* HIGH COURT OF DELHI : NEW DELHI
+ I.A. No.12852/2008 in C.S. [OS] No.2089/2007
Reserved on: 23rd September, 2009
% Decided on: 20th October, 2009
M/s Citi-Mates Builders & Promoters Pvt. Ltd. ...Plaintiff
Through : Mr. Dinesh Garg, Adv. with
Ms. Rachna Aggarwal, Adv.
Versus
Mrs. Sushma Thadani ....Defendant
Through : Mr. Deepender Hooda, Adv.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
MANMOHAN SINGH, J.
1. By this order, I shall dispose of the application being I.A.
No.12852/2008 filed by the plaintiff under Order XII Rule 6 Code of
Civil Procedure, 1908 for passing a decree on the basis of admission
made by the defendant in the written statement.
2. Brief facts of the case are that the Plaintiff is a private
Limited Company duly incorporated under the Companies Act, having
its Registered Office at A-356, Second Floor, Defence Colony, New
Delhi.
CS (OS) No.2089/2007 Page 1 of 10
3. Sh. R.K. Satija was the owner of property No.B-44,
measuring 325 sq.yds., Defence Colony, New Delhi, which was his self
acquired property. He died on 20.2.1991 leaving behind his Will and
testament dated 8.2.1982 by virtue of which he bequeathed the
abovesaid property in favour of his son, Sh. Yatish Kumar Satija and
daughter, Smt. Sushma Thadani, defendant herein as under:-
(a) Entire ground floor including garage, passage, front lawn, rear
set back and one servant quarter upon the garage in favour of
his son, Sh. Yatish Kumar Satija; and
(b) First floor, barsati floor and two servant quarters in favour of
his daughter, Smt. Sushma Thadani.
4. The plaintiff avers that by virtue of Sale Deed dated
17.05.2006, Sh. Yatish Kumar Satija sold his share in the suit property
i.e. entire ground floor with garage, passage, front lawn, rear set back
and one servant quarter upon garage and 50% rights in the land
underneath (hereinafter referred to as „the said property‟) to the former
for a valuable consideration and it has purchased the same as bonafide
purchaser.
5. Since the date of purchase of the said property, the plaintiff is
in actual physical possession of the said property except the garage on
the ground floor, measuring about 200 sq.ft.(hereinafter referred to as
the „suit premises‟) which was alleged to be unauthorisedly occupied by
the defendant as she has put her lock on the same.
6. The plaintiff alleges that the defendant Smt. Sushma Thadani
is neither the owner of the suit premises nor the tenant nor the licensee
in respect of the suit premises nor was she ever permitted by the
CS (OS) No.2089/2007 Page 2 of 10
predecessor-in-interest of the plaintiff or by the plaintiff to use and
occupy the same. Thus, the act of the defendant of putting her lock on
the garage and thus occupying the same is totally unauthorized and
illegal. The defendant has no legal right or authority to remain in
possession of the suit premises.
7. The plaintiff submits that it requested the defendant number
of times to vacate and handover the vacant physical possession of the
suit premises and also to pay the damages for such unauthorized use
and occupation to the plaintiff with effect from the date of purchase of
the said property by the plaintiff i.e. from 17.05.2006 till the date of
filing the suit. It also sent a legal notice on the defendant on 25 th April,
2007 but the defendant neither replied to nor complied with the terms of
the said notice.
8. The plaintiff states that the prevalent market rate of rent of
the suit premises similarly situated was/is Rs.200/- per sq. ft. p.m. i.e.
Rs.40,000/- (Rupees Forty Thousand) p.m. thus, a sum of Rs.6,60,000/-
(Rupees six lac sixty thousand) was claimed by him as due and payable
by the defendant on account of damages calculated w.e.f. 17.05.2006
till 30.09.2007 @ Rs.40,000/- p.m.
9. The plaintiff thus filed the suit praying for passing a decree
for possession in his favour and against the defendant in respect of the
suit premises and to pass a money decree in a sum of Rs.6,60,000/-
towards the damages for the period from 17.05.2006 to 30.09.2007 @
Rs.40,000/-p.m. and for pendente lite and future damages at such rate
as may be prevalent at the relevant time.
CS (OS) No.2089/2007 Page 3 of 10
10. During the pendency of the suit, the plaintiff filed the present
application being I.A. No.12852/2008 under Order XII Rule 6 read with
Section 151 of the Code to pass a decree for possession in favour of the
plaintiff based on admissions made by the defendant.
