Mohini Kohli v. Subhash Chander Kohli

judgment thus, of the respondent/defendant being not in possession of the property at the time of institution of the suit, is clearly contrary to the facts and the record and cannot be sustained.

¶20The next question to be considered is, the effect if any on the suit claim, of the respondent/defendant, during the pendency of the suit for recovery of possession of immovable property and for damages for use and occupation thereof, leaving the property. According to the learned ADJ, the

same would make the suit infructuous and disentitle the appellant/plaintiff to any relief.

¶21I am afraid the learned ADJ has erred in law on the said aspect also. Once the respondent/defendant at the time of institution of the suit and in fact for several years thereafter also admitted being in possession of the property, if intended to leave the property, either ought to have returned the possession of the property to the appellant/plaintiff who was claiming the same or continues to run the risk of being held liable to deliver possession of the property to the appellant/plaintiff and being liable to the appellant/plaintiff for mesne profits/damages for use and occupation in the event of appellant/plaintiff otherwise proving her entitlement to the same. The liability of a person in occupation and possession of the property without any right or title thereto and continuing in possession of the property inspite of demand of the person entitled to possession thereof, for mesne profits/damages for unauthorised use and occupation does not come to an end till the possession is so delivered back to the person entitled thereto. Such meter/clock for mesne profits/damages for use and occupation does not stop running by merely leaving the premises without delivering possession thereof to the rightful claimant thereto and by either expressly putting somebody else in possession

of property or letting anyone else occupying the property. The plaintiff in such a suit for recovery of possession of property and for mesne profits/damages for use and occupation cannot be defeated in such a fashion. If the same were to be allowed, no owner of immovable property would be able to recover possession and mesne profits/damages for use and occupation from the person in unauthorised occupation thereof inasmuch as such person in unauthorised occupation after contesting the suit for long on grounds which could not be proved would leave the property and allow the property to be occupied by somebody else and/or induct somebody else into possession of the property thereby making the suit infructuous and compelling the appellant/plaintiff to institute a fresh suit. It is for this reason only that the proforma in the CPC of a decree for recovery of possession of immovable property provides for delivery of possession of the property to the decree holder by removing from the property the defendant/judgment debtor and/or such persons as may be found in the possession of the property.

¶22The respondent/defendant in the present case contested the suit from 1992 to 1997 claiming to be in possession of the property as a matter of right. In 1997 though the respondent/defendant left the property but did not deliver back possession to the appellant/plaintiff and the aforesaid Ms. Roshni and

Shri Surjan were found in occupation of the property. Though the said Ms. Roshni and Shri Surjan claim to have been inducted into the property by Shri G.R. Kohli but the said Shri G.R. Kohli though had earlier filed an application for impleadment in the suit but had chosen not to pursue the same. The learned ADJ has erred in holding that the appellant/plaintiff having opposed the impleadment of Shri G.R. Kohli was not entitled to decree against the respondent/defendant. If the said Shri G.R. Kohli claimed any right in the property it was for him to pursue his application, become a defendant in the suit and contest the claim of the appellant/plaintiff. In fact a perusal of the application for impleadment filed by Shri G.R. Kohli also shows that his claim was only of his goods lying in one small room in the property.

¶23It cannot be forgotten that Shri G.R. Kohli was admittedly the brother of the respondent/defendant. The possibility of respondent/defendant at the time of vacating the property having allowed Shri Surjan an employee of Shri G.R. Kohli and wife of Shri Surjan namely Ms. Roshni to occupy the property cannot be ruled out. After all the said Ms. Roshni/Shri Surjan or even Shri G.R. Kohli inspite of knowing of the Local Commissioner"s visit did not seek impleadment/again seek impleadment in the suit. The only inference is that neither Shri G.R. Kohli nor the other applicant Shri Satish Kohli who had

sought impleadment had/have any right to the property and had applied for impleadment only to assist their brother i.e. the respondent/defendant to delay the suit.

¶24The finding/conclusion of the learned ADJ to the effect that owing to the respdnent/defendant having during the pendency of the suit left the property, his liability to deliver possession thereof to the appellant/plaintiff or for mesne profits/damages for use and occupation also came to an end is thus also set aside.

¶25The appeal thus succeeds and is allowed.

¶26The appellant/plaintiff is entitled to a decree for recovery of possession.

