SOBHAGYA ADVERTISING SERVICE Vs. SARASWATI DEVI

JUDGEMENT

(1.) This is an appeal by unsuccessful defendants in a suit for possession and mesne profits filed by the respondents 1-3 herein. The appellants are aggrieved by the judgment and decree dated 29th May, 2006 passed by the learned Additional District Judge whereby a decree for mesne profits @ Rs.7200/- p.m. in respect of the suit property has been passed (the possession of the suit property having already been delivered by the appellants to the respondents 1 to 3 during the pendency of the suit) besides for some other reliefs.

(2.) Brief facts of the case may be noticed at the outset. Third floor of property no. 7 Community Centre, East of Kailash, New Delhi was let out to the appellants herein, (who shall hereinafter be referred to as "the defendants 1 & 2") w.e.f. 1.3.1978 vide lease deed Ex.P-12 executed in their favour by one Smt. Saraswati Devi(who shall hereinafter be referred to as the "original plaintiff"). Sometime during the year 1984 the defendants 1 & 2 illegally occupied the barsati floor and raised illegal structures consisting of five rooms of different sizes (hereinafter to be referred as "the suit property"). They also took control of the stairs leading to the barasati floor thereby depriving the original plaintiff completely of the use of the barsati floor. On coming to know about the illegal construction on the barasti floor the original plaintiff served the defendants 1 and 2 with a notice dated 11/09/1984 raising objections about raising of unauthorized structures by them and requiring them to demolish the same and to vacate the barsati floor. The defendants 1 & 2 having failed to comply with that notice a reminder notice dated 30th October,1986 was also served on defendants 1 & 2 by the original plaintiff Smt. Saraswati Devi reiterating her demand of vacation of the suit property by defendants 1 & 2. Damages for unauthorized occupation of the suit property @ Rs.240/- per day for some period and @ Rs. 10000/- p.m. for some period were also claimed. In the meanwhile because of the constructions on the barsati floor Municipal Corporation of Delhi(hereinafter referred to as "defendant no.3) had proposed to assess that additional construction for property tax and ultimately assessed the alleged unauthorised construction on the barsati floor at the ratable value of Rs.77,760/- vide assessment order dated 30/03/1991(Ext. P-1/9). The original plaintiff Smt. Saraswati Devi then got served another notice dated 10.11.1991 on defendants 1 & 2 requiring them once again to remove un-authorized structures on the barsati floor and to pay mesne profits @ Rs.7,200/- per month w.e.f. 01.04.1984 to 14.11.1991 and @ Rs.10,000/- per month from 15.11.1991 onwards, besides interest @ 18% p.a. However, the defendants no. 1 & 2 did not even respond to that notice and so Smt. Saraswati Devi filed a suit in April, 1992 for possession of the suit property, mesne profits of Rs.2,71,800/- for three years prior to the filing of the suit calculated @ Rs.7200/- p.m. from 01/04/89 upto 14/11/91 and @ Rs.10,000/- p.m. from 15/11/91 upto the date of filing of the suit. Future mesne profits were also claimed upto the date of delivery of suit property @ Rs.10,000/- p.m. or at such higher rate which the Court may determine, besides interest thereon @ 18%p.a. Directions to defendants 1 & 2 to bear the property tax liability in respect of suit property and to MCD to recover the same directly from them and also for demolishing the unauthorisedly constructed rooms on the barsati floor were also sought. It was claimed in the plaint by Smt. Saraswati Devi that the land underneath property no.7 was acquired by her jointly with her son and daughter-in-law and then they had raised the super structure thereon. Thereafter they had effected a partition amongst themselves in respect of the super structure and as per the memorandum of partition the first and third floors along with roof above the third floor (where the defendants 1 and 2 had allegedly raised unauthorized constructions) had come to her share.

(3.) Defendants 1 and 2 filed their written statement and contested the suit inter-alia on the grounds that Smt. Saraswati Devi was not the owner of the suit property since as per the memorandum of partition placed on record by the plaintiff she had become the owner of only the first and third floors and further that they were in occupation of the suit property "since they were inducted as tenants of the 3rd floor by the plaintiff" and so she was not entitled to maintain the suit or to have a grievance against them regarding the trespass and illegal occupation of the barsati floor.