KAVITA GAMBHIR v. HARI CHAND GAMBHIR & ANR.

that the defendant in their absence took possession of the ground RFA 179/2008 floor and second floors also, taking advantage of their having shifted to Gurgaon. Since the plaintiffs did not want their daughter-in-law to stay any more in their house they served a notice dated 27/10/04 upon the defendant to vacate the suit property by 30/11/04 but she did not do that. Hence, the suit was filed by the plaintiffs on 11/01/05 against the defendant for getting back the possession of the suit property from her. Since her occupation of the entire suit property was claimed to be unauthorised after she had failed to surrender the possession, the plaintiffs also claimed mesne profits @ Rs.15,000/- p.m. The plaint was valued for the purposes of court fees and jurisdiction at Rs.12 lacs being the value of the suit property.

3. The suit was contested by the defendant. She claimed that the suit had been filed by her in-laws to force her and their own grand- children to live the life as destitutes and roofless. Regarding the claim of the plaintiffs that they were the exclusive owners of the suit property her stand was that the suit property belonged to an Hindu Undivided Family(HUF) and her husband being one of the members RFA 179/2008 of that HUF, she and her children had a right to reside in the property in their occupation. That property in any case was alleged to be her matrimonial home also and for that reason as well she could not be asked to move out from there or to pay any money for residing there. She denied the allegation that she had unauthorisedly occupied the ground and second floors also. She claimed that the ground floor had been locked by the plaintiffs themselves and as far as second floor is concerned she stated that since entry to that floor was through the first floor portion, she was going to the second floor only to keep that portion clean.

4. In the replication the plaintiffs while reiterating their case set out in the plaint pleaded that even the children born out of the wedlock between their son, Anil Gambhir and the defendant had no right to remain in the suit property.

5. The trial court framed the following issues for its decision:- RFA 179/2008

1. Whether the plaintiffs are only titular owners of the suit property? OPD

2. Whether the suit property is part of the joint family properties possessed and owned by hindu undivided family? OPD

3. Whether the plaintiff is entitled to a decree of possession as prayed for? OPP

4. Whether the plaintiff is entitled to a decree of mesne profits in the sum of Rs. 15,000/- per month from 01.12.2004 till the date of handing over the peaceful and vacant possession as prayed for? OPP

5. Relief.

6. The plaintiff no.1 had claimed in his evidence that he, alongwith his wife had acquired the land, from DDA vide perpetual lease deed dated 19/12/1989 (Ex.PW-1/9) and that he had taken a loan of Rs.1,47,250/- in the year 1990 for the construction of the house. He placed on record a certificate dated 13/12/04, Ex.PW-1/3, from his employer to the effect that in the year 1990 he had been given a loan of Rs.1,47,250/- for the construction of the house in Rohini and that the loan had been recovered back from his salary. The learned trial Court after considering the evidence adduced from both RFA 179/2008 the sides came to the conclusion that the suit property was the self- acquired property of the plaintiffs and not an HUF property. For arriving at this conclusion the learned trial Judge relied upon the perpetual lease deed dated 19/12/89 in respect of the plot of land over which the suit property was constructed. That lease deed, Ex.PW-1/9, was in the joint names of the plaintiffs and it shows that the plaintiffs had been given the land on perpetual lease for a sum of Rs.7200/-. The Court also relied upon the admission made by the defendant regarding the ownership of the plaintiffs in respect of the suit property in a civil suit for injunction which she had filed before the filing the present suit by the plaintiffs. That suit was by the defendant against the plaintiffs, her husband Anil Gambhir, his brother Ajay Gambhir and his wife Madhu for a decree of permanent injunction restraining them from dispossessing her and her two children from the first floor of the suit property and which suit came to be compromised. The trial Court, however, has held that the plaintiffs had not produced any evidence to show that the defendant was in occupation of the other two floors as well and so passed a RFA 179/2008 decree for mesne profits only @ Rs.3250/- p.m. for her occupation of the first floor only from 01/12/04 till the delivery of possession of the property to the plaintiffs. The plaintiffs have not challenged that conclusion of the trial Court going against them.

7. I heard the arguments advanced by Shri Kirti Uppal, learned counsel for the appellant and Shri Sanjeev Sindhwani, learned counsel for the respondents, and during the course of hearing of the appeal both of them also took me through the evidence adduced by the parties during the trial of the suit, oral as well as documentary.

