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Shri Tej Pal vs . Smt. Gomti & Ors. on 2 March, 2020

Shri Tej Pal Vs. Smt. Gomti Ors.
CS No. 15297/16

IN THE COURT OF SHRI TARUN YOGESH
ADDL. DISTRICT JUDGE:03:
SOUTH WEST DISTRICT: DWARKA COURTS:NEW DELHI

Civil Suit No. 15297/16
CNR No. DLSW01­000214­2015

In the matter of :

Tej Pal
S/o Shri Jeet Ram
R/o 10613, Manakpura,
Delhi­110005 … Plaintiff
Versus

1) Smt. Gomti
Wd/o Late Shri Mohar Singh
2) Narender
S/o Late Shri Mohar Singh
3) Ravinder
S/o Late Shri Mohar Singh

All residents of:
H­400, Gali No.4, Palam Colony,
Raj Nagar, Falling in Khasra No. 63/12/1,
Village Palam, Phase­II,
New Delhi­110045 …Defendants

Date of Institution of suit : 10.08.2015
Date on which judgment was pronounced : 02.03.2020

­: JUDGMENT :­

1.

Plaintiff Shri Tejpal has filed suit for possession and damages
against his daughter­in­law Smt. Gomti and grandsons Shri Narender and

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CS No. 15297/16

Shri Ravinder arrayed as defendants No.1, 2 and 3.

2. As averred by plaintiff, he being owner of property bearing
House No. H­400, Gali No. 4, Palam Colony, Raj Nagar, Phase II situated
in Khasra No.63/12/1, Village Palam, New Delhi had allowed his son Shri
Mohar Singh and his family to reside in one room on the ground floor of
the property as licensee and defendants being widow and sons of late
Mohar Singh continued to reside in the one room on the ground floor after
death of Shri Mohar Singh on 03.02.2014.

3. Three rooms on the ground floor and two rooms on the first
floor are stated to be occupied by other sons whereas one room occupied
by defendants is shown in red colour in the site plan (hereinafter
referred as suit property).

4. It is averred that defendants No.1, 2 and 3 wanted to raise
unauthorized construction of tin­shed on the open terrace of the first floor
above their room which was objected by plaintiff and complaint was
eventually lodged against defendants No.1, 2 and 3 who were adamant to
raise unauthorized construction without his permission.

5. Plaintiff being annoyed by their behaviour withdrew
permission to use and occupy aforesaid one room on the ground floor
and legal notice dated 17.07.2015 sent through speed post with
Acknowledgement Due was not complied by defendants who having
continued to occupy the room (suit property) are liable to pay damage @
Rs.4,000/­ per month or such enhanced rent w.e.f. 21.07.2015 as the
court may determine upon enquiry under Order XX Rule 12 CPC.

6. Plaintiff left with no other efficacious remedy has therefore

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CS No. 15297/16

filed suit praying for:

a) decree of possession of one room on the
ground floor of property bearing House No. H­400,
Gali No.4 Palam Colony, Raj Nagar, Phase II situated
in Khasra No. 63/12/1, village Palam New Delhi,
shown in red colour in site plan and

b) damage to the tune of Rs.2,000/­ along with
further damage @ Rs.4,000/­ per month or at such
enhanced rate as the court may determine under
Order XX Rule 12 CPC along with interest @ 15 %
per annum.

7. Defendants No.1, 2 3 have filed joint written statement
contesting plaintiff’s suit by claiming that suit property is joint property of
Late Shri Mohar Singh and plaintiff Shri Tej Pal.

8. It is averred that plaintiff was a cobbler having six children
and suit property was purchased in the name of plaintiff by availing loan.

9. Defendants have averred that Late Shri Mohar Singh helped
his father in repaying the loan after securing government job in Post
Telegraph Department in the year 1981 and suit property was constructed
in 1986 from the funds contributed by Late Mohar Singh as his brothers
being unemployed had no source of income.

10. Plaintiffs averments were denied in corresponding para of
reply on merit and following issues were settled on 12.01.2016 after
replication and completion of pleadings:

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CS No. 15297/16

(1) Whether the plaintiff is entitled to decree of possession
against the defendants in respect of one room at ground
floor of property No. H­400, Gali No.4, Palam Colony, Raj
Nagar, Phase­II, falling in Khasra No. 63/12/1, Village
Palam, New Delhi­110045? … OPP

(2) Whether the plaintiff is entitled to decree of damages, if
he has, at what rate and for what period? … OPP

(3) Relief.

11. Plaintiff Shri Tej Pal has examined himself as PW­1 by
tendering his affidavit Ex.P­1 in evidence and relied upon following
documents:

i. Site Plan Ex.PW­1/1;

ii. Sale Deed dated 26.05.1971 Ex.PW­1/2;
iii. House Tax receipt Ex.PW­1/3;
iv. Electricity Bill Ex.PW­1/4;
v. Loan documents Ex.PW­1/5 (colly)
vi. Printed copies of photographs Mark X1, X2 and X3;
vii. Complaint dated 14.07.2015 Ex.PW­1/9;
viii. Copy of legal notice dated 17.07.2015 Ex.PW­1/10;
ix. Postal receipts Ex.PW­1/11 (colly) and
x. AD card Ex.PW1/12 (colly).

