Final Order 5

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF AASHISH GUPTA, DISTRICT JUDGE-01,
NORTH-EAST DISTRICT, KARKARDOOMA COURTS, DELHI
In the matter of
RCA DJ No. 52/25
CNR No. DLNE01-003131-2025
Ali Fatima
W/o Mohd. Raza
D/o Sh. Sadakat Ali
R/o D-265, Gali No. 4,
Noor Illahi, North Ghonda,
Delhi-110053 ….. Appellant
versus
1. Safdar Raza
S/o Mohd. Hussain
R/o D-265, Gali No. 4,
Noor Illahi, North Ghonda,
Delhi-53
2. Mohd. Raza
S/o Sh. Safdar Raza
R/o B-288-A, Lajpat Nagar,
Sahibabad, Chauki Karan Gate,
Ghaziabad, Uttar Pradesh-201005
3. Poonam Rani @ Sana
W/o Mohd. Raza
D/o Rattan Singh
R/o B-288-A, Lajpat Nagar,
Sahibabad, Chauki Karan Gate,
Ghaziabad, Uttar Pradesh-201005 ….. Respondents
RCA DJ 52/25 Ali Fatima vs. Safdar Raza & Ors. 1 of 13
-- 1 of 13 --
Date of institution : 25.10.2025
Reserved on : 24.11.2025
Date of Decision : 06.01.2026
JUDGMENT
1. The present first appeal impugns the judgment and decree dated
27.08.2025 passed in CS no. 116/18 (hereinafter referred as the
‘impugned judgment/decree’) whereby the Ld. Trial Court has
decreed the suit of R-1/plaintiff.
2. Appellant was D-2 before the Ld. Trial Court.
3. For the sake of convenience, parties shall be referred to by the
nomenclature used in the Ld. Trial Court.
4. D-1 and D-2 are son and daughter-in-law of plaintiff. D-1 has two
wives. D-3 is the first wife; while D-2 is the second wife.
5. Plaintiff sued the defendants on the basis of licensee-licensor
relationship and
inter alia wanted the defendants to be evicted
from one room measuring 7 feet x 8 feet at first floor of property
bearing no. D-265, Khasra No. 640/4 and 304, situated at Gali
No. 4, Noor Illahi, Maujpur, Village Maujpur, Illaqa Shahdara,
now known as North Ghonda, Delhi-53 (hereinafter referred as
‘suit property’).
6. The Ld. Trial Court decreed the suit in favour of plaintiff whereby
D-2 (appellant herein) was directed to vacate the suit premises;
handover the possession thereof to plaintiff; and D-2 was also
RCA DJ 52/25 Ali Fatima vs. Safdar Raza & Ors. 2 of 13
-- 2 of 13 --
restrained from entering any other part of suit property i.e. ground
floor and other part of first floor or from damaging the same.
7. D-2 is thus, in appeal challenging the aforesaid.
8. I propose to dispose off the present appeal
in limine and thus, no
notice of this appeal was issued to the plaintiff or other parties. I
may also note that there is a delay of about 30 days in filing of the
present appeal and a separate application u/s 5 of Limitation Act,
1963 is also preferred by the D-2. Since, the appeal is being
disposed off on merits, notice of the said application was also not
issued to plaintiff.
9. As far as the application seeking condonation of delay is
concerned, D-2 claims that owing to her illiteracy, delay in
obtaining certified copies, financial hardships and search for legal
representation, a delay of 30 days occurred in filing of this appeal
and therefore, the same should be condoned.
10.The said ground is specious to say the least. Perusal of the record
would show that the counsel who has filed the present appeal was
also her counsel in Ld. Trial Court. The present appeal is filed
inter alia by Mr. Gurjeet Singh who had cross-examined and
carried out substantial trial/other proceedings before the Ld. Trial
Court. Thus, the plea that appellant/D-2 spent time in searching
legal representation is incorrect.
11.Again, as per appeal record, at least nine other litigations are
inter
alia pending between D-2 and her husband/D-1. This shows that
RCA DJ 52/25 Ali Fatima vs. Safdar Raza & Ors. 3 of 13
-- 3 of 13 --
appellant/D-2 cannot be termed as a person who is lacking legal
understanding qua the consequences of her case.
