidence by way of affidavit as
Ex.DW1/A and also relied on the documents i.e.:- (1) Ex.D1-
Copy of the complaint vide DD dated 15.05.2013 and (2) Mark
D (Colly.)- Photographs. On 04.05.2019, 31.08.2019,
05.10.2021 and 02.02.2024, he was cross examined by Ld.
Counsel for plaintiff.
32. DW-1 deposed that he knew Qmar Ahmad who resided in
17/21, Batla House. He denied that he resided in the house of
plaintiff only under permissive possession. He deposed that he
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DEEPANKER MOHAN
MOHAN Date:
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had purchased the suit property in the year 2006. He deposed
that the documents related to the suit property were executed,
however, the title documents of property in question were not
known. He admitted that he did not remember the year in which
the suit property was purchased by him. He admitted that the
said documents of property in question had been filed on record.
He denied the suggestion that the suit property was not
purchased by him or that he was residing in the suit property as
an encroacher or that he had not placed any document on record
in respect to the suit property.
33. DW-1 admitted that not even a single sale purchase
document of the suit property had been annexed along with
evidence affidavit. He denied the suggestion that he was
residing in the suit property illegally, therefore, he had not
placed any title documents in the Court. He deposed that the
property documents have been stolen by plaintiff in the month
of March, 2013. He deposed that he did not know the exact date
when the documents were stolen. He deposed that he had filed
the complaint in respect of the theft of documents of the suit
property in PS Jyoti Nagar. He admitted that defendant filed a
complaint with PS Jyoti Nagar on 16.05.2013. He denied the
suggestion that the property in question was not purchased by
the defendant whereas the suit property was purchased by
plaintiff who was owner of the property. He admitted that FIR of
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DEEPANKER MOHAN
MOHAN Date:
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theft of title documents of suit property had been registered
against plaintiff. He admitted that no document of FIR qua
stolen title documents had been placed on record. He denied the
suggestion that no such FIR had been registered. He admitted
that plaintiff was son-in-law at that time while he had filed
complaint against him. He denied the suggestion that the suit
property was given by plaintiff to defendant for six months as a
licensee in the year of 2007. He denied the suggestion that no
notice qua termination of said license was given to defendant on
22.05.2012. He admitted that Gulistan was his manjhali
daughter. He admitted that the registered AD Ex.PW1/G had
been received by his daughter Gulistan bear her signature at
point ‘A’. He admitted that Ex.DW1/1 bears the signature of
defendant wherein it was mentioned in para no.3 that GPA,
Agreement of sell, Receipt, Will etc. had been forged.
34. He admitted that para no.1 of the complaint Ex.DW1/A
DD No.23-B PS Jyoti Nagar dated 16.05.2013 specifically
mentioned the suit property in question was purchased by him in
January, 2006. He deposed that he had also received the entire
previous chain documents from previous owner Salim from
whom he had purchased the property in question. He deposed
that he did not remember exact chain of said documents. He
denied the suggestion that seller Salim had not handed over the
chain documents of the suit property to him. He admitted that he
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DEEPANKER MOHAN
MOHAN Date:
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had not gone through the entire chain documents but he had
seen it. He denied the suggestion that he had not purchased the
suit property in question. He admitted that the contention
mentioned in para no.1 of his complaint Ex.DW1/A regarding
the purchase of suit property. However, in para no.2 of his
evidence affidavit Ex.DW1/1 specifically mentioned that the
suit property was purchased by him on 11.05.2006 was not
correct. He admitted that he had not filed or annexed any
previous chain documents of the suit property with his evidence.
He denied the suggestion that he had not purchased the suit
property and he was living as a licensee therein.
35. He deposed that he did not remember the number of
documents of the previous chain handed over to him by the
previous owner namely Salim. He deposed that when he
purchased the suit property from Salim, there was already
construction of one room, one bathroom, one toilet and one
hand pump at courtyard was also installed and there was open
space (aangan) therein, since then he was living there along with
his family members. He admitted that he had not mentioned in
his evidence affidavit that in the year 2006 when he purchased
the suit property was consisted of one room, one bathroom, one
toilet and one hand pump at courtyard. He deposed that he had
not produced any original bills (which include taxes) in support
of the proof that he had spent the amount in construction of the
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DEEPANKER DEEPANKER
MOHAN
MOHAN Date: 2025.04.24
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suit property. He voluntarily deposed that he had produced some
bills (kacche bills) without paying taxes/GST regarding the
material for construction. He denied the suggestion that he had
not spent a single penny in construction of the suit property.
36. DW-2 Sh. Anwar filed his evidence affidavit. On
03.04.2024, DW-2 tendered his evidence by way of affidavit as
Ex.DW2/A. On the same day, he was cross examined by Ld.
Counsel for plaintiff.
37. He deposed that the suit property sold by Saleem to Amir
Ahmed. He deposed that the title documents of the suit property
was executed by Saleem in favour of Amir Ahmed. He admitted
that at the time the registry (power attorney) had been executed
by Saleem. He deposed that he had also signed the title
documents in the month of May, 2000. He denied the suggestion
that the suit property was sold by Saleem to plaintiff. He denied
the suggestion that he had not signed any title documents of the
suit property in the presence of Amir Ahmed, in his favour.
38. He was shown Ex.PW1/F(Colly.). After seeing the same,
he identified the photographs pasted on Ex.PW1/F(Colly.). He
was shown Ex.PW1/F(colly) at point X, Y, Z and ZA and asked
whether the signatures at point X, Y, Z and ZA were of his or
not. He denied the same. He voluntarily deposed that he had put
his signature as witness only on title documents of Amir Ahmed
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DEEPANKER MOHAN
MOHAN Date:
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which were executed by Saleem. He denied the suggestion that
the suit property was constructed upto 4 storey.
