Delhi High Court
Rekha Yadav vs Shyama on 30 May, 2017
$~69
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision:30th May, 2017
+ RFA 880/2016
REKHA YADAV ...... Appellant
Through: Mr. Sugriva Dubey, Advocate
versus
SHYAMA ..... Respondent
Through: Mr. D. D. Pandey, Adv.
SI Ravinder Chander, P.S.
Jafrabad
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
J U D G M E N T (ORAL)
1. The appellant has challenged the judgment and decree for
possession and mesne profits passed by the learned Trial Court.
2. The respondent instituted a suit for recovery of possession and
mesne profits against the appellant on the averments that she is the
owner of property bearing No.V-1688, V-Block, Gali No.4, Vijay
Park, Maujpur, Delhi-110053, the appellant is respondent's niece
(sister's daughter); the respondent allowed the appellant to live in one
room, kitchen and common use of latrine and bathroom of the
aforesaid premises on licence basis about 15 years ago; with the
passage of time, the intention of the appellant became bad; the
appellant started harassing and humiliating the respondent to grab her
property; in June 2013, the respondent requested the appellant to
vacate the suit property, whereupon the appellant instituted a frivolous
suit for injunction claiming herself to be a tenant in the suit property at
a monthly rent of Rs.800/-; the respondent terminated the appellant's
licence vide notices dated 26th July, 2013 and 13th September, 2013
and thereafter, instituted the suit for recovery of possession and mense
profits.
3. The appellant contested the suit by claiming herself to be a
tenant on monthly rent of Rs.800/- per month w.e.f. June 2013. Para 2
of the written statement of the appellant is reproduced hereunder:-
"2. That the contents of para No.2 of the plaint are admitted
to the extent that the defendant is the daughter of the sister of
the plaintiff, but it is denied that she being the niece, the
plaintiff had allowed and permitted the defendant about 15
years back to live in one room, kitchen and common use of
latrine and bath out of the said property bearing No.V-1688, V-
Block, Gali No.4, Vijay Park, Maujpur, Delhi-110053 purely
on license basis and after taking the suit property form the
plaintiff, the defendant started residing therein along with her
family members purely on licensee basis, having no
relationship of landlord and tenant between the parties or it
may be stated here that at no point of time any rent or any
other charges were ever paid by the defendant to the plaintiff
nor the same were taken by the plaintiff from the defendant or
the plaintiff is a widow and has no child and she has been
treating the defendant as her own daughter and has been
helping her and her family members from time to time even
during the period when she was financially not well or that the
suit property was given to the defendant to reside over there as
she had not accommodation with her to live therein and the
defendant as such, has got no right, title or interest in the suit
property except that she is the licensee of the plaintiff. In reply,
it is submitted that the tenancy was oral and there is no Rent
Agreement had ever been executed between the plaintiff and
the defendant at any point of time. It is pertinent to mention
here that the plaintiff is real Mausi in relation of the defendant.
It is further pertinent to mention here that the defendant has
paid the rent upto the month of June-2013 in cash to the
plaintiff. The plaintiff despite repeated requests and demands
has not issued the rent receipts to the defendant with the
malafide intention and ulterior motives, since the inception of
the tenancy. That the defendant is paying the rent regularly and
has paid the rent upto June-2013 to the plaintiff in cash on
03.06.2013 and at the time of receiving the rent on 03.06.2013,
the plaintiff directed the defendant to vacate the tenanted
premises within 15 days for giving the said room to other
person on higher rent."
(Emphasis supplied)
4. The learned Trial Court held the appellant to be a licensee
whose licence has been validly terminated vide notices Ex.PW1/3 and
PW1/4. The learned Trial Court passed a decree for possession and
mesne profits @ Rs.3,000/- per month w.e.f. 11th August, 2013.
