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Smt. Sunita Rani vs Smt. Shanti Devi on 26 April, 2017

IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT; TIS HAZARI COURTS : DELHI

RCA NO. 61938/16
In re :

Smt. Sunita Rani
W/o Late Sh. Shiv Kumar
R/o 16/1704-E, Ist Floor,
Bapa Nagar, Arya Samaj Road,
Karol Bagh, New Delhi-110005.
…… Appellant

Versus
Smt. Shanti Devi,
W/o Late Sh. Gyan Chand,
R/o 16/1704-E, Bapa Nagar,
Arya Samaj Road, Karol Bagh,
New Delhi-110005 ……Respondent

Date of institution of present suit : 07.10.2017
Date of reserving order : 26.04.2017
Date of Judgment : 26.04.2017

JUDGMENT

1. The present judgment shall dispose of the appeal filed by
defendant/appellant against the impugned judgment and decree dt
09/05/2016 whereby decree for possession and damages was passed
against the appellant and in favour of respondent/plaintiff by the Ld.
Trial Court in the suit filed by the respondent/plaintiff. Appellant was
defendant before the Ld. Trial Court and respondent was plaintiff
before the Ld. Trial Court. For the sake of convenience parties have
Suit No. 61938/16 Sunita Rani v. Shanti Devi Page No. 1 of 13
been referred to here as per their status before the Ld. Trial Court.

2. Brief fact of the case is that plaintiff is the owner of entire
property bearing no. 16/1704-E, Bapa Nagar, Arya Samaj Road, Karol
Bagh, New Delhi-110005 having purchased from its previous owners
on 10.12.1980 after paying lawful consideration by virtue of various
documents i.e. GPA, agreement to sell, affidavit etc. Defendant is
daughter-in-law of the plaintiff. The son of the plaintiff had married with
defendant in the year 2005 and one baby boy Mayank was born. The
first wife of the plaintiff’s son expired on 05.04.2001 and from his first
marriage, one son Rahul and a daughter Deepika were born which are
in the custody of plaintiff. The defendant never gave any love, affection
and care to the son of plaintiff and his son Rahul and daughter Deepika
and was always in the habit of making various types of allegations
against the plaintiff and her family members. When the son of plaintiff
expired, the defendant apologized for her conduct and requested the
plaintiff for stay in the property as a licensee. The plaintiff acceded to
the request of the defendant and gave opportunity to live as a licensee
in respect of one room and kitchen on the first floor of the suit property
but the plaintiff was unaware about defendant’s malafide and ulterior
motive with regard to grab the pension, gratuity etc.

3. The defendant showed her true colour. She and her
relatives were creating nuisance and obstruction in peaceful use and
occupation of the property and also quarreled with the plaintiff and her
family members. The plaintiff was no more interested to keep the
defendant as her licensee and terminated her license through a legal

Suit No. 61938/16 Sunita Rani v. Shanti Devi Page No. 2 of 13
notice dated 06.08.2013 and asked her to vacate and hand over the
possession of the suit premises within 15 days from the receipt of legal
notice. It was made clear in the legal notice if the defendant did not
hand over the peaceful vacant possession of the licensed premises by
the specified date, the plaintiff shall be entitled to recover damages/
occupational charges/ user charges @ Rs.7000/- per month excluding
electricity and other charges.

4. The defendant and her relatives threatened the plaintiff that
they will create third party interest and were showing the said room and
kitchen on the first floor of the property to some property dealers and
buyers. They also threatened the plaintiff that if she would object, they
would get her killed. Therefore, the plaintiff has filed the present suit
for possession, recovery of damages/ mense profits and permanent
injunction.

5. The defendant filed written statement taking preliminary
objection that the suit of the plaintiff is not maintainable and as such
liable to be dismissed with costs. It is stated by defendant that the
plaintiff cannot be deemed to be owner of the suit property on the basis
of false contentions and plaintiff has not approached the Court with
clean hands. It is stated that the suit of the plaintiff is not valued
properly for the purpose of Court fee and jurisdiction and the plaintiff
has not filed title documents of the suit property relating to her
ownership. It is averred that the defendant is residing in one room on
the first floor with kitchen, latrine, bathroom and maintaining her with

Suit No. 61938/16 Sunita Rani v. Shanti Devi Page No. 3 of 13
her children including of her husband’s first wife with the tenanted
income of one room. It is stated that she is being subjected to cruelty
by the plaintiff and is not allowed to take drinking water or take bath in
the bathroom. It is also stated that the legal notice dated 06.08.2013
has been replied by the defendant but the plaintiff has not filed the
same intentionally. Rest all allegation in the plaint was denied
specifically.

