Asha Khanna And Anr. vs Vishnu Charan
1991 Latest Caselaw 122 Del

JUDGMENT

Mahinder Narain, J.

(1) It is stated by Vishnu Charan, deft. who is present in person, that he is not in a position to lead any evidence.

(2) Trial of the matter was fixed yesterday and day before and till date statements of P.W. 3 and Public Witness . 4 were recorded. Both the witnesses were cross-examined. Mr. S.P. Srivastava and Mr. Rajiv Nanda, counsel for the deft, were present. Mr. A.S. Chandhiok is also a counsel.

(3) According to the record, vakalatnama was filed by Mr. I.C. Kumar, Advocate. However, Mr. A.S. Chandhiok filed the w/s on behalf of the deft, and has put in appearance on behalf of the deft. on numerous occasions starting from 1984.

(4) Yesterday it was mentioned in Court that talks for compromise are on, and that the matter be adjourned. I did not accede to this request yesterday. It transpired that the case was adjourned for today in the presence of Mr. S.P. Srivastava and Mr. Rajiv Nanda. Mr. AN. Tiwari and Mr. Rajesh Banati, Advocates on behalf of the puffs. were present.

(5) Statement regarding compromise was made after evidence of Public Witness . 4 had been recorded.

(6) Today none of the counsels who appeared for the deft. is present. Deft. is present in person. He says that he wants to move an application for adjournment. I have declined to entertain it in Court. I called upon the deft. to record his statement in support of his defense. He says that he is not in a position to record his statement today.

(7) Dates of trial were fixed in this case in 1 88, the matter has to be concluded. In view of the stand taken by the deft. I close evidence of deft.

(8) Following issues were framed on 24.11.85. 1. Whether plaintiffs are owner of property No. H-III/3, Model Town ? 2. Whether defendant is in adverse possession of the suit property ? If so, to what effect ? 3. Whether the fur

(9) I have noted here in above that evidence has been led of four witnesses in support of the case of the pff. The deft. has not examined any witness despite opportunity being given to him. Nor has he examined himself despite his being present in Court today. I have, therefore, closed the evidence of the deft. as the dates for recording evidence of the parties werefixedonl2.12.1988. I have also closed the evidence of the deft. for the reason that it was stated in Court that parties are trying to compromise the matter, but that statement was apparently made with a view to have an adjournment in the the matter only.

(10) I will now deal with the suit. The two puffs. have sued the deft. for recovery of possession and for mesne profits.

(11) Issue No. 1 relates to the title of the pff. Two sisters, Asha Khanna and Archna Khanna as puffs. have brought this suit for possession against the deft. It is the case of the pff. that the property was purchased by the father of the pff. by a registered deed of sale, obtained from the Delhi Land & Finance, which recorded that Plot No. H-III/3, Model Town is owned by Smt. Roop Rani Kapur, Asha and Archna. This document has been produced on record, and exhibit marked as Ex. Public Witness . 3/3. This sale-deed was registered with the Registrar of Assurance on 5.6.1967. P.W. 3 Asha Khanna, has also proved certified copy of the mutation letter dated 15.3.1975. By this mutation letter, Asha and Archna, daughters of Mr. Sri Narain Kapoor, were recorded as owners of property No. H-III/3, Model Town.

(12) PFF. No. 1 as Public Witness . 3, has also proved succession certificate which was issued in her favor with respect to the goods of Mr. Sri Narain Kapoor, her father. The succession certificate, is Ex. Public Witness . 3/2 The pff. have also proved the succession certificate issued in her favor in the goods of her mother Smt. Roop Rani Kapoor. This succession certificate is Ex. Public Witness . 3/4. Ex. Public Witness . ?/6 and Ex. Public Witness . 3/7 are house tax bills of the Municipal Corporation, issued in the name of the pff. Asha Khanna and Archna Khanna, at the address- H-III/3, Model Town. The assessment order with respect to H-III/3, Model Town has been proved by pff. No. 1, and the same is exhibited as Ex. Public Witness . 3/12. This assessment order records Asha Khanna, pff. No. 1, and Archna Khanna, pff. No. 2 as owners of H-III/3, Model Town.

