Delhi High Court
Gagan Singh @ Mannu vs Mr Paramjit Singh And Ors. on 29 October, 2024
Author: Manmeet Pritam Singh Arora
Bench: Manmeet Pritam Singh Arora
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 26h July, 2024
Date of Decision: 29th October, 2024
+ CS(OS) 77/2022 & I.A. 2931/2024
MR. PARAMJIT SINGH .....Plaintiff
Through: Mr. P.S. Bindra, Sr. Adv. with Mr.
Asutosh Lohia, Mr. Rohit Saraswat, Mr.
Gaurav Anand, Mr. Sharan Mehta and
Mr. Karan Sharma, Advs.
versus
MS GAGAN SINGH @ MANNU & ANR. .....Defendants
Through: Mr. Rakesh Munjal, Sr. Adv. with Mr.
Rakesh Kumar, Mr. Sunil, Advs.
Mr. Rajat Sharma and Mr. R.P.S. Rana,
Advs.
+ CS(OS) 629/2023 & I.As. 19910/2023, 7225/2024, 9130/2024,
9267/2024, 30067/2024
GAGAN SINGH @ MANNU .....Plaintiff
Through: Mr. Rakesh Munjal, Sr. Adv. with Mr.
Rakesh Kumar, Mr. Sunil, Advs.
versus
MR PARAMJIT SINGH AND ORS. .....Defendants
Through: Mr. P.S. Bindra, Sr. Adv. with Mr.
Asutosh Lohia, Mr. Rohit Saraswat, Mr.
Gaurav Anand, Mr. Sharan Mehta and
Mr. Karan Sharma, Advs. for D-1
Mr. Gokul Sharma, Ms. Priyanka Singh,
Signature Not Verified
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By:RASHMI DABAS CS(OS) 77/2022 & CS(OS) 629/2023 Page 1 of 32
Signing Date:31.10.2024
22:42:41
Ms. Deepanshi and Mr. Priyank
Chauhan, Advocates for D-2 to D-5.
Mr. Rajat Sharma and Mr. R.P.S. Rana,
Advs. for D-6
%
CORAM:
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
JUDGMENT
MANMEET PRITAM SINGH ARORA, J:
CS(OS) 77/2022
1. The captioned suit has been filed by the plaintiff seeking a mandatory
injunction in respect of property bearing no. E-27, South Extension, Part-II,
New Delhi (‘suit property’) in favour of the plaintiff restraining the defendants
from creating any third-party interest qua the suit property. The plaintiff further
seeks a permanent injunction against the defendants restraining them from
dispossessing the plaintiff from the suit property and interfering/or obstructing
with the plaintiff’s possession, occupation and enjoyment of the suit property.
2. The plaintiff has also filed I.A. 2931/2024 seeking amendment of the
plaint to incorporate an additional prayer for a decree of declaration declaring
the plaintiff to be the sole and absolute owner of the suit property, which is
pending adjudication.
3. The suit property comprises of a superstructure comprising ground floor,
first floor, second floor and terrace on a plot admeasuring 250 sq. yds. The
plaintiff asserts that he is in actual physical possession of the entire second floor
along with terrace; and is in constructive possession of the remaining floors
which are in the physical possession of the tenants.
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4. The plaintiff is a permanent resident of Canada as well as naturalized
Canadian citizen.
Arguments on behalf of the plaintiff
5. Mr. Pawan Bindra, learned senior counsel for the plaintiff stated that
though the title deed dated 19.03.1965 of the suit property is standing in the
exclusive name of late Sh. Raghbir Singh, the father of defendant no. 1 herein;
however, plaintiff claims joint ownership of the suit property on the basis of the
averments that substantial contribution towards the sale consideration was paid
by the plaintiff’s father, late Sardar Nirmal Singh. He stated that the suit
property was purchased in the name of late Sh. Raghbir Singh in a fiduciary
capacity for the benefit and enjoyment of the family of late Sardar Nirmal
Singh.
5.1 He stated that the family of late Sardar Nirmal Singh has remained in
exclusive possession of the second floor along with terrace and received a share
in the rentals collected from the tenants of the ground floor and the first floor.
He stated that after the death of late Sardar Nirmal Singh on 20.10.2004, the
plaintiff herein continued to be in sole and exclusive possession of the second
floor and terrace.
5.2 He stated that defendant no. 1’s father, late Sh. Raghbir Singh and
plaintiff’s father late Sardar Nirmal Singh were first cousins. He stated that due
to this close familial relationship the said two individuals had a common
businesses all over the world and they invested jointly in several immovable
properties across the country and the suit property was also purchased from the
joint funds accrued from the said businesses. He stated therefore, late Sh.
Raghbir Singh held the suit property in a fiduciary capacity. He stated that in
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view of this averment the claim of the plaintiff of joint ownership is saved
under Proviso (ii) to Section 2(9)(A)(ii) of the Prohibition of Benami Property
Transactions Act, 1988 (‘Benami Act’).
5.3 He stated that the evidence of the aforesaid joint ownership is the fact
that late Sardar Nirmal Singh and after him the plaintiff herein have remained
in settled possession of the entire second floor alongwith terrace of the suit
property. He stated that the house tax in respect of the second floor of the suit
property was regularly paid by late Sardar Nirmal Singh and after his demise
plaintiff has been clearing of all the dues. He stated that apart from the statutory
taxes payment towards utilities including electricity and water bills have been
regularly paid by the plaintiff.
5.4 He concedes that though in the plaint it is averred that rentals from the
tenants on the ground floor and first floor of the suit property were being shared
equally between plaintiff and defendant no. 1, however, no disclosure of the
said income has been made in the Income Tax Returns filed by the late Sardar
Nirmal Singh. He also concedes that the property is not mutated in the name of
late Sardar Nirmal Singh or his legal heirs.
5.5 He stated that though admittedly there are no documents on record to
substantiate the pleas of contribution of funds by late Sardar Nirmal Singh
towards purchase of the suit property or the construction thereon, he states that
the averments made at paragraphs 6, 7 and 8 of the plaint are sufficient to
maintain the suit and the said averments shall be proved at the stage of trial.
5.6 He fairly concedes that though in the plaint at para 7, it has been averred
that there were several joint investments made in immovable properties
throughout India, the plaintiff herein is not aware about the details or existence
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of any such other immovable properties jointly owned by late Sardar Nirmal
Singh and late Sh. Raghbir Singh. He also concedes that the neither the plaintiff
nor late Sardar Nirmal Singh have till date acknowledged the ownership of the
legal heirs of late Sh. Raghbir Singh in any immovable property standing in the
name of late Sardar Nirmal Singh.