6. Thereafter, plaintiff filed the replication to the written
statement of the defendant wherein she has reiterated the averments
made in the plaint.

7. On completion of pleadings, following issues were framed
by the trial Court.

1. Whether the plaintiff has concealed material facts from
the Court? If so, the effect thereof? OPD.

2. Whether the plaint discloses no cause of action? OPD.

3. Whether the plaintiff has no locus standi to file the
present suit as she is not the owner of the suit
property?. OPD.

4. Whether the suit has not been properly valued for the
purpose of Court fee and jurisdiction?OPD.

5. Whether the plaintiff is entitled to the decree of
possession of the suit property? OPP.

6. Whether the plaintiff is entitled for any mesne profits/
user charges/ damages? If so, at what rate and for

Suit No. 61938/16 Sunita Rani v. Shanti Devi Page No. 4 of 13
what period? OPP.

7. Whether the plaintiff is entitled to any interest on the
aforesaid amounts? If so, at what rate and for what
period? OPP.

8. Whether the plaintiff is entitled to th decree of
permanent injunction as prayed for ? OPP.

9. Relief.

8. Thereafter, parties lead their respective evidence. Plaintiff
examined herself as PW-1 and tendered her evidence by way of
affidavit Ex. PW1/1 wherein she has reiterated the averment of the
plaint and relied upon documents i.e. Agreement, GPA and Affidavit, all
dated 10.12.1980 are Ex.PW1/A (colly), letter dated 09.12.2008 Ex.
PW1/B, copy of voter ID card Ex.PW1/C (OSR), original electricity bill
Ex.PW1/D, copy of Ration Card marked E, death certificate of Sh. Shiv
Kumar Ex.PW1/F, legal notice dated 06.08.2013 Ex. PW1/G, original
postal receipt and courier slip Ex.PW1/H (colly), original AD card
Ex.PW1/I, original letter from Director of DAVP Ex. PW1/J (colly),
certified copy of statement of plaintiff and defendants in suit no. 354/12
Ex.PW1/K, site plan Ex. PW1/L and copy of the NCR lodged by her
complaining the misplacing of the said Ration Card Ex.PW1/M.

9. Sh. Rajesh Kumar, JJA, Record Room (Civil), Tis Hazari
Courts, New Delhi was examined as PW-2. He produced the case file
of suit no. 354/2012 titled as ‘Smt. Shanti Devi Vs. Smt. Sunita Rani’
and certified copies of the proceedings which were Ex.PW1/K.

Suit No. 61938/16 Sunita Rani v. Shanti Devi Page No. 5 of 13

10. Sh. Rajendra Kumar Sahu, Section Officer from DAVP,
Ministry of I B, Soochna Bhawan, CGO Complex, Lodhi Road, New
Delhi was examined as PW-3. He produced the record with regard to
the employment of Sh. Shiv Kumar Ochhania, working as UDC
(CSCS). He had brought the arrested photocopy of letter dated
23.12.2011 along with the reply Ex.PW3/A (colly), attested copy of
letter dated 12.12.2013 alongwith form no.2 Ex.PW3/B (colly), attested
photocopy of letter dated 24.05.2013 along with pension calculation
sheet Ex.PW3/C (colly).

Thereafter, plaintiff closed PE vide order dated
18.12.2015.

11. Defendant examined herself as DW-1. In her evidence by
way of affidavit Ex.DW1/A, she relied upon copy of Adhar Card
Ex.PW1/1 (OSR), copy of Election card Ex.DW1/2 (OSR), copy of
wedding card Ex.DW1/3 (colly), copy of Birth Certificate Ex.1/4 (OSR)
and copy of passbook of Corporation Bank Ex.DW1/5 (OSR).

12. After hearing arguments of both parties and appreciating
the pleadings, evidence and material on record, Ld. Trial Court was
pleased to pass decree for possession in respect of the suit property
apart from mesne profit vide impugne judgment/decree dated
09.05.2016.