(13) From the documents which have been mentioned above. I am satisfied that the plaintiffs are the owners of property No. H-III/3, Model Town. After the demise of their father and mother, as is evidenced by the succession certificates Ex. Public Witness . 3/2 and Ex. Public Witness . 3/4, they have succeeded to the movable properties of their parents. As regards the title of the property, after the demise of their mother Smt. Roop Rani Kapoor, being survivors, they are entitled to succeed as owners of the same. 1, therefore, decide the issue in favor of the pff., and hold that they are owners of property H-III/3, Model Town, Delhi.

(14) As regards issue No. 2, the onus to prove that the deft. was in adverse possession of the ground floor of H-III/3, Model Town, was on the deft. As observed above, he has chosen not to lead any evidence on this issue. There being no evidence of adverse possession in favor of the deft. this issue has to be decided against him.

(15) I may note that it is apparent from the house-tax bills which are Ex.P.W.3/6 and Ex.P.W.3/7 that the said bills were sent to the puffs as owners of the house in question. The deft., in the normal course, would have received them at the premises in suit. The pff have produced those bills, It has, therefore, to be taken as proved that the pff have remained in possession of H-III/3, Model Town.

(16) Issue No. 3 relates to the ownership of various household articles, which are mentioned in the schedule to the plaint.

(17) Pff No. 1 in her testimony as Public Witness .3 has unequivocally stated that she and her sister are owners of all the articles which are mentioned in the schedule to the plaint. This testimony is unrebutted, and in this view of the matter, this issue has to be decided in favor of the pff and I hold that the pff are the owners of various articles mentioned in the schedule to the plaint. This issue is also decided in favor of the pff.

(18) Issue No. 4 relates to alleged improper valuation of the spit. There is no evidence as to how the suit has not been correctly valued. In this view of the matter, I hold that the plaint is properly valued for purposes of court- fee and jurisdiction.

(19) The pff have stated in the plaint that the license in favor of the deft. to occupy the portion shown in red in the plan annexed to the plaint, has been determined. This determination was done by a notice issued by the counsel for pff, which has b;en proved as Ex.P.W.3/9. This notice dated 1.4.1982 was issued to the deft. Paras 3 and 4 of the notice record the termination of the license, and in para 5 the pff have claimed compensation, damages for use and occupation of the said premises Rs. 3,000.00 p.m. from 1.5.1982.

(20) This notice was replied to by the deft. vide reply dated 25.4.1982. There was no response in this reply to the assertions which have been made in the legal notice regarding determination of license and regarding liability to pay use and occupation charges @ Rs. 3.000.00 p.m. Instead, in this reply it was asserted by the deft. that he was the brother of the pff, and exclusive ownership of the entire property was claimed as an heir to late Mr. Sri Narain Kapoor and late Smt. Roop Rani Kapoor. The said assertions regarding heirship are belied by the succession certificates Ex.P.W.3/2 and Ex.P.W.3/4, which have been granted to the puffs. The pff. No. 1 as PW3 says that deft. who is her maternal uncle's son had assisted the puffs. in obtaining these succession certificates. I accept this un rebutted testimony of PW3. She appeared to be a truthful witness to me. I believe her statement.

(21) In support of the contention for getting use and occupation charges in addition to her- self, pff. No, 1, has examined Mr. Hira Lal Kapoor, Advocate as Public Witness .4. He states in his evidence that he knows the parties to the suit, that he is resident of H-II 6, Model Town. He says that he has seen property No, H-III/3, Model Town, that the house is on a plot of land which is approximately 1200 sq. yds. and that he is aware of the market rents which are prevailing in the locality. He states that in his view, the rents prevailing in the Model Town area in the year 1982-83 were Rs. 3,000 to Rs 4,000 per month for a ground floor house built on a plot of land of 1200 sq. yds. He was cross-examined by Mr. S.P. Srivastava, Advocate for the deft. What was suggested to him in cross-exam, was that he was not aware of any lease-deed having been executed between any party in the year 1982-83. He negated the suggestion by stating that in the year 1982-83, the premises bearing No. H-III/2 and H-III/1 were let out at rates which he had mentioned. I believe the testimony of Public Witness .4. I hold that that the rents prevailing were what he stated to be. Inasmuch as the claim in the plaint is confined to Rs. 3,000.00 p.m. as use and occupation charges for the ground floor of H-III/3, Model Town, the plaintiffs would be entitled to recover from the deft. use and occupation charges only @ Rs. 3,000.00.

(22) As regards the additional issue which was framed at the behest of the deft. regarding the maintainability of the suit, there being no testimony on behalf of the deft. in support of the allegations contained in preliminary objections No. 1 to 3, I have to decide the issue against the deft.