¶27As far as the claim of the appellant/plaintiff for mesne profits is concerned, I am of the view that in the facts and circumstances aforesaid though the appellant/plaintiff is not entitled to recovery of any arrears of mesne profits/damages prior to institution of the suit but is certainly entitled to mesne profits/damages for use and occupation from the respondent/defendant from the date of institution of the suit till delivery of possession. The suit property as per the Sale Deed of land underneath the same is constructed over land ad measuring 194.4/9 sq. yds. and was admitted by the

respondent/defendant to be double storeyed. The claim of the appellant/plaintiff for mesne profits from institution of the suit till delivery of possession at Rs.5,000/- per month, taking judicial notice of the prevalent rents of the properties in the locality in which it is situated, is found to be reasonable. Accordingly, the appellant/plaintiff is also entitled to a decree against the respondent/defendant for mesne profits at the rate of Rs.5,000/- per month from the month of institution of the suit till delivery of possession.

¶28The impugned judgment and decree is thus set aside and the suit filed by the appellant/plaintiff is decreed against the respondent/defendant for recovery of possession of property no.H-2/11, Krishna Nagar, New Delhi and for recovery of mesne profits/damages for use and occupation at the rate of Rs.5,000/- per month from the month of institution of the suit till the month of delivery of possession. The appellant/plaintiff shall also be entitled to costs throughout.

Decree sheet be drawn up. RAJIV SAHAI ENDLAW, J

APRIL 08, 2016

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*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 8th April, 2016 + MOHINI KOHLI ..... Appellant Through: Mr. R.P. Sharma and Mr. Vaibhav Mehra, Advs. Versus SUBHASH CHANDER KOHLI ..... Respondent Through: Mr. Siddharth Pandit, Adv. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This first appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree dated 19th July, 2006 of the Court of the Additional District Judge (ADJ) (Fast Track Court), Tis Hazari, Delhi of dismissal of Suit No.10/2006 (instituted on 7th September, 1992) filed by the appellant for recovery of possession of immovable property and damages for use and occupation. 2. Notice of the appeal was issued and Trial Court record requisitioned. The appeal, on 5th May, 2008 was admitted for hearing. Upon non appearance of either of the parties on 2nd December, 2009 and 3rd December, 2009, the appeal was dismissed in default but restored to its original position vide order dated 14th December, 2010 and again ordered to be listed for hearing in the category of "Regulars" as per turn. The appellant applied for early hearing and the appeal listed for hearing on an actual date. However thereafter again there was a spate of adjournments. Finally on 8th October, 2015 though attempt to hear arguments in the appeal was made but neither the counsel for the appellant nor the counsel for the respondent were possessed of the suit file and were unable to answer the enquiries made. In the circumstances, judgment was reserved. No arguments in writing also have been filed by the counsels for the parties. Be that as it may, I proceed to decide the appeal after perusing the Trial Court record. 3. The appellant filed the suit from which this appeal arises pleading (i) that her husband Col. O.P. Kohli was the owner of property no.H-2/11, Krishna Nagar, New Delhi; (ii) that the appellant and her three daughters namely Ms. Bela Awasthi, Ms. Beena Chandiok and Ms. Jyotsna Bhatnagar being the legal heirs of Col. O.P. Kohli executed a Memorandum of Family Settlement dated 2nd May, 1992 confirming the oral settlement dated 27th January, 1992 that the suit property will be owned and held exclusively by the appellant and that her daughters will have no concern with the said property; (iii) the husband of the appellant also left a Will bequeathing the said property in favour of the appellant; (iv) that the respondent/defendant is the brother of the husband of the appellant/plaintiff and has been occupying the said property along with his family members as a licensee; (v) that the appellant vide legal notice dated 1st April, 1992 terminated the licence of the respondent/defendant and called upon him to vacate the premises and had informed him that upon his failure to do so the appellant would claim Rs.5,000/- per month as damages; (vi) that the respondent/defendant is also liable to return the original title deed etc. of the property in question; and, (vii) that the respondent/defendant has no right to continue to occupy the property. Reliefs, of recovery of possession of property, recovery of Rs.90,000/- as arrears of licence fee with interest and of recovery of future mesne profits/damages for use and occupation were claimed in the suit. 4. The respondent/defendant contested the suit by filing a written statement pleading (i) that Col. O.P. Kohli (husband of the appellant/plaintiff) had voluntarily vide Will dated 29th July, 1985 willed the said two storeyed property and land underneath in favour of his father Shri B.R. Kohli and mother Smt. Sewa Devi; (ii) the family of Shri B.R. Kohli i.e. all the sons were jointly living in the said property and in joint possession thereof; (iii) in fact the property was acquired out of joint family savings, in the name of Col. O.P. Kohli, to avail cheap loan facility from the Government with which Col. O.P. Kohli was employed; (iv) else Shri B.R. Kohli being the Head of the family performed the role of Karta