Prem Anand vs Smt. Santosh Alias Bawa Alias ...
2017 Latest Caselaw 4701 Del

$~
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CS(OS) 522/2016 & I.As. 15981/2013 & 15244/2016

       PREM ANAND                          ..... Plaintiff
                         Through:     Ms.Sucharita Ghosh, Advocate.

                         versus

       SMT. SANTOSH alias BAWA alias
       RADHEY MA                     ..... Defendant
                     Through: None


%                          Date of Decision: 4th September, 2017

CORAM:
HON'BLE MR. JUSTICE MANMOHAN
                          JUDGMENT

MANMOHAN, J: (Oral)

1. Today Ms.Padma Priya, Advocate enters appearance through the Delhi High Court Legal Services Committee.

2. However, a perusal of the paper book reveals that the defendant had been proceeded ex parte vide order dated 10th March, 2017 and till date, no application has been filed for recall of the said order. Even today, no vakalatnama has been executed by the defendant in favour of Ms.Padma Priya, Advocate.

3. On 01st September, 2017, this Court had heard the arguments and reserved orders. Consequently, the Court has no other option but to proceed ahead with the matter.

4. It is pertinent to mention that the present suit has been filed for recovery of possession, rendition of accounts and injunction with respect to property situated at Plot No. A4/65, 66, 67, 68, Khasra No. 878, in Shanti Park Area of village Nawada, Delhi admeasuring 800 sq. yards of area (hereinafter referred to as 'suit property'). The prayer clause of the present suit is reproduced herein below:

"I. That a decree for recovery of the possession in respect of the property bearing Plot no. A-67, 66, 67, 68, area measuring 800 sq. yards out of Khasra No. 878, in Shanti Park area of Village Nawada, Delhi State, for which he original title paper document in respect of the abovesaid properties are in the custody of the defendant, be passed in favour of the plaintiff and against the defendant and she be directed to hand over the vacant and peaceful possession of the same to the plaintiff alongwith the title documents.

II. A decree for Rendition of Accounts may also be passed in favour of the plaintiff and against the defendant thereby directing the defendant, her authorized representative etc. to render the accounts of the rents and other benefits realized by her from various tenants/ occupants of the abovesaid properties, since after the construction of the properties on the aforesaid land till dater and on furnishing such accounts, a decree for the recovery of the amount so found due and payable to the plaintiff on rendition of the accounts by the defendant, be passed in favour of the plaintiff and against the defendant for the same alongwith the interest at the rate of 18% per annum thereon. The plaintiff undertakes to pay the requisite court fee on the amount so decreed by this Hon'ble Court.

III. A decree for permanent injunction be passed in favour of the plaintiff and against the defendant thereby

restraining the defendant, her agents and representatives, family members, associates, attorneys, etc. from selling, transferring, alienating, disposing off or creating any third party interest and delivering the possession etc. of the suit properties mentioned above or any part thereof to any body else, in any manner whatsoever till the final disposal of the suit.

IV. Cost of the suit be also awarded to the plaintiff and against the defendant.

V. Any other and further relief deemed fit and proper in the circumstances of the case may also be passed in favour of the plaintiff and against the defendant."

5. Learned counsel for the plaintiff at the very outset had stated that she wished to press prayers I, III and IV of the plaint only. She specifically gave up prayer II of the plaint.

6. The present suit was initially filed by the plaintiff under Order 33 CPC seeking permission to sue as an indigent person. Notice was issued to the defendant on 11th December, 2013 pursuant to which she appeared and filed a reply to the application. Thereafter, the defendant examined the plaintiff but did not file any list of witnesses.

7. Vide order dated 08th July, 2016, the plaintiff's application seeking permission to sue as an indigent person was allowed and the suit was registered as an ordinary suit. The relevant portion of the aforesaid order is reproduced hereunder:

"I.P.A. 57/2013 PREM ANAND ....Plaintiff Through In person.

                                versus



        SANTOSH @ BAWA @ RADHEY MA            .... Defendant
                        Through Mr. Sanjay Sawhney, Adv
       CORAM:
       HON'BLE MR. JUSTICE VIBHU BAKHRU
                           ORDER
                           08.07.2016
       IA No. 15982/2013

The Plaintiff has filed this application under Order 33 Rule 1 CPC seeking permission to sue as an indigent person. The Joint Registrar has submitted a report which indicates that the plaintiff does not have any sufficient means to pay the Court Fees and should be permitted to sue as an indigent person. The defendant has no objection to the said report.