11. It is stated in the application that the defendant has made
various admissions in the written statement to the effect that the plaintiff
is the owner of garage portion of the ground floor and the defendant is
neither the owner nor the tenant thereof.
12. The plaintiff submits that the defendant filed a suit being
CS(OS) No.1130/2006 in this court against Mr. Yatish Kumar Satija to
restrain him from selling or creating third party interest on the ground
floor of the suit property wherein an ad- interim order was passed in his
favour initially but which was later on vacated on 24.7.2007 holding
that Mr. Yatish Kumar Satija was the lawful owner in respect of the
ground floor of the suit property and was thus entitled to transfer the
same.
13. The plaintiff alleges that the admissions of the defendant as
recorded in the aforesaid orders are the clear admissions of the
ownership of the plaintiff in respect of garage portion of ground floor
of property No.B-44, Defence Colony, New Delhi. Further the said
orders also clearly indicate that no oral understanding or oral
settlement was ever alleged by the defendant in the earlier proceedings
before any court. The defendant never claimed any ownership or
tenancy in respect of any portion which was bequeathed in favour of
Mr. Yatish Kumar Satija.
CS (OS) No.2089/2007 Page 4 of 10
14. In reply to the application, the defendant contended that the
plaintiff had taken the possession of the suit property (excluding the
garage) forcibly. The plaintiff is a stranger to the undivided family of
the defendant and is therefore, not entitled to enjoy joint possession of
the property with the co-owner of the same i.e. the defendant.
15. The defendant asserts that in the written statement she has
stated her rights over the garage portion to the exclusion of her brother.
She relied upon para „b‟ on page 8 of the written statement wherein it is
stated that she and her brother had reached an oral family settlement in
the year 1999 in the presence of close family members and friends
which was to the effect that the servant quarters and the garage on the
ground floor would be in her possession in perpetuity and she would
become the owner of the servant quarters and the garage situated on
the ground floor of the said property by way of adverse possession as
she had been in continuous, active and uninterrupted possession of the
same without any consideration since the last 37 years.
16. The defendant submits that she and her brother had
maintained the undivided entity of the property even after the death of
their father by getting the suit property mutated in their joint names and
even the conveyance deed was executed in their joint names.
17. She strenuously relied upon the suit filed by her against the
plaintiff i.e. CS (OS) No.1940/2008 to contend that there can be no
admission on the part of the defendant of any right of the plaintiff to
take possession over any portion of the property. She further submits
that there are disputed question of facts and law raised in the suit as also
CS (OS) No.2089/2007 Page 5 of 10
in the written statement which can be proved only by leading evidence
and any judgment at this stage on the basis of alleged admission would
cause serious injustice and serve injury to the defendant.
18. The contention of the defendant is that since she is disputing
the possession of the suit property of the plaintiff, it raises a triable issue
which cannot be decided without recording of evidence. It is stated that
since the defendant has been in continuous and uninterrupted
possession of the garage since last 38 years to the complete knowledge
of her brother Mr. Yatish Kumar Satija, who had been ousted from the
same and thus had no right to sell the same. The question of plaintiff
having acquired alleged rights over the garage by virtue of sale deed is
therefore a nullity.
19. The defendant urged that the plaintiff is in wrongful joint
possession of the property excluding the garage and is not entitled to
possession of the garage.
20. I have heard learned counsel for the parties and perused the
record. It is apparent that the defendant in CS (OS) No.1130/2006 made
clear admission to the effect that Sh. R.K. Satija, father of defendant
and Yatish Kumar Satija left behind a Will dated 8th February, 1982 by
virtue of which he had bequeathed the said property in favour of his
son and daughter in the portion stated in para 2 of this order.
21. The defendant is only disputing the possession of the suit
property with the plaintiff on the ground that it has been taken forcibly
from her and pleaded that the oral family settlement was reached in the
year 1999 to the effect that the servant quarters and garage on the
CS (OS) No.2089/2007 Page 6 of 10
ground floor would always be in peaceful possession of the defendant
in perpetuity. It is also clear from the record that in CS (OS)
No.1130/2006, when the matter was put up for hearing on 11th
September, 2008 the defendant agreed to passing of the judgment in
terms of order dated 24th July, 2007. As a result, the suit was decreed
against the defendant and she was held to be entitled to the first floor,
barsati floor and 2 servant quarters only and Mr. Yatish Kumar Satija
became owner of entire ground floor including garage, passage, front
lawn, rear set back and one servant quarter upon the garage.