5.7 The plaintiff has filed written submissions on 08.08.2024 and relied upon
Marcel Martins v. M. Printer1, Neeru Dhir v. Kamal Kishore Dhir2, Pawan
Kumar v. Babulal3, Binapani Paul v. Pratima Ghosh4, Poonam Jain v.
Kailashwati Jain5 and Pankaja v. Yellappa6
Arguments on behalf of defendants
6. Mr. Rakesh Munjal, learned senior counsel appearing on behalf of
defendant no. 1 stated that late Sh. Raghbir Singh, the father of defendant no. 1
was the exclusive recorded owner of the suit property as is evident from the
title deed dated 19.03.1965. He stated that Sh. Raghbir Singh expired on
25.12.1974 and he was survived by his mother-Mrs. Har Kaur, wife-Mrs. Neera
and his daughter-Ms. Gagan Singh, i.e., defendant no. 1 herein. He stated
however, there was litigation between the said three Class-I legal heirs of Sh.
Raghbir Singh between 1976 to 1994 and the matter came to rest after the SLP
(C) 4191/1994 was dismissed on 05.08.1994 by the Supreme Court. He states
that as per the judgment of the High Court of Punjab and Haryana dated
29.08.1988 passed in RSA No. 1285/1982, which was upheld by the Supreme
1
AIR 2012 SC 1987
2
2020 SCC Online Del. 2506
3
(2019) 4 SCC 367
4
AIR 2008 SC 543
5
303 (2023) DLT 626
6
(2004) 6 SCC 415
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Court the entire estate of late Sh. Raghbir Singh including the suit property
devolved equally upon his three Class-I legal heirs i.e., his mother, his widow
and his daughter-defendant no. 1 herein. He stated that the plaintiff and his
father late Sardar Nirmal Singh were aware of the said litigation at all times and
never staked a claim in the suit property.
6.1 He stated that after the death of late Sh. Raghbir Singh and, the passing
of the order of the High Court of Punjab and Haryana and the Supreme Court,
the tenants in the suit property on ground floor and first floor attorned their
tenancy in the favour of Smt. Har Kaur, the mother of late Sh. Raghbir Singh
and filed their affidavits stating so before the High Court of Punjab and
Haryana in RSA No. 1285/1982. He stated that in the said affidavits none of the
tenants stated that late Sardar Nirmal Singh was their landlord or that they were
paying any rentals to late Sardar Nirmal Singh.
6.2 He stated that in the year 2001 consequent upon the aforesaid judgments
of the High Court of Punjab and Haryana and Supreme Court, the suit property
stands mutated in the names of Smt. Har Kaur, Mrs. Neera and defendant no. 1,
the three Class-I legal heirs of late Sh. Raghbir Singh. He relied upon the
mutation letter dated 03.12.2001. He stated that the original title deed dated
19.03.1965 is in the custody of the defendant no. 1. He stated that the
documents pertaining to Municipal Corporation of Delhi (‘MCD’) property tax
department also record that late Sh. Raghbir Singh is the owner of the suit
property.
6.3 He stated that the assertion in the plaint that late Sardar Nirmal Singh
received share in the rentals recovered from the tenants on the ground floor and
the first floor of the suit property is falsified from the income tax return of late
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Sardar Nirmal Singh placed on record by the plaintiff for the Assessment Year
(‘AY’) 2001-02, wherein the declaration made by the assessee (Sh. Nirmal
Singh) is that he has NIL income under the head ‘Income from House
Property’. He states similarly the income tax return of the plaintiff himself for
AY 2005-06 declares that he as well as NIL income under the head ‘Income
from House Property’.
6.4 He stated that the plaintiff initially on 10.02.2022 persuaded this Court to
grant an ex-parte ad-interim restraint order in his favour on the false plea that
the suit property stands in the joint names of late Sardar Nirmal Singh and late
Sh. Raghbir Singh. He states that the falsity of the said submission was
highlighted by the defendants and thereafter vide order dated 07.02.2024, this
Court vacated the said ad-interim order after returning a finding that the
plaintiff has no prima facie case in his favour. He also relied upon the contents
of the orders dated 05.12.2023 and 14.12.2023. He stated that the record of this
Court evidence that after obtaining the interim order on 10.02.2022, the plaintiff
had avoided addressing arguments on the application of the defendant for
vacation of stay. He stated that despite multiple opportunities granted to the
plaintiff to substantiate his claims made in the plaint, the plaintiff was unable to
file any documents to substantiate the same.
6.5 He stated that in order to perpetuate the fraud the plaintiff has now filed
I.A. No. 2931/2024 under Order VI Rule 17 of the Code of Civil Procedure,
1908 (‘CPC’) for seeking amendment of plaint and in this application as per the
proposed new prayer clause (aa) the plaintiff seeks a declaration that he is the
sole and absolute owner of the suit property. He stated that the prayer sought to
be inserted by way of this amendment is contrary and inconsistent with the
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By:RASHMI DABAS CS(OS) 77/2022 & CS(OS) 629/2023 Page 7 of 32
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pleas in the existing plaint where the claim raised was of joint ownership of late
Sardar Nirmal Singh and late Sh. Raghbir Singh. He stated that the amendment
proposed shows the fraudulent nature of the claim and I.A. No. 2931/2024
deserves to be dismissed on this ground alone.
6.6 He stated that the plea in the plaint that late Sardar Nirmal Singh
provided substantial funds for the sale consideration in 1965 towards the sale
consideration of the suit property is a bald plea. He stated that no document in
support of the said averment has been placed on record.
6.7 He stated that plaintiff is a licensee in the property and the said license
has been duly cancelled by issuing a legal notice on 19.03.2022. He stated that
the plaintiff has been called upon to vacate the second floor as well as terrace
on or before 01.05.2022. He stated that since the plaintiff has failed to vacate
the property the defendant no. 1 is entitled to seek his eviction and mesne
profits w.e.f. 01.05.2022. He stated that defendant no. 1 has filed a separate suit
for recovery of possession and mesne profits before this Court which is
registered and numbered as CS(OS) 629/2023. He stated that the defendant is
entitled to recover at the minimum Rs. 5 lakhs per month. He stated that
defendant has placed on record registered lease deed dated 30.04.2022 of an
adjoining property, qua a property constructed around the same time, wherein
the ground floor has been let out at Rs. 9 lakhs per month with an annual
escalation of 15%.
6.8 He relied upon Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra)7
and Peeyush Aggarwal v. Sanjeev Bhavnani8. The defendant has filed written
submissions on 02.08.2024.
7
(2020) 7 SCC 366.
Signature Not Verified
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By:RASHMI DABAS CS(OS) 77/2022 & CS(OS) 629/2023 Page 8 of 32
Signing Date:31.10.2024
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Analysis and findings
7. This Court has considered the submissions of the learned senior counsel
for the parties and perused the record.
