LAWS(DLH)-2015-4-292

KUMARI SUSHILA YADAV Vs. ATUL CHAUDHARY

Decided On April 29, 2015
Kumari Sushila Yadav Appellant
V/S
Atul Chaudhary Respondents

JUDGEMENT

(1.) IA No. 12579/2014

(2.) THIS is an application filed by the plaintiff under Order 12 Rule 6 CPC seeking a decree of possession and leaving the issue of damages, mesne profits, etc. to be decided on merits.

(3.) THE defendants have filed their written statement. They have defended the suit in the written statement essentially on the ground that they have with the express consent of the plaintiff carried out works of permanent character on the suit property and have incurred heavy expenses. Hence it is argued that the license of the defendants is irrevocable under Section 60(b) of the Indian Easements Act, 1882. In the written statement, it is further averred that the property E -39 A, East of Kailash, New Delhi measures 460 sq. yards. It is admitted that the property stands in the name of the plaintiff. It is urged that the suit plot is divided roughly into two equal halves on which two distinct houses stand which accommodate the two respective families of the two brothers of the plaintiff. The plaintiff is an unmarried spinster. The Eastern Wing of the property is said to be in possession of the defendants and the other half portion which is called the Western Wing is in possession of the children of late Sh. Satish Chandra Yadav, the uncle of defendant No. 1 and the other brother of the plaintiff. It is urged that the plaintiff and defendant No. 1 had a very cordial and close relationship. It is stated that the plaintiff has no children of her own and virtually raised defendant No. 1, the elder brother's son as her own son. It is urged that the present suit is essentially instigated and is in reality being prosecuted by the wife and children of late Sh. Satish Chandra Yadav (younger brother of the plaintiff) who is the uncle of the first defendant. These persons, it is said, are residing in the Western Wing. It is urged that the plaintiff had two brothers and one sister. The sister late Ms. Saroj Nalini is also unmarried. The two brothers, late Sh. Surender Kumar Yadav, (defendant No. 1 being the son of late Sh.Surender Kumar Yadav) and the other brother being late Sh.Satish Chandra Yadav. It is the family of late Sh. Satish Chandra Yadav who is said to be staying in the other half, namely, Western Wing of the suit property. The father of the first defendant, namely, late Sh. Surender Kumar Yadav is said to have passed away on 16.11.1967 when the first defendant and his sister were minors. It is urged that the plaintiff has looked after the first defendant's affairs through his college days and even thereafter. The first defendant thereafter joined the army. The first defendant had a very close bonding with the plaintiff. It is urged that the plaintiff as she had no children of her own and in keeping with her late parents' wishes as regards distribution of the family's property, wished to eventually leave the suit property equally to her two nephews i.e. sons of her two respective brothers. The plaintiff represented to defendant No. 1 that since in any event eventually he would be entitled to a share in the property, she would permit him to put up construction on the site immediately and to reside there with his family. It is urged that relying on these representation and acting upon the license given by the plaintiff, the first defendant began investing his hard earned money in putting up permanent constructions on the Eastern Wing of the suit property. It is submitted that since the plot stood in the name of the plaintiff, plan sanctions and permissions were obtained in her name. However, the constructions have been put up by the first defendant out of his funds and that of his wife's fund. It is stated that in or around 1982 the first defendant and his family moved into the suit property. During this period though the first defendant was posted in the army and was posted in the border region but the family continued to reside in the suit property continuously from 1982 -83. In 1982, the basement and ground floor of the Eastern Wing was constructed. In 1997 it is stated that the first defendant took voluntary retirement from the army and took up a job in Canada. However, it is urged that despite working in Canada, the defendant continued to retain a portion of Eastern Wing where his belongings remained. It is urged that the tenant Balbir Verma vacated the portion of the Eastern Wing under his occupation in December 2007. The first defendant received the possession of the said portion from the tenant and acting upon the license granted by the plaintiff, the defendants have said to have undertaken further construction reducing the set back. At that time the first and second floor were also put up in the Eastern Wing. Second defendant, that is the wife of the first defendant is said to have looked after the new construction, procurement of materials and day to day supervision and hence it is urged that the entire building of Eastern Wing of the suit property from the basement upwards including ground, first and second floor have been built at the entire cost and expense of the defendants. Various documents are relied upon to show that the construction was carried out at the expense of the defendant.