SARASWATI DEVI SHARMA Vs. SUSHIL KUMAR SHARMA

JUDGEMENT

(1.) In a suit alleging the defendant No. 1 - the son to be the licensee of the ground floor portion of immovable property bearing No. 63, Uday Park (formerly known as Masjid Moth Extension), New Delhi, the mother - plaintiff for a decree of possession of the suit immovable property and also decree of mandatory injunction restraining the defendants, their assignees or servants from coming to the portion of the suit premises and for a decree of permanent injunction restraining the defendants from coming to the suit property shown in blue in the site plan or in other portion of the said property, the plaintiff by this IA under Order 39 Rules 1 & 2 Code of Civil Procedure seeks to restrain the defendants from entering the portion of the suit property delineated in blue or to any other portion of the suit property except the portion mentioned in red in the site plan annexed with the plaint and also seeks to restrain the defendants the defendants from disturbing, intimidating, harassing or creating obstruction in the peaceful possession and enjoyment of the suit property by the plaintiff In other words, the plaintiff by this application prays for a temporary injunction requiring the defendant to leave the suit property and hand over the physical possession of the suit property.

(2.) The say of the plaintiff is that the plaintiff is the exclusive.owner of the property bearing No. 63, Uday Park, New Delhi (formerly known as Masjid Moth Extension); that the suit property was purchased by the plaintiff from the Government of India on payment of consideration out of her own funds; that the said property was allotted to the plaintiff by Government of India on the demise of her youngest son Lt. Devinder Kumar Sharma (Indian Navy) who was a bachelor during the 1971 Indo-Pak war when the INS Khukri was sunk; that the conversion charges for getting the suit property converted from leasehold to freehold have been paid by the plaintiff; that defendant No. 1 is the eldest son of the plaintiff, defendant No. 2 is the wife and defendants 3 & 4 are the sons respectively of defendant No.1; that the defendants are occupying the suit property as trespassers and have no legal right in the said property; that during the period 1973-75, the plaintiff got the ground floor of the suit property constructed with her own funds with contribution from her husband Jai Dev Sharma; that the plaintiff and her husband have been residing in the suit property since 1976; that her other son Sq.Ldr. Nirmal Kumar Sharma has also been living with his family in the suit property; that in 1988, defendant No. 1 retired and shifted to his house in Chandigarh; that in May/June 1990, the plaintiff allowed the, defendants to stay on the ground floor of the suit property as a temporary measure as defendant No.1 waited to have a temporary shelter due totunrest in Punjab; that the stay of the defendants in the suit property was as a licensee and only on compassionate ground; that no use and occupation charges have been demanded or paid by defendants to the plaintiff as the defendant No. 1 as a son was allowed to use the premises as a licensee; that defendant No. 1 soon after shifting from Chandigarh started threatening the plaintiff and harassing her to transfer the property in his name; that defendants forcibly tried to occupy to the exclusion of the plaintiff two of the three bed-rooms and also cause harassment; that defendant No.1 wants to fulfil his evil design of illegally taking over the suit property to oust the plaintiff.

(3.) The say of the defendants No. 1 to 4 is that the defendant No.1 is the son of the plaintiff and is a co-owner of property No.63, Uday Park, New Delhi; that the present suit has been filed at the instance of defendant, No.1's brother namely Sh. Nirmal Kumar Sharma; that said Sh. Nirmal Kumar Sharma has the intention to grab the said property; that the plaintiff has concealed material facts inasmuch as the notice dated 4.6.1998 by Sh. R.P. Sharma, Advocate served by the plaintiff to defendant No.1 has been suppressed; that the stand taken by the plaintiff in the notice dated 4.6.1998 and the present suit are contradictory; that defendant No. 1 is the absolute owner of the ground floor portion and co-owner of the leasehold rights of the plot and co-owner in respect of the second floor and that the defendant No.1 has valuable vested rights in the property; that the property No.63, Uday Park, New Delhi was allotted in the name of plaintiff on account of compassionate ground as the other brother of defendant No.1 and son of plaintiff namely Lt. Devinder Kumar Sharma expired during 1971 Indo-Pak war; that the allotment of the suit property was made to the family and for all legal purposes the allotment of the suit property by Delhi Development Authority in the name of the plaintiff is liable to be considered as allotment for the family; that property No.63 when allotted was a open plot and thereafter the same was constructed by the common funds and the defendant No.1 made substantial contribution towards the construction and even thereafter also has paid substantial amount to the plaintiff; that as defendant No.1 was contributing substantially towards the suit property and by virtue of said contribution, defendant No.1 has become the absolute owner in respect of the ground floor portion of the suit property and co-owner in respect of leasehold rights of the property; that the plaintiff could not have filed the present suit against the co-owner/defendant No.1 as defendant No.1 has contributed substantially towards the purchase of the plot as well as towards the construction thereon and by virtue of such family arrangement, defendant No.1 has become the absolute owner in respect of the ground floor portion of the suit property and co-owner in respect of leasehold rights of the property; that the defendants have -been residing on the ground floor; that the plaintiff as well as Sh. Jai Dev Sharma, father of defendant No.1, have been residing on the second floor and the second floor; that there is no barsati floor in the property in question; that defendant No.1 is in possession of the ground floor portion as being the co-owner; that it is denied that the defendants have been creating any harassment and obstruction to the plaintiff; that it is denied that the defendants are occupying the suit property as trespassers; that it is also denied that they have no legal right in the suit property; that even the notice dated 4.6.1998 does not suggest the defendants occupying the suit property as the trespassers; that the property in question has been constructed in parts and initially in 1974-75, the ground floor portion was constructed and as defendant No.1 was serving in the Indian Air Force and more or less was posted out of Delhi and after retirement in 1988, defendant No.1 was to stay permanently in Delhi and at that stage, it was felt/realised that additional construction is required in the property in question and family decision was taken to add the first and second floor at the said property by contributing the funds for the said construction; that some loans were also raised from the financial institutions/banks in the name of the plaintiff and that amount has been taken as a contribution towards such construction for and on behalf of the plaintiff and father Sh. Jai Dev Sharma and Sh. Nirmal Kumar Sharma and remaining contribution was made by defendant No.1 and the said amount has been paid in installments subsequently to the plaintiff; that it is denied that the defendants have been staying in the suit property as licensee and on compassionate grounds. By raising the counter claim, the defendants pray for a declaration that defendant No.1 is the absolute owner of the ground floor portion of the property No.63, Uday Park, New Delhi and co-owner of the second floor portion of the premises No.63, Uday Park, New Delhi and co-owner of underneath plot of the said property in question and in the alternative decree for the recovery of Rs.12 lakhs alleging the payment of Rs.7 lakhs as averred in para 47 of the written statement-cum-counter claim.