39. DW-3 Sh. Nabi Ahmed filed his evidence affidavit. On
03.04.2024, DW-3 tendered his evidence by way of affidavit as
Ex.DW3/A. On the same day, he was cross examined by Ld.
Counsel for plaintiff.
40. DW-3 admitted that the suit property was purchased by
Amir Ahmed in the month of May, 2006 from Saleem in his
presence. He admitted that he had put his thumb impression on
the title documents in favour of Amir Ahmed of suit property as
witness. He deposed that at the time of execution of the title
documents in favour of Amir Ahmed, he, Amir Ahmed, Saleem
and Anwar were present there. He denied the suggestion that the
suit property was purchased by plaintiff in the year 2006 from
Saleem. He admitted that the property constructed upto 4th floor
was mentioned in his affidavit Ex.DW3/A. He deposed that he
had constructed the suit property on labour basis and there was
no agreement was executed between him and Amir Ahmed
regarding the construction of the suit property.
41. Defendant evidence was closed and the matter was listed
for final arguments.
CS No.1454/16 Rifaqat Hussain versus Azra Page No. 18 of 49 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date: 2025.04.24 18:47:26 +0530 42. Final arguments were heard on 13.01.2025 and
23.01.2025. Written arguments were also filed on behalf of
plaintiff and defendant no.2 on 28/09/2024 and 09/01/2025.
FINAL ARGUMENTS ADDRESSED BY LD. COUNSEL FOR
PLAINTIFF
43. Ld. Counsel for plaintiff argued that on 11/05/2006
Plaintiff has purchased the suit property from Saleem for a total
sale consideration of Rs,2,65,000/-by way of notarized sale
documents i.e. GPA, agreement to sell, receipt and Deed of will
all dated 11/05/2006. It was further argued that Mr. Salim had
handed over the original chain of title documents and physical
possession of the suit property to Plaintiff at the time of
purchasing the same on 11/05/2006. It was further argued that
defendants were the mother-in-law and father-in-law of Plaintiff
and on considering the request of defendants, Plaintiff had
allowed defendants to reside in the suit property being
permissible users for 6 months without any rent or license fees.
After expiry of 6 months, Plaintiff asked defendants to vacate
the suit property but defendants requested to grant some more
time to reside in the suit property. It was further argued that in
the month of March, 2012 Plaintiff again requested defendants
to vacate the suit property and handover the peaceful possession
to him but defendant No. 2 flatly refused to vacate the suit
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DEEPANKER by DEEPANKER
MOHAN
MOHAN Date: 2025.04.24
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property without affording any just reasons. It was further
argued that Plaintiff issued legal notice dated 22/05/2012
through his advocate by registered post to defendants which was
duly received by daughter of defendants namely Gulista.
However, despite service of notice, defendants have not vacated
the suit property and are illegally and unauthorizedly occupied
the same. It was further argued that defendant No.2 and his
family members are liable to vacate the suit property and
handover physical possession of the same to Plaintiff. It was
further argued that defendant No.2 is also liable to pay mesne
profit to Plaintiff because he along-with his family members
have used the suit property unauthorizedly despite termination
of status of permissible users of defendants, by Plaintiff. It was
further argued that Plaintiff and daughter of defendants namely
Noor Afsa have taken divorce mutually vide MOU dated
15/02/2016. It was further argued that the electricity connection
installed in the suit property is in the name of Plaintiff. It was
further argued that Plaintiff has produced the original chain of
title documents and has also proved his case and documents by
leading positive evidence. It was further argued that defendants
have taken false defence in their written statement. It was
further argued that defendants have failed to prove by leading
positive evidence that defendant No. 2 has purchased the suit
property from Saleem on 11/05/2006 and defendant no.2 along-
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with his family is residing in the suit property being owner of
the same. It was further argued that defendants have taken a
false plea in their written statement that Plaintiff has stolen the
original chain of title documents along with ownership
document executed by Saleem in favour of defendant No. 2,
from the suit property on 13/03/2012. It was further argued that
defendant No. 2 had filed complaint vide DD No. 23-B at PS
Jyoti Nagar on 16/05/2013 i.e. after more than one year from the
date of alleged theft. It was further argued that defendants have
failed to give any reasonable cause which prevented them from
lodging a complaint of theft against Plaintiff for about more
than one year from the date of alleged theft. It was further
argued that defendant no.2 has no right, title or interest in the
suit property in any manner whatsoever and therefore, he and
his family members are not entitled to occupy the suit property.
It was further argued that Plaintiff has a better title over the suit
property then as claimed by defendants, therefore, Plaintiff is
entitled for decree of possession.
44. During the pendency of the present suit, defendant no.1
had expired however, her other legal heirs except defendant no.2
were not brought on record by Plaintiff. It was argued that
defendant No. 2, being husband of defendant no.1, was one of
the legal heirs of defendant no.2 and he has represented the
estate of defendant no.2 on behalf of other LRs, therefore, the
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suit cannot be considered as abated. It was further argued that
Plaintiff is entitled for decree for possession, recovery of mesne
profit, mandatory Injunction and Permanent Injunction against
defendant No. 2 and others LRs of the deceased defendant no.1.
