Makisuddin & Anr vs Mohalla & Panchayat Ghar & Ors
2015 Latest Caselaw 7361 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                     Judgment pronounced on: 28th September, 2015

+                       CS (OS) No.887/2012

       MAKISUDDIN & ANR                                ..... Plaintiffs
                    Through       Mr.Rajendra Dutt, Adv.

                        versus

       MOHALLA & PANCHAYAT GHAR & ORS         ..... Defendants
                    Through Defendants are ex parte.

       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The plaintiffs, namely Makisuddin S/o Late Mohd.Hassan and Mehmood Hassan S/o Late Sh.Ali Hassan have filed the present suit for mandatory injunction against the defendants.

2. The plaintiffs claim that they are the owners of property No.K-7, measuring about 170 Sq. Yds., comprising of Khasra No.27/24 Min, situated in the area of Village Khureji Khas, Illaqa Shahdara, Delhi-110051 and in the Abadi of Old Govind Pura Extension, Delhi-110051 (hereinafter referred to as the "suit property").

3. The suit property has been shown in "RED" colour in the site plan which has been attached with the plaint. The copy of the site plan has been exhibited as Ex.PW-1/1 which is correct according to the spot.

4. The suit property has been lying unoccupied and the family of the plaintiffs had been using the same for their social functions and also for the functions of the residents of the locality.

5. Late Sh.Mohd.Hassan being elder member of the family of the plaintiffs used to deal with the suit property and allowed the residents of the vicinity to use the same for social functions from time to time.

6. S. Amrik Singh, who was President of the defendant No.1-society and was permitted to hold the functions of the defendant No.1-Society by Late Sh.Mohd.Hassan, father of plaintiff No.1 prior to his death and he was given the keys of the suit property by him. Sh.Mohd.Hassan father of plaintiff No.1 died in the year 2007 and S. Amrik Singh, President of the defendant No.1 society did not either returned the keys of the suit property or surrendered the possession of the suit property to Late Sh.Mohd.Hassan during his lifetime and even thereafter to the plaintiffs. Although the land underneath the suit property belonged to Late Sh.Gulam Ali, the grand-father of the plaintiffs and after his death, the same was inherited by Ali Hassan and Mohd.Hassan sons of Late Sh.Gulam Ali in equal shares and it was consumed in "abadi" and after the construction, the same was being used by Late Sh.Mohd.Hassan for social functions of the family and for the residents of the area. The copy of Khasra Girdawari of the suit property showing the same as "abadi" has been exhibited as Ex.PW-1/2.

7. Mohd.Hassan also died and he was survived by Makisuddin Wahid Hassan, Abid Hassan and Tahir Hassan (plaintiff No.1 and defendants No.2 to 4 herein). Defendants No.2 to 4 executed

Relinquishment Deed in respect of the suit property in favour of Makisuddin - plaintiff No.1 in respect of their shares in the suit property which they inherited as legal heirs. Certified Copy of the registered Relinquishment Deed dated 30th August, 2011 executed by defendants No.2 to 4 in favour of plaintiff No.1 has been exhibited as Ex.PW-1/3. The cash receipt regarding the registration of the above document has been exhibited as Ex.PW-1/4.

8. Sh.Ali Hassan died and he was survived by Mehmood Hassan, Manzoor Hassan, Shahid Ali, Noor Hassan and Zakir Hassan (plaintiff No.2 and defendants No.5 to 8 herein). Defendants No.5 to 8 executed Relinquishment Deed in respect of the suit property in favour of Mehmood Hassan - plaintiff No.2 in respect of their shares in the suit property. Certified Copy of the registered Relinquishment Deed dated 30th August, 2011 executed by defendants No.5 to 8 in favour of the plaintiff No.2 has been exhibited as Ex.PW-1/5.

9. As a consequence of the above Relinquishment Deeds in favour of the plaintiffs, the plaintiffs are the owners of the suit property. The suit property stands mutated in the names of the plaintiffs in the records of Municipal Corporation of Delhi and the plaintiffs have been paying property tax of the suit property to the Municipal Corporation of Delhi. The receipts of payments have been exhibited as Ex.PW-1/6 and Ex.PW-1/7.

10. The plaintiffs approached S. Amrik Singh, the then President of defendant No.1, who was allowed to use the suit property for functions and had taken the keys thereof, to return the keys and surrender the possession of the suit property but he told the

plaintiffs that there was a dispute between him and one Sh.S.S.Bhullar and the keys of the suit property were taken forcibly by him, which fact was not denied by Sh.S.S.Bhullar. The plaintiffs approached the defendant No.1-Society time and again to return the keys of the suit property so as to surrender the possession thereof to the plaintiffs to enable them to use the same but to no effect.

11. S.S.Bhullar and Mustakeen Khan, who claimed to be associated with defendant No.1 and also claimed to be the office bearers of the defendant No.1, have an evil eye over the suit property, despite fully knowing that they have no legal right, title or interest over the suit property or to retain the possession thereof as they were only permitted to use the property for social functions and the functions of defendant No.1-Society by Late Sh.Mohd.Hassan and they were under obligation to surrender back the possession thereof and to return the keys to Late Sh.Mohd.Hassan and after his death to the plaintiffs.