12.Again, the plea of time being consumed in taking certified copies
is also misconceived as appellant/D-2 herself claims to have
applied for copies only on 23.09.2025. She received the same on
06.10.2025. But, the impugned judgment/decree is dated
27.08.2025 and nothing prevented the appellant to apply for
certified copy of the impugned judgment/decree soon after. Even
after applying for certified copies on 23.09.2025, appellant herself
chose to receive it on 06.10.2025. As per record, the said certified
copies were ready by 26.09.2025 itself.
13.This again shows that the plea of delay in obtaining certified
copies was on the default of appellant herself and cannot be
attributed to the court agency.
14.Again, the plea of financial hardship is specious and has only
been taken to somehow wriggle out of the delay in filing of the
present appeal.
15.Holistically seen, it appears that appellant has failed to give any
sufficient cause to explain the delay in filing of the appeal and
thus, this appeal should fail only on the ground of delay.
16.But, even if, the appeal is considered on merits, the same does not
deserve to be admitted.
RCA DJ 52/25 Ali Fatima vs. Safdar Raza & Ors. 4 of 13
-- 4 of 13 --
17.As noted above, plaintiff has sued defendants including D-2 on
the ground that they were mere licensees and after termination of
D-2’s license, she was bound to vacate the property (see para 16
of the plaint).
18.Plaintiff had also claimed in the plaint (see para 8-10 of the
plaint) that he was aware of some matrimonial disputes
inter se
the defendants. As per him, D-1 had initially married D-3 and he
subsequently married D-2 also. This led plaintiff to purchase a
separate house in the name of D-2 at property bearing no. G-234,
Gali No. 13/7, Bhagirathi Vihar, Delhi and this property was then
given on rent by D-2 to some tenants.
19.D-2 does not dispute that plaintiff purchased the entire property of
which suit property is a part. But, she claims that this was
purchased by plaintiff after selling some ancestral property and
that the suit property is her matrimonial home.
20.While plaintiff stepped in the witness box before the Ld. Trial
Court as PW-1, D-2 stepped in the witness box in her defence as
DW-1. The other defendants did not lead any evidence.
21.The Ld. Trial Court on the basis of evidence led concluded that
plaintiff is able to discharge the onus for the relief of possession
and permanent injunction (placed vide issue no. 1 and 2 in the
issues framed before the Ld. Trial Court) and thus decreed the
suit.
RCA DJ 52/25 Ali Fatima vs. Safdar Raza & Ors. 5 of 13
-- 5 of 13 --
22.Counsel for the appellant/D-2 has challenged the decree on the
following grounds:
1. That the Ld. Trial Court did not have subject matter
jurisdiction and the suit should have been sent to concerned
Family Court under Family Courts Act, 1984;
2. The plaintiff did not properly valued his suit for possession or
pay court fees thereupon;
3. The right of residence of appellant/D-2 was not considered by
the Ld. Trial Court under the D.V. Act, 2005;
4. The Ld. Trial Court did not decide the preliminary issue
framed in the case with respect to the plea of suit property
being an ancestral property of plaintiff and not self-acquired
property;
5. That the Ld. Trial Court failed to take notice of collusion
between plaintiff and other defendants and did not appreciate
the evidence properly.
23.In my humble opinion, if one peruses the trial court record and the
impugned judgment, all the pleas raised in this appeal are taken
note by the Ld. Trial Court during trial proceedings or in the
impugned judgment.
24.As far as the contention that the matter should have been sent to
Family Court under Family Courts Act, 1984 is concerned, this
plea was taken before the Ld. Trial Court also. The Ld. Trial
RCA DJ 52/25 Ali Fatima vs. Safdar Raza & Ors. 6 of 13
-- 6 of 13 --
Court, in its order dated 19.12.2024 has held that the civil rights
of plaintiff with defendants were separate from the ongoing
matrimonial litigation
inter se the defendants. The Ld. Trial Court
took note of the ratio of Geeta Anand vs. Tania Arjun & another
2024 SCC Online Delhi Del 2327.
25.I am in complete agreement with the said view taken by the Ld.
Trial Court in its order dated 19.12.2024. The plaintiff has sued
the defendants alleging that defendants were his licensees. As
already noted, D-2 admitted in her written statement that the
property in question (of which suit property is a part) was
purchased by plaintiff. Other defendants also did not dispute this
fact. In fact, as per the defence of D-2, she came to occupy the
property only as wife of D-1. Thus, the rights asserted by the
plaintiff before the Ld. Trial Court were independent of the
matrimonial relationship and the disputes arising therefrom
inter
se D-1 to D-3 and therefore, plaintiff could approach a Civil
Court for adjudication of his civil rights. Thus, the Ld. Trial Court
had the necessary subject matter jurisdiction to adjudicate the suit
in question.