8. The plaintiff admits that the title documents of the suit property i.e., sale
deed dated 19.03.1965 records that late Sh. Raghbir Singh is the absolute owner
of the suit property and that the MCD vide letter no. Tax/CZ ‘A’)/0l/1157 dated
03.12.2001 has mutated the said property in the names of the Class-I legal heirs
of late Sh. Raghbir Singh i.e., late Smt. Har Kaur (since deceased), Smt. Neera
(since deceased) and Ms. Gagan Singh (defendant no. 1 herein).
9. The plaintiff has filed this suit for permanent and mandatory injunction
restraining the defendants from interfering in his possession of the second floor
and terrace in the suit property. The plaintiff has now also filed I.A. No.
2931/2024 to amend the plaint to seek additional relief of declaration of sole
and exclusive ownership of the plaintiff qua the suit property.
Plaintiff’s claim of fiduciary relationship is without any factual basis
10. The basis of seeking the said relief of injunction and declaration is on the
plea that Sh. Raghbir Singh purchased the suit property in a fiduciary capacity
for the benefit and enjoyment of plaintiff’s father Sardar Nirmal Singh and his
family.
11. It is stated in the plaint that the suit property was purchased as an
investment by late Sardar Nirmal Singh and the late Sh. Raghbir Singh with
funds earned from joint business. It is stated that substantial contribution was
made by plaintiff’s father late Sardar Nirmal Singh towards the purchase
consideration and therefore, the plaintiff’s ownership claim is protected under
8
MANU/DE/1856/2013.
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proviso (ii) to Section 2(9)(A) of the Benami Act. Specific averments made in
the plaint are reproduced below :-
“4. That the father of the Plaintiff – Sardar Nirmal Singh (s/ o. Mr. Chanan
Singh and Mrs. Surjit Kaur) had a long standing business relationship with
Mr. Raghbir Singh (s/ o. Shri Lachman Singh and Mrs. Har Kaur), who was
also his first cousin. [Raghbir Singh was the cousin of the Nirmal Singh
(chacha’s son), and Lachman Singh and Har Kaur were Uncle & Aunt]
……
6. That as stated above, Sardar Nirmal Singh and Mr. Raghbir Singh
together carried on successful businesses in various countries including
India, Philippine, Hong Kong etc. (lumber, fishing, money exchange) and
made several investments together which gave good returns. Over a period
of time they made a small fortune together leading to investments made
jointly/in trust, in a fiduciary capacity with each other.
7. That in the collective wisdom of Sardar Nirrnal Singh and Mr. Raghbir
Singh, investments were made in immoveable properties in India, including
the suit property i.e. E-27, South Extension, Part-2, New Delhi besides
some other investments in Jalandhar while some other investments were
liquidated and divided during the lifetime of Raghbir and Nirmal Singh.
The present action only concerns the suit property at South Extension, New
Delhi. The said suit property (purchased in a fiduciary capacity in the year
1965), in the name of Mr. Raghbir Singh for the benefit of Sardar Nirmal
Singh and his family with substantial contributions towards the purchase
consideration by the father of the Plaintiff – Sardar Nirmal Singh.
8. As there was unbound love and mutual trust between Sardar Nirmal
Singh and Mr. Raghbir Singh, there was no conflict or apprehension and the
property continued to be held / maintained in the name of Mr. Raghbir
Singh. All the family members of Mr. Raghbir Singh and Sardar Nirmal
Singh were aware of the aforesaid arrangement and most of them are
willing to testify to the said facts.”
(Emphasis Supplied)
12. In the afore pleaded facts, the stand of the plaintiff is that late Sh.
Raghbir Singh was standing in the fiduciary capacity for the benefit of late
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Sardar Nirmal Singh and therefore, the plaintiff being the son of late Sardar
Nirmal Singh is entitled to declaration of ownership of the suit property.
Plaintiff relies upon the judgement of Supreme Court in the case of Pawan
Kumar (Supra) and Marcel Martins (Supra).
13. Having considered the submissions of the Plaintiff and having perused
the record, this Court is of the opinion that the aforesaid claim of ownership of
the plaintiff is hit by the Section 4 of the Benami Act as plaintiff has failed to
file on record or produce on record any document whatsoever to substantiate
his claim that there existed any fiduciary relationship between late Sardar
Nirmal Singh and late Sh. Raghbir Singh or any part of the purchase
consideration was provided by late Sardar Nirmal Singh.
14. The claim of joint investments between late Sardar Nirmal Singh and late
Shri Raghbir Singh is a bald averment unsubstantiated by even sliver of a
document. Plaintiff has not filed any written deed evidencing existence of any
fiduciary relationship between late Sardar Nirmal Singh and late Sh. Raghbir
Singh. Plaintiff has filed no documents to show that Sardar Nirmal Singh and
Sh. Raghbir Singh were carrying on any business together and/or held joint
funds and/or held any joint investments, which could have formed the corpus
for purchasing the suit property. Therefore, in the absence of the said
documents, the plaintiff’s reliance on the judgments of the Supreme Court in
Pawan Kumar (Supra) and Marcel Martins (Supra) is misconceived. In both
the said relied upon cases, there were documents filed on record by the plaintiff
therein, which prima facie evidenced flow of funds from plaintiff therein to
defendant as well as existence of a fiduciary relationship, which evidence could
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be tested at the stage of trial. However, in the facts of the present case, there is
no iota of evidence.
15. The plaintiff by merely parroting words of the statute and stringing vague
sentences in the plaint cannot overcome the absolute bar of Section 4 of Benami
Act. The plaint fails to give any material particulars of the joint business or
joint funds or investments held by late Sh. Raghbir Singh and late Sardar
Nirmal Singh and its utilization for the purchase of the suit property. The facts
pleaded in the captioned plaint, if real, would necessarily be capable of
evidencing through documents. The absence of documents and material
particulars to support the vague averments in the plaint shows that no such facts
exist.
16. In the opinion of this Court, the aforesaid paragraphs of the plaint are
nothing but a clever drafting to create an illusion of a legal plea of fiduciary
capacity for dishonestly invoking the exception of proviso (ii) to Section
2(9)(A) of the Benami Act. The aforesaid pleas in the plaint all read together
fail to raise any presumption that late Sh. Raghbir Singh stood as a trustee qua
Sardar Nirmal Singh with respect to the suit property. The said bald averments
are not sufficient for invoking the said proviso of the Benami Act. The
averments made in the plaint failed to show any fiduciary relationship between
late Sh. Raghbir Singh and late Sardar Nirmal Singh.
