IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS (OS) No. 2527/2009
*
Decided on: 2nd November, 2011
Smt. Veena Kumar .......Plaintiff
Through: Mr. D.S. Dalal, Adv.
Vs.
Shri Kishan Lal .....Defendant
Through: Ex-parte.
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK
1. Whether the Reporters of local papers No
may be allowed to see the judgment?
2. To be referred to Reporter or not? No
3. Whether the judgment should be No
reported in the Digest?
A.K. PATHAK, J. (ORAL)
1. Plaintiff has filed this suit for possession, damages/mesne profit and
permanent injunction against the defendant. Defendant is brother-in-law
(husband’s brother) of the plaintiff.
2. It is alleged in the plaint that the husband of plaintiff is owner of
property bearing no. 48 in Block-D, measuring 80.78 sq. meters situated at
Prashant Vihar, Delhi. She had purchased this suit property from Ramesh
Kumar vide registered Sale Deed dated 8th August, 2007. Originally, the
CS(OS) No. 2527/2009 Page 1 of 5
suit property was allotted to Late Shri Bal Kishan by the Delhi Development
Authority vide perpetual Lease Deed dated 19th December, 1980 duly
registered in the office of Sub-Registrar I, Delhi. Thereafter, the suit
property devolved upon Shri Ramesh Kumar pursuant to a Will left behind
by Late Shri Bal Kishan. Wife of Late Shri Bal Kishan, namely Smt. Shanti
Devi, was given right to reside in the property during her life time. Shanti
Devi expired on 28th June, 2002. Defendant was permitted by Late Shri Bal
Kishan to live on the first floor more particularly shown in red colour in the
site plan (hereinafter referred to ‘suit property’) as a licensee. After the
plaintiff acquired ownership rights in the property she made several requests
to the defendant to vacate the suit property but to no effect. Finally, plaintiff
revoked the license deed vide legal notice dated 28th August, 2009 served
through her lawyer Shri D.S. Dalal, Advocate. Defendant claimed himself to
be the owner of the suit property vide his reply dated 25th September, 2009
sent through his lawyer Shri S.C. Sharma, Advocate. Thereafter, defendant
started negotiating with prospective buyers through property dealers in order
to sell the suit property. It is alleged that after the license was terminated
defendant has no right to continue to hold possession of the suit property.
Besides possession, plaintiff has also claimed damages/mesne profit @
`20,000/- per month with effect from 1st October, 2009 till defendant vacates
the suit property. It has been further prayed that by way of decree of
permanent injunction, defendant be restrained from selling, alienating or
CS(OS) No. 2527/2009 Page 2 of 5
creating third party interest in respect of the suit property.
3. After the service of summons defendant appeared in the court through
his lawyer. Though defendant claimed that written statement had been filed
by him but the same was not found on record. Accordingly, defendant’s
counsel was directed by the Joint Registrar to furnish diary number and date
of filing of written statement. However, details were not furnished. Vide
order dated 26th November, 2010 defendant was granted last opportunity to
get the written statement placed on record, subject to cost of `5,000/-. Even
this order has not been complied with, inasmuch as, defendant stopped
appearing thereafter. Consequently, defendant was proceeded ex-parte vide
order dated 20th May, 2011.
4. Plaintiff has led ex-parte evidence. Plaintiff (PW1) in her affidavit
has supported the averments made in the plaint. She has reiterated that she
has purchased the suit property from Shri Ramesh Kumar vide Sale Deed
dated 8th August, 2007. Certified copy of the sale deed has been proved by
her as Ex. PW1/1. Site plan of the suit property has also been proved by her
as Ex. PW1/2. Death certificate of Late Shri Bal Kishan has been proved as
Ex. PW1/4. She has categorically deposed that Late Shri Bal Kishan had
permitted the defendant to reside in the suit property comprising 3 rooms, 1
bath room, 1 toilet and 1 kitchen as a licensee. She has deposed that the suit
property has been shown in red colour in the site plan Ex. PW1/2. She
requested the defendant to vacate the suit premises but to no effect.
CS(OS) No. 2527/2009 Page 3 of 5
Consequently, she revoked the license by serving a legal notice dated 28th
August, 2009 through her counsel. Copy of the notice has been proved as
Ex. PW1/6. Defendant sent a reply to the said notice through his counsel,
which she has been proved as Ex. PW1/7. She has also deposed that
prevalent rent in the area with regard to similar property was about
`25,000/-. She has deposed that rent has further increased in the area and
presently the property, under the occupation of the defendant, can easily
fetch the rent of `35,000/- per month. Copy of rent agreements of certain
flats in the same locality, that is, Sector 14 Rohini have been placed on
record and have been exhibited as Ex. PW1/8 to PW1/11.
5. From the ex-parte evidence lead, in my view, plaintiff has succeeded
in proving her case that she had purchased the suit property from Shri
Ramesh Kumar vide registered Sale Deed dated 8th August, 2007.
Defendant was living in the first floor of the suit property as a licensee. She
terminated the license by serving a legal notice i.e. Ex. PW1/6 through her
counsel. After termination of license defendant has no right to continue to
occupy the suit property. Accordingly, plaintiff is entitled to decree of
possession as prayed for.
6. As regards mesne profit is concerned, during the course of hearing
counsel has given up mesne profit till passing of the decree. He claims
mesne profit from the date of decree till the possession of the suit property is
handed over by the defendant to plaintiff. Certified copy of the rent
CS(OS) No. 2527/2009 Page 4 of 5
agreements i.e. Ex. PW1/8 to PW1/11 clearly indicates that the rent
prevalent in respect of the flats is between from `22,000/- and `29,000/- per
month. Defendant is occupying an independent floor built on a plot of land
measuring 80.78 sq. mtrs. Thus, mesne profit as claimed by the plaintiff
amounting to `20,000/- today appears to be just and proper. In my view
defendant also has no right to create any third party interest in the suit
property.
7. For the foregoing reasons, I pass a decree of possession in favour of
the plaintiff and against the defendant. By way of decree of damages/mesne
profit defendant is directed to pay a sum of `20,000/- per month to the
plaintiff from the date of decree till he hands over the possession of the suit
property to the plaintiff. Defendant is also restrained from creating any third
party interest in the suit property. Cost of the suit is also awarded in favour
of the plaintiff. Decree sheet be drawn accordingly.
A.K. PATHAK, J
NOVEMBER 02, 2011
ga
CS(OS) No. 2527/2009 Page 5 of 5