13. Aggrieved from the impugned judgment and decree dated

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09.05.2016 defendant/ appellant has preferred the present appeal
inter-alia on following grounds:-

a) That Ld. Trial Court miserably failed to appreciate that once there
is no evidence on either side, the suit has to be dismissed.

b) That Ld. Trial Court failed to appreciate that the suit property in
question belongs to JJ Slum, MCD department which is a lease
hold property and respondent has no right, title or interest in the
property and respondent was not even paying lease money to
the competent authority.

c) That Ld. Trial Court failed to appreciate that appellant is the
daughter-in-law of the respondent and has to look after one son
born from her wedlock.

d) That Ld. Trial court failed to appreciate that no titled document in
favour of the respondent was filed by the respondent.

e) That Ld. Trial court failed to appreciate that after the death of the
appellant’s husband, respondent started troubling the appellant
and her children on one pretext or other with intention to oust the
appellant from suit property.

f) That Ld. Trial court failed to appreciate that appellant was being
harassed by not being allowed to take drinking water or take bath
in the bathroom and respondent has also illegally retained the
gold and other household articles of the appellant which the
respondent is liable to return to the appellant forthwith.

g) That Ld. Trial court failed to appreciate that the suit property in
question belong to the JJ Slum, MCD, Delhi which is a lease hold
property and the respondent has no right, title or interest.

Suit No. 61938/16 Sunita Rani v. Shanti Devi Page No. 7 of 13

h) That Ld. Trial court failed to appreciate that respondent has filed
criminal case under DV Act in which protection has been granted
to the appellant.

i) That Ld. Trial court failed to appreciate the Section 19 of the
Hindu Adoption and Maintenance Act which squarely applies to
the present case.

j) That Ld. Trial court has wrongly decided the user charges at
Rs.3,500/- per month.

k) That Ld. Trial court failed to appreciate that a fraud was played
by the respondent.

14. On the aforesaid grounds appellant has prayed for
acceptance of the appeal and setting aside the impugned judgment
and decree dated 09.05.2016.

15. Present appeal has been filed along with an application for
condonation of delay in filling the present appeal submitting that
appellant has been victim of fraud, cheating, misrepresentation at the
hand of plaintiff who controlled the defendant in giving her instructions
under threats for not proceedings the present case if she wants to live
in the suit premises and under misguidance defendant could not file
the present objection and appeal in time. The appellant has borrowed
money to file the present appeal. On the aforesaid grounds it has been
prayed that delay in filing the appeal may be condone.

16. Respondent upon service of the notice of application and

Suit No. 61938/16 Sunita Rani v. Shanti Devi Page No. 8 of 13
appeal has straightway argued the case. Ld. Counsel for the appellant
has also been heard at length.

17. The ground mentioned in the application for condonation of
delay is hardly believable. Delay in filling appeal has been attributed to
the alleged threatening extended by the respondent/plaintiff. It has not
been alleged when appellant came out of fear of that alleged
threatening. Meaningful reading of the application does not point out
as to why the appeal was not filed in time. Present appeal has been
filed on 06.10.2016. The certified copy of the judgment was ready on
19.05.2016 and it was applied on 11.05.2016 therefore if this period is
excluded from computation for filing of appeal, the appeal should have
been filed by 18.06.2016 and since 18.06.2016 was holiday due to
summer vacation, therefore, appeal should have been filed on
01.07.2016. Thus, there is a delay of 3 months and 5 days and no
explanation for the delay has been given. Therefore, the application is
liable to be dismissed.

18. Although, the application under section 5 of the Limitation
Act has been dismissed and consequently the appeal also liable to be
dismissed. But for academic purpose and to save judicial time so that
no time is wasted in getting the finding of the first appellate court if for
any reason High Court consider to condone the delay, this Court has
taken up the appeal on merit as well.

19. First ground of appeal is to the effect that impugned

Suit No. 61938/16 Sunita Rani v. Shanti Devi Page No. 9 of 13
judgment/ decree is against the cardinal principle of law. During the
course of arguments, nothing has been explained as to how the
impugned judgment is against the cardinal principle of law and which
cardinal principle of law has been violated. Hence, this ground being
vague is not sustainable.

