Delhi District Court
Abdul Rasheed ) vs Ashok Kumar - Cs Dj Adj on 4 January, 2021
IN THE COURT OF SH. HARGURVARINDER SINGH JAGGI,
ADDL. DISTRICT JUDGE - 02, SOUTH WEST DISTRICT,
DWARKA COURTS, DELHI
CS DJ ADJ No. 532/2018
CNR No.: DLSW01-011165-2018
IN THE MATTER OF:
1. Abdul Rasheed )
S/o Peeru Khan )
R/o C - 30, Hastsal Vihar )
Uttam Nagar )
New Delhi - 110059 )
... Plaintiff
v.
1. Raj Rani )
W/o Sh. Pappu )
2. Pappu )
S/o Not Know )
3. Rekha )
D/o Sh. Pappu )
4. Rakhi )
D/o Sh. Pappu )
5. Mamta )
D/o Sh. Pappu )
All Five R/o D - 242, Pappan Kalan )
Sector - 1, Dwarka, New Delhi )
CS DJ ADJ No. 532/2018
Page No. 1/54
6. Kailash )
S/o Late Sh. Ram Singh )
7. Monu )
S/o Late Sh. Ram Singh )
8. Raj Kumar )
S/o Late Sh. Ram Singh )
All Three Residents of D - 242 )
Pappan Kalan, Sector - 1 )
Dwarka, New Delhi )
All also at: E - 73 )
Block Jhandewalan )
New Delhi - 110059 )
... Defendants
Ms. Ritu Munjal, Advocate for the plaintiff.
Dr. V.P. Singh, Advocate for the defendants.
Date of institution of suit: 08.07.2013
Date of judgment reserved: 27.10.2020
Date of pronouncement of judgment: 04.01.2021
CS DJ ADJ No. 532/2018
Page No. 2/54
JUDGMENT
1. Abdul Rasheed (plaintiff) has preferred a suit for permanent injunction against Raj Rani (defendant No. 1), Pappu (defendant No. 2), Rekha (defendant No. 3), Rakhi (defendant No. 4), Mamta (defendant No.
5), Kailash (defendant No. 6), Monu (defendant No. 7), and Raj Kumar (defendant No. 8) with regard an immovable property i.e., a flat bearing No. D - 241, Sector - 1, Pappan Kalan, Dwarka, New Delhi - 110045 (hereinafter "suit property").
2. Abudul Rasheed claims to be an owner of the suit property, who is being obstructed by the defendants to visit his property. By the present suit, Abdul Rasheed has sought a solitary relief of a decree of permanent injunction against the defendants, restraining them, their friends, relatives, agents, associates from interfering of(sic) the frequent visits of the plaintiff, his friends, relatives, etc of the suit property.
3. Initially, Abdul Rasheed preferred the plaint against the defendants on 06.07.2013 before the establishment of the Ld. Sr. Civil Judge, South West district, Dwarka Courts, Delhi and the same was allocated to the court of Ld. Civil Judge, South West district, Dwarka Courts Delhi. The entire trial was conducted before the Ld. Civil Judge, South West, Dwarka Courts, Delhi, however, at the stage of final arguments, by virtue of order dated 24.05.2018 passed by the Ld. District & Sessions Judge, South West, Dwarka Courts, Delhi passed in a transfer application titled as Abdul Rasheed v. Raj Rani & Ors. - T.A. No. 08/2018, the present suit was transferred to this court, as a suit for possession, damages, declaration and permanent injunction titled as Ram Singh v. Ashok Kumar & Anr. - CS DJ ADJ No. 516627/2016 pertaining to the same suit property was pending adjudication before this court at that point in time. I would advert to the CS DJ ADJ No. 532/2018 Page No. 3/54 suit for possession, damages, declaration and permanent injunction titled as Ram Singh v. Ashok Kumar & Anr. - CS DJ ADJ No. 516627/2016 and its outcome in the latter paragraphs of this judgment. Pleadings
4. Abdul Rasheed has claimed himself to be legal, exclusive owner and in possession of the suit property. The defendants are his neighbours, who not only reside in the adjacent house but also are cruel some (sic), adamant nature, and have able eye (sic) on the suit property.
5. Abdul Rasheed has urged that the defendants want to grab the suit property and they used to interfere and quarrel with him, whenever he visited the suit property alone or with his friends, relatives, family members, etc. Raj Rani extended threats to Abdul Rasheed that in case Abdul Rasheed does not pay ₹1,00,000/- (Rupees One lakh only) to her, she would not allow him to reside in the suit property peacefully and in harmony. Raj Rani also extended threats to Abdul Rasheed that if he does not cough out ₹1,00,000/- (Rupees One lakh only), she would tear clothes of her daughter and implicate Abdul Rasheed in a false criminal case and ensure that he is sent to jail.
