SMT. SUDHIR BALA SARINE vs SHRI BHACHHA THAKUR

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 07th December, 2023
% Pronounced on:04th January, 2024

+ CS(OS) 218/2019

SMT. SUDHIR BALA SARINE ….. Plaintiff
Through: Mr. Gagan Mathur, Advocate.

versus

SHRI BHACHHA THAKUR ….. Defendant
Through: Mr. Pankaj Bhagat, Mr. Sadre Alam, Ms. Prerna Raman & Mr. Ritwik Prasad, Advocates.

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T
NEENA BANSAL KRISHNA, J.

1. The Suit for Possession, Permanent Injunction, Damages and Mesne Profits has been filed on behalf of the plaintiff against the defendants.
2. The case of the plaintiff in brief was that she was the absolute owner and in possession of one half portion of plot of land measuring 4 bighas and 16 biswas bearing No. 247 situated in Village Khanpur, Tehsil Mehrauli, New Delhi (now renumbered and known as 66, East Avenue, Sainik Farm, New Delhi) (hereinafter referred to as “suit property”) by virtue of the Sale Deed dated 28.11.1979 duly executed in her favour and registered on the same date. It was claimed that in the year 1980, the plaintiff and her husband got an eight feet high brick boundary wall constructed all round the aforesaid plot of land and also two separate metal gates installed of about 10 feet and 3 feet in width and constructed one room admeasuring 209 sq. feet with temporary structure for toilet/bathroom, septic tank etc., which was later renovated and the aforesaid one room was converted into two rooms wherein the plaintiff and her husband stored many of their belongings, including furniture, almirahs, electronic, electrical and hardware.
3. The plaintiff has been in continuous physical possession of suit property since the date of purchase and the electricity connection has been installed in her name. The plaintiff has been continuously paying the property tax and is in actual physical possession of entire one-half portion of the suit property i.e., 66, East Avenue, Sainik Farm. The plaintiff and her husband were earlier Non-Resident Indians (NRI) and came back to India to finally settled in 2008 and are presently residing in Greater Kailash -Part II in a rented accommodation.
4. The plaintiff had further asserted that the defendant No. 1/Bhaccha Thakur had been engaged by her and her husband to clean the suit property, once a month, on a part-time basis.
5. The defendant No. 2/Raj Kiran Kumar and No. 3/Vikas Ranjan, who are the sons of defendant No. 1/Bhaccha Thakur, started residing along with the defendant No. 1/Bhaccha Thakur, their father, in one of the rooms without paying any charges illegally and unauthorizedly.
6. In the year 2013, the defendant No. 1/Bhaccha Thakur requested the plaintiff and her husband to use the said two rooms and toilet/bathroom and assured that he would maintain and guard the suit property as a Chowkidar and would vacate the same as and when directed by the plaintiff and her husband. By way of abundant caution, the parties formally entered into a Licence Deed dated 05.11.2013. According to the terms of the Licence Deed, no payment was to be made by the defendants, except the electricity charges as per the meter. It was also the responsibility of the defendants to take care of the suit property as Chowkidars.
7. After December, 2015, the plaintiff sold her other house and moved certain furniture etc., in the said two rooms in the half portion of the suit property.
8. The defendants were asked by the plaintiff to vacate the premises on expiry of the Licence Deed dated 05.11.2013, by efflux of time on 04.11.2016, but the defendants instead of vacating the suit property started threatening the plaintiff and also demanded Rs. 50,00,000/-. The defendants filed the Civil Suit bearing No. 81/2018 titled Bachha Thakur vs. Gopal Sarine & Anr. claiming for Declaration that they were the owner of the suit property and also sought Permanent Injunction for restraining the plaintiff and her husband from dispossessing them from the suit property in which the defendants claimed ownership by adverse possession. The Suit of the defendants was dismissed by the learned Additional Civil Judge vide Order dated 12.02.2019. The Appeal was filed against the said dismissal of the suit by the defendants, but the same was also dismissed vide Judgment dated 21.08.2019.
9. The statement of the defendant No. 1/Bhaccha Thakur was recorded in this Court under Order X of the Code of Civil Procedure, 1908. From his statement, it became evident that he was a trespasser in the suit property and at best a licencee and could not be permitted to continue in the possession of the suit property.
