SUDHA MISHRA Vs. SURYA CHANDRA MISHRA
High Court Of Delhi
Decided on July 25,2014
SUDHA MISHRA Appellant
SURYA CHANDRA MISHRA Respondents
A.K. Pathak, J. - ( 1. ) THIS Appellant -defendant has filed this appeal against the judgment and decree dated 28th April, 2013 passed by the Additional District Judge, Karkardooma Courts, Delhi whereby suit for mandatory injunction, filed by the respondent -plaintiff against the appellant, has been decreed and appellant has been directed to deliver the vacant and physical possession of the portion in her possession in the property bearing No. C -1/9 -A, Yamuna Vihar, Delhi (for short hereinafter referred to as 'suit property', within three months and further not to interfere in the peaceful possession and enjoyment of suit property by the respondent. Briefly stated, facts of the case are that respondent is father -in -law of appellant. Respondent filed a suit for mandatory injunction against the appellant to quit and deliver the vacant possession of the suit property to respondents. It was further prayed that appellant be restrained from creating obstruction in any manner to the rights of the respondent in the suit property as also to pay mesne profits @ Rs. 1 lac per month along with interest. Respondent alleged in the plaint that he was absolute owner of the suit property which he had acquired vide lease deed dated 27th May, 1982 executed by the Delhi Development Authority (DDA). Later on, a conveyance deed dated 7th April, 1995 was executed by the said authority in favour of the respondent. His son was married to appellant at Kanpur, U.P. on 11th December, 1996. After the marriage appellant was living in Kanpur, Lucknow, Allahabad, inasmuch as, her children were also born in Lucknow and Kanpur. Since beginning, appellant and her husband were having strained relationship. Appellant filed a complaint under Section 498A of the Indian Penal Code read with Sections 3 and 4 of the Dowry Prohibition Act against her husband wherein she also named respondent. Relationship between the respondent and his son also became strained. Respondent disowned his son in the year 2011 by issuing a public notice in the newspaper "Rashtriya Sahara". The suit property was self -acquired property of respondent. Appellant asked the respondent to relinquish the suit property in her favour. Threats were also extended to the respondent, consequently, respondent filed a complaint on 28th June, 2011 with the Police Station, Bhajanpura and Deputy Commissioner of Police (North East Delhi). On 11th July, 2011, appellant came to the suit property and tried to occupy the same forcibly. Police was called. However, appellant succeeded in occupying one room, kitchen and bathroom at the ground floor of the suit property. Respondent alleged that appellant had illegally trespassed abovementioned portion. Accordingly, it was prayed that appellant be directed to vacate the suit property and pay mesne profits.
( 2. ) IN the written statement, appellant took certain preliminary objections. She alleged that suit was not maintainable in view of the alternate remedies available under the law to the respondent. She also alleged that suit was without any cause of action. She was legally wedded wife of son of the respondent and has a right to live therein. Appellant further alleged that suit property was purchased out of the joint family funds. Respondent and his son used to harass the appellant. They demanded dowry. Appellant is living separately from her husband due to matrimonial discord between them. She is living in the suit property right from the beginning. Divorce proceedings are pending between the appellant and her husband. Appellant denied that she had forcibly occupied the suit property. She also denied that she had been living at Kanpur, Lucknow and Allahabad after her marriage. It was prayed that suit be dismissed. In the replication, respondent denied that the suit property was purchased from the joint family funds. He reiterated that suit property was his self -acquired property. Other averments made in the plaint were also reiterated.
( 3. ) ON the pleadings of the parties following issues were framed by the Trial Court on 8th February, 2012: 1. Whether the plaintiff is entitled to decree for mandatory and permanent injunction as prayed for in respect of property bearing No. C -1/9A, Yamuna Vihar, Delhi -93? - -OPP 2. Whether the plaintiff is entitled to damages/mesne profits at the rate of Rupees one lakh per month with effect from the date of filing of the suit till date the defendant removes her articles from the suit premises, along with interest at the rate of 18% per annum on the said amount? - -OPP 3. Whether the plaint is undervalued for the purpose of Court fee and pecuniary jurisdiction? - -OPP 4. Whether the suit in its present form without praying for possession of the suit premises is maintainable? - -OPD ;