Sushma Kumari vs Girijesh Gupta & Anr.
2018 Latest Caselaw 746 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 777/2017

%                                                    1st February, 2018

SUSHMA KUMARI                                          ..... Appellant
                          Through:        Mr. Raman Gandhi, Advocate.

                          versus

GIRIJESH GUPTA & ANR.                                  ..... Respondents

                   Through:               Mr. Prashant Diwan and Mr.
                                          Brijesh Diwedi, Advocate for
                                          R-1.

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

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

RFA No. 777/2017 and C.M. Appl. No. 33032/2017 (for stay)

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

of Civil Procedure, 1908 (CPC) is filed by the daughter-in-

law/defendant no. 1 impugning the judgment of the trial court dated

22.7.2017 whereby the trial court has decreed the suit filed by the

mother-in-law/respondent no.1/plaintiff and has passed a decree for

possession with respect to the third floor of the property bearing no.

WZ-3335, Mahendra Park, Near Rani Bagh, Delhi-110034.

Appellant/defendant no. 1 has also been injuncted from handing over

the suit property being the third floor to anybody else.

2. The facts of the case are that respondent no. 1/plaintiff, a

widow, filed the subject suit pleading that she was the owner of the

suit property being the third floor of WZ-3335, Mahendra Park, Near

Rani Bagh, Delhi-110034, in terms of a registered sale deed dated

16.9.2013. The second floor of the property WZ-3335 was also

purchased by the respondent no.1/plaintiff in terms of registered sale

deeds dated 30.4.2008 and 5.10.2016. Respondent no. 1/plaintiff

pleaded that she had two sons and the appellant/defendant no.1 was

the wife of one son being the defendant no. 3 in the suit, namely Sh.

Gagan Gupta i.e Sh. Gagan Gupta was the husband of

appellant/defendant no. 1 and the son of respondent no.1/plaintiff. In

the plaint it is further pleaded that after marriage the

appellant/defendant no.1 stayed in the second floor of the premises up

to 15.2.2014 and thereafter left on 16.2.2014 to stay with her parents

and she lived at her parental home till 3.6.2015. Appellant/defendant

no.1 is stated to have filed false complaint in the Crime Against

Women (CAW) Cell. Appellant/defendant no.1 is pleaded to have

illegally entered into the possession of the suit property and with

respect to which respondent no.1/plaintiff pleads that various police

complaints were made. Respondent no.1/plaintiff pleaded that since

she is the absolute owner of the suit property on 4.6.2015 and

appellant/defendant no. 1 was in illegal possession of the same as she

forcibly occupied the suit property being the third floor, therefore the

suit for possession and injunction was prayed to be decreed in favour

of the respondent no.1/plaintiff and as against the appellant/defendant

no. 1.

3. Defendant no.2 in the suit is the real mother of the

appellant/defendant no.1. They filed a joint written statement. It was

denied that appellant/defendant no.1 had trespassed into third floor

being the suit property and it was pleaded that actually the third floor

being the suit property was purchased from the money which the

respondent no.1/plaintiff received from the parents of the

appellant/defendant no.1 prior to the marriage. It was pleaded that

respondent no.1/plaintiff took Rs.5,00,000/- from the parents of the

appellant/defendant no.1. It was also pleaded that appellant/defendant

no. 1 did not stay in her parents' house till 3.6.2015 but she had in fact

come to her "matrimonial home" being the third floor of the property

on 5.5.2015 in view of the proceedings before the CAW cell. The suit

was hence prayed to be dismissed.

4. After pleadings were complete, the following issues were

framed:-

"1) Whether the suit does not disclose any cause of action? OPD

2) Whether the suit property is a joint family property being purchased from the joint funds / resources, as alleged in preliminary objection no.6 of the WS? OPD

3) Whether the plaintiff is entitled to a decree of possession of the suit premises as per prayer clause (a) of the plaint? OPP

4) Whether the plaintiff is entitled to a decree of mesne profits/damages @ Rs.15,000/- per month against the defendants no.1 & 2, as per prayer clause (b) of the plaint? OPP

5) Whether the plaintiff is entitled to a decree of permanent injunction in respect of the suit property, as per prayer clause no. (c) of the plaint? OPP

6) Relief."

5. Evidence was thereafter led by the parties and which is

recorded in paras 26 and 27 of the impugned judgment which read as

under:-

"26. In order to prove her case, plaintiff has examined herself as PW-1 and filed her affidavit in evidence as Ex.PW1/A. She has proved on record the documents viz., i) Ex.PW1/1 - Copy of registered Sale Deed;

ii) Ex.PW1/2 - Copy of Sale Deed; iii) Ex.PW1/3 - Copy of Sale Deed;

iv) Ex.PW1/4 - Site Plan; v) Ex.PW1/5 - Pen Drive; vi) Ex.PW1/6 (Colly) - various complaints made by the plaintiff to the Police Officers;

vii) Ex.PW1/7 - copy of newspaper and viii) Ex.PW1/8 - emergency casualty registration card.

