Om Prakash Singhal v. K.L. Kurian

RAJIV SAHAI ENDLAW, J. FEBRUARY 19, 2014 "gsr"..

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 19th February, 2014. + CS(OS) 1433/2012 & IA No.9528/2012 (u/O 15A r/w 151 CPC) OM PRAKASH SINGHAL ..... Plaintiff Through: Mr. A.K. Singhla, Sr. Adv. with Mr. Deepak R. Dahiya, Adv. Versus K.L. KURIAN ..... Defendant Through: Mr. D.C. Yadav, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The pleadings have been completed and the suit is ripe for framing of Issues if any. 2. The senior counsel for the plaintiff states that on the defence contained in the written statement, no material question of law and fact arises for adjudication and the suit, insofar as for the relief of possession can be decreed immediately. 3. The counsels have been heard on the said aspect. 4. The plaintiff has instituted this suit for recovery of possession from the defendant of flat No.G-4 in the multi-storied building situated at DD-36, Kalkaji, New Delhi and for recovery of mesne profits, pleading: (a) that the plaintiff is the sole absolute owner of the said flat having purchased the same from Sh. Parvesh Kumar Kohli on 18.03.1996, though the Deed of Apartment with respect to the flat in favour of the plaintiff in accordance with the provisions of the Delhi Apartment Ownership Act, 1986 is still to be executed; (b) that the said flat also stands mutated in the records of the municipal authorities in the name of the plaintiff and the plaintiff has been paying property tax with respect thereto; (c) that the land underneath the said multi-storied building was originally owned by Sh. Inder Raj Sehgal who entered into an agreement with M/s Saraswati Builders for raising construction thereon and the said builder transferred the subject flat in favour of Sh. Parvesh Kumar Kohli and from whom the plaintiff has acquired the same; (d) that the plaintiff in January, 2006 allowed the defendant to occupy the said flat, temporarily, on friendly basis, without charging any consideration therefor; (e) that the possession of the defendant of the said flat since then has been permissive; (f) that the plaintiff vide notice dated 11.04.2012 terminated the licence of the defendant to use and occupy the said flat and called upon the defendant to vacate the same; (g) that the defendant however failed to do so; Hence the suit for recovery of possession and for mesne profits / damages for use and occupation at the rate of Rs.60,000/- per month has been filed. 5. The defendant has contested the suit, by filing a written statement, on the grounds: (i) that the plaintiff is not the owner of the subject flat and has concealed material facts and has come to this Court with unclean hands and the suit is liable to be dismissed on this ground; (ii) that the suit is bad for non-joinder of necessary party i.e. the wife of the defendant; (iii) that the wife of the defendant namely Mrs. Mariam Kurien is the owner of the said flat and the defendant along with his wife is residing in the said flat since January, 2004, in the capacity of owner; (iv) that the plaintiff has not filed any proof of his ownership of the said flat; (v) that the said flat was transferred in favour of Ms. Mariam Kurien by Sh. Ravinder Kumar Singhal son of the plaintiff and attorney of Smt. Sudesh Kohli wife of Sh. Parvesh Kumar Kohli (though in the written statement mentioned as Sh. Praveen Kumar Kohli but the counsels are ad-idem that reference is to the same person) supra; (vi) that the copies of the income tax returns filed by the plaintiff along with the plaint showing the plaintiff as the owner of the subject flat do not make the plaintiff the owner of the flat; (vii) that similarly merely because the said flat is mutated in the name of the plaintiff in the municipal records and the plaintiff is paying the property tax thereof, does not make the plaintiff the owner of the said flat; (viii) that the flat is owned by the wife of the defendant vide "baynama executed by none other than the son of the plaintiff showing and claiming himself to be