17. In the absence of any material facts in the pleadings and credible
documents, the plea of the plaintiff that Sh. Raghbir Singh was a person
standing in the fiduciary capacity qua Sardar Nirmal Singh is bereft of
particulars and it does not give rise to any cause of action in favour of the
plaintiff herein so as to invoke proviso (ii) to Section 2(9)(A) of the Benami
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Act. The untenability of the plea is also evident from the fact that though in the
plaint, it has been pleaded that late Sardar Nirmal Singh and Sh. Raghbir Singh
had similarly made several investments multiple immovable properties all over
the country however, the plaintiff has been unable to place on record the details
of any other immovable properties, which form part of such an alleged joint
corpus.
18. Section 2(9)(A) of the Benami Act reads as under:-
“(9) “benami transaction” means,–
(A) a transaction or an arrangement–
(a) where a property is transferred to, or is held by, a person, and
the consideration for such property has been provided, or paid by,
another person; and
(b) the property is held for the immediate or future benefit, direct or
indirect, of the person who has provided the consideration,
except when the property is held by–
(i) a Karta, or a member of a Hindu undivided family, as the case
may be, and the property is held for his benefit or benefit of
other members in the family and the consideration for such
property has been provided or paid out of the known sources of
the Hindu undivided family;
(ii) a person standing in a fiduciary capacity for the benefit of
another person towards whom he stands in such capacity and
includes a trustee, executor, partner, director of a company, a
depository or a participant as an agent of a depository under the
Depositories Act, 1996 (22 of 1996) and any other person as may
be notified by the Central Government for this purpose;
(iii) any person being an individual in the name of his spouse or
in the name of any child of such individual and the consideration
for such property has been provided or paid out of the known
sources of the individual;
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(iv) any person in the name of his brother or sister or lineal
ascendant or descendant, where the names of brother or sister or
lineal ascendant or descendant and the individual appear as joint
owners in any document, and the consideration for such property
has been provided or paid out of the known sources of the
individual; or
……….”
(Emphasis Supplied)
19. A perusal of the exceptions recognized under Section 2(9)(A) of the
Benami Act shows that the intent of the legislation is that whenever a party
invokes the said four exceptions, the source of funds which the party asserting
benami relies upon have to be documented in records so as to be capable of
verification. For instance, exception (i) requires the party asserting benami to
show that the consideration was paid by such a party out of the known sources.
The phrase known sources would mean bank account and/or declared funds
shown in the balance sheet of such a party which are documented with the
authorities. Similarly, exception (iii) and (iv) requires the party asserting
benami and invoking the said provisos to establish payment towards
consideration from known sources. Exception (i), (iii) and (iv) as is evident
pertains to individuals and the legislature expects the person, who claims to be
the benami owner to show that he/she provided the fund from sources, which
can be identified and attributed to the person. The expression known sources
has been incorporated in the Benami Act vide amendment made to the Act in
the year 2016. Prior to the amendment this expression-known sources was
absent 9 , thus in pre-2016 litigation claims parties were permitted to lead
9
Section 4(3) of the Benami Act prior to its amendment in year 2016 read as under :-
4. Prohibition of the right to recover property held benami- (1) No suit, claim or action to enforce any right
in respect of any property held benami against the person in whose name the property is held or against anySignature Not Verified
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circumstantial evidence to show that ownership rights were being exercised by
the benamidar and this entire exercise was subjective. However, with the
introduction with the phrase ‘known sources’ post 2016 in the Benami Act, the
test has become objective and the party asserting benami ownership has to
establish that the consideration for the immovable property was paid from
known sources of the benamidar. The onus to prove that funds were provided to
the title holder from known sources lies on the party asserting himself/herself to
be benamidar. In the absence of evidence regarding known sources, the
exception will not be available. The mere fact that parties are related to each
other is not sufficient to invoke the exception in the absence of proof of flow of
funds from ‘known sources’.
20. The expression known sources was discussed in the 28 th report of the
Standing Committee on Finance (2015-16), 16th Lok Sabha. The relevant
portion of the report reads as under:
“9.13 The Institute of Chartered Accountants of India (ICAI), in their
written submission stated that the exception to benami transaction as laid
down in section 2(1) of the Bill uses the expression consideration paid on
provided for the property by the Karta or member of HUF out of the known
sources of income of HUF in sub clause (i) and in case of individual out of
the known sources of income of the individual is of wider import and
contemplates situations where loan funds may be provided for acquiring the
property. Loan funds are not income and therefore expression “out of knownother person shall lie by or on behalf of a person claiming to be the real owner of such property.
…
(3) Nothing in this section shall apply,–
(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the
property is held for the benefit of the coparceners in the family; or
(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary
capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he
stands in such capacity.
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sources” can be used instead of “known source of income” to bring in clarity
in such cases.
9.14 In this context the Ministry of Finance, furnished their following views:
“The term ”known source of income” was used in consultation with Ministry
of Law and Justice to provide for investment where the source of funding was
clearly identifiable. However if the Committee recommends, the matter shall
be examined in consultation with Ministry of Law and Justice. Although the
intention of the provision is that the source of funds should be explained,
ambiguity may arise on account of the present language of the provision. The
matter will be examined further and, if necessary, an amendment will be
moved with the approval of the competent authority.”
(Emphasis Supplied)
21. The proviso to Section 2(9)(A) of the Benami Act which carves out an
exception qua and between individuals has been clearly defined and is limited
to the relationships recognized in exception (i), (iii) and (iv). The said
exceptions cannot be invoked by individuals who are not related by kinship; for
instance, between two friends. The intention of the legislature is to make these
exceptions available within limited relations of an individual.
22. Exception (ii) under Section 2(9)(A) of the Benami Act is intended to
apply to transactions where one party is recognized under the law to be standing
in a fiduciary capacity towards another person. This is evident from the
illustrations included in the said exception. This exception (ii) in its existing
form is intended to cover legal relationships such as partnership firm, a
company, a trust, a depository and an executor. The exception recognizes that in
these legal relationships the parties stand in a fiduciary capacity for each other.
The fact that the exception is intended to apply to legal relationship is indicated
from the fact that notifying any other legal relationship to be standing in a
Signature Not Verified
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fiduciary capacity is a prerogative reserve to the Central Government alone.
Thus, if the party invoking the exception cannot establish through record the
existence of a legal relationship specified in this exception, it cannot invoke the
said exception. It is well settled that exceptions in the statute are to be construed
strictly. [CCE v. Hari Chand Shri Gopal10]
23. In the facts of this case, the plaintiff herein has not placed on record any
document evidencing existence of a partnership firm between late Sardar
Nirmal Singh and late Shri Raghbir Singh. The plaintiff has not proved the
existence of any common bank account of the partnership firm which provided
the funds to late Sh. Raghbir Singh for purchase of the suit property neither
there is any document on record evidencing any trail of payment from late
Sardar Nirmal Singh to late Shri Raghbir Singh as partners for purchase of the
suit property. The plaintiff has thus failed to even raise a presumption that late
Shri Raghbir Singh was standing in a fiduciary capacity for late Sardar Nirmal
Singh with respect to the suit property.