10. Accordingly, the Preliminary Decree of Possession was passed and the defendants were directed to vacate the suit property and hand over the possession to the plaintiff, vide Judgment dated 30.09.2019.
11. The possession of the suit property has been handed over by the defendants on 17.11.2019.
DAMAGES AND MESNE PROFITS:
12. The defendants ceased to stop appearing after the Decree of Possession and were proceeded ex parte on 02.12.2019.
13. The plaintiff in support of its claim for damages and mesne profits submitted her affidavit of evidence Ex PW1/X deposing that she is entitled to claim of Rs. 1,25,000/- per month which the prevalent rate of rent in the market for the plot/suit property of this size.
14. Submissions heard.
15. It has already been held vide Judgment dated 30.09.2019 that the defendants were the trespassers in the suit property or at best were the licencees whose licence had expired in November, 2016. Having returned the finding that the defendants are the trespassers and the possession of the suit property only on 27.11.2019, the question for determination is what are the damages which they defendants are liable to pay for their unauthorized stay in the suit property from November, 2016 to November, 2019.
16. The plaintiff in her uncontested testimony has asserted that she is entitled to claim of Rs. 1,25,000/- per month which the prevalent rate of rent in the market for the plot/suit property of this size. However, no corroborative evidence has been led by the plaintiff in support of her assertions.
17. It is significant to note that there were two rooms that were constructed in the suit property which apparently were more in the nature of an outhouse in which the defendants had been permitted to reside on the terms that they would do the Chowkidari of the suit property, without paying any licence fee, except that they would regularly pay the electricity bill as per meter.
18. It is quite evident that the defendants were inducted in permissive user because they were working as Chowkidars in the suit property. It is not as if the entire suit property was let out or that proper premises were constructed as a house which was handed over to the defendants for residence. The plaintiff has led no cogent evidence about the rent being Rs. 1,50,000/- per month prevailing for the kind of suit property into which the defendants were permitted to reside.
19. Considering the nature and the extent of construction and also that the defendants were in permissive user in so much as they being the sons came to reside in the suit property with their father who was in permissive user, being the Chowkidar, it is hereby held that Rs. 10,000/- per month seems to be the appropriate licence fee for which the defendants can be held liable.
20. The mesne profits are, therefore, awarded @ Rs. 10,000/- per month from November, 2016 to November, 2019, when the suit property was vacated by the defendants.
21. The plaintiff has also claimed the damages in the sum of Rs. 30,00,000/- for her goods having been removed and also for the harassment caused to her by the acts of the defendants.
22. It is already on record that because of the holding over the possession of the suit property, the plaintiff was deprived of her user and occupation, despite being the owner of the suit property. Moreover, the plaintiff was subjected to rounds of litigation in the aforementioned Civil Suit and the Appeal thereof, that was filed by the defendant No. 1, and thus, the plaintiff was deprived of use of the suit property for four years and had to repeatedly knock the doors of courts to get the possession of the suit property. It is also deposed by the plaintiff that she was being threatened by the defendants and at times, even the Police had to intervene.
23. Considering the totality and the damages, harassment, mental agony, loss of revenue etc. The damages caused to the belongings of the plaintiff and her husband stored in the suit property, including furniture, almirahs, electronic, electrical and hardware have been proved. The plaintiff is granted damages in the sum of Rs. 5,00,000/- towards harassment, mental agony on account of being subjected to various litigations and of being deprived of peaceful enjoyment of their property.
RELIEF: –
24. In these circumstances, the plaintiff is entitled to following relief: –
(i) The plaintiff is hereby granted mesne profits @ Rs. 10,000/- per month w.e.f. 4th, November, 2016 to 17th, November, 2019;
(ii) The plaintiff is granted damages in the sum of Rs. 5,00,000/- towards harassment, mental agony, loss of revenue etc.
25. In the above terms, the Suit of the plaintiff is hereby decreed for Mesne profits and Damages.
26. The Decree Sheet be prepared accordingly.

(NEENA BANSAL KRISHNA)
JUDGE
JANUARY 04, 2024
S.Sharma/Jn

CS(OS) 218/2019 Page 6 of 6