12. His cross­examination was recorded on 28.11.2016 and
26.04.2017 and plaintiff’s evidence was closed on the basis of his
statement.

13. Defendants Smt. Gomti, Shri Narender and Shri Ravinder
have deposed as DW­1, DW­2 and DW­3. Their cross­examination were

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CS No. 15297/16

recorded and defendants’ evidence was closed on 06.07.2019.

14. Matter was adjourned for final arguments but Ld. Counsels
for plaintiff and defendants neither addressed their arguments nor filed
written submission in compliance of order dated 22.02.2020.

15. My issue wise findings on the basis of testimony of plaintiff
and defendants examined on judicial file are recorded below:

16. Issue No. (1): Whether the plaintiff is entitled to decree of
possession against the defendants in respect of one room at
ground floor of property No. H­400, Gali No.4, Palam Colony, Raj
Nagar, Phase­II, falling in Khasra No. 63/12/1, Village Palam, New
Delhi­110045? … OPP
AND
Issue No. (2) : Whether the plaintiff is entitled to decree
of damages, if he has, at what rate and for what period? … OPP
16.1 Both issues are taken up together to be decided by common
finding.

16.2 Plaintiff Shri Tej Pal claiming himself as owner of property
No.H­400, Gali No.4, Palam Colony, Raj Nagar, Phase II situated in
Khasra No.63/12/1, Village Palam, New Delhi has relied upon sale deed
dated 26.05.1971 in support of his title.

16.3 Defendants No.1, 2 3 on the other hand are claiming their
right in the property by insisting that Late Shri Mohar Singh had helped
plaintiff in repaying the loan after securing government job in Post
Telegraph Department and suit property was constructed in the year 1986
from the funds contributed by Late Mohar Singh.

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CS No. 15297/16

16.4 Plaintiff/PW­1 Shri Tej Pal during his cross­examination has

deposed that he being engaged in the business of making slippers/
chappals for last 40 years could not recollect his earnings from the
business and voluntarily stated that he was not having sufficient income
for paying income tax.

16.5 Plaintiff Shri Tej Pal admitted that his son Shri Mohar Singh
joined service in the Telegram Department in the year 1981 and no other
child except Shri Mohar Singh was in service. He has deposed to have
constructed one room, one kitchen and varanda in the suit property
whereas remaining construction was raised in the year 1987 and two
rooms on the first floor were constructed in the year 1992.
16.6 Suggestion about financial help/contribution by his eldest son
Shri Mohar Singh has been denied by plaintiff but he has not explained
letters/correspondence received from the bank w.r.t. repayment of loan
facility from 22.03.1990 till 23.02.2000.
16.7 Defendant No.1 Smt. Gomti and her sons Shri Narender and
Shri Ravinder examined as DW­1, DW­2 and DW­3 on the other hand
have relied upon original hand written note of expenditure incurred in
raising construction; copy of letter dated 02.03.2001 received from
Headquarter of Post Telegraph Department, New Delhi; original ID card
of Shri Mohar Singh and original letter dated 12.01.2001 addressed to
Superintendent, Telecom Department in support of their case about
construction of suit property from the funds of Late Mohar Singh.
16.8 DW­1 Smt. Gomti during her cross­examination has deposed
about one room, one kitchen and unconstructed portion of property in the

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CS No. 15297/16

year 1982 when she was brought in the house after her marriage in the
year 1982 whereas staircase leading to terrace built in the year 1982 was
demolished and three rooms with latrine and bathroom were constructed
in the year 1986 and two rooms on the first floor were thereafter
constructed in the year 1997.

Finding : Plaintiff Shri Tej Pal who is residing separately at House
No.10613, Manak Pura/Karol Bagh, Filmistan has failed to substantiate
his contention of having purchased the plot and raise construction in the
property from his own funds. He even otherwise has averred that
remaining three rooms on the ground floor and two rooms on the first floor
are occupied by his other sons and defendant No.1 Smt. Gomti being his
eldest daughter­in­law is entitled to reside in one room shown in red
colour in the site plan being entitled to maintenance including right of
residence against her father­in­law as per Section 19 of the Hindu
Adoption and Maintenance Act, 1956. Issue no.(i) and (ii) are therefore
decided against the plaintiff.

17. RELIEF: Plaintiff’s suit for possession and damage is
therefore dismissed.

18. Decree sheet be prepared accordingly.

19. File be consigned to record room. Digitally signed
TARUN by TARUN
YOGESH
YOGESH Date: 2020.03.04
16:24:27 +0530

Announced in the open Court (Tarun Yogesh)
On 02.03.2020 ADJ­03/South West
Dwarka /New Delhi

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