24. Thus, in the considered opinion of this Court, the plaintiff herein cannot
rely upon the exceptions as provided under Proviso (ii) to Section 2(9)(A) of
the Benami Act.
25. The reliance placed by plaintiff on the judgement of Division Bench of
this court in Neeru Dhir (Supra) is misconceived as at paragraph no. 8 of the
said judgment Division Bench records that the plaintiff therein had relied upon
documents executed by title holder acknowledging that the subject property had
been purchased for the benefit and welfare of the entire family as well as an
agreement existed which recorded that the consideration has been paid for by
10
(2011) 1 SCC 236. Para 29
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the parties claiming title therein. It was in view of the documents filed in
support of the averments made in the plaint that the Division Bench at
paragraph no. 23 observed that the plaint could not have been rejected under
Order VII Rule 11 CPC. However, in the facts of the present case as noted
above there is absolutely no document to support the bald averment made in the
plaint and therefore the reliance placed by the plaintiff on this judgment of
Neeru Dhir in inapplicable.
26. Similarly, in Babita Pal (Supra) relied upon by the plaintiff, the
Division Bench was considering a challenge to an order of the Single Judge
allowing an application under Order VI Rule 17 CPC as well as dismissal of an
application rejecting the application under Order VII Rule 11 CPC. In the facts
of the said case, the Court was satisfied that the plaintiff therein had placed on
record sufficient documentary evidence to invoke the exceptions to Section 4(3)
of the unamended Benami Act and thus the suit could not be rejected under
Order VII Rule 11 CPC. However, this is not the case in the present suit which
is bereft of any particulars and documents.
27. In Poonam Jain (Supra), the plaintiff therein averred in the plaint that
the subject property purchased in the name of the mother had been paid for
from the account funds of partnership firm. The sale consideration had been
debited from the account of the partner. The said averment was substantiated
with documents. In these facts the Single Judge at paragraph no. 55 of the said
judgment held that the plaint could not be rejected under Order VII Rule 11
CPC and the matter would have to be tested at trial. The facts of Poonam Jain
(Supra) are distinguishable and not applicable to the facts of the present case.
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28. The legal position that follows from the judgements relied upon by the
plaintiff is that, in the absence of documents evidencing the existence of a
fiduciary relationship and existence of corpus of funds made available by the
plaintiff from his/her known sources to defendant, the plaintiff cannot invoke
proviso (ii) of Section 2(9)(A) of the Benami Act and the claim of the plaintiff
would be barred under Section 4 of the Benami Act.
Plaintiff’s claim of equal contribution towards construction of the suit property not
established
29. The plaintiff has averred that late Sardar Nirmal Singh made investments
and contributions during the raising of the construction on the plot of land
forming part of the suit property and it was averred that documents to
substantiate the said averment has been filed along with the plaint.
30. In this regard, this Court has perused the documents placed on record
with the plaint and the same shows that they do not pertain to suit property. The
documents filed pertain to a distinct immovable property i.e., D-26, South
Extension, Part-II, New Delhi; this fact during the course of arguments was also
not disputed by the senior counsel appearing for the plaintiff. Therefore, in the
considered opinion of this Court the plea that late Sardar Nirmal Singh
contributed funds towards the construction of the suit property is also a bald
averment not borne out from the record.
Effect of plaintiff’s claim of continuous and uninterrupted possession
31. The plaintiff has also averred in the plaint that he and his family have
been in continuous and uninterrupted possession of the second floor along with
the terrace of the suit property and have been collecting rentals from the
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tenants, who are occupying the ground and first floors of the suit property. To
substantiate this claim, plaintiff has relied on the receipts for payments of
property tax and utility bills for the suit property made by him and his mother
since 2005. Furthermore, plaintiff has relied on the bank account statements,
credit card bills, and income tax returns (‘ITRs’) of the plaintiff and the late
Sardar Nirmal Singh, which bear the address of the suit property.
32. In the considered opinion of this Court reliance placed by the plaintiff on
the payment of property tax, utility bills and other documents to claim
ownership of the suit property is misconceived. These documents are the proof
of possession not of ownership.
33. Moreover, the ITRs of late Sardar Nirmal Singh placed on record does
not declare any ownership rights in the suit property. Though, the plaintiff has
averred in the plaint that a share in the rental income from the tenants of the suit
property were received by late Sardar Nirmal Singh during his life time and by
the plaintiff thereafter, however, the ITRs of late Sardar Nirmal Singh and the
plaintiff placed on record categorically declared that they had ‘NIL’ income
under the head ‘Income from House Property’ which shows that plaintiff and
late Sardar Nirmal Singh were not deriving any rental income from the suit
property or any other property.
34. It is a matter of record that by the virtue of Section 140 of the Income
Tax Act, 1961, the ITRs filed by an assessee contains a verification clause
which declares that information given in the return is correct and true to their
knowledge. To this effect, the verification in the ITR for AY 2001-02 of late
Sardar Nirmal Singh and his declaration of ‘NIL’ for Income from house
property is relevant and reads as under:-
Signature Not Verified
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Signing Date:31.10.2024
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Form No. 2D SARAL ITS-2D
(INCOME TAX RETURN FORM FOR NON CORPORATE ASSESSEES OTHER THAN PERSONS CLAMING EXEMPTION UNDER SECTION 11)
[See Proviso to rule 12(1)(b)(iii)
1. NAME MR. NIRMAL SINGH (PROP. OF M/S DEOL INTERNATIONAL EXPORT TRADERS)
2. FATHER’S NAME LATE SHRI CHANAN SINGH
3. ADDRESS E-27, SOUTH EXTENSION, PART-11, NEW DELHI
……………………………………………………………………………………….PIN110049……………..TELEPHONE
4. Permanent Account Number AAZPS-5027N 8. Ward Circle/Special Range
WARD-27(4)
5. Date Of Birth 01.05.1940 9. Sex: Male/Female : Male
6. Individual/Hindu Undivided Family/Firm/Association of 10. Income for the previous year i.e.
1.4.2000 to 31.03.2001
Personal/Local Authority : INDIVIDUAL 11. Assessment
Year : 2001-2002
7. Resident/Non-Resident/Nor Ordinarily Resident: Resident 12. Return Original or Revised : Original
13. Details of ‘Bank Accounts. “Please tick (âś“) the bank account, where you would like the amount of refund to be
credited
…..
