Delhi High Court
Abhishek Singh vs Mohd. Naushad on 19 March, 2014
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 19th March, 2014.
+ CS(OS) 940/2012
ABHISHEK SINGH ......... Plaintiff
Through: Ms. Richa Kapoor, Adv. for Mr.
Pramod Ahuja, Advs.
Versus
MOHD. NAUSHAD ..... Defendant
Through: None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The present suit has been instituted by the plaintiff seeking
declaration of his title over the entire property bearing No. 836-837 (Old),
1230 (New), Ward No. X, Rakabganj, Near Delite Cinema, Delhi. The
plaintiff has also sought possession from the defendant of one floor in his
occupation in the suit property and claimed the consequential reliefs of
injunction and mesne profits/damages.
2. The plaintiff pleads:
(I) that the plaintiff is the grandson of Smt. Pratibha Singh who
acquired the suit property vide a registered Sale Deed dated
06.08.1965 executed in her favor by one Mr. J.C. Bhattacharya and
CS(OS) No.940/2012 Page 1 of 7
pursuant to which her name was duly entered in the records of
Municipal Corporation of Delhi as well;
(II) that Smt. Pratibha Singh died on 08.01.2004 and left behind a
Will dated 30.01.2001 bequeathing the suit property in favour of the
plaintiff;
(III) that the plaintiff has been granted probate of the Will by this
Court on 25.11.2008 and as such the plaintiff has become the lawful
owner of the suit property;
(IV) that it subsequently came to the knowledge of the plaintiff that
the legal heirs of the deceased Mr. J.C. Bhattacharya fraudulently
executed a Sale Deed dated 11.06.2009/11.06.2010 with respect to the
suit property in favor of one Ms. Shehnaz Begum despite having no
title or interest therein by virtue of the sale effected of the suit
property by their predecessor in interest Mr. J.C. Bhattacharya to the
grandmother of the plaintiff Smt. Pratibha Singh as far back as in
1965;
(V) the plaintiff accordingly instituted a suit being CS(OS) 74/2012
against Ms. Shehnaz Begum and others for cancellation of the
aforesaid Sale Deed dated 11.06.2009/11.06.2010 and in which this
CS(OS) No.940/2012 Page 2 of 7
Court granted status quo with regard to title and possession of the suit
property and also appointed a Local Commissioner to inspect the
property;
(VI) that the Report of the Local Commissioner submitted in the
aforesaid suit revealed unauthorized occupation of as many as 26
persons and their family members in the suit property and which
included the present defendant as well; and,
(VII) that the plaintiff accordingly is filing separate suits for eviction
of the aforesaid unauthorized occupants from the suit property and
has already procured status quo orders in one such suit filed for
eviction being CS(OS) 863/2012.
3. Summons in the suit were issued on 13.04.2012 and the defendant
restrained from transferring, alienating or parting with possession of the suit
property in his occupation till further orders. The defendant personally
entered appearance on the next date and sought time for filing his written
statement, but thereafter stopped appearing and did not file his written
statement as well. Accordingly, this Court on 04.03.2013 closed the right of
the defendant to file his written statement and directed the defendant to be
CS(OS) No.940/2012 Page 3 of 7
proceeded ex-parte. The plaintiff thereafter tendered his ex-parte evidence
and the matter has been listed for ex-parte hearing today.
4. The plaintiff has examined himself as the lone witness to prove his
case. He has tendered in evidence the following documents:
(I) A site plan of the premises with the portion in occupation of the
defendant marked in red, proved as Ex.PW1/7B;
(II) Certified Copy of Sale Deed dated 06.08.1965 with original
plan in favor of deceased Ms. Pratibha Singh, proved as Ex.PW1/2;
(III) Copy of order dated 25.11.2008 of this Court in Test. Case No.
10/2005 whereby probate of the Will dated 30.11.2001 of Mrs.
Pratibha Singh was granted in favor of the plaintiff proved as
Ex.PW1/5; however, no copy of the Will has been filed;
(IV) Copy of Order dated 10.01.2012 of this Court in CS(OS) No.
74/2012 filed by the plaintiff against Mrs. Shehnaz Begum and
others, whereby the defendants in that suit were directed to maintain
status quo with regard to title and possession of the suit property and
a Local Commissioner to inspect the property has been appointed
proved as Ex.PW1/6;
CS(OS) No.940/2012 Page 4 of 7
(V) Copy of the report of the Local Commissioner appointed in
CS(OS) No. 74/2012, recording the occupation of the defendant in a
portion of the suit property as Ex.PW1/7; and,
(VI) Certified copy of judgment rendered by a coordinate bench of
this Court in CS(OS) 929/2012 dated 22.04.2013 titled Abhishek
Singh Vs. Musharaf Khan whereby a similar suit filed by the
plaintiff against another unauthorized occupant of the suit property
has been decreed, proved as Ex.PW1/7A.
5. The plaintiff having not proved the Will of Mrs. Pratibha Singh,
whereunder he claims exclusive title to the property, relief of declaration of
title cannot be granted. Also, it is not the case of the plaintiff that it is any
action of the defendant which has furnished any cause of action to the
plaintiff to seek the relief of declaration. Rather, it is the case of the
plaintiff that it is the defendants in CS(OS) No.74/2012 who are claiming
adversely to the plaintiff. A decree of declaration, being a decree in rem,
cannot be granted for this reason also, as CS(OS) No.72/2012 is stated to be
still pending.
6. However, as far as relief of recovery of possession is concerned, the
plaintiff on the basis of Sale Deed in favour of his grandmother Mrs.
CS(OS) No.940/2012 Page 5 of 7
Pratibha Singh and as one of her heirs, as evident from Ex.PW1/5 supra, is
found entitled thereto. The pendency of CS(OS) No.74/2012 is not found
impediment thereto.
7. The plaintiff has also claimed mesne profits / damages for use and
occupation from the defendant and sought an enquiry under Order 20 Rule
12 in this regard. In my opinion, the defendant being ex-parte, the plaintiff
ought to have also led the necessary evidence for ascertainment of such
mesne profits / damages and the matter should not now be permitted to
protract for conducting an enquiry into the same. I find the coordinate bench
of this Court in Ex.PW1/7A supra to have awarded mesne profits / damages
at Rs. 20,000/- per month to the plaintiff and the plaintiff to have also
initially mentioned the same figure in its plaint in the present case, though
subsequently praying for an enquiry in terms of Order 20 Rule 12. The sum
appears to be reasonable and just. I also therefore deem it appropriate to
award mesne profits / damages for use and occupation at the same rate viz.
Rs 20,000/- per month. However, the plaintiff having not proved the service
of any notice prior to the suit, the mesne profits / damages for use and
occupation would accrue to the plaintiff only from the date of institution of
the suit till possession is handed over by the defendant.
CS(OS) No.940/2012 Page 6 of 7
8. A decree, is accordingly passed in favour of plaintiff and against the
defendant:
(i) of recovery of possession of one floor (portion No.21) as
shown in red colour in the Site Plan Ex.PW1/7B, of property bearing
No. 836-837 (Old), 1230 (New), Ward No. X, Rakabganj, Near Delite
Cinema, Delhi; and
(ii) of recovery of mesne profits/damages for use and occupation
@ Rs.20,000/- per month from the date of institution of suit till
recovery of possession from the defendant.
9. However the decree for recovery of mesne profits/damages for use
and occupation shall be executable only on payment of requisite court fees
thereon.
10. The plaintiff is also awarded costs of suit. Counsels fee assessed at
Rs.15,000/-.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
MARCH 19, 2014.
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