Durgesh Saini vs Premwati Saini And Ors.
2018 Latest Caselaw 7236 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 48/2017

%                                                  7th December, 2018

DURGESH SAINI                                            ..... Appellant
                          Through:       Ms. Navneet Sharma, Mr. Kapil
                                         Kumar     and   Mr.   Rahul,
                                         Advocates     (Mobile    No.
                                         9868546432)

                          versus

PREMWATI SAINI AND ORS.                               ..... Respondents

                          Through:       Mr. B.S. Chowdhary and Ms.
                                         Snehlata Rana, Advocates
                                         (Mobile No. 9810072300).

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

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) was called out in the morning for the

first time when on behalf of the respondent nos. 1 and 2/defendant

nos. 1 and 2, a pass over was sought. Again, on the second call, a pass

over was sought by stating that the counsel is just coming. On the

third call, again it was stated that counsel is just coming and he is in

the „parking‟, and therefore, this Court refused to give a further pass

over and consequently the Ld. counsel for the appellant/plaintiff

started arguing the matter. At this stage, suddenly one counsel

appears for respondent nos. 1 and 2/defendant nos. 1 and 2 and she

again stated that the main counsel for respondent nos. 1 and

2/defendant nos. 1 and 2 is in the „parking‟ and he would be coming.

The matter was argued by the Ld. counsel for the appellant/plaintiff

for about 10 to 15 minutes, but in this period the counsel for the

respondent nos. 1 and 2/defendant nos. 1 and 2 had not come from

„parking‟. This Court is therefore proceeding to pronounce the

judgment in the present case. During the course of dictation of the

judgment, the Ld. counsel for respondent nos. 1 and 2/defendant nos.

1 and 2 appeared and thus he was heard with respect to the case of the

respondent nos. 1 and 2/defendant nos. 1 and 2.

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

the subject suit pleading that she was the owner of the suit property

along with the respondents/defendants. The suit property is property

bearing no. M-30/B-23/2N, Baljeet Nagar, Near West Patel Nagar,

Railway Station, New Delhi, admeasuring 85 sq. yards. The suit

property consists of three rooms, chowk, one shop, two kitchens and

two bathrooms. The appellant/plaintiff is pleaded to have purchased

the suit property in terms of the Documentation dated 15.10.1986 from

the erstwhile owner Sh. Ram Pal. The Documents dated 15.10.1986

are the agreement to sell, affidavit and a receipt which was duly

registered before the Sub-Registrar showing payment by the

appellant/plaintiff along with respondent no. 3/defendant no. 3 of a

sum of Rs. 32,000/- to the erstwhile owner Sh. Ram Pal. There is also

a General Power of Attorney executed by Sh. Ram Pal in favour of the

appellant/plaintiff and the respondent no. 3/defendant no. 3. In the

suit, it was pleaded that defendant nos. 1 and 2 are the Dewar and

Dewrani of the plaintiff, i.e. the brother of the plaintiff‟s husband and

the wife of the brother of the husband of the plaintiff, and who were

permitted to live in the suit property as licensees, but since the

respondent nos. 1 and 2/defendant nos. 1 and 2 failed to vacate the suit

property, the subject suit for possession and mesne profits was filed

after the appellant/plaintiff made a complaint to the police on

16.12.2010 as the respondent nos. 1 and 2/defendant nos. 1 and 2 were

illegally demolishing the suit property.

3. On behalf of the respondent nos. 1 and 2/defendant nos. 1

and 2, by filing written statement, suit was contested and prayed to be

dismissed. It was pleaded that the respondent nos. 1 and 2/defendant

nos. 1 and 2 were never inducted as licensees in the year 2000. It was

also the case of the respondent nos. 1 and 2/defendant nos. 1 and 2 that

both of them were the co-owners of the suit property by virtue of a

family settlement.

4. After the pleadings were complete, the trial court framed

the following issues:-

"Issue no.1: Whether the plaintiff is entitled for decree of possession regarding the suit property as prayed for? OPP

Issue no. 2: Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP

Issue no. 3: Whether the plaintiff is entitled for mandatory injunction as prayed for? OPP

Issue no. 4: Whether the plaintiff is entitled for mesne profits and future interest till recovery of possession? OPP

Issue no. 5: Relief."

5. Evidence was led by the parties and the same has been

recorded in paras 9-12 of the impugned judgment, and these paras read

as under:-

"9. The plaintiff to prove her case examined herself as PW-1 and filed her evidence by way of affidavit Ex. PW1/A and deposed in terms of the plaint and relied upon the documents Ex. PW1/1 to Ex. PW1/13. The plaintiff also examined PW-2 ASI Virender Singh regarding the complaint dated 16.12.2010.

10. The defendant no.1 examined herself as DW-1 and filed her evidence by way of affidavit Ex. DW1/A and deposed in terms of the written statement and relied upon the documents Ex. DW1/1 to Ex. DW1/10.

