Madan Mohan And Anr. vs Chander Bhan And Anr.
2012 Latest Caselaw 90 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RFA No. 472/2008


%                                    Date of Judgment: 5th January, 2012

MADAN MOHAN AND ANR.                                            ..... Appellant
               Through :                 Mr. B.P. Sharma, Advocate.

                   versus

CHANDER BHAN AND ANR.                                        ..... Respondent
                Through :                Mr. Manoranjan and Mr. Anil Rakhar,
                                         Advocates.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?



VALMIKI J. MEHTA, J. (ORAL)

1. The challenge by means of this Regular First Appeal (RFA) filed under

Section 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned

judgment of the trial Court dated 7.7.2008 by which the suit of the

respondent/plaintiff/father for possession, damages and permanent injunction

was decreed against the appellants/defendant Nos. 1 and 2, who are the son

and his wife (i.e. daughter-in-law of the respondent).

2. The brief facts of the case are that the respondent/plaintiff filed the

subject suit for possession, damages and permanent injunction against the

appellants/defendant Nos. 1 and 2 on the ground that the respondent/plaintiff

was an absolute owner of the property No. 105-A/1, Village Begumpur, Post

Office Malviya Nagar, New Delhi. It was pleaded that the ownership of the

respondent/plaintiff was proved by the judgment and decree dated 22.1.2002

passed by the Court of Sh. I.C. Tiwari, Additional District Judge, Delhi in

Suit No. 69/1998 titled as Shri Chander Bhan v. Shri Amar Chand & Ors. It

is pleaded that the property is mutated in Municipal Corporation of Delhi

(MCD) records in the name of respondent/plaintiff and house tax was also

being paid by the respondent/plaintiff. Defendant Nos. 1 and 2 were said to

have misbehaved with the respondent/plaintiff/father by humiliating,

torturing, maltreating and defaming him, whereafter the respondent/plaintiff

was forced to disown the appellants/defendant Nos. 1 and 2. The

respondent/plaintiff also terminated the license of the appellants/defendant

Nos. 1 and 2 since they were allowed to stay only on account of closeness in

their relations, and thereafter, the subject suit came to be filed as the

appellants failed to vacate the suit property.

3. The appellants/defendant Nos. 1 and 2 contested the suit by claiming

that the suit property was in fact an HUF property because the same was

purchased out of the funds of the ancestral property being 91, Begampur,

Delhi. It was also claimed that the suit was barred by limitation.

4. Before I proceed further, I may note that the respondent/plaintiff led

evidence and proved his case, however, in spite of repeated opportunities, the

appellants/defendant Nos. 1 and 2 failed to lead any evidence and, therefore,

their evidence was closed. The net effect, therefore, is whereas the

respondent/plaintiff proved his case, no evidence whatsoever was led on

behalf of the appellants/defendant Nos. 1 and 2.

5. After completion of the pleadings trial Court framed the following

issues:-

"1. Whether suit is bad for misjoinder of unnecessary party? OPD

2. Whether suit is barred by law of limitation? OPD

3. Whether the suit property was purchased out of sale proceeds of ancestral property i.e. 91 Begampur Delhi and accordingly, defendant No.1 and 3 are co-sharers. If so to what effect? OPD

4. Whether the plaintiff is entitled to decree of possession with respect to suit property forming part of property bearing No. 105A/1 situated within Lal Dora Abadi of viallage Begumpur, P.P. Malviya Nagar? OPP

5. Whether plaintiff is entitled to damage on account of harassment from the defendant as claimed and interest? OPP

6. Whether plaintiff is entitled to decree of damage @ 5000/- per month against defendant No.1 and 2 and @ Rs.3000/- per month against defendant No. 3 for unauthorized use? OPP

7. Whether plaintiff is entitled to decree of injunction as claimed? OPP

8. Whether written statement has not been properly signed and verified in accordance with law. If so, its effect? OPP

9. Relief."

6. The main stress on behalf of the appellants was that the property in

question was an HUF property, as it was purchased out of the sale proceeds of

an ancestral property being 91 Begampur, Delhi. In my opinion, the case of

the appellants has no merits, inasmuch as, unless whatever is stated in the

pleadings is proved, a person is not entitled to any relief on that basis. On one

hand, respondent/plaintiff had filed and proved on record various documents

showing his ownership of the property including the judgment and decree

dated 22.1.2002 in his favour Ex.PW1/1, original bill of house tax in the name

of respondent/plaintiff Ex.PW1/4 and original receipt of property tax

Ex.PW1/5, on the other hand there was no evidence led on behalf of the

appellants/defendant Nos. 1 and 2.

7. I, therefore, hold that the trial Court has rightly held that

respondent/plaintiff was the owner of the suit property.

8. Though, no arguments were addressed on any other aspect on behalf of

the appellants, however, I note that the trial Court has granted mesne profits

of Rs.5,000/- per month pendente lite and future against the appellants, only

on an oral statement on behalf of respondent/plaintiff as to the rate of

rent/mesne profits. In my opinion, a mere oral statement cannot be taken as

discharge of proof of rate of damages and, therefore, I am not inclined to

grant damages/mesne profits at the rate of `5,000/- per month, which is

granted by the trial Court. However, considering that the appellants are in

possession of a substantial portion of an immovable property, namely, rear

portion comprising of three rooms, a store, a latrine and a kitchen on the first

floor, consequently reasonable damages can be awarded as the Courts can

take judicial notice that there has to be an approximate minimum rental in an

area for the megapolis i.e. Delhi. The suit property is situated in the prime

location of South Delhi. Village Begampur is actually extension of Malviya

Nagar, which is a prime part of South Delhi. The period in question is from

13.7.2007 onwards. In my opinion, in a property at South Delhi, even in so

called Begampur village, the rate of rent for three rooms, a store, a latrine and

bathroom cannot be less than `2,500/- per month. Accordingly, I direct that

mesne profits shall be payable, not at `5,000/- per month pendente lite and

future, but at `2,500/- per month pendente lite and future till possession is

handed over to the respondent/plaintiff. In the facts of the case, where the

appellants have unnecessarily harassed their old father, I deem it fit that

interest @9% per annum simple are also awarded on mesne profits in favour

of the respondent and against the appellants from the end of each month for

which the mesne profits became payable, and for which purpose I exercise my

powers under Order 41 Rule 33 CPC.

8. No other issue was urged before me or could have been urged, in view

of the fact that no evidence was led on behalf of the appellants/defendant

Nos.1 and 2 in the Court below.

9. In view of the above, the present appeal is allowed by reducing the

mesne profits, but dismissed so far as the reliefs of possession and damages

which have been granted by the Court below. Parties are left to bear their own

costs. Trial Court record be sent back.

VALMIKI J. MEHTA, J.

JANUARY 05, 2012 AK