6. Abdul Rasheed has also urged that whenever he visited the suit property with his family members, relatives, friends, the defendants created a scene from unwarranted quarrel and Abdul Rasheed was compelled to approach the local police. On 08.06.2013, Abdul Rasheed moved an application before the local police, however no action was taken by the police against the defendants.
7. On 04.07.2013, defendants once again created a scene and extended threats to Abdul Rasheed and his friend who visited the suit property. Abdul Rasheed has urged that he has full apprehension that defendants can cause CS DJ ADJ No. 532/2018 Page No. 4/54 him, his family members, relatives, friends severe harm if they are not restrained.
8. Abdul Rasheed has urged that the defendants have no right, title and interest in the suit property and yet they are interfering and or creating hindrance in his frequent visits to the suit property along with his friends, associates, relatives, etc. As per the averments made in the plaint, the cause of action for Abdul Rasheed to prefer the plaint against the defendants arose when on his visit with his friend, the defendants created a scene. The cause of action further arose on 08.06.2013 and subsequently on 04.07.2013, when the defendants created a scene and interfered with the visit of Abdul Rasheed and his friends at the suit property.
9. For decision on plaintiff's interim application under Order XXXIX, Rule 1 & 2 of the Code of Civil Procedure, 1908 (CPC), a local commissioner to inspect the suit property was appointed by the court to ascertain the contentious claim of the parties that they are in the physical possession of the suit property. 1 The local commissioner's report dated 19.08.2013 is on record.
10. Initially, the written statement was only filed by the defendant Nos. 6 to 8 - vide order dated 24.08.2013. It is also observed from the case record that a motion under Order VII, Rule 11, CPC seeking rejection of the plaint was moved by the defendants. 2 The said application seeking rejection of plaint was dismissed as withdrawn on 29.01.2016.
11. The plaintiff moved an application under Order VI, Rule 17, CPC seeking amendment of plaint and an application under Order VII, Rule, 14, CPC seeking leave of the court to place certain documents on record. Both the applications moved by the plaintiff were allowed by order dated 1 See Order dated 18.07.2013 passed by Ld. Civil Judge - I, SW, Dwarka Courts, Delhi 2 See Order dated 15.04.2014 passed by Ld. Civil Judge - I, SW, Dwarka Courts, Delhi CS DJ ADJ No. 532/2018 Page No. 5/54 01.10.2015 and the defendants were directed to file their amended written statement.
12. The amended plaint moved by Abdul Rasheed added paragraph Nos. 1, 1A, 1B and 1C in the amended plaint, which primarily contained the averments of how he acquired the title and possession of the suit property. In the newly added paragraphs of the amended plaint, Abdul Rasheed averred that he purchased the suit property from one Sambhu Dayal through a general power of attorney, agreement to sell and purchase, affidavit, cash receipt, possession letter and deed of will all dated 06.05.2013. Abdul Rasheed further claimed of enjoying the peaceful possession of the suit property ever since its purchase.
13. Abdul Rasheed in the amended plaint also averred that the erstwhile owner of the suit property, Sambhu Dayal purchased the same from Aarti Kashyap @Sarla through general power of attorney, agreement to sell, affidavit, indemnity bond, cash receipt, possession letter and deed of will all dated 21.08.2012. Abdul Rasheed has also averred in the plaint that Aarti Kashyap @Sarla purchased the suit property from her husband, namely, Ashok Kumar by the similar set of documents all dated 18.01.2012.
14. As per further averments by Abdul Rasheed in the amended plaint, one Viran Devi (sic) was the original allottee of the suit property, who during her lifetime bequeathed the same by virtue of a registered will bearing Registration No. 969, Addl. Book No. 2, Vol. No. 443 at page Nos. 69 - 70 dated 07.08.2008, Sub Registrar - IX, Kapashera, New Delhi in favour of Ashok Kumar (now deceased). It is averred in the amended plaint that the will dated 07.08.2008 was duly witnessed by the daughter of Viran Devi (sic) and sister of Ashok Kumar (now deceased), namely, Raj Rani (defendant No. 1 herein).
CS DJ ADJ No. 532/2018 Page No. 6/5415. The preliminary defence urged by the defendants in their amended written statement are the usual predictable grounds, which are as under:
(a) The suit is not maintainable in the eyes of law and is misconceived for real cause of justice. The suit has been preferred with mala fide intention to harass the defendants.
(b) The plaintiff has not approached this court with clean hands and has suppressed material facts. There is deliberate material concealment with regard to the sale of property by Arti Kashyap. The plaintiff did not disclose in the plaint that Ram Singh, father of defendant Nos. 6 to 8 was the real owner of the suit property and in relation of which a suit is pending before the court of Sh. Lal Singh, ADJ, Dwarka Courts, Delhi.
(c) The plaint is bereft of cause of action, as the report of the local commissioner appointed by this court clearly revealed that the plaintiff was not in possession of the suit property.
(d) The suit preferred by the plaintiff is a counterblast to the complaint filed by the defendant No. 1, her brother, namely, Ram Singh (now deceased) and defendant No. 6 under Section 156(