11. The defendants examined DW-2 Sh. Rohtas Saini who filed his evidence by way of affidavit Ex. DW2/A and deposed in terms of the written statement.

12. The defendants also examined DW­3 Sh. Ravinder Kumar Diwedi."

6. The relevant issue to be decided was Issue no. 1 as to

whether the appellant/plaintiff was entitled to possession of the suit

property. This issue will include the issue as to whether the

appellant/plaintiff has proved her title to the suit property thereby

entitling her to possession of the suit property and mesne profits. In

this issue, the defence of the respondent nos. 1 and 2/defendant nos. 1

and 2 will also be included that they had become owners of the suit

property by virtue of a family settlement. Evidence of the respondent

nos. 1 and 2/defendant nos. 1 and 2 has also been led as to them being

in possession of the suit property much prior to the alleged year of

creating license in the year 2000, as was the case of the

appellant/plaintiff in the plaint.

7. The Documentation dated 15.10.1986 have be proved and

exhibited by the appellant/plaintiff as Ex. PW1/1 to Ex.PW1/4. The

receipt of making payment of Rs. 32,000/- to the erstwhile owner Sh.

Ram Pal has been proved and exhibited as Ex.PW1/4. Since this

receipt/document is a document which is duly registered before the

Sub-Registrar, obviously, this document cannot be forged and

fabricated with respect to its creation on any other date. In my

opinion, therefore, in terms of the documentation/Ex.PW1/1 to PW1/4,

the appellant/plaintiff along with respondent no. 3/defendant no. 3 had

become co-owners of the suit property.

8. Trial court has wrongly and illegally discarded the

documents/Ex.PW1/1 to Ex.PW1/4 by observing that appellant/

plaintiff has only filed photocopies of the documents, as this

conclusion of the trial court is erroneous for two reasons. Firstly,

counsel for the appellant/plaintiff has rightly pointed out that after

filing the original documents, the appellant/plaintiff moved an

application for taking back the original documents by filing certified

copies, vide Application dated 19.03.2013, and this application was

allowed vide Order dated 05.09.2013 passed in the suit allowing

original documents to be returned on the filing of certified copies of

the same. It is these certified copies which were filed and proved and

exhibited as Ex.PW1/1 to Ex.PW1/4. The second reason for rejecting

the conclusion of the trial court that the documents Ex.PW1/1 to

Ex.PW1/4 cannot be held to be proved as they are only photocopies, is

for the reason that before a document is argued for not having been

proved in evidence on account of the same being only a photocopy,

this objection has to be raised before the commencement of the cross-

examination of the witness who has proved the photocopies of the

documents because if this objection is taken, then the examination-in-

chief will not be concluded and the requisite original documents will

be filed to overcome the objection of non-filing of the original

documents. Once no objection is raised to the exhibition of the

documents before commencement of cross-examination of the

witness, then in such a case any objection to the exhibition of

documents is waived in view of the judgment of the Hon'ble Supreme

Court in the case of R.V.E. Venkatachala Gounder v. Arulmigu

Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC 752.

Since the respondent nos. 1 and 2/defendant nos. 1 and 2 never

objected before commencement of cross-examination of

appellant/plaintiff/PW1 of exhibition of the photocopies of the

documents/Ex.PW1/1 to Ex.PW1/4, the respondent nos. 1 and

2/defendant nos. 1 and 2 are held to have waived their rights for

exhibition of the documents, and in any case, as already stated above,

originals were filed and were taken back with certified copies being

filed, and which were proved as Ex.PW1/1 to Ex.PW1/4.

9. On behalf of respondent nos. 1 and 2/defendant nos. 1

and 2, evidence has been led to show that they were in possession of

the suit property much earlier than the alleged year of creation of

license in their favour in the year 2000 by the appellant/plaintiff, and

the respondent nos. 1 and 2/defendant nos. 1 and 2 had also filed

documents to show existence of electricity and water connections in

their names. They have also filed on record the rent agreement of the

year 2008 by which they had let out the property to a tenant in order to

show that they had acted as the owners of the suit property. The

documents which have been exhibited and proved on behalf of the

respondents/defendants are as under:-

"1. Copy of the Election I-Card is Ex.DW1/1 in affidavit is Mark A.