20. Next ground is that Ld. Trial Court has failed to appreciate
the principle that when no evidence is led by either side suit must fall.
Perusal of the Trial Court record shows that plaintiff herself appeared in
the witness box and was also subjected to the cross-examination. Not
only this plaintiff examined two other witnesses also. Therefore, it
cannot be said that no evidence has been led on the part of the
plaintiff. In fact, plaintiff i.e. respondent herein appeared in the witness
box as PW-1 and specifically deposed that she was the absolute owner
of the entire property bearing no. 16/1704-E, Bappa Nagar, Arya Samaj
Road, Karol Bagh having purchased from previous order on
10.12.1980 after paying its lawful consideration by virtue of agreement
to sell, GPA, affidavit all dated 10.12.1980 Ex.PW1/A (Colly). She was
given suggestion to the effect that property was purchased out of the
earning of her husband. Another suggestion was given to the effect
that suit property was a slum leased property which cannot be sold or
purchased. Both suggestions were denied by PW-1. Defendant did
not produce any evidence so as to show that ownership of the property
is with the JJ Slum. Defendant/ appellant admitted in her cross-
examination that after the death of her husband she was allowed by
the plaintiff/ respondent to live in the suit property. She also deposed

Suit No. 61938/16 Sunita Rani v. Shanti Devi Page No. 10 of 13
that she did not know about the JJ Slum property. She also admitted
that she has not placed any document on record to show that property
is a JJ Slum property. She also admitted that after her marriage with
the son of the respondent/ plaintiff she came to live in the suit property
and remained in the property till 2007 and thereafter she left and then
again came back in December 2009. She admitted that her husband
has expired on 20.12.2009 after which she returned to the suit property
and she was allowed to live in the suit property by the respondent as
she has agreed to take care of two children from the first wife of her
husband. Now in the back ground of above testimony, it cannot be
said that there was no evidence which would have called for
application of the principle that when there is no evidence from either
side, suit must be dismissed. Hence, this ground is not sustainable.

21. Next ground of appeal is that Ld. Trial Court has not
appreciated that the suit property was pleaded to be of JJ Slum
property. The impugned judgment/ decree cannot be disturbed on this
ground too as admittedly no evidence was led from the side of the
defendant to prove that property belongs to JJ Slum. Moreover, even if
the property had been of JJ Slum, that fact would not have made any
difference as there was categorical admission on the part of the
appellant that she came into the suit property upon being allowed by
the respondent/ plaintiff. The principle of estoppal as enumerated in
Section 116 of Evidence Act prohibits the licensee to question the title
of licensor during the subsistency of the licence and licensee is not
permitted to set up title in third person before handing over the

Suit No. 61938/16 Sunita Rani v. Shanti Devi Page No. 11 of 13
possession of the suit property to the person from whom possession
was taken by the licensee. Hence, the appellant is not permitted to
dispute the title of the respondent.

22. Next ground of appeal is that plaintiff/ respondent did not
place on record any title document to show that she was the owner of
the property. This ground is not sustainable for the reason that
respondent / plaintiff placed on record agreement to sell, GPA and
affidavit Ex.PW1/3 (Colly). The stand of the appellant during the cross-
examination was that the property was purchased out of the funds of
the husband of the respondent. Be that as it may, it amounted to
admission on the part of the appellant that property was purchased in
the name of respondent/plaintiff and it was for the appellant / plaintiff to
bring on record to show that purchase amount was paid out of the
earning of the husband of the respondent. However, this question is
immaterial in view of the admission of the appellant wherein she
admitted that she was allowed to live in the property by the respondent/
plaintiff and as discussed above Section 116 of Evidence Act stops the
appellant from disputing the title of the respondent. Hence, this ground
is not sustainable for interfering with the impugned judgment.

23. Next ground of appeal is that Ld. Trial Court has failed to
appreciate section 19 of Hindu Adoption and Maintenance Act.
However, the said section is not applicable as father-in-law mentioned
in the said provision does not include mother-in-law, even by any
analogy. Hence, said ground is also not sustainable for interfering with

Suit No. 61938/16 Sunita Rani v. Shanti Devi Page No. 12 of 13
the impugned judgment.

24. The other grounds raised by the appellant are not worth
discussion for the reason that none of them goes to show any right/
title in the appellant in respect of the suit property so as to hold that
impugned judgment/ decree is required to be interfered with by this
Court.

In view of the above discussion, appeal of the appellant is
dismissed even on merits as well.

Parties to bear their own costs.

TCR be sent back with copy of this judgment placed on it.
Appeal file be consigned to Record Room after
necessary compliance.

(Harish Kumar)
Announced in the open Court ADJ-13(Central) / THC
(Judgment contains 13 pages) Delhi /26.04.2017

Suit No. 61938/16 Sunita Rani v. Shanti Devi Page No. 13 of 13

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