D.N. Ahluwalia vs A.N. Wanchoo And Ors.
1995 Latest Caselaw 119 Del

JUDGMENT

Usha Mehra, J.

(1) Plaintiff, D.N. Ahluwalia by this suit wants to be declared the absolute owner of the annexee portion including land under neath Kothi No. 6, Friends Colony (West), New Delhi. His claim is based on the 'Will'dated 28/08/1984, executed by late Smt. Rajeshwari, owner of this property.In the alternative, he has claimed ownership of this annexee portion on account ofpeaceful, open and uninterrupted possession and enjoyment of this annexee as owner thereof for a period of more than 12 years.

(2) During the pendency of the suit, present application has been filed seeking restraining order against the defendants from dispossessing him from the annexee in question. He has based his claim primarily on the ground that he Along with his family members had been residing in this portion of the house for a considerable long time as owner/occupier. He has explained how he became owner of thisproperty. According to him he was an employee of a firm M/s.Mohan Brothers(hereinafter called the firm) since 1931. At the relevant time, this firm was a proprietary concern of Pt.Manmohan Dhar. Subsequent thereto this firm be camea partnership firm. Pt.Dhar had a 4 Annas Share in the same. Plaintiff had been serving Pt.Dhar because Pt.Dhar had no issue of his own. Being issueless, Pt.Dharhad been treating the plaintiff as his son. Somewhere in 1935, plaintiff was allowed to occupy two rooms flat of one of the annexees at 16, Curzon Road, free of rent, by late Pt. Dhar. Late Smt-Rajeshwari was also living with Pt.Dhar in the main building at Curzon Road. After Pt.Dhar's death, the plaintiff continued living withSmt.Rajeshwari in the said building at Curzon Road. Smt.Rajeshwari also treated plaintiff as her son. Pt.Dhar had executed a 'Will' in favor of the plaintiff thereby bequeathing absolute right of the portion in his occupation in Kothi No. 16, Curzon Road. He was also given two Annas share in the business of M/s. Mohan Brothers.After Pt.Dhar's death all his moveable and immoveable properties except shares in the firm devolved on Mrs. Rajeshwari. Somewhere in 1960 Smt. Rajeshwari sold the lease hold rights of the property atl6, Curzon Road. With the sale proceeds, she purchased the present house at 6, Friends Colony (West) New Delhi. She con-structed servant quarters. One annexee portion was specially constructed for the plaintiff and his family. The plaintiff Along with his family came and started living with late Smt. Rajeshwari, in the annexee portion of this house at 6, Friends Colony(West) New Delhi. Smt. Rajeshwari initially orally gifted this annexee portion to the plaintiff. Subsequently in order to safeguard his interest she executed a 'Will'thereby bequeathing the annexee Along with land underneath it to him. She declared him to be exclusive owner of the annexee and the land underneath it.Defendant No. 4 got a 'Will' executed from Smt. Rajeshwari with an ulteriormotive. Smt. Rajeshwari had executed the 'will' in favor of the plaintiff to safeguard his rights as she sensed the bad and malafide intentions of defendant No.4 and to ensure that defendant No. 4 may not deprive him and his family the ownership rights of the annexee. After her death, the defendant No. 4 started harassing the plaintiff. Her apprehensions turned out to be true. The defendants in order to deprive the plaintiff of his right of this property, started disposing and alienating the main building as well as the annexee. In order to sell this annexeeportion, the defendants have started forcibly dispossessing the plaintiff from the suit property. It is to safeguard this right that the suit has been filed. By this application ad-interim injunction restraining the defendants has been sought.

(3) This application has been contested by defendants, inter alia, on the ground that neither the gift nor alleged 'Will' by Smt.Rajeshwari is valid. The same was not executed by her. The said documents have been fabricated and forged. Moreover,the plaintiff cannot claim any other portion of the annexee even on the basis of the alleged documents relied by him. He, at best, can stake claim on the annexee and the land underneath the same and nothing more. The adjacent land and the open space in the annexee area shown as red in the plan filed by the plaintiff by no stretch of imagination formed part of the said annexe mentioned in the alleged'Will'. The plaintiff has no right to use the passage meant for the occupiers of the main building. The plaintiff cannot use the main entrance. Like other neighbours,he can also have egress and ingress from the side road. Plaintiff lived at 16, Curzon Road as licensee, being employee of M/s. Mohan Brothers. In the present premise she shifted as licensee only in the same capacity being part time clerk of Smt.Rajeshwari.