12. Defendants No.2 to 8 have filed the written statement wherein it was admitted that S.Amrik Singh for and on behalf of the defendant No.1 being the President thereof was permitted by Late Sh.Mohd.Hassan to hold the functions of defendant No.1-Society and he was given the keys of the suit property. After the death of Sh.Mohd.Hassan in the year 2007, the defendant No.1-Society through its President did not return the keys and/or surrender the possession of the suit property to Late Sh.Mohd.Hassan and even thereafter to the plaintiffs. It is admitted that Late Sh.Gulam Ali was

the owner and thereafter Mohd.Hassan and Ali Hassan had succeeded as owners thereof. Mohd.Hassan used to deal with the property being elder member of the family. Ali Hassan died and he was survived by plaintiff No.2 and defendants No.5 to 8. Thereafter, the defendants No.5 to 8 executed Relinquishment Deed in favour of plaintiff No.2. Mohd.Hassan also died and he was survived by plaintiff No.1 and defendants No.2 to 4. Defendants No.2 to 4 executed Relinquishment Deed in respect of the suit property in favour of the Makisuddin-plaintiff No.1. The defendants No.2 to 8 thus are left with no right, title or interest in the suit property and now, the same belonged to the plaintiffs, who are the owners of the suit property.

13. On 16th April, 2012, the following three issues were raised at the initial stage:-

(i) As per plaintiffs' own case, defendant No.1-Society was a licensee in the suit property and was also in exclusive possession and keys were delivered to defendant No.1 but instead of filing a suit for recovery of possession where court fees would be higher, plaintiffs have preferred suit for mandatory injunction.

(ii) As per plaintiffs' own case, the original owner of the suit property was Sh.Mohd.Hassan who died leaving behind several legal heirs, some of whom made relinquishment deeds but are not made parties to the suit.

(iii) As per plaintiffs' own case, defendant No.1 is the Society acting through its President. The only role ascribed to

defendants No.2 and 3 in the plaint is that they also claim themselves to be the office bearers of defendant No.1

14. The plaintiffs considering the second issue impleaded the LRs of Mohd.Hassan and Ali Hassan as proper parties and also dropped defendants No.2 & 3 the office bearers of defendant No.1-Society in view of third issue.

15. On the issue No.1, by order dated 2nd May, 2012, after considering the arguments of the plaintiffs, they were directed to pay ad-valorem Court fee and also to amend the plaint appropriately as regards valuation and Court fee clause. Accordingly the plaintiffs amended the plaint by deleting the names of defendants No.2 and 3; impleading the LRs of deceased Mohd. Hassan and Ali Hassan as defendants No.2 to 8. The Court fee was also paid.

16. The defendant No.1-Society did not appear despite service. The defendants No.2 to 8 filed their written statement admitting the claim of the plaintiffs. Thereafter, they also chose not to appear in the matter. All the defendants were accordingly proceeded ex parte by order dated 24 th February, 2014 and the plaintiffs were directed to adduce the ex parte evidence by way of affidavit.

17. The plaintiffs filed evidence by way of affidavit of Makisuddin - plaintiff No.1 as PW-1, who in support of the case of the plaintiffs deposed that the plaintiffs are the owners of the suit property. He also proved the copy of the site plan of the suit property as Ex.PW- 1/1 being correct and according to the spot where the suit property was shown in "RED" colour.

18. PW-1 further deposed that due to the death of Late Sh.Mohd.Hassan, the intention of the aforesaid persons associated

with defendant No.1-Society has gone malafide and they do not want to surrender the vacant possession of the suit property and they are also not returning the keys of the same. He also deposed that the said office bearers of defendant No.1-society (initially impleaded as defendants No.2 & 3) were dropped from array of the defendants vide order dated 2 nd May, 2012 and the legal heirs of Late Sh.Mohd. Hassan were impleaded as parties. He states that the defendant No.1-Society or its office bearers have no legal right to retain the possession or the keys of the suit property and they are under legal obligation to return the same to the plaintiffs who are successors-in- title of the suit property. The defendant No.1 failed to give the keys and surrender the possession of the suit property despite the fact that they were given keys of the suit property and/or were permitted to only use the property for social functions. The defendant No.1- society, as such, is a licensee of the property in suit and they are occupying the same and retaining the possession thereof even after the revoking of the licence vide notice dated 3 rd January, 2012. Copy of the said notice has been proved as Ex.PW-1/8 and the postal receipts regarding the service of the notice has been proved as Ex.PW-1/9 to Ex.PW-1/11 while A.D. Cards has been proved as Ex.PW-1/12 to Ex.PW-1/13.

19. It has also come on record that after the receipt of the notice dated 3rd January, 2012, a reply was received on behalf of Sh.S.S.Bhullar and Sh.Mustakeen Khan, who claimed that the suit property has been in the exclusive occupation and possession of the said "Samiti" as absolute owner vis-a-vis the social function of the

residents of the locality. S.Amrik Singh, the then President of defendant No.1-Society also gave reply taking a false stand of donation and thus refused to surrender the vacant possession of the suit property. The defendant No.1 and its officials with malafide intention want to usurp the suit property belonging to the plaintiffs illegally and have failed to return the keys of the suit property and surrender the possession thereof to them. In reply, they made false and frivolous claim which fact shows that their intention are malafide, hence the suit is filed to get relief.

20. It is the case of the plaintiffs that defendant No.1 thus being a licensee of the suit property and its licence also has been revoked, they are under legal obligations to restore the possession back and return the keys of the suit property to the plaintiffs.

21. In view of the above, the suit of the plaintiffs is accordingly decreed. The defendant No.1 Society is directed to surrender the keys and possession to the plaintiffs in respect of the suit property bearing No.K-7, measuring about 170 sq. yds. comprising of Khasra No.27/24 Min, situated in the area of Village Khureji Khas, Illaqa Shahdara, Delhi-110051 and in the abadi of Old Govind Pura Extension, Delhi - 110051 as shown in red colour in the site plan. The plaintiffs are also entitled for costs. A decree be drawn accordingly.

(MANMOHAN SINGH) JUDGE SEPTEMBER 28, 2015