16. INCOME FROM HOUSE PROPERTY……………………………………………………………………………………………….RS………….NIL
……
VERIFICATION
I, NIRMAL SINGH……………………………………………………………………………………………………………………………(name in full and in
block letters) son/daughter of LATE SH. CHANAN SINGH………..solemnly declare that to the best of my acknowledge
and belief the information given in this return and the annexures and statements accompanying it are correct
complete and truly stated an din accordance with the provisions of Income Tax Act, 1961, in respect of income
chargeable to income tax for the previous year relevant to the assessment year 2001-2002.
Receipt No…………………..0833……………….Date…………29.10.2001
Seal Sd/-
Signature of the receiving official Date: 27.10.2001
Place: New Delhi
35. To the same effect is the status of declaration of information in ITR filed
by the plaintiff herein, wherein similarly his disclosure with respect to income
from house property and the verification reads as under:-
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By:RASHMI DABAS CS(OS) 77/2022 & CS(OS) 629/2023 Page 21 of 32
Signing Date:31.10.2024
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Form No. 2D SARAL ITS-2D
(INCOME TAX RETURN FORM FOR NON CORPORATE ASSESSEES OTHER THAN PERSONS CLAMING EXEMPTION UNDER SECTION
11)
[See Proviso to rule 12(1)(b)(iii)
1. NAME MR. PARAMJIT SINGH (PROP. OF M/S DEOL INTERNATIONAL EXPORT TRADERS)
2. FATHER’S NAME LATE SHRI NIRMAL SINGH
3. ADDRESS E-27, SOUTH EXTENSION, PART-11, NEW DELHI
……………………………………………………………………………………….PIN110049……………..TELEPHONE
4. Permanent Account Number AUIPS-4901Q 8. Ward Circle/Special Range
W-32940
5. Date Of Birth 01.05.1940 9. Sex: Male/Female : Male
6. Individual/Hindu Undivided Family/Firm/Association of 10. Income for the previous year i.e.
1.4.2004 to 31.03.2005
Personal/Local Authority : INDIVIDUAL 11. Assessment
Year : 2005-2006
7. Resident/Non-Resident/Nor Ordinarily Resident: Resident 12. Return Original or Revised : Original
13. Details of ‘Bank Accounts. “Please tick (âś“) the bank account, where you would like the amount of refund to be
credited
…..
16. INCOME FROM HOUSE PROPERTY……………………………………………………………………………………………….RS………….NIL
……
VERIFICATION
I, PARAMJIT SINGH……………………………………………………………………………………………………………………………(name in full and in
block letters) son/daughter of LATE SHRI NIRMAL SINGH………..solemnly declare that to the best of my
acknowledge and belief the information given in this return and the annexures and statements
accompanying it are correct complete and truly stated an din accordance with the provisions of Income Tax
Act, 1961, in respect of income chargeable to income tax for the previous year relevant to the assessment
year 2005-2006.
Receipt No………………………………….Date…………….
Seal Sd/-
Signature of the receiving official Date: 25.07.2005
Place: New Delhi
36. Thus, the plaintiff’s claim of collecting rentals from tenants of ground
floor and first floor is bogus.
37. The payment of house tax or utility bills by a party in possession is the
incidence of possession and does not evidence ownership rights of the party.
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This obligation is commonly attached to a tenant or a licensee occupying the
property.
38. In the facts of this case, it is apparent that late Sardar Nirmal Singh as an
extended family member was permitted by late Sh. Raghbir Singh to occupy a
portion of the suit property as a licensee. In ordinary course, owners permit
extended family members to use and occupy immovable properties out of love
and affection on the reasonable belief that the property will be vacated by the
family member when called upon by the owner. To permit late Sardar Nirmal
Singh or his family member to contend that the evidence of their possession in
the suit property without payment of rent or licence fee would entitle them to
raise a claim of ownership would be putting premium on a dishonest plea and
would also be an abuse of the exception provided in proviso 2(ii) to Section
2(9)(A) of the Benami Act.
Summary of findings of this Court
39. In the aforenoted facts, the averments made in the suit along with the
documents relied upon in the suit, plaintiff has failed to make out even an
arguable case for invoking proviso (ii) Section 2(9)(A) of the Benami Act.
There is no evidence whatsoever on record that plaintiff’s father late Sardar
Nirmal Singh contributed any sum of amount towards the sale consideration
paid for acquisition of the suit property or the construction raised thereon.
40. The plea for declaration of ownership is otherwise expressly barred by
the Section 4 of the Benami Act, since it is admitted case of the plaintiff that the
title documents of the suit property stands in the name of late Sh. Raghbir
Singh.
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41. The plea of the plaintiff that upon all these bald averments, a suit can be
maintained and the Court must permit the plaintiff to lead evidence on the said
plea is misconceived. No cause of action is made out on the said averments
raised by the plaintiff as plaintiff must satisfy the Court that a prima facie case
exists in his favour.
42. This Court on 07.02.2024 has recorded in its order that despite repeated
opportunities given to the plaintiff, he has been unable to produce any
documents to show any title or rights in the suit property.
43. The plaintiff has placed all the documents within his possession on the
record and even if all the documents are admitted to be correct, the same do not
evidence that late Sardar Nirmal Singh contributed any funds towards the
purchase of the suit property and/or late Sardar Nirmal Singh ever considered
the suit property as his own property. The reliance placed upon the payments of
house tax receipts (w.e.f. 2005) and utility bills (w.e.f. 2000) even if admitted to
be correct do not evidence any proof of ownership of late Sardar Nirmal Singh
or his family members. The said payments relate to their possession, which is
admitted on record.
44. In the facts of this case, upon perusal of the averments made in the plaint
and the documents annexed with the plaint, this Court is of the considered
opinion that the plaintiff has failed to prove that late Sh. Raghbir Singh held the
suit property in a fiduciary capacity qua Sardar Nirmal Singh.
45. In light of the aforesaid facts, this Court finds that the suit lacks a cause
of action. Furthermore, the plea of ownership raised through I.A. No.
2931/2024 is barred under Section 4 of the Benami Act. Therefore, the
judgment of the Supreme Court in Pankaja (Supra), relied upon by the
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plaintiff in support of their amendment application, is misplaced. The ratio
which flows form the said judgement is that an amendment of pleadings must
not be disallowed merely on the ground that the relief sought is barred by
limitation which does not apply to the facts of the present case. Accordingly, the
suit is rejected under Order VII Rule 11(a) and 11(d) of the CPC.