26.The second contention qua valuation is also misconceived. At the
outset, I may note that the appellant never took the plea of
valuation before the trial court. A perusal of written statement of
D-2 would show that a vague assertion about improper valuation
is made in para 22 of her written statement without any material
particulars which forms the basis of the said plea. No specific
RCA DJ 52/25 Ali Fatima vs. Safdar Raza & Ors. 7 of 13
-- 7 of 13 --
issue was pressed before the trial court in this regard by D-2. It is
only at the appellate stage that, for the first time, a plea of
valuation qua the relief of possession is made before this court.
27.In my humble opinion, this plea qua valuation cannot be raised
for the very first time at the appeal stage without the same being
taken before the court of first instance.
28.Even otherwise, as already noted, the plaintiff had sued the
defendants on the premise of licensee-licensor relationship. The
valuation clause of the suit is mentioned at para 22 of the plaint
and it reads as under:
“22. That the value of the suit for the purposes of jurisdiction is
assessed at Rs.130/- for permanent injunction and 130 for
mandatory injunction on which a fixed court fee stamp of Rs.26 is
affixed on the plaint.”
29.Counsel for the appellant/D-2 argued that in the prayer clause(a),
plaintiff has eventually prayed for possession and ejectment and
this would mean that he should value his suit at market value and
pay ad valorem court fees.
30.If I view a holistic reading of the plaint, it is evident that the relief
of possession is essentially a relief of mandatory injunction
sought by plaintiff against his licensees asking them to vacate the
property. It is settled law that a licensor can seek mandatory
injunction against his licensees and can seek their eviction. In this
case, plaintiff is father of D-1; father-in-law of D-2 and D-3. He
admittedly is the original purchaser of the property and permitted
RCA DJ 52/25 Ali Fatima vs. Safdar Raza & Ors. 8 of 13
-- 8 of 13 --
the defendants to occupy the same. So considered, in my humble
opinion, plaintiff had properly valued his relief of possession
(which was essentially in the nature of mandatory injunction) and
had paid proper court fees thereupon.
31.Thus, the plea that the plaintiff did not value his suit properly or
he failed to pay proper court fees is misconceived.
32.The claim of D-2 that the Ld. Trial Court did not consider her
right of residence under the D.V. Act, 2005 is also misconceived.
As per appellant’s own case, as many as nine litigations are going
on between her and her husband/in-laws/first wife of her husband.
Counsel for the appellant admitted during arguments that
appellant’s plea of residence under D.V. Act is also pending
adjudication before the concerned court i.e. CT no. 702/18. She
has not managed to get any residence orders in her favour till
date. Admittedly, her husband/D-1 does not occupy the suit
property and lives somewhere in Ghaziabad.
33.Additionally, as noted above, plaintiff had claimed in his plaint as
well as his evidence before the trial court that he had purchased a
separate property in the name of D-2/appellant and she is now
drawing rent from the said property. This fact is partly denied in
the written statement filed by D-2/appellant. In para 9 of the
written statement under the heading ‘Reply on Merits’, D-2
claims that the house owned by her was purchased by her
maternal uncle in the name of D-2 and she is getting rent of
RCA DJ 52/25 Ali Fatima vs. Safdar Raza & Ors. 9 of 13
-- 9 of 13 --
Rs.2,000/- per month from the said house. This admission shows
that admittedly D-2 has one house in her name. She only disputes
the fact that this was got purchased by plaintiff in her name.
Instead, as per her, this property was purchased by her maternal
uncle, in her name. But, it is pertinent to note that the contention
qua the said house was specifically made by plaintiff in his
affidavit in evidence Ex.PW1/A at para 10. He specifically
asserted that he had purchased property bearing no. G-234, Gali
No. 13/7, Bhagirathi Vihar, Delhi in the name of D-2 to resolve
the dispute; and that D-2 has rented out the said property to some
other person @ Rs.6,000/- per month. This part of the testimony
of plaintiff has been allowed to go unrebutted and unchallenged.
Neither any question nor any suggestion was put to plaintiff on
this count.
34.In fact, in the present appeal also, the fact that D-2 holds the said
house in her name is not disputed by appellant/D-2.