22. This court in order dated 24 th July, 2007 also rejected the
amendment sought in the plaint by the defendant herein. She
challenged this order by way of appeal being FAO (OS) No.166/2007
which was dismissed by a Division Bench vide order dated 22 nd May,
2007 wherein it was observed that the parties are owners of the
respective portions in the property as they have accepted the Will.
Relevant para of this order is reproduced hereinbelow :
“The appellant herein filed a suit for permanent
injunction and in paragraph 13 she has stated that her
late father who is also the father of the respondent No.1
before his death executed a registered will dated 8 th
February, 1982 whereby he bequeathed the property to
the appellant and the respondent No.1. It is also stated
that the appellant got the entire first floor and barsati
and two servant quarters and the respondent No.1 got the
entire ground floor consisting of garage, passage, front
lawn, rear set back and one servant quarter upon the
garage….
The Will stipulates that the ownership rights of the
entire ground floor consisting of garage, passage, front
lawn, rear set back and one servant quarter upon the
garage would devolve on the testator‟s death to this son
Yatish Kumar Satija, respondent No.1 herein….
CS (OS) No.2089/2007 Page 7 of 10
It is also crystal clear from the records that the aforesaid
Will and the intention of the father of both the parties
was given effect to and the rent of ground floor property
was being collected by the respondent No.1 and the
other portion of the property as per the Will devolved on
the appellant. That being the position, the parties have
already accepted the Will and both the appellant and
respondent No.1 have become the absolute owners of the
respective shares in the property after the demise of their
father….”
23. Aggrieved by the abovesaid order, she also filed an appeal
in the Supreme Court which was also dismissed. Finally a decree was
passed by this Court in CS (OS) No.1130/2006 against the defendant
herein on 11.09.2008. Relevant portion of the said order is reproduced
herein below:-
“On the basis of the averments, initially the Court had
granted a temporary injunction. Later, the Court recorded
its 24 pages reasoned order and vacated the interim
injunction holding that the defendant was lawful owner in
respect of the ground floor and was entitled to transfer the
property…..”
24. The provision of Rule 6 in Order XII of the Code clearly
elucidate that a judgment on admissions may be made if there exist
admissions of fact either in the pleadings or otherwise. This rule is wide
enough to afford relief not only in case of admission mentioned in the
pleadings but also dehouse the pleadings. The admissions contained in
letters or other documents written or executed between the parties are
therefore sufficient for the purpose of Order XII Rule 6 of the Code.
25. The word “otherwise” in Order XII Rule 6 means and
includes any admission whether it is made before filing the suit or
subsequently. The court can pronounce judgments relying on the
CS (OS) No.2089/2007 Page 8 of 10
documents which were written even before filing the suit.
26. Since in the case in hand, the defendant agreed to pass a
decree in CS (OS) No.1130/2006 in terms of the orders passed on 24th
July, 2007 where she was held to be the owner of her respective portion
as elucidated in the Will, she cannot in the present suit deny the title of
Mr. Yatish Kumar Satija. Mr. Yatish Kumar Satija being the owner of
the suit property can certainly sell his land to any one he wishes.
27. The plaintiff admittedly purchased the suit property from Mr.
Yatish Kumar Satija by virtue of sale deed dated 17 th May, 2006 and is
in actual physical possession of the suit property. The defendant is
unauthorisedly occupying the garage on the ground floor i.e. the suit
premises.
28. In view of the abovementioned facts, this Court is of the
view that there is no requirement for the parties to go for the trial and
the decree as prayed for can be passed without any further orders under
the provisions of the Order XII Rule 6 of the Code.
29. Therefore, in these circumstances, the plaintiff is entitled
for the relief claimed in I.A. No.12852/2008 and the same is allowed.
Consequently, the plaintiff is entitled to the relief of possession in
respect of suit premises on admissions and is entitled for a decree in his
favour.
30. As regard the relief of damages, there is no admission in the
written statement nor the case in this regard is proved, hence the said
relief is rejected in view of the facts and circumstances in the present
case. The defendant is directed to hand over the vacant physical
CS (OS) No.2089/2007 Page 9 of 10
possession of the suit premises (garage measuring about 200 sq. ft. on
the ground floor of the suit property) to the plaintiff within two weeks
from today. The plaintiff is also entitled for the cost.
31. The suit as well as all pending applications, if any, are
disposed of accordingly.
MANMOHAN SINGH, J
th
OCTOBER 20 , 2009
SD
CS (OS) No.2089/2007 Page 10 of 10