Ld. Counsel for the plaintiff in support of his arguments relied
upon the following judgments which are mentioned as under:-
i. Sakharam Since deceased Through LRs & Anr. versus
Kishanrao, passed by the Hon’ble Supreme Court in Civil
Appeal nos.5067-5068 of 2022 arising out of SLP (Civil)
No.13573-74 of 2022, Date of Decision: 03/08/2022.
ii. Shivshankara versus H.P. Vedavyasa Char, passed by the
Hon’ble Supreme Court of India in Civil Appeal No.10215 of
2011, Date of Decision: 29/03/2023.
iii. S. Sudhakar and Anr. versus Syed Kareem (Died) and
Others, AIR 2017 (NOC) 788 (Hyd.), passed by the Hon’ble
High Court of Andhra Pradesh in Civil Revision no.6185/2009
(Date of Decision:- 01/09/2016).
iv. Himangshu Bhusan Kar & Ors. versus Manindra Mohan
Saha, AIR 1954 Cal 205v. Dolai Molliko & Ors. versus Krushna Chandra Patnaik &
Ors., AIR 1967 SC 49.
vi. Mahabir Prasad versus Jage Ram & Ors., AIR 1971
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Supreme Court 742.
vii. Bhurey Khan versus Yaseen Khan (Dead) by LRs and
Ors., 1995 Supp (3) SCC 331.
viii. Ramesh Chand versus Suresh Chand, 2012 III AD (Delhi)
493.
ix. Hardip Kaur versus Kailash & Anr., passed by the
Hon’ble High Court of Delhi in RFA No.648/2006 (Date of
decision: 18/05/2012).
FINAL ARGUMENTS ADDRESSED BY LD. COUNSEL FOR
DEFENDANT NO.2
45. Ld. Counsel for defendants argued that the suit property
was purchased by defendant No. 2 on 11/05/2006 from Mr.
Saleem for a sale consideration of Rs. 2,40,000/-which was paid
in cash. It was further argued that Mr. Saleem had executed the
title documents i.e. GPA, agreement to sell, receipt, deed of Will
and possession letter in favour of defendant No. 2 in presence of
Anwar, DW-2 and Nabi Ahmed, DW-3. It was further argued
that after execution of the aforesaid documents, defendant No. 2
was put into the possession of the suit property by Mr. Saleem
and since then, defendant No. 2 along with his family members
is residing in the suit property, being the owner. It was further
argued that defendants are not the licensee of Plaintiff in the suit
property. It was further argued that Plaintiff, being the son in
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law, had access in the suit property and Plaintiff with the
malafide intention, had stolen the ownership documents in
favour of defendant no.2 along with chain of title documents,
from the suit property in the absence of defendants. It was
further argued that defendants have also made a police
complaint at police station Jyoti Nagar. It was further argued
that Plaintiff has failed to prove his case by leading positive
evidence and therefore he is not entitled for any relief. It was
further argued the testimony of Plaintiff witnesses cannot be
relied upon and the present suit deserves to be dismissed with
cost. It was further argued that Plaintiff have not examined the
attesting witnesses of documents Ex.PW-1/F (Colly) to prove
the said documents. It was further argued that Ex.PW-1 (Colly)
are the false, forged and fabricated documents and therefore, no
decree in favour of Plaintiff can be passed on the basis of
aforesaid forged and unregistered documents. It was further
argued that Plaintiff has failed to move an appropriate
application for substitution of other legal heirs of defendant no.1
on record, therefore, the suit has already been abated against
defendant no.1 and no effective decree can be passed. It was
further argued that defendant no.2 has proved his defence and
his legal ownership over the suit property by leading probable
evidence, therefore, present suit is liable to be dismissed. Ld.
Counsel for the defendant no.2 in support of his arguments has
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relied upon the following case laws which are mentioned as
under:-
i. Kashi Nath Sah & Anr. versus Shri Nath, 2017 (4) Civil
Court Cases 299 (Delhi).
ii. The Greater Bombay Co-operative Bank Limited versus
Nagraj Ganeshmal Jain & Ors., 2017 (Suppl.) Civil Court Cases
712 (SC).
iii. Dilawar Singh versus Amandeep Singh, 2017 Civil Court
Cases 130 (Punjab & Haryana High Court)
iv. Mallidi Satyanarayana Reddy versus Mallidi
Satyanarayan Reddy & Anr., 2018 (1) Civil Court Cases 88
(Hon’ble High Court of Telangana & Andhra Pradesh).
v. Abani Kumar Mehar & Ors. versus District Collector,
Bargarh & Ors., 2017 (Suppl.) Civil Court Cases 719 (Hon’ble
High Court of Orissa).
vi. Sita Ram Bhama versus Ramavtar Bhama, 2018 (2) Civil
Court Cases 806 (SC).
vii. Harmohini Sarna & Ors. versus Govt. of NCT of Delhi,
2019 (2) Civil Court Cases 247 (Delhi).
viii. Pradeep Bhardwaj versus Vijender Bhandari & Anr.,
passed by the Hon’ble High Court of Delhi in CM (M)
no.587/2010, Date of Decision: 01/11/2011.
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ix. Abhinav Singh Ravish & Anr. versus Shri Ramanand &
Ors., passed by the Hon’ble High Court of Delhi in CS (OS)
No.223/2023 (Date of Decision: 30/12/2024).
x. K. Ramadoss & Ors. versus E. Stalin, 2017 (Suppl.) Civil
Court Cases 721 (Madras)
xi. Bhupinder Jit Singh versus Sonu Kumar, 2018 (1) Civil
Court Cases 85 (Delhi).
xii. M/s Dharmaratnakara Rai Bahadur Arcot Narainswamy
Mudaliar Chattram & Others Charities & Ors. versus M/s
Bhaskar Raju & Brothers & Ors., passed by the Hon’ble
Supreme Court in Civil Appeal no.1599 of 2020 arising out of
SLP (Civil) No.7088 of 2015, Date of Decision:- 14/02/2020.
46. Before adjudication of this case issue-wise, this court
deem fit to decide the effect of not bringing the other LRs of
defendant no.1 on record, after her demise.