5. The appellant has challenged the impugned judgment and
decree on various grounds inter alia that appellant is the adopted
daughter of the respondent; the respondent and her husband adopted
the appellant when she was two months old; the appellant is in
possession as owner being the adopted daughter of the respondent;
the respondent sold the subject property to Pramod Kumar Yadav and
Umesh Kumar Yadav on 21st October, 2014 and the respondent has no
right, title or interest in the subject property.
6. Learned counsel for the respondent submits that the respondent
is a widow aged about 75 years and she is staying alone in one room
in the suit property. The respondent has no child of her own. The
appellant as well as her husband have abused the respondent,
threatened her and made her life miserable. It is further submitted that
the appellant had filed a false criminal case against the witness who
appeared on her behalf before the Trial Court. The respondent further
submitted that she intends to bequeath the suit property in favour of
the charitable organization.
7. In the written statement as well as the evidence led by the
appellant before the Trial Court the only defence taken by the
appellant was that she is the niece (sister's daughter) of the respondent
and is a tenant at a monthly rent of Rs.800/- per month which has been
paid upto 13th June, 2013. Surprisingly, the appellant has not raised
the defence set up by her before the Trial Court and has raised the
grounds in the appeal which were never urged by the appellant before
the Trial Court. Some of the grounds of appeal taken by the appellant
are reproduced as under :-
"I. Because the appellant is the adopted daughter of
respondent as the respondent and her husband adopted the
appellant when the age of the appellant was only two months
old and it was a legal adoption and the property was built up
in the name of the respondent with the earnings of her husband
and also with the contribution of the father of the appellant
and hence the respondent is not the absolute owner of the
property in question and cannot deprive the legal right of co-
owner in the property.
II. Because the respondent has gifted the property in
question to Sh. Pramod Kumar Yadav and Umesh Kumar
Yadav on 21.10.2014 and thereafter the respondent has not
right, title or interest in the property.
III. Because the respondent has gifted her property of her
share only and the appellant continues to be in possession in
her share as the property was acquired by the husband of the
respondent and adopted father of appellant.
IV. Because even the General Power of attorney has been
executed in favour of Sh. Umesh Kumar Yadav and Pramod
Kumar Yadav and in the said Attorney it has been
categorically stated that the respondent will have no right, title
or interest in the property and all the benefits will be going in
favour of Pramod Kumar Yadav and Umesh Kumar Yadav.
xxx xxx xxx
VIII. Because the husband of the appellant throughout his
married life has been paying in his earning in the hand of
respondent who never clarified that the appellant is not the
daughter of the respondent but a suit for possession was filed
by the respondent without having any right, title or interest in
favour of the respondent and hence the present appeal."
8. There is no merit in this appeal which is hereby dismissed with
cost of Rs.25,000/- to be paid by the appellant to the respondent before
the learned Trial Court on 15th July, 2017.
9. This Court is of the view that the appellant has raised a false
claim before this Court which is an offence under Section 209 of the
Indian Penal Code. Show cause notice is hereby issued to the
appellant to show cause as to why a complaint be not made against her
under Section 340 Cr.P.C for raising a false claim before this Court
under Section 209 IPC.
10. The appellant present in Court accepts notice. Let the reply to
the show cause notice be filed within four weeks.
11. The appellant has handed over the possession of the suit
property to the respondent on 27th May, 2017 in terms of the order
dated 27th April, 2017. With respect to the decree for mesne profits,
learned counsel for the appellant submits that the appellant has no
means to satisfy the decree for mesne profits.
12. Learned counsel for the respondent submits that the respondent
has filed the execution which is listed before the Trial Court on 15th
July, 2017. The appellant is directed to file the affidavit of her assets,
income and expenditure as on the date of the filing of the suit as well
as on the date of filing of the affidavit in the format attached as
Annexure-A in order dated 27th March, 2017 W.P.(C) 8092/2016,
Santosh Kumar Jha v. The Deputy Labour Commissioner (South)
along with the documents mentioned therein before the Trial Court on
15th July, 2017.
13. Copy of this judgment be given dasti to counsel for the parties
under the signature of the Court Master.
MAY 30, 2017 J.R. MIDHA, J.
dk