8. As far as issues no. 1 and 2 relating to the controversy regarding the ownership of the suit property are concerned, Mr. Kirti Uppal, learned counsel for the appellant, argued with vehemence that the plaintiffs alongwith their two sons and their daughters-in-law were all living together as a joint family in the suit property for years and that showed that the suit property was joint family property and so the defendant was not an unauthorised occupant of the first floor RFA 179/2008 of the suit property. It was also contended that the trial Court had wrongly come to the conclusion that the suit property belonged to the plaintiffs exclusively and was not an HUF property. He also argued at length to convince me that the appellant’s occupation of the property in her possession was protected even under The Protection of Women from Domestic Violence Act,2005.

9. On the other hand Shri Sanjeev Sindhwani, learned counsel for the respondents, while not disputing the fact that the plaintiffs alongwith their two sons, two daughters-in-law and two grand- children were living in the suit property as a joint family when there were no disputes between the defendant and their son Anil Gambhir but simply for that reason it could not be inferred that the suit property was a joint family property. It was submitted that there was no presumption that if members of a joint Hindu family reside together in some property which stands in the name of one of the family members would automatically become the joint family property of each member of the joint family. Mr. Sindhwani also RFA 179/2008 submitted that the plaintiff no.1 had sufficient funds of his own to acquire the plot and for raising the construction also he had used his own money and that although some loan was also taken by him from his employer but that was repaid from his salary. Learned counsel also contended that the burden to prove that the suit property was joint family property lay on the defendant which she had failed to discharge. It was also submitted that in order to shift the burden to the plaintiffs to show that the suit property was their self acquired property the defendant had to show that there was some joint family nucleus with the aid of which the plot of land in question could be purchased or construction thereon could be raised with that nucleus but the defendant had miserably failed to establish that. Learned counsel also submitted that the provisions of The Protection of Women from Domestic Violence Act, 2005 could not be invoked in the present proceedings since no such case was pleaded by the appellant in her written statement and nor could she have done that since at the time she had filed her written statement this Act had not even been promulgated. It was also contended that if at all the RFA 179/2008 defendant wanted the Court to take notice of that legislation as a subsequent development taking place after the filing of the written statement by her and before the disposal of the suit that could be done only if there was necessary foundation laid in the written statement by alleging facts therein which, according to her, entitled her to get some benefit available under the said Act of 2005 but shes did not lay any foundation in her written statement by seeking necessary amendment in the written statement and so she cannot be allowed to make any submissions based on the provisions of the said Act. In support of this contention Mr. Sindhwani cited one judgment of the Supreme Court in “ Om Parkash Gupta vs Rambir B.Goyal”, (2002)2 SCC 256. In any event, Mr. Sindhwani also contended, the respondents’ suit for possession of the suit property could not be resisted by the defendant and rejected by the trial Court by invoking any provision of the said Act since it has already been decided by the Supreme Court in “S.R. Batra & Anr. vs. Smt. Taruna Batra”, AIR 2007 SC 1118 that a wife cannot claim any right of occupation in the property owned by her in-laws as a “shared household” as defined in RFA 179/2008 Section 2(s) of this Act of 2005 entitling her to live there as a matter of right.

10. I have examined and analysed the evidence on the point of ownership of the suit property and in my view the findings of the learned trial Court to the effect that the plaintiffs have been able to show that the suit property was their self-acquired property and that the defendant has failed to show that it was a joint family property cannot be sustained. As has been noticed already, it is not in dispute that the plaintiffs and their two sons constituted a joint Hindu family and that the suit property is registered in the joint names of the two plaintiffs as lessees. In these circumstances it was rightly submitted by the learned counsel for the plaintiffs that the burden rested on the shoulders of the defendant to show to the contrary that despite the perpetual lease deed being in the names of the plaintiffs the suit property in fact belonged to the joint family of the plaintiffs and their two sons. That is the legal position settled way back in the year 1947 by the Privy Council in “Appalaswami vs Suryanarayanamurti and RFA 179/2008 others”, AIR 1947(34) Privy Council 189 which decision was thereafter followed by the Supreme Court in many of its judgment on the concept of Hindu Undivided Family and Joint Family Property amongst Hindus. Those decisions of the Apex Court are reported as