35.This clearly shows that not only D-2’s claim of a right of
residence under the D.V. Act, 2005 is pending before a court of
competent jurisdiction, she holds a property in her own name
which was got purchased by plaintiff in D-2’s name. This clearly
shows that her contention that she would left destitute and would
be rendered homeless is clearly incorrect as she herself holds a
property in her own name. Once, D-2 allows the plaintiff’s
testimony to go unrebutted on the count that he purchased one
house in her name to put an end to dispute, she cannot be allowed
RCA DJ 52/25 Ali Fatima vs. Safdar Raza & Ors. 10 of 13
-- 10 of 13 --
to take the plea of shared household in a property admittedly
purchased by plaintiff.
36.Counsel for appellant/D-2 had vehemently argued that plaintiff,
during his cross-examination, claimed that he allowed D-2 to
occupy the property in 2010; while the property was actually
purchased in 2011. The said contradiction, is, at best, a minor
contradiction and does not go to the root of the matter. The main
issue in the matter is as to whether D-2 occupies the property as a
licensee or not. She admits in her written statement that plaintiff
purchased the property and she came to occupy it after her
marriage to D-1. This essentially means that she occupies the
property as licensee of plaintiff and nothing more. The
contradiction on the date of purchase shall not make the otherwise
cogent testimony of plaintiff unworthy of credit. Thus, the said
contention of appellant/D-2 is noted only to be rejected.
37.Finally, the argument that the Ld. Trial Court did not decide the
preliminary issue framed in the case is misconceived. I may note
that at the time of framing of issues, one preliminary issue was
also framed by the trial court which reads as under:
“As per the WS of defendant no. 2 that the suit property was
purchased by selling the ancestral property and hence the suit
property is not an ancestral property? OPD”
38.Eventually, vide order dated 17.02.2025, the Ld. Trial Court held
that this issue would be decided at the stage of judgment.
RCA DJ 52/25 Ali Fatima vs. Safdar Raza & Ors. 11 of 13
-- 11 of 13 --
39.Thus, this issue was to be decided at the final stage and the onus
thereof was of D-2 to discharge. D-2 did not lead any evidence to
show that the suit property was purchased after selling some
ancestral property by plaintiff. Thus, the Ld. Trial Court rightly
decided the said issue against D-2. Nothing was brought to my
notice to suggest otherwise. In such circumstances, the judgment
in question cannot be said to suffer from any infirmity on this
count.
40.Perusal of the entire evidence on record would show that plaintiff
stepped in the witness box as PW-1 and reiterated the facts that
inter alia D-2 was a mere licensee in the property. No evidence
was led by D-2 to suggest otherwise. As already noted, it appears
from the record that plaintiff was the admitted purchaser of the
entire property (of which suit property is a part). As per record, he
has a large family to support and therefore, he terminated the
license of his son/D-1 and his two wives i.e. D-2 and D-3. Once
the same was proved on record, D-2 does not have any right, title
or interest to continue to occupy the suit property. This is more so
when D-2 has a separate residence available to her and her
husband is admittedly residing at Ghaziabad in a different house.
41.So considered, in my humble opinion, there is no infirmity in the
judgment passed by the Ld. Trial court which calls for any
interference by this court. Accordingly, the judgment dated
27.08.2025 is upheld.
RCA DJ 52/25 Ali Fatima vs. Safdar Raza & Ors. 12 of 13
-- 12 of 13 --
42.I may note that while drawing up the decree-sheet, it appears that
due to over-sight, the relief granted in the judgment has not been
recorded correctly. Since the impugned judgment has been upheld
by virtue of this judgment, a fresh decree-sheet shall have to be
prepared in law.
43.Accordingly, it is ordered that a fresh decree-sheet recording the
exact reliefs granted by the Ld. Trial Court in impugned judgment
dated 27.08.2025 be prepared.
44.Accordingly, the present appeal is dismissed on merits as well as
on the ground of limitation
. Pending applications, if any, are also
dismissed.
45.The impugned judgment is upheld and a decree-sheet be prepared
in terms of this judgment. The site plan before the Ld. Trial Court
Ex.PW1/6 shall form part of decree.
46.Let copy of the judgment passed in appeal along with decree-
sheet be sent to Ld. Trial Court.
Announced in the Aashish Gupta
open Court on 06.01.2026 District Judge-01, North-East District,
Karkardooma Courts, Delhi
RCA DJ 52/25 Ali Fatima vs. Safdar Raza & Ors. 13 of 13
-- 13 of 13 --