IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS (OS) No. 2527/2009
*
Decided on: 2nd November, 2011
Smt. Veena Kumar .......Plaintiff
Through: Mr. D.S. Dalal, Adv.
Vs.
Shri Kishan Lal .....Defendant
Through: Ex-parte.
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK
1. Whether the Reporters of local papers No
may be allowed to see the judgment?
2. To be referred to Reporter or not? No
3. Whether the judgment should be No
reported in the Digest?
A.K. PATHAK, J. (ORAL)
1. Plaintiff has filed this suit for possession, damages/mesne profit and permanent injunction against the defendant. Defendant is brother-in-law (husband's brother) of the plaintiff.
2. It is alleged in the plaint that the husband of plaintiff is owner of property bearing no. 48 in Block-D, measuring 80.78 sq. meters situated at Prashant Vihar, Delhi. She had purchased this suit property from Ramesh Kumar vide registered Sale Deed dated 8th August, 2007. Originally, the CS(OS) No. 2527/2009 Page 1 of 5 suit property was allotted to Late Shri Bal Kishan by the Delhi Development Authority vide perpetual Lease Deed dated 19th December, 1980 duly registered in the office of Sub-Registrar I, Delhi. Thereafter, the suit property devolved upon Shri Ramesh Kumar pursuant to a Will left behind by Late Shri Bal Kishan. Wife of Late Shri Bal Kishan, namely Smt. Shanti Devi, was given right to reside in the property during her life time. Shanti Devi expired on 28th June, 2002. Defendant was permitted by Late Shri Bal Kishan to live on the first floor more particularly shown in red colour in the site plan (hereinafter referred to 'suit property') as a licensee. After the plaintiff acquired ownership rights in the property she made several requests to the defendant to vacate the suit property but to no effect. Finally, plaintiff revoked the license deed vide legal notice dated 28th August, 2009 served through her lawyer Shri D.S. Dalal, Advocate. Defendant claimed himself to be the owner of the suit property vide his reply dated 25th September, 2009 sent through his lawyer Shri S.C. Sharma, Advocate. Thereafter, defendant started negotiating with prospective buyers through property dealers in order to sell the suit property. It is alleged that after the license was terminated defendant has no right to continue to hold possession of the suit property. Besides possession, plaintiff has also claimed damages/mesne profit @ `20,000/- per month with effect from 1st October, 2009 till defendant vacates the suit property. It has been further prayed that by way of decree of permanent injunction, defendant be restrained from selling, alienating or CS(OS) No. 2527/2009 Page 2 of 5 creating third party interest in respect of the suit property.
3. After the service of summons defendant appeared in the court through his lawyer. Though defendant claimed that written statement had been filed by him but the same was not found on record. Accordingly, defendant's counsel was directed by the Joint Registrar to furnish diary number and date of filing of written statement. However, details were not furnished. Vide order dated 26th November, 2010 defendant was granted last opportunity to get the written statement placed on record, subject to cost of `5,000/-. Even this order has not been complied with, inasmuch as, defendant stopped appearing thereafter. Consequently, defendant was proceeded ex-parte vide order dated 20th May, 2011.
4. Plaintiff has led ex-parte evidence. Plaintiff (PW1) in her affidavit has supported the averments made in the plaint. She has reiterated that she has purchased the suit property from Shri Ramesh Kumar vide Sale Deed dated 8th August, 2007. Certified copy of the sale deed has been proved by her as Ex. PW1/1. Site plan of the suit property has also been proved by her as Ex. PW1/2. Death certificate of Late Shri Bal Kishan has been proved as Ex. PW1/4. She has categorically deposed that Late Shri Bal Kishan had permitted the defendant to reside in the suit property comprising 3 rooms, 1 bath room, 1 toilet and 1 kitchen as a licensee. She has deposed that the suit property has been shown in red colour in the site plan Ex. PW1/2. She requested the defendant to vacate the suit premises but to no effect. CS(OS) No. 2527/2009 Page 3 of 5 Consequently, she revoked the license by serving a legal notice dated 28th August, 2009 through her counsel. Copy of the notice has been proved as Ex. PW1/6. Defendant sent a reply to the said notice through his counsel, which she has been proved as Ex. PW1/7. She has also deposed that prevalent rent in the area with regard to similar property was about `25,000/-. She has deposed that rent has further increased in the area and presently the property, under the occupation of the defendant, can easily fetch the rent of `35,000/- per month. Copy of rent agreements of certain flats in the same locality, that is, Sector 14 Rohini have been placed on record and have been exhibited as Ex. PW1/8 to PW1/11.
5. From the ex-parte evidence lead, in my view, plaintiff has succeeded in proving her case that she had purchased the suit property from Shri Ramesh Kumar vide registered Sale Deed dated 8th August, 2007. Defendant was living in the first floor of the suit property as a licensee. She terminated the license by serving a legal notice i.e. Ex. PW1/6 through her counsel. After termination of license defendant has no right to continue to occupy the suit property. Accordingly, plaintiff is entitled to decree of possession as prayed for.
6. As regards mesne profit is concerned, during the course of hearing counsel has given up mesne profit till passing of the decree. He claims mesne profit from the date of decree till the possession of the suit property is handed over by the defendant to plaintiff. Certified copy of the rent CS(OS) No. 2527/2009 Page 4 of 5 agreements i.e. Ex. PW1/8 to PW1/11 clearly indicates that the rent prevalent in respect of the flats is between from `22,000/- and `29,000/- per month. Defendant is occupying an independent floor built on a plot of land measuring 80.78 sq. mtrs. Thus, mesne profit as claimed by the plaintiff amounting to `20,000/- today appears to be just and proper. In my view defendant also has no right to create any third party interest in the suit property.
7. For the foregoing reasons, I pass a decree of possession in favour of the plaintiff and against the defendant. By way of decree of damages/mesne profit defendant is directed to pay a sum of `20,000/- per month to the plaintiff from the date of decree till he hands over the possession of the suit property to the plaintiff. Defendant is also restrained from creating any third party interest in the suit property. Cost of the suit is also awarded in favour of the plaintiff. Decree sheet be drawn accordingly.
A.K. PATHAK, J NOVEMBER 02, 2011 ga CS(OS) No. 2527/2009 Page 5 of 5