47. Defendant no.1 had expired on 19.01.2016 as reflected in
the order sheet dated 20.12.2016. Perusal of the record shows
that on 17.02.2017, Ld. Counsel for plaintiff has submitted that
there is none to be substituted as LRs in place of deceased
defendant no.1 and therefore, the suit was disposed of against
defendant no.1 as abated.
48. As per the case of plaintiff, plaintiff has purchased the
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suit property from Mr. Saleem on 11.05.2006 and on the request
of defendants, he gave the suit property to defendants on the
licence basis for a period of 06 months. It is admitted fact that
defendant no.1 and 2 were the mother-in-law and father-in-law
of plaintiff. Plaintiff has filed the present suit for possession, etc.
against defendants in respect to suit property claiming that
defendants are the permissible user in the suit property.
Defendant no.1 and 2 in their written statement have pleaded
that defendant no.2 is the actual and lawful owner of the suit
property as he has purchased the same from Mr. Saleem on
11.05.2006 and since the date of its purchase, they are residing
in the suit property in their own rights and capacity and not as a
permissible user of plaintiff.
49. The Hon’ble Supreme Court in Dolai Molliko and Ors.
Vs. Krushna Chandra Patnaik and Ors., AIR 1967 Supreme
Court 49 has held that the estate of the deceased was fully
represented by the heirs who had been brought on record and
these heirs represented the absent heirs also, who would be
equally bound by the results even where the plaintiff or
appellant died and all his legal heirs have not been brought on
record because of oversight or because of some doubt as to who
are his heirs, the suit or the appeal, as the case may be, does not
abate and the heirs brought on record fully represent the estate
unless there is fraud or collusion or there are other
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circumstances which indicate that there has not been a fair or
real trial or that against the absent heir there was a special case
which was not and could not be tried in the proceedings.
50. The Hon’ble Supreme Court in Mahabir Prasad Vs. Jage
Ram and Ors., AIR 1971 Supreme Court 742 has held that
where in a proceeding a party dies and one of the legal
representatives is already on record in another capacity, it is
only necessary that he should be described by an appropriate
application made in that behalf that he is also on record, as an
heir and legal representative. Even if there are other heirs and
legal representative and no application for impleading them is
made within the prescribed period of limitation, the proceeding
will not abate.
51. The defendant no.2 was the husband and one of the legal
heirs of defendant no.1. It is the case of defendants that
defendant no.2 had purchased the suit property from Mr. Saleem
on 11.05.2006 and since then defendant no.2 along with his
family is residing in the suit property in his own rights and
capacity. The defendant no.2 is already party to the present
proceedings and he has hotly contested the present suit being the
main contesting party/defendant. Defendant no.1 was only a
proforma party and if her other legal heirs have not been
substituted in the present suit then also the same would not
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affect the result of the suit because defendant nos.1 and 2 plead
that defendant no.2 is the owner of the suit property; defendant
no.1 was residing in the suit property being the wife of
defendant no.2; defendant no.2 has hotly contested the present
suit being the main defendant; the core dispute is between
plaintiff and defendant no.2 as per pleadings of parties and
defendant no.2 has duly represented the stand/plea taken by
defendant no.1 in the written statement during trial. It is not the
case of defendants that defendant no.1 is the owner of the suit
property and upon her demise, the suit property has been
devolved upon her legal heirs including defendant no.2. The
defendant no.2 has also not taken any step for substitution of
other Legal heirs of defendant no.1 after her demise. Moreover,
none of legal heirs of defendant no.1 have approached this Court
till date pleading that a fraud has been played by plaintiff and
defendant no.2 in connivance with each other, by not
substituting them in the present case or no real trial/ fair trial
have been conducted in the present suit. The defendant no.2 has
also not taken any such plea.
52. Considering the factual matrix of the present case,
pleadings of the parties, above-mentioned law laid down by the
Hon’ble Supreme Court and above observations, this Court is of
the opinion that defendant no.1 was only a proforma party and
non-substitution of her other legal heirs apart from defendant
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no.2 (who is already party to the present suit) would not affect
the result of the present litigation and the estate as well as
stand/plea taken by defendant no.1 in the written statement has
been duly represented by defendant no.2, during trial.
APPRECIATION OF EVIDENCE AND DETERMINATION
AND ADJUDICATION OF THE CASE ISSUE-WISE
53. The issues no.1 to 3 and 5 are taken up together.
ISSUE NO.1:- Whether plaintiff has concealed the material
facts and if so to what effect? OPD
And
ISSUE NO.2:- Whether plaintiff did not have any cause of
action and locus-standi to file the present suit against the
defendants? OPD
And
ISSUE NO.3:- Whether plaintiff fabricated and forged GPA,
Agreement to Sell, Receipt and Will by forging the signatures of
defendant no.2 and if so to what effect? OPD
And
ISSUE NO.5:- Whether plaintiff is entitled for decree of
ejectment and recovery of possession against the defendants?
OPP
54. Plaintiff/PW-1 has deposed that he has purchased the suit
property from Mr. Saleem for a total sale consideration of
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Rs.2,65,000/- by way of GPA, agreement to sell, receipt and
deed of Will all dated 11.05.2006 and the possession of the suit
property was also delivered to him by Mr. Saleem. PW-1 has
also deposed that Mr. Saleem has also handed over original
chain of title documents of the suit property to him at the time of
its purchase. PW-1 further deposed that he has allowed
defendants to reside in the suit property for 06 months being the
permissible user/licensee and when plaintiff asked defendants to
vacate the suit property, defendant no.2 refused to vacate the
same.