The abovementioned report is accepted. Accordingly, it is directed that the petitioner shall pursue the matter without payment of Court Fees.

The application stands disposed of"

8. Thereafter on the following date, i.e., 18th October, 2016, the defendant did not appear pursuant to which the plaintiff filed an application under Order VIII Rule 10 CPC. Though the defendant thereafter appeared on the next date of hearing, i.e., 8th December, 2016, yet she chose not to file a written statement. Since the defendant did not appear subsequently, she was proceeded ex parte vide order dated 10th March, 2017. During the course of the hearing, learned counsel for the plaintiff stated that though a Sewadar did appear on behalf of the defendant on the said date, yet his appearance was not recorded but he was duly apprised of the order.

9. The relevant facts of the present case are that Late Mahant Jagdish Anand Jee, the father of the plaintiff, acquired the aforesaid suit property in his name and in the name of one Shrimati Behn Usha

Devi Jee, by virtue of a registered Sale Deed dated 8th February, 1972 for a total consideration of Rs. 5000/-.

10. It is stated in the plaint that after the purchase of the suit property, the abovementioned purchasers became the joint owners of the said property having equal shares. It is the case of the plaintiff that the father of the plaintiff had allowed Behn Usha Devi Jee, a spinster who had renounced the world and devoted herself to spiritualism, to stay in the property till her lifetime and thereafter hand over the same to him or his legal heirs.

11. It is further stated in the plaint that Shri Mahant Jagdish Anand Jee who expired on 5th January 1989 had executed a Will dated 15th February 1988 whereby he had bequeathed all his properties including the suit property in the name of the plaintiff.

12. It is also stated in the plaint that Shrimati Behn Usha Devi Jee expired in 2005 leaving behind no legal heirs.

13. It is averred in the plaint that after the death of Shrimati Behn Usha Devi Jee, the property remained vacant till 2008. In the meantime, the plaintiff tried to raise funds to build on the property. However, in 2010 the plaintiff received a call from the defendant and her associates who threatened him to release the suit property and hand over the title deeds of the same or else face dire consequences.

14. It is further stated in the plaint that following the aforementioned threat made by the defendant, the plaintiff went to the suit property to find that the defendant had taken forcible possession of the suit property, constructed a building on some portion of the property and had started running a Mandir therein. It is alleged that

the defendant had also given on rent a portion of the said property to some trust without the knowledge, permission and consent of the plaintiff and was realising the benefits therefrom.

15. It is stated in the plaint that despite repeated demands of the plaintiff, the defendant refused to hand over possession of the suit property, render accounts of the rental income derived from the tenants and occupants and pay the said amount to the plaintiff. Instead the defendant threatened to sell the suit property without the consent, knowledge and permission of the plaintiff. It is therefore stated in the plaint that the plaintiff was left with no alternative but to serve the defendant with a legal notice dated 31 st December 2012. The copy of the legal notice and postal envelope is Ex.PW1/7 (colly.).

16. The plaintiff in his ex parte evidence by way of affidavit stated that the plaintiff being the sole legal heir of late Mahant Jagdhish Anand Jee is entitled to the entire share of the suit property. In support of the contention, the plaintiff proved the registered Sale Deed dated 8th February, 1972 as Ex.PW1/4.

17. The plaintiff further stated in his evidence that the registered Sale Deed did not bear the signature of Shrimati Behn Usha Devi Jee as she had renounced the world and that her name was included in the Sale Deed by the plaintiff's late father on account of his gratitude towards her. The plaintiff reiterated that his late father had allowed Shrimati Behn Usha Devi Jee to stay in the property during her lifetime and thereafter the property in question was to revert to the legal heirs of late Mahant Jagdish Anand Jee.

18. The plaintiff in his ex parte evidence proved the original Will of the plaintiff's late father dated 15th February 1988 as Ex.PW1/3 and the original Death Certificate of the plaintiff's late father as Ex.PW1/2.

19. Plaintiff in his ex parte evidence by way of affidavit stated that the defendant is a trespasser who had illegally constructed a building on the portion of the suit property and was realising rents and benefits from the suit property without the permission of the plaintiff.

20. Moreover, as the averments in the plaint have not been rebutted by the defendants nor did the defendants bother to put forth their stand, they are deemed to have been admitted.

21. Keeping in view the aforesaid pleadings and evidence on record, the suit is decreed in terms of prayers I, III and IV of the prayer clause along with the actual costs. All pending applications stand disposed of. Registry is directed to prepare a decree sheet accordingly.

MANMOHAN, J SEPTEMBER 04, 2017 rn/m