27. Smt. Sushma Kumari appeared as DW-1 and proved her affidavit in evidence as Ex.DW1/A. In her affidavit, she deposed on the lines of her Written Statement. No document has been proved by her on record."

6. Before this Court on behalf of the appellant/defendant

no.1 only one aspect was argued that the judgment of the Supreme

Court in the case of S.R. Batra and Another Vs. Taruna Batra (Smt.)

(2007) 3 SCC 169 did not apply which held that daughter-in-law has

no right in the property of the parents-in-law inasmuch as it is argued

on behalf of the appellant/defendant no.1 that a Division Bench of this

Court in the case of Navneet Arora Vs. Surender Kaur & Ors. being

FAO (OS) No. 196/2014 decided on 10.9.2014 has held that the

judgment in the case of S.R. Batra (supra) will not apply when the

daughter-in-law has been continuously residing in the matrimonial

home and it has been held in the case of Navneet Arora (supra) by a

Division Bench of this Court that S.R Batra's case (supra) ratio will

only apply when the daughter-in-law has left the matrimonial home

and thereafter seeks to re-enter the matrimonial home. Therefore, the

issue in the present case boils down to as to whether the

appellant/defendant no.1 entered the third floor being the suit property

by breaking open of locks or whether the third floor was the

matrimonial home of the appellant/defendant no.1 either originally or

subsequently on account of a compromise before the CAW Cell

wherein as per the case of the appellant/defendant no.1 the respondent

no. 1/plaintiff agreed to put the appellant/defendant no.1 in possession

of the third floor/suit property.

7. Para 7 of the plaint filed by the respondent no.1/plaintiff

shows that the same contains a clear cut averment that

appellant/defendant no.1 and her mother/defendant no.2 illegally

entered the suit property being the third floor of House No. WZ-3335,

Mahendra Park, Near Rani Bagh, Delhi-110034 on 4.6.2015 by

breaking open the locks. In the plaint it is also pleaded that

appellant/defendant no.1 had resided in the second floor of WZ-3335,

Mahendra Park after the marriage and not in the third floor/suit

property. As per the plaint, the appellant/defendant no.1 stayed in the

second floor of the property up to 15.2.2014 and thereafter on

16.2.2014 she went to her parental home at Mehrauli New Delhi and

stayed there till 3.6.2015 and then on 4.6.2015 the appellant/defendant

no.1 and her mother/defendant no.2 forcibly broke open the locks and

entered the suit property being the third floor.

8. In response to para 7 of the plaint it is stated by the

appellant/defendant no.1 that on 5.5.2015 before the Mediation Centre

of CAW Cell matter was settled between the appellant/defendant no.1

and the respondent no.1/plaintiff and since the respondent

no.1/plaintiff was ready to call back the appellant/defendant no.1 in

the house hence she directly came back to the third floor/suit property

from CAW Cell. I may note that as per the list of dates given at page

6 of this appeal, the appellant/defendant no.1 has stated that there was

a compromise in the CAW Cell on 5.5.2015 and which was an oral

compromise between the appellant/defendant no.1 and the respondent

no.1/plaintiff as per which the respondent no.1/mother-in-law agreed

to take back the appellant/daughter-in-law to the matrimonial

home/shared household.

9. In my opinion, it has to be held that the judgment of the

Supreme Court in the case of S.R. Batra (supra) applies in the facts of

the present case and not the ratio of the judgment of the Division

Bench of this Court in the case of Navneet Arora (supra) because the

appellant/defendant no.1/daughter-in-law in fact forcibly broke open

the locks of the third floor/suit property and entered the same forcibly.

It is not in dispute and an admitted position appearing from record

including from the admissions made by the appellant/defendant no.1

in her cross-examination on 21.3.2017 that the appellant/defendant

no.1 after her marriage had stayed in the second floor of the property

and not in the suit property which is at the third floor. This aspect is

also stated by the respondent no.1/plaintiff in para 5 of the plaint and

para 5 of the plaint is specifically admitted by the appellant/defendant

no.1 in her written statement para 5. Therefore, it is clear that the

matrimonial home/shared household was the second floor of the

property no. WZ-3335, Mahendra Park and the third floor which is the

suit property of WZ-3335, Mahendra Park was not the matrimonial

home at least originally.

10. The next aspect however to be examined is that whether

there was a compromise with the appellant/defendant no.1 before the

CAW Cell whereby on 5.5.2015, the respondent no.1/plaintiff had

agreed to bring the appellant/defendant no.1 back to the matrimonial

home and the appellant/defendant no.1 was given possession of the

suit property being the third floor of WZ-3335, Mahendra Park, Near

Rani Bagh, Delhi.