55. As per the case of defendants, defendant no.2 has
purchased the suit property on 11.05.2006 from Mr. Saleem for
a total sale consideration of Rs.2,40,000/- by way of GPA,
agreement to sell, affidavit, receipt etc. and since then defendant
no.2 is in possession of the suit property. It is also pleaded that
Mr. Saleem had handed over all the original chain of title
documents of the suit property to him at the time of its purchase.
It is further pleaded that on 13.03.2012, plaintiff in the absence
of defendants, came to the suit property and stolen/taken away
all the chain of documents (as mentioned in para no.4 to 8 of the
plaint) including the original documents executed by Mr.
Saleem in favour of defendant no2. It is further pleaded that a
police complaint was also made by defendant no.2 against
plaintiff in this regard which was recorded vide DD No.23-B at
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PS Jyoti Nagar dated 16.05.2013.
56. The defendants in their written statement admit the
contents of paras no.4 to 8 of the plaint which describes the
chain of documents regarding ownership rights of the respective
previous owners of the suit property. It means that the execution
and existence of the document Ex.PW1/B (Colly.) to Ex.PW1/E
(Colly.) are not in dispute between the parties.
57. Plaintiff pleads that he has purchased the suit property
from Mr. Saleem vide documents Ex.PW1/F (Colly.) and on
other side defendants plead that defendant no.2 has purchased
the suit property from the same person i.e. Mr. Saleem on the
same day i.e. 11.05.2006 but the original ownership documents
executed by Mr. Saleem in his favour has been stolen by
plaintiff on 13/03/2012. Defendants also pleaded that the
originals of Ex.PW1/B(Colly.) to Ex.PW1/E(Colly.) were also in
the possession of defendant no.2 which were also stolen by
plaintiff on 13.03.2012. Defendants further plead that plaintiff
has forged and fabricated signatures of defendant no.2 on the
documents i.e. GPA, agreement to sell, receipt and Will.
58. Vide order dated 20.11.2017, electricity bill qua the suit
property was admitted by the defendants during the proceedings.
The electricity bill dated 25.07.2016 reflects that the electricity
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connection installed in the suit property is in the name of
plaintiff and the energisation date is 23.07.2007. The said
factum has been admitted by defendant no.2 during trial. No
explanation has been given by defendant no.2 as to how the
electricity connection has been installed in the name of plaintiff
in the suit property on 23/07/2007 particularly when it is
pleaded by defendants that on 11.05.2006, defendant no.2 had
purchased the suit property and since then they are residing in
the same. It is not the case of defendants that defendant no.2
after purchasing the suit property from Mr. Saleem on
11.05.2006 had allowed plaintiff to get the electricity connection
installed in the suit property in his name. It is highly improbable
that a person after purchasing the suit property from seller,
allows another person to get the electricity connection and other
immunities installed in the suit property in his name.
59. The present suit was filed on 01.02.2013 and the
complaint Ex.D-1 was filed by defendant no.2 against plaintiff
on 16.05.2013 which was recorded as DD No.23-B at PS Jyoti
Nagar. Perusal of the record shows that the summons of the
present suit has been duly served upon defendants on
04.05.2013. The complaint Ex.D-1 had been filed by defendant
no.2 only after filing of the present suit and receiving the
summons of the present suit. It is noted that no specific date has
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been mentioned in the complaint Ex.D-1 when plaintiff has
stolen the original title documents along with its chain. Though
defendants in their written statement have pleaded that plaintiff
has stolen the original documents on 13.03.2012, however, the
entire written statement is silent about the date when defendants
came to know about such theft. It is not the case of defendants
that only after receiving the summons of the present suit,
defendants came to know about the alleged fact of theft
committed by plaintiff. Defendants have not given any
explanation/reasonable cause which prevented defendants from
lodging the complaint against plaintiff regarding theft of the
original documents with police for more than 01 year. The
circumstances reflect that the complaint Ex.D-1 has been filed
before PS in order to create evidence to get success in the
present suit.
60. It is noted that the originals of Ex.PW1/B (Colly.) to
Ex.PW1/E (Colly.) have been produced by the plaintiff in the
present matter. The defendant no.2 has also not filed the
photocopies of ownership documents executed by Mr. Saleem in
his favour, in support of his contentions.
61. The defendants have taken the stand that plaintiff has
forged the signatures of defendant no.2 on the GPA, agreement
to sell, receipt and Will dated 11.05.2006. Defendants have notCS No.1454/16 Rifaqat Hussain versus Azra Page No. 34 of 49
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produced any cogent and reliable evidence to establish that
plaintiff has fabricated and forged the signatures of defendant
no.2 on the agreement to sell, receipt and Will dated 11.05.2006.
Defendant no.2 has also not filed any copy of documents which
were executed by Mr. Saleem in his favour to show forgery/
fabrication. The defendants also do not plead in their written
statement that Mr. Saleem had sold the suit property to
defendant no.2 in presence of DW-2 and DW-3. In the absence
of production of any document executed by Mr. Saleem in
favour of defendant no.2, the testimony of DW-1 to DW-3
would be of no use for defendants particularly when defendants
have not disclosed in their written statement that the documents
by Mr. Saleem in favour of defendant no.2 was executed in the
presence of DW-2 and DW-3. It is note-worthy to mention here
that during the cross-examination of PW-1, it has come on
record that Mr. Saleem had expired in the year 2008. The
defendants also do not dispute the deposition of PW-1. Though
the best persons to prove the transaction between Mr. Saleem
and defendant no.2 would be Mr. Saleem and the persons in
whose presence the said transaction was occurred. Admittedly,
Mr. Saleem had already expired but defendant no.2 has not
examined the children/legal heirs of Mr. Saleem and the
persons/witnesses to the sale transaction occurred between Mr.