2. Copy of Ration Card is Ex.DW1/2 (OSR).

3. Copy of old Ration Card is Ex.DW1/3 in affidavit is now Mark B.

4. Copy of the receipt of Delhi Vidyut Board is Ex.DW1/4 (OSR).

5. Copy of electricity bill is Ex.DW1/5 in affidavit is now Mark C.

6. Copy of acknowledgement receipt dated 30.06.99 is Ex.DW1/6.

7. Copy of the rent agreement is Ex.DW1/7 (OSR).

8. Copy of the tenant verification (2 pages) is Ex.DW1/8. (OSR)

9. Copy of the death certificate is Ex.DW1/9 (OSR)

10. Copy of the cremation slip is Ex.DW1/10 (OSR)."

10. In my opinion, the trial court has wrongly concluded that

it cannot be held that the appellant/plaintiff is the owner of the suit

property simply because appellant/plaintiff had no idea of the property

or its neighborhood. Trial court has in this regard erred because

ownership of a property is by documents and this ownership is not lost

by not knowing the details of the property. Trial court has also

wrongly held that the appellant/plaintiff has filed no documents to

prove the relationship of licensor and licensee inasmuch as the concept

and the relationship of the licensor and licensee is misunderstood

because licensee only means any person who is in permissive

possession of a property, without having title thereto, and once an

owner files a suit as a plaintiff, the defendant who is pleaded to be a

licensee, cannot claim to continue in possession of the suit property,

merely because the licensor and licensee relationship is not proved,

once it is a proved position on record that the defendant/licensee in the

suit has not been able to prove any title to continue in possession of

the suit property. I, therefore, hold that the trial court has erred in

holding that the appellant/plaintiff is not the owner although the

appellant/plaintiff proved her ownership of the suit property along

with respondent no. 3/defendant no. 3 vide documents Ex.PW1/1 to

Ex.PW1/4.

11. The fact that the respondent nos. 1 and 2/defendant nos. 1

and 2 have proved their long possession of the suit property, will not

in any manner help the respondent nos. 1 and 2/defendant nos. 1 and 2

in claiming ownership of the property because long possession is not

ownership. A person may remain in possession of the property for

dozens of years, but unless a person becomes an owner, whether by

adverse possession and which is not pleaded in this case, or by

becoming owner by virtue of a family settlement, as pleaded in this

case but which is also not proved in this case, in such a situation, the

respondent nos. 1 and 2/defendant nos. 1 and 2 cannot remain in

possession of the suit property. So far as the case of the respondent

nos. 1 and 2/defendant nos. 1 and 2 of ownership because of a family

settlement is concerned, it is seen that the said claim/defence cannot

be accepted for various reasons. Firstly, the written statement of

respondent nos. 1 and 2/defendant nos. 1 and 2 only makes a bland

averment of ownership by a family settlement, without in any manner

pleading which month and in which year was the family settlement

entered into. Also and admittedly, there is no document showing any

existence of or entering into of any alleged oral family settlement, as

entered into, whereby respondent nos. 1 and 2/defendant nos. 1 and 2

are said to have become owners of the suit property. By self-serving

statements of an oral family settlement, this Court cannot divest the

ownership of a valuable immovable property which an owner such as

the appellant/plaintiff has of the suit property in terms of the proved

documents exhibited as Ex.PW1/1 to Ex.PW1/4. I, therefore, reject

the case of the respondent nos. 1 and 2/defendant nos. 1 and 2 that

they have become owners by virtue of a family settlement.

12. Though, the counsel for respondent nos. 1 and

2/defendant nos. 1 and 2 argued that since the appellant/plaintiff is

only the owner of half share of the property, thus the

appellant/plaintiff cannot get possession of the full property, however,

this argument is misconceived because it is settled law that any one

co-owner can seek possession of the entire property and unless it is

shown that there is objection of the other co-owner to the plaintiff co-

owner who has filed the suit for possession of the entire property, the

suit for possession will have to be decreed for the entire suit property.

13. On the aspect of mesne profits, I may note that the

appellant/plaintiff has led no evidence of the rate of mesne profits to

be awarded at Rs. 8,000/- per month as claimed. The Ld. counsel for

appellant/plaintiff is however justified in placing reliance upon the

rent agreement Ex. DW1/7, filed by the respondent nos. 1 and

2/defendant nos. 1 and 2 which shows that the respondent

no.1/defendant no. 1 had let out the suit property to one Sh. Arun

Kumar for rent of Rs. 1400/- per month as on 30.01.2008. Therefore,

as on 30.01.2008, we can take the rent of the property at Rs. 1400/-

per month for determining the rate of mesne profits. Accordingly, so

far as the relief claimed for mesne profits is concerned, the same is

decreed at Rs. 1400/- per month from three years prior to filing of the

suit, and this rate of mesne profits will also continue pendente lite and

future till the respondent nos. 1 and 2/ defendant nos. 1 and 2 hand

over the possession of the suit property to the appellant/plaintiff. The

appellant/plaintiff, in accordance with Section 2(12) CPC, will also be

entitled to interest at 6% per annum simple on the amount of mesne

profits with the interest being payable from the end of the month from

which mense profits are payable by the respondent nos. 1 and

2/defendant nos. 1 and 2 to the appellant/plaintiff under the present

judgment and decree.

14. In view of the aforesaid discussion, this appeal is

therefore allowed. The suit of the appellant/plaintiff is decreed in her

favour for possession and mesne profits as stated in the para above and

against the respondent nos. 1 and 2/defendant nos. 1 and 2 with

respect to the suit property being M-30/B-23/2N, Baljeet Nagar, Near

West Patel Nagar, Railway Station, New Delhi, admeasuring 85 sq.

yards.

DECEMBER 07, 2018                           VALMIKI J. MEHTA, J
AK