11. Admittedly, and this position is quite clear from the

record, and there is no document at all evidencing the fact that there

was any compromise before the CAW Cell on 5.5.2015 where under

respondent no.1/plaintiff agreed to put the appellant/defendant no.1 in

possession of the suit property at the third floor. In the written

statement, appellant/defendant no.1 had deliberately left the issue

somewhat vague and had pleaded that on 5.5.2015 matter was settled

between the parties before the CAW Cell but it was not stated whether

the compromise was oral or written. However since admittedly no

written settlement is filed and there is not even an order or

proceedings note of the CAW Cell evidencing the compromise,

therefore the compromise will only be an oral compromise and as so

confirmed by the appellant/defendant no.1 at page 6 of this RFA

which contains the list of dates. Respondent no.1/plaintiff has

admittedly denied this case of the appellant/defendant no.1 and in fact

has stated in her plaint para 12 that as many as 13 complaints were

made against the appellant/defendant no.1 on account of misbehavior

and in some of the complaints from 11.6.2015 till 1.12.2015 (and

which are a total of 8 in number) the respondent no. 1/plaintiff has

complained with respect to illegal breaking open of the locks by the

appellant/defendant no.1 of the suit property at the third floor on

4.6.2015. There is no dispute that all these complaints have been

proved and exhibited by the respondent no. 1/plaintiff before the trial

court because these complaints have been exhibited as Ex.PW1/6

(colly). Learned counsel for the appellant/defendant no.1 has argued

by placing reliance upon para 11 of the complaint dated 11.9.2015 in

which respondent no. 1/plaintiff has stated the breaking open of the

locks on 20.7.2015, and though at the first blush the argument

appeared to have substance, however, it is seen that the argument is

actually without any merit for the reason that this date of 20.7.2015

appears to be a clerical mistake because in all other complaints which

have been filed and proved on record by the respondent no.1/plaintiff

as Ex.PW1/6 (colly) it is clearly mentioned that breaking open of the

locks illegally by the appellant/defendant no.1 is on 4.6.2015.

Therefore, just one stray mentioning of the date of 20.7.2015 instead

of 4.6.2015 in my opinion will not in a civil case which is decided on

preponderance of probabilities entitle the appellant/defendant no.1 to

contend that the respondent no. 1/plaintiff should be disbelieved and

that the appellant/defendant no.1 in fact entered into legal possession

of the third floor and was put in possession pursuant to the

compromise dated 5.5.2015 before the CAW Cell. I, therefore, reject

this argument urged on behalf of the appellant/defendant no.1.

12. A reading of the pleadings in the suit, evidence led, cross-

examination done of the appellant/defendant no.1 and finally the

contents of the police complaints proved by the respondent no.

1/plaintiff as Ex.PW1/6(colly) clearly show that the

appellant/defendant no.1 after her marriage came to the second floor

of the property WZ-3335, Mahendra Park, Near Rani Bagh, Delhi and

was not in possession of the suit property at third floor. The case of

the appellant/defendant no.1 that she was given possession of the suit

property being the third floor is clearly false because there is no

compromise which is shown to be arrived at before the CAW Cell on

5.5.2015 whereby the respondent no.1/plaintiff agreed to put the

appellant/defendant no. 1 in possession of the suit property at the third

floor. I, therefore, hold that in view of the fact that appellant/defendant

no. 1 has forcibly entered into possession of the suit property at third

floor by breaking open of the locks, such illegal acts should not be

allowed to be perpetrated and continued and such breaking open of the

locks and taking possession of the property of the respondent

no.1/plaintiff/mother-in-law will not entitle the appellant/defendant

no.1 to contend that the ratio of the judgment of the Supreme Court in

the case of S.R. Batra (supra) does not apply but the ratio of the

Division Bench of this Court in the case of Navneet Arora (supra)

will apply. The case of Navneet Arora (supra) does lay down the ratio

that the daughter-in-law who had left the matrimonial home/shared

household if she enters into possession of the property of mother-in-

law by breaking open the locks yet she will not be entitled to continue

to remain in possession of that property.

13. I would like at this stage to note the malafides of the

appellant/defendant no.1. Appellant/defendant no.1 had the benefit of

an ex-parte order passed by this Court on 19.9.2017 whereby the

operation of the impugned judgment was stayed. Notices were issued

for today but the appellant/defendant no.1 did not file process fee.

Respondent no.1/plaintiff however had come to know of the pendency

of this matter and the ex-parte order and appeared suo moto without

service of any notice from this Court. It is also seen that

appellant/defendant no.1 has not filed internal page 17 of the

impugned judgment and which page was in some manner relevant

with respect to the issue of appellant/defendant no.1 being in illegal

possession of the third floor being the suit property. Counsel for the

appellant/defendant no.1 contends that the same is by mistake, and I

would not like to take the case further, but one thing is clear that there

is negligence on behalf of the appellant/defendant no.1, deliberate or

otherwise, and which could be one of the reasons why the issue was

held to require examination and for consequent notices to be issued in

this RFA.

14. In view of the above discussion I do not find any merit in

the appeal and the same is hereby dismissed.

FEBRUARY 1, 2018                             VALMIKI J. MEHTA, J
AK/ib