Sudhir Bala Sarine v. Baccha Thakur

1. The present suit has been filed by the plaintiff claiming to be the absolute owner and in possession of one-half portion of plot of land measuring 4 Bighas and 16 Biswas bearing khasra No.247 situated in village Khanpur, Tehsil Mehrauli, New Delhi (now renumbered and known as 66, East Avenue, Sainik Farm, New Delhi, ‘in short the suit property’) by virtue of a sale deed dated 28th November, 1979 duly executed in her favour and registered on the same date. It is claimed that in the year 1980 the plaintiff and her husband got a 8 feet high brick boundary wall constructed all around 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.ft. 2019:DHC:5048 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.

2. 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 and came back to India to finally settle down in 2008 and are presently residing in Greater Kailash Part II in a rented accommodation.

3. Defendant No.1 was engaged by the plaintiff and her husband to clean the suit property once a month on part-time basis. Defendant No.2 and 3 i.e. sons of defendant No.1 who are gainfully employed also started residing with defendant No.1 in one of the rooms without payment of any charges illegally and unauthorizedly. In the year 2013 the defendant No.1 requested the plaintiff and her husband to use the said two rooms and toilet/ bath and assured that he will maintain and guard the property as Chowkidars and will vacate the rooms as and when directed by the plaintiff and her husband. The keys of the locks of the main gate and small gate of the suit property are with the plaintiff and defendant No.1 was permitted ingress and egress to the two rooms by the plaintiff through the small gate only on the basis of the duplicate key. Plaintiff and her husband have been regularly visiting, spending time and using one-half portion of the suit property including the two rooms and as a matter of abundant caution this arrangement was formalized by executing a license deed dated 5th November, 2013. As per the license deed no payment was to be made except the electricity charges as per the meter were to be paid by the defendants, and it was the responsibility of the defendants to take care of the demised property as Chowkidars.

4. After December 2015 the plaintiffs after selling their house also moved certain other furnitures etc., in the two rooms in the one-half portion of the suit property. Despite the license deed coming to an end by efflux of time on 4th November, 2016 when the defendants were required to vacate the premises, they did not do so and instead of acceding to the request of plaintiff and her husband, started demanding ₹50 lakhs and threatened the plaintiff and her husband due to which the plaintiff and her husband were constrained to make a call to the PCR.

5. As per the plaint defendant No.1 filed a false and frivolous suit for declaration and permanent injunction being suit No. 81/2018 titled as ‘Baccha Thakur Vs. Gopal Sarine and Anr.’ inter-alia praying for a decree of declaration that the defendant No.1 herein was the owner of property admeasuring 2250 sq.yds bearing No. 66, East Avenue and also sought for a permanent injunction restraining the plaintiff and her husband from dispossessing defendant No.1 from the suit property on the ground that he was in adverse possession of the suit property. The learned Additional Civil Judge vide its judgment dated 12th February, 2019 dismissed the suit filed by the defendant No.1.

6. During the course of hearing today, learned counsel for the plaintiff has also handed-over a copy of the order dated 21st August, 2019 whereby the appeal of the defendant No.1 filed against the judgment dated 12th February, 2019 has also been dismissed vide judgment dated 21st August,

2019.

7. In the written statement filed by the defendants it is claimed by them that they have been residing in the suit property by lawful means peacefully for more than two decades and no member of the plaintiff’s family has been ever in possession of the property. In view of the settled uninterrupted and undisturbed possession of the defendants, the plaintiff cannot claim any right, title or interest whatsoever in the property. Defendants claim that they are holding Adhaar Card, Ration card, electricity connection, gas connection, admission cards, birth certificates on the address. Defendant No.3 the son of defendant No.1 is an income-tax payee and has filed income-tax return with the address of the suit property.

8. Considering the stand of the defendants in the written statement this Court directed the presence of defendants for recording of their statement and today this Court recorded statement of Baccha Thakur, defendant No.1 under Order 10 of the CPC.

9. Since the defendant No.1 does not understand English, the questions were put to him by the Court in Hindi and the answers given in Hindi, have been translated in English by the Court.

10. From the statement of Mr. Baccha Thakur, defendant No.1 recorded on oath today it is clear that he entered into the premises with the help of one gardner and was kept for the job of cleaning 66, Sainik Farm and used to do night duty as a security guard at other places. The defendant No.1 has no document of ownership and he came to know about the owner of suit property being Smt. Sudhir Sarine only later. From the statement of Baccha Thakur it is clear that he is a trespasser into the property or at best a licensee as claimed in the suit and cannot continue to be in possession.

11. Supreme Court in (2012) 5 SCC 370 Maria Margarida Sequeira Fernandes & Ors. Vs. Erasma Jack De Sequeira held that a caretaker holds property only on behalf of the principal and his possession was only a gratuitous possession.

12. In view of the statement of defendant No.1 recorded, a preliminary decree of possession is passed in favour of the plaintiff and against the defendants in terms of prayer (a) in the suit. Decree of permanent injunction in terms of prayer (d) and (e) is also passed in favour of the plaintiff and against the defendants.

13. Learned counsel for the plaintiff submits that though prayers of possession and injunction have been allowed, however they would lead evidence for damages and cost against the defendants.

14. List for further proceedings on 2nd December, 2019.