46. All pending applications are hereby dismissed.
Issuance of mandatory injunction to the plaintiff to handover peaceful and vacant
possession to the defendant no. 1
47. In view of the of the aforesaid conclusion that the plaintiff has no legal
right in the suit property, this Court is of the considered opinion that the
plaintiff has no right to remain in possession of the suit property. The plaintiff
has been served by defendant no. 1 with legal notice dated 19.03.2022
terminating the licence of the plaintiff to occupy the property effective
01.05.2022 and calling upon him to handover the physical possession. The
defendant no. 1 is the sole surviving legal heir of late Sh. Raghbir Singh. The
defendant no. 1 has thus, duly proved her entitlement to recover possession of
the suit property from the plaintiff.
48. Keeping in view, the judgments of the Supreme Court in Maria
Margadia Sequeria Fernandes v. Erasmo Jack De Sequeria11, judgment of
Division Bench of this Court in Liberty Sales Services v. Jakki Mull & Sons12
and Judgement of coordinate bench of this Court in Nathu Ram v. DDA13, this
Court hereby passes a decree of mandatory injunction directing the plaintiff
herein to handover the vacant physical possession of the portion occupied by
him in the suit property to the defendant no. 1 within four (4) weeks from today
11
2012 (5) SCC 370, Para 98
12
1997 (41) DRJ 26 at pages 34 and 35.
13
2022:DHC:375, Paras 25 to 29
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having come to this conclusion that he is in illegal and unauthorised possession
of the suit property. The order for payment of mesne profits for the continued
illegal possession w.e.f. 01.05.2022 is being passed in CS(OS) 629/2023.
49. Accordingly, the reliefs sought by the plaintiff are dismissed in the
aforesaid terms along with all pending application and a mandatory injunction
is passed against the plaintiff and in favour of defendant no. 1.
Award of actual costs in favour of the defendant
50. This Court is of the considered opinion that this suit filed by the plaintiff
is an abuse of process. The Supreme Court in Ramrameshwari Devi & Others
v. Nirmala Devi14 has opined that uncalled for litigation gets encouragement
because Courts do not impose realistic costs. The relevant paragraph of the
judgment read as under:
“46. It is also a matter of common experience that once an ad interim
injunction is granted, the plaintiff or the petitioner would make all efforts to
ensure that injunction continues indefinitely. The other appropriate order can
be to limit the life of the ex parte injunction or stay order for a week or so
because in such cases the usual tendency of unnecessarily prolonging the
matters by the plaintiffs or the petitioners after obtaining ex parte injunction
orders or stay orders may not find encouragement.
47. We have to dispel the common impression that a party by obtaining an
injunction based on even false averments and forged documents will tire out
the true owner and ultimately the true owner will have to give up to the
wrongdoer his legitimate profit. It is also a matter of common experience that
to achieve clandestine objects, false pleas are often taken and forged
documents are filed indiscriminately in our courts because they have hardly
any apprehension of being prosecuted for perjury by the courts or even pay
heavy costs. In Swaran Singh v. State of Punjab [(2000) 5 SCC 668 : 200114
(2011) 8 SCC 249Signature Not Verified
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SCC (Cri) 190] this Court was constrained to observe that perjury has become
a way of life in our courts.
48. It is a typical example of how a litigation proceeds and continues and in the
end there is a profit for the wrongdoer.
49. The learned amicus articulated the common man’s general impression
about litigation in following words:
“Make any false averment, conceal any fact, raise any plea, produce any false
document, deny any genuine document, it will successfully stall the litigation,
and in any case, delay the matter endlessly. The other party will be coerced
into a settlement which will be profitable for me and the probability of the
court ordering prosecution for perjury is less than that of meeting with an
accident while crossing the road.”
…
52. The main question which arises for our consideration is whether the
prevailing delay in civil litigation can be curbed? In our considered opinion the
existing system can be drastically changed or improved if the following steps
are taken by the trial courts while dealing with the civil trials:
A. Pleadings are the foundation of the claims of parties. Civil litigation is
largely based on documents. It is the bounden duty and obligation of the trial
Judge to carefully scrutinise, check and verify the pleadings and the documents
filed by the parties. This must be done immediately after civil suits are filed.
B. The court should resort to discovery and production of documents and
interrogatories at the earliest according to the object of the Act. If this exercise
is carefully carried out, it would focus the controversies involved in the case
and help the court in arriving at the truth of the matter and doing substantial
justice.
C. Imposition of actual, realistic or proper costs and/or ordering prosecution
would go a long way in controlling the tendency of introducing false pleadings
and forged and fabricated documents by the litigants. Imposition of heavy costs
would also control unnecessary adjournments by the parties. In appropriate
cases the courts may consider ordering prosecution otherwise it may not be
possible to maintain purity and sanctity of judicial proceedings.”
(Emphasis Supplied)
Signature Not Verified
Digitally Signed
By:RASHMI DABAS CS(OS) 77/2022 & CS(OS) 629/2023 Page 27 of 32
Signing Date:31.10.2024
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51. Keeping in view the Section 35(2) of CPC, Rules 1(i) & 2 of Chapter
XXIII of Delhi High Court (Original Side) Rules, 2018 and the judgment of the
Supreme Court in Ramrameshwari Devi (Supra), this Court deems it
appropriate to impose actual costs on the plaintiff and payable to the
defendants. For the purpose of determining the actual cost incurred by the
defendants to be paid by the plaintiff herein, the Taxing Officer of this Court is
directed to take appropriate steps in accordance with the provisions of Delhi
High Court (Original Side) Rules, 2018 (‘Original Side Rules, 2018’).
52. List before the Taxing Officer/concerned Joint Registrar on 03.12.2024.
CS(OS) 629/2023 and I.A. 7225/2024
53. This is a suit for possession, mesne profits, damages and permanent
injunction filed by the plaintiff Ms. Gagan Singh, daughter of late Sh. Raghbir
Singh against the defendant no. 1 i.e., Sh. Paramjit Singh, who is in possession
of the second floor and terrace of the suit property.
54. Plaintiff has admittedly served legal notice dated 19.03.2022 upon
defendant no. 1 calling upon him to vacate the portion occupied in suit property
and putting him to notice that the licence granted to him to occupy the said
portion stands revoked. The receipt of the notice is admitted by defendant no. 1.
55. The plaintiff has also filed I.A. No. 7225/2024 under Order XV-A CPC
claiming deposit of arrears of mesne profits and occupation charges w.e.f.
01.05.2022 at Rs. 5 lakhs per month with yearly increment of 10 %.
56. The plaintiff has placed on record contemporaneous lease deed dated
30.04.2022 of an ad-joining building i.e. E-17, South Extension Part-II, New
Delhi, wherein the tenant inducted on the ground floor area admeasuring 862.5
sq. feet has been paying rent w.e.f. 01.05.2022 at Rs. 9 lakhs to its landlord. TheSignature Not Verified
Digitally Signed
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Signing Date:31.10.2024
22:42:41
plaintiff seeks damages at the rate of Rs. 5 lakhs per month relying upon the
terms of the said registered lease deed.