Saleem and Defendant no.2 on 11/05/2006, to prove his case. ItCS No.1454/16 Rifaqat Hussain versus Azra Page No. 35 of 49
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is further note-worthy to mention here that the entire written
statement is silent about the name of persons/witnesses in whose
presence the sale transactions of the suit property was happened
between Mr. Saleem and Defendant no.2.
62. It is further noteworthy to mention here that it is not the
case of defendants that the documents Ex.PW-1/F(Colly) are
false, forged and fabricated document. Though defendant no.2
pleads that he has purchased the suit property from Mr. Saleem
by way of notarized documents which were never produced
before this Court. Moreover, perusal of the document
Ex.PW1/F(Colly.) does not reflect the signatures of defendant
no.2, therefore, it cannot be considered that the signatures of
defendant no.2 have been forged and fabricated on the
document Ex.PW1/F(Colly.). Defendant no.2 has also not taken
any expert opinion or file any application to sent the documents
Ex.PW1/F(Colly.) to FSL to prove forgery. Moreover, DW-2,
during his cross examination, has admitted that the photograph
on the document Ex.PW1/F (Colly.) is of Mr. Saleem. The
defendants have not denied the photograph and signatures of
Mr. Saleem on Ex.PW1/F(Colly.). It is noted that no document
of ownership has been produced by defendant no.2 to support
his contentions.
63. Considering the facts and circumstances of the case,
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material came on record and above discussions, this Court is of
the considered opinion that the defence taken by defendants is
false and without any basis. Defendants have not produced any
cogent, reliable and independent evidence to establish that he
has purchased the suit property from Mr. Saleem on 11.05.2006
for a valuable consideration. The defendants have also not
proved the amount of sale consideration paid by defendant no.2
to Mr. Saleem. The defendant no.2 has also not proved the
mode of payment of the alleged consideration amount paid by
him to Mr. Saleem. Considering that the original documents
along with its chain of title documents in respect to suit property
has been produced by plaintiff and the electricity connection
installed in the suit property is in the name of plaintiff, this
Court is also of the considered opinion that the fact pleaded by
plaintiff that he has purchased the suit property from Mr. Saleem
on 11.05.2006 for a valuable consideration, is found more
probable and reliable.
64. The defendant no.2 has also taken the objection that the
documents Ex.PW1/F(Colly.) are unregistered document,
therefore, plaintiff is not entitled to maintain the present suit.
65. The Hon’ble Supreme Court in para no.18 and 19 of its
judgment passed in Suraj Lamp and Industries Pvt. Ltd. Vs.
State of Haryana and Anr., (2011) 11 SCR 848 has made the
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following observations which are mentioned as under:-
“18. We have merely drawn attention to and reiterated the well-settled
legal position that SA/GPA/WILL transactions are not ‘transfers’ or ‘sales’
and that such transactions cannot be treated as completed transfers or
conveyances. They can continue to be treated as existing agreement of
sale. Nothing prevents affected parties from getting registered Deeds of
Conveyance to complete their title. The said ‘SA/GPA/WILL transactions’
may also be used to obtain specific performance or to defend possession
under section 53A of TP Act. If they are entered before this day, they may
be relied upon to apply for regularization of allotments/leases by
Development Authorities. We make it clear that if the documents relating
to ‘SA/GPA/WILL transactions’ has been accepted acted upon by DDA or
other developmental authorities or by the Municipal or revenue authorities
to effect mutation, they need not be disturbed, merely on account of this
decision.
19. We make it clear that our observations are not intended to in any way
affect the validity of sale agreements and powers of attorney executed in
genuine transactions. For example, a person may give a power of attorney
to his spouse, son, daughter, brother, sister or a relative to manage his
affairs or to execute a deed of conveyance. A person may enter into a
development agreement with a land developer or builder for developing
the land either by forming plots or by constructing apartment buildings and
in that behalf execute an agreement of sale and grant a Power of Attorney
empowering the developer to execute agreements of sale or conveyances
in regard to individual plots of land or undivided shares in the land relating
to apartments in favour of prospective purchasers. In several States, the
execution of such development agreements and powers of attorney are
already regulated by law and subjected to specific stamp duty. Our
observations regarding ‘SA/GPA/WILL transactions’ are not intended to
apply to such bonafide/genuine transactions.”
66. The aforesaid judgment of the Hon’ble Supreme Court
would not effect the genuine transactions made in respect to the
immovable properties prior to the date of the aforesaid judgment
as held in para no.18 and 19 of the judgment.
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67. The Hon’ble High Court of Delhi in “Ramesh Chand
(Shri) Vs. Suresh Chand and Anr.“, 2012 III AD (Delhi) 493 has
held that a person strictly may not have complete ownership
rights unless there is a duly registered sale deed, however,
certain rights can exist in an immovable property pursuant to the
provisions of Section 53A of the Transfer Property Act, Section
202 of the Contract Act, 1872. It is further held that the validity
of the documents, being power of attorney and Will, the person
in whose favour the said documents are, would though not be
the classical owner of the suit property as would an owner be
under a duly registered sale deed, but surely he would have been
rights/entitlements of the possession of the property. It is further
held that a right of possession of an immovable properties arise
not only from complete ownership rights in the property but
having a better title or better entitlement/right to the possession
of the property than qua the person who is in actual physical
possession thereof.
68. The Hon’ble High Court of Delhi in “Hardeep Kaur Vs.
Kailash and Anr.” , 193 (2012) Delhi Law Times 168 has held
that power of attorney coupled with interest is irrevocable and
cannot be revoked/terminated even upon death of principle. It
has been further held that purchaser may not be classical owner
as would be an owner under registered sale deed but surely he
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would have better rights/entitlement of possession then the
person who is in actual physical possession.
