A.N Kaul v. Neerja Kaul & Anr

RAJIV SAHAI ENDLAW, J. JULY 03, 2018 'pp/gsr'

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 3rd July, 2018 + C.R.P. 189/2017 A.N. KAUL ..... Petitioner Through: Mr. Pradeep Dhingra & Mr. Mohit Nandwani, Advs. Versus NEERJA KAUL & ANR ..... Respondents Through: Mr. Sandeep Mittal, Ms. Ashwarya Chander & Mr. Abhimanyua Walia, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) impugns the order (dated 25th April, 2017 in CIS No.11745/16 of the Court of Additional District Judge-04 (South-East), Saket Courts, New Delhi) of dismissal of the application of the petitioner / plaintiff under Order XII Rule 6 of the CPC. 2. The petition came up first before this Court on 29th August, 2017 when notice thereof was ordered to be issued. The counsels were heard on 12th October, 2017 and orders reserved. 3. The petitioner/plaintiff instituted the suit, from which this petition arises, for recovery of possession and mesne profits with respect to property no.B-237/B, Greater Kailash – I, New Delhi from the two respondents / defendants being the daughter-in-law and the granddaughter of the petitioner/plaintiff, pleading (i) that the petitioner / plaintiff is the owner in possession of property no.B-237/B, Greater Kailash – I, New Delhi; (ii) that the respondents / defendants are in possession of rooms on first floor of the said property; (iii) that the defendant no.1 is a citizen of United States of America (USA), permanently settled in USA and was married to the son of the petitioner / plaintiff, also settled in USA; (iv) the son of the petitioner / plaintiff and the respondent / defendant no.1 have in October, 2006, taken divorce from the Court in USA; (v) that the respondent / defendant no.2 is the granddaughter of the petitioner / plaintiff but has fallen into bad company; (vi) that the petitioner / plaintiff purchased the subject property in the month of July, 1964; (vii) that the petitioner / plaintiff, from 1982 till 2008, let out the first floor of the property to different tenants; (viii) while the petitioner / plaintiff was in USA with his son, the respondents / defendants trespassed into the property and took away all the original documents of title to the property; (ix) that the Income Tax Returns filed by the petitioner / plaintiff show the rental income of the first floor of the property assessed to the petitioner / plaintiff; (x) that the petitioner / plaintiff allowed the respondent / defendant no.2 as his granddaughter, to stay as a guest in one room on the first floor of the property; (xi) thereafter, the respondent / defendant no.1, who was also settled in USA, started visiting the first floor of the property; and, (xii) that the respondents / defendants are in illegal occupation of the front portion of the first floor of the property comprising of three rooms, one kitchen, two bathrooms. 4. The two respondents/defendants filed separate written statements contesting the suit, pleading (i) that the respondents/defendants have been living in the property since 1980-81 and the suit for recovery of possession is barred by time; (ii) that the respondent / defendant no.1 was not aware of the divorce decree pleaded by the petitioner / plaintiff and the said divorce decree if any is not conclusive, being not on the merits of the case and being founded on breach of Hindu Marriage Act, 1955 in force in India; (iii) that the suit had not been correctly valued for the purposes of court fees and jurisdiction and the court fees had not been paid on the correct market value of the property; (iv) that the respondent / defendant no.1 had undertaken the construction of the first floor out of the money given by her father at the time of marriage to the son of petitioner / plaintiff and the respondents / defendants as such have a right to stay in the first floor; (v) that the respondents / defendants, prior to institution of this suit, have instituted a suit claiming rights in the p