(4) -1 have heard Mr. J.K. Seth, Counsel for the plaintiff and Mr. V.P. Singh,Sr.Advocate, for the defendant. It is not disputed by the Counsel for the parties that the plaintiff is in occupation of the annexee in Kothi No. 6, New Friends Colony.Whether the plaintiff occupied this as a licensee or as owner are the questions to be determined on merits after recording evidence. It is well settled principle of law that even a trespasser cannot be thrown out without due process of law. Plaintiff is in settled possession of the annexee hence cannot be dispossessed from the same without due process of law. To arrive at this conclusion reference can be had to the decisions as reported in 1989 Jt page 489, Air 1942 Vol. 46 page 690, and 1994 DLTVol. 54 page 552.

(5) The only question, therefore, left for consideration is, what form part ofannexee? Will it mean the superstructure and the land underneath it or will include the open space in front and adjacent to it.

(6) As per plaintiff's own showing late Smt. Rajeshwari gifted only the annexee in his favor. The 'Will' which has been relied by the plaintiff shows that the deceased by this 'will' of 24/08/1984, bequeathed the land under neath theannexee of the property No. 6, Friends Colony, New Delhi, together with the superstructure built over it in favor of the plaintiff. Therefore, by this 'Will' she made it clear as to what portion she was bequeathing in favor of the plaintiff and what portion was in her occupation. Reading of this 'Will' leaves no manner of doubt that the executor of the 'Will' late Smt. Rajeshwari, never stated that the open space in front or adjacent to the annexee was in occupation of the plaintiff or that she also bequeathed the same in his favor. Hence the claim of the plaintiff that he should not be dispossessed from the open space is contrary to the stand taken by him in the plaint. Of course, he cannot be dispossessed without due process of law from the superstructure and the land under neath the annexee which was bequeathed in his favor by Smt.Rajeshwari. Whether this 'Will' is forged or genuine will be considered in due course. But prima facie, on the basis of the documents placed on record, it can be said that the plaintiff cannot be dispossessed from the annexee portion consisting of the land under neath the annexee together with superstructure built over it. So far as the adjacent lawn and the portion in front are concerned, the plaintiff has not been able to show any prima fade case. TheWill' was executed in August,1984 and the suit has been filed in December,1985.In the suit also he has mentioned that the deceased gifted the annexee in his favor meaning the superstructure and the land under neath. According to him he had uninterrupted possession and ownership of this annexee. But at the same time he also stated that he planted certain trees in the lawn of the annexee. But he has not,as already observed above, laid any foundation to prove that he has uninterrupted possession over the lawn of the annexee shown in red colour or any ownership document in this regard. Rather the reading of the 'Will' of August, 1984 shows that he was in occupation of the land under neath the annexee and the superstructurethereon. Even otherwise the facts which have come on record are so glaring that no stay with regard to dispossession from the lawn area can be granted. For example the built up area alleged to be bequeathed in favor of the plaintiff is about100 sq.yd., whereas the lawn area is 330 sq.yd. Therefore, Mr.V.P. Singh rightly contended that by Court's order the plaintiff has come in possession of almost 430sq.yd. of area. Whereas, as per plaintiff's own showing and on the basis of the 'Will'the deceased only bequeathed 100 sq.yd. of land. She made it clear in the 'Will' that the land under neath the annexee and the superstructure thereon she was bequeathing in his favor. But the land apartenant to the annexee was not bequeathed in his favor by the said 'Will'. Hence the plaintiff having failed to produce any prima facie evidence to the effect that he was in continuous uninterrupted, peaceful, enjoyment of the land apartenant to the annexee for the last 12years or that the ownership of this vested in him, hence the injunction against his dispossession from the land apartenant to the annexee cannot be granted. He,however, will not be dispossessed from the land under neath the annexee Along with the superstructure built thereon.

(7) As regards the passage Mr.V.P.Singh, appearing for the defendant had contended that the defendant will open a back door entrance for the plaintiff which road will be fully carpeted from the gate to be built till the main side road. I think this suggestion can be considered after the defendant makes such a gate for ingress and egress of the plaintiff. Till such time the plaintiff cannot be stopped from using the main entrance for ingress and egress.With these observations the I.A. stands disposed of.