69. In the present case, plaintiff after purchasing the suit
property has applied and got installed the electricity connection
in the suit property in his name which means plaintiff was in the
settled possession of the suit property after its purchase i.e. after
11.05.2006. Defendant no.2 has not produced any single
document or any cogent and independent evidence to establish
that he entered into the possession of the suit property on
11.05.2006. In view of the facts and circumstances of the case
and evidences led by parties, the case of the plaintiff is found
more probable and reliable.
70. Considering the facts and circumstances of the case,
material came on record and above observations and findings,
this Court concludes that plaintiff may not be the classical
owner of the suit property on the basis of documents Ex.PW1/F
(Colly.) along with Ex.PW1/B(Colly.) to Ex.PW1/E(Colly.) as
would be an owner under registered sale deed but surely he have
better rights/entitlements of possession than the defendant no.2
who is in actual physical possession. In view of the findings,
this Court concludes that plaintiff has a valid cause of action and
locus-standi to file the present suit against defendants and he is
also entitled for decree of ejectment and recovery of possession
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of the suit property against defendant no.2. Defendant no.2 has
failed to produce any cogent, reliable and independent evidence
to prove his contentions. Defendant no.2 has also failed to prove
any material on record which can show that plaintiff has
concealed any material facts from this Court and therefore, he is
not entitled for decree. Defendant no.2 has also failed to
produce any reliable material on record to establish the forgery
and fabrication of the GPA, agreement to sell, receipt and Will
by forging his signatures, as alleged by him. The judgments
relied by defendant no.2 cannot be relied upon because the same
are based on different facts and circumstances.
71. In view of the above observations and findings, Issue no.1
to 3 and 5 are decided in favour of plaintiff and against
defendant no.2.
ISSUE NO.4:- Whether plaintiff did not properly valued the suit
properly for the purpose of court fees and jurisdiction? OPD
72. Initially, plaintiff has valued the present suit for the relief
of possession as Rs.5,50,000/-. The defendants in their written
statement have taken the objection that the market value of the
suit property is more than Rs.50 Lakh. However, plaintiff was
allowed to amend the valuation of the suit for the purpose of
jurisdiction and court fee qua the relief of possession from
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Rs.5,50,000/- to Rs.18,26,800/- vide order dated 23/10/2013 and
plaintiff also paid an additional Court fee of Rs.10,000/- on the
amended plaint.
73. The defendant no.2 has not produced any probable,
reliable, positive and independent evidence to establish that the
market value of the suit property was more than Rs.50 Lakh on
the date of institution of the suit. It is note-worthy to mention
here that in view of Section 4 of the Delhi High Court
(Amendment) Act, 2015, the jurisdiction of this Court was
increased from Rs. 20 Lakh to Rs.2 Crores.
74. During the course of final argument, plaintiff filed an
application along-with deficit court fees of Rs.11,000/- which
was taken on record vide Order dated 28/09/2024. The total
Court fee filed by the plaintiff on record is amounting to Rs.
10,280/- (stamp papers filed along-with plaint) plus Rs.10,000/-
(taken on record vide order dated 23/10/2013) plus Rs.11,000/-
(taken on record vide order dated 28/09/2024) totaling to Rs.
31,280/-.
75. The defendant No.2 has not produced any material on
record which can suggest or establish that plaintiff has not
valued the present suit properly for the purpose of court fees and
jurisdiction. Moreover, even if the market value of the suit
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property would be more than Rs.50 lakhs then also this Court
would be having the jurisdiction to adjudicate the present suit.
Considering the facts and circumstances of the case and above
observation, this Court concludes that defendant has failed to
lead positive and independent evidence to prove that the market
value of the suit property was more than Rs.50 lakhs and
plaintiff has not valued the present suit properly for the purpose
of jurisdiction and court fees, hence, Issue No.4 is decided in
favour of plaintiff and against defendant no.2 accordingly.
ISSUE NO.6:- Whether plaintiff is entitled for decree of
recovery of damages, mesne profit, as prayed? OPP
76. Plaintiff has prayed recovery of a sum of Rs.10,000/-
towards damages/mesne profit for the month of December, 2012
along with interest @ 24% per annum till its realization, against
defendant no.2. Plaintiff further prayed for money decree of
Rs.10,000/- per month since 1st January, 2013 till the date vacant
and physical possession of the suit property is not handed over
to the plaintiff by defendant no.2, on account of mesne
profit/usage charges for unauthorizedly and illegally occupying
the suit property.
77. PW-1 in his evidence affidavit Ex.PW1/1 had deposed
that he is entitled for a sum of Rs.10,000/- per month as mesne
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profit and damages towards the illegal use and occupation of the
suit property by defendant no.2. He further deposed that
defendant no.2 is using and occupying the suit property without
making any payment towards the damages and mesne profit and
he has not handed over the vacant and physical possession of the
suit property to plaintiff despite service of notice Ex.PW1/H
and therefore, they are liable to pay mesne profit/damages to the
plaintiff.
78. Plaintiff has not examined any independent witness or
produce any documentary evidence to prove that the prevalent
market rate of rent/usage charges in the neighbourhood/vicinity
where the suit property is situated is Rs.10,000/- and therefore,
he is also entitled to such an amount. However, a judicial notice
can be taken of the fact that the amount of rent for various
properties in and around Delhi have been rising staggeringly.
The Hon’ble High Court of Delhi in “Vinod Khanna & Ors.
versus Bakshi Sachdev (deceased) through LRs & Ors.”- AIR
1996 (Delhi) 32″ has observed that the judicial notice can be
taken of the fact about increase of rents in the premises in and
around, Delhi, which is a city of growing importance being the
Capital of the Country, which is a matter of public history. In
another case- “Sh. M.R. Sahni v. Mrs. Soris Randhawa “- 2008
(104) DRJ 246, the Hon’ble High Court of Delhi while
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reiterating the steep increase in the rentals in Delhi, again
emphasized that in relation to determination of mesne profits,
there is ‘always some element of guess work.’
79. The suit property is a 40 sq. yards consisting of 04 storey
building situated in the New Kardampuri Illaqa Shahdara, Delhi.
Taking judicial notice of the fact that the rent of the properties in
and around Delhi have been rising staggeringly and considering
the size of the suit property and locality in which the suit
property is situated, this court takes judicial notice of the fact
that the rent of the four storey building ad-measuring 40 sq.
yards each in the locality of New Kardampuri, Shahdara, shall
not be less than Rs.7,000/- per month from 01.12.2012 till
31.12.2015, Rs.7,500/- per month from 01.01.2016 till
31.12.2018, Rs.8,000/- per month from 01.01.2019 till
31.12.2021, Rs.8,500/- per month from 01.01.2022 till
31.12.2024 and Rs.9,000/- per month from 01.01.2025 onwards.
80. In view of the above-observations, the plaintiff is held to
be entitled for damages/mesne profit against defendant no.2 @
Rs.7,000/- per month from 01.12.2012 till 31.12.2015,
Rs.7,500/- per month from 01.01.2016 till 31.12.2018,
Rs.8,000/- per month from 01.01.2019 till 31.12.2021,
Rs.8,500/- per month from 01.01.2022 till 31.12.2024 and
Rs.9,000/- per month from 01.01.2025 till the date the vacant
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and physical possession of the suit property is not handed over
to plaintiff by defendant no.2. The Issue No.6 is decided in
favour of plaintiff and against defendant no.2.
ISSUE NO.7:- Whether plaintiff is entitled for decree of
permanent injunction, as prayed? OPP
81. This Court has already concluded that plaintiff has a
better title/entitlement of possession of the suit property than of
defendant no.2 and plaintiff is also entitled for possession of the
suit property against defendant no.2, therefore, this Court is of
the considered opinion that in order to save and preserve the suit
property and further to avoid multiplicity of litigation, a decree
of permanent injunction is required to be passed against
defendant no.2 and in favour of plaintiff, therefore, defendant
no.2, his LRs, his representative, his agents, his nominee are
restrained from selling, disposing off, alienating or create any
third party right or interest in the suit property till the date the
vacant and physical possession of the suit property is handed
over to the plaintiff by defendant no.2. Issue No.7 is decided in
favour of plaintiff and against defendant no.2.
ISSUE NO.8:- Whether plaintiff is entitled for mandatory
injunction? OPD
82. The onus to prove the present issue is upon the plaintiff,
however, plaintiff has not led any evidence to establish that
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defendant no.2 is not using the suit property properly and is not
maintaining the same neatly, cleanly and in a habitable
condition. Plaintiff has never made any application during trial
stating that defendant no.2 is not maintaining the suit property
in a habitable condition. It is pertinent to mention that during
entire trial plaintiff has never asked this Court to permit him to
carry out the repairs of the suit premises in order to prevent the
same from getting deteriorated. In view of the circumstances
and considering that no cogent and reliable evidence has been
produced by plaintiff to prove the present issue, therefore,
plaintiff is not entitled for the decree/relief of mandatory
injunction, hence, the Issue No.8 is decided in favour of
defendant no.2 against plaintiff.
Relief/Final judgment.
83. The following decrees are hereby passed in favour of
plaintiff and against defendant no.2:-
I. A decree of possession is hereby passed in favour of
plaintiff and against defendant no.2 thereby directing defendant
no.2 to hand over the vacant, peaceful and physical possession
of the entire suit property i.e. H.No.288, Gali No.5, comprising
of Khasra No.381, situated in the Village Kardampuri Illaqa
Shahdara, (New Kardampuri) measuring 40 sq. yards, out of
entire area of 100 sq. yards., to plaintiff.
CS No.1454/16 Rifaqat Hussain versus Azra Page No. 47 of 49 Digitally signed by DEEPANKER DEEPANKER MOHAN MOHAN Date: 2025.04.24 18:49:57 +0530 II. A decree of permanent injunction is hereby passed in
favour of plaintiff and against defendant no.2, his LRs, his
representative, his agents, his nominee thereby restraining them
from selling, disposing off, alienating or creating any third party
right or interest in the suit property till the date the vacant and
physical possession of the suit property is handed over to the
plaintiff by defendant no.2.
III. A money decree of damages/mesne profit is hereby
passed in favour of plaintiff and against defendant no.2
declaring that plaintiff is entitled for damages/mesne profit
against defendant no.2 @ Rs.7,000/- per month from 01.12.2012
till 31.12.2015, Rs.7,500/- per month from 01.01.2016 till
31.12.2018, Rs.8,000/- per month from 01.01.2019 till
31.12.2021, Rs.8,500/- per month from 01.01.2022 till
31.12.2024 and Rs.9,000/- per month from 01.01.2025 till the
date the vacant and physical possession of the suit property is
not handed over to plaintiff by defendant no.2.
84. The suit of the plaintiff is partly decreed. Plaintiff is
directed to pay requisite court fees on the decree of mesne
profit/damages awarded within 30 days from today. The present
suit is accordingly disposed of.
85. Upon filing of requisite court fees, Reader of this Court is
directed to prepare decree sheet.
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86. File be consigned to record room after due compliance.
Digitally signed by
DEEPANKER DEEPANKER MOHAN
MOHAN Date: 2025.04.24
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Announced in the open Court (DEEPANKER MOHAN)
on this 24th day of April, 2025 DISTRICT JUDGE-04,
SHAHDARA DISTRICT
KKD Courts, Delhi
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