57. Mr. Rakesh Munjal, learned senior counsel for the plaintiff stated that a
decree for possession be granted in favour of the plaintiff and mesne profits be
awarded at the prevalent market rent rate of Rs. 5 lakhs per month w.e.f.
01.05.2022 till the plaintiff gets the actual physical possession of the portion
occupied by defendant no. 1 in suit property.
58. In reply, Mr. Pawan Bindra, learned senior counsel for the defendant had
relied upon the pendency of CS(OS) 77/2022 to oppose the grant of decree of
possession as well as grant of the relief of mesne profits.
59. He stated that since award of mesne profits under Order XV-A CPC
requires a declaration that the defendant is an unauthorised occupant as a sine
qua non; and no such declaration can be granted in this suit due to the pendency
of the defendant’s claims made under CS(OS) 77/2023.
60. He however did not address any submissions on the prevalent rate of rent
for the second floor and terrace of the suit property under the possession of the
defendant herein.
61. In view of the order dismissing the suit of the plaintiff in CS(OS)
77/2023 and directing the defendant no. 1 herein Mr. Paramjit Singh to
handover the physical possession of the portion occupied by him in the suit
property to the plaintiff herein i.e., Ms. Gagan Singh on the finding that the
defendant has no right, title or interest in the suit property and therefore, has no
right to continue in possession of the second floor and terrace of the suit
property, the objections raised by Ld. Senior counsel for Mr. Pawan Bindra,
Senior defendant do not survive for consideration.
Signature Not Verified
Digitally Signed
By:RASHMI DABAS CS(OS) 77/2022 & CS(OS) 629/2023 Page 29 of 32
Signing Date:31.10.2024
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62. This Court is satisfied that in the facts of this case, the defendant herein is
an unauthorised occupant and after service of the notice dated 19.03.2022 by
the plaintiff herein, the occupation is illegal and unauthorised.
63. In view of the fact that the plaintiff in I.A. No. 7225/2024 has also sought
award of mesne profits w.e.f. 01.05.2022, this Court is satisfied that the plaintiff
has become entitled to award of mesne profits w.e.f. 01.05.2022.
64. With respect to the rate of mesne profits, the plaintiff has placed on
record the registered lease deed dated 30.04.2022, which shows that in a similar
property located in the same neighbourhood of South Extension for the ground
floor admeasuring 862.5 sq. feet wherein the tenant is paying rent at Rs. 9 lakhs
per month w.e.f. 01.05.2022. Since, it’s a registered lease deed, the defendant
no. 1 has fairly not disputed the contents of the said document. This Court has
also perused the detailed reply filed by defendant no. 1 to I.A. 7225/2024 and in
its para-wise reply at relevant para 19, the defendant no. 1 has failed to respond
to the assertions made by the plaintiff with respect to the lease deed dated
30.04.2022 as well as the plaintiff’s assessment that she is entitled to mesne
profits at Rs. 5,00,000/- per month.
65. The plaintiff has placed on record with her plaint a copy of the registered
lease deed dated 30.04.2022. The defendant no. 1 has failed to file his written
statement and affidavit of admission/denial of documents within the statutory
period of limitation. In this factual situation the lease deed dated 30.04.2022 is
deem to be admitted as per the (‘Original Side Rules, 2018’).
66. The suit property is second floor with terrace on a plot admeasuring 250
sq. yards. This Court takes judicial notice of the fact that South Extension
Colony in which the suit property is located is an upscale colony in South DelhiSignature Not Verified
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By:RASHMI DABAS CS(OS) 77/2022 & CS(OS) 629/2023 Page 30 of 32
Signing Date:31.10.2024
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and prominence of its commercial market is well established in New Delhi. The
sum of Rs. 5,00,000/- assessed by the plaintiff may be accurate for commercial
use of the second floor.
67. However, since the defendant no. 1 herein has used the second floor and
terrace for residential purposes, this Cout is of the considered view that the rent
which the second floor would fetch for residential purpose in such an area is
about Rs. 2,50,000/-. Accordingly, this Court is satisfied that the plaintiff is
entitled to mesne profits Rs. 2,50,000/- lakhs per month w.e.f. 01.05.2022.
Therefore, the defendant has become liable to pay the arrears from 01.05.2022
till 31.10.2024 (i.e. 30 months x Rs. 2,50,000/-) amounting to INR 75,00,000/-.
The defendant is directed to pay this amount within four (4) weeks, failing
which, he will be liable to pay this amount with interest at 12% per annum. In
addition, the plaintiff has been granted four (4) weeks’ time to vacate the suit
property.
68. The plaintiff will remain liable to pay rent at Rs. 2,50,000/- per month
w.e.f. 01.11.2024 until the physical handing over of the possession of the
portion occupied by defendant no. 1 in the suit property. With these direction
I.A. 7225/2024 stands allowed.
69. In view of the dismissal of CS (OS) 77/2022 filed by the defendant no. 1
and the directions issued to defendant no. 1 to handover possession of the
second floor and terrace in the suit property to the plaintiff, the relief for decree
of possession as sought at prayer (a) of the present suit is liable to be allowed.
70. Since defendant no. 1 is an unauthorized occupant, he is not entitled to
create any third-party rights or induct any third party in the suit property. The
Signature Not Verified
Digitally Signed
By:RASHMI DABAS CS(OS) 77/2022 & CS(OS) 629/2023 Page 31 of 32
Signing Date:31.10.2024
22:42:41
plaintiff is thus entitled to a decree of permanent injunction as sought at prayer
(b) of the present suit is liable to be allowed.
71. Accordingly, the suit qua prayer clause (a) and (b) are hereby decreed.
72. The registry is directed to draw up a decree sheet in terms hereof
allowing prayer clauses (a) and (b) of the present suit i.e., CS (OS) 629/2023. In
view of this decree, I.A. 19910/2023 (application under Order XXXIX Rules 1
& 2 CPC) has become infructuous and is hereby disposed of.
73. It is clarified that the mesne profits awarded under I.A. 7225/2024 are an
interim measure and shall remain subject to the final determination of mesne
profits while deciding prayer clause (c) of the plaint during trial and the
plaintiff may be entitled to higher mesne profits 01.05.2022 till 31.10.2024.
74. The present suit shall thus continue only qua prayer clause (c).
75. List before the learned Joint Registrar (J) for further proceedings on
06.12.2024.
MANMEET PRITAM SINGH ARORA, J
OCTOBER 29, 2024/rhc/hp/mt/AKT
“…
Signature Not Verified
Digitally Signed
By:RASHMI DABAS CS(OS) 77/2022 & CS(OS) 629/2023 Page 32 of 32
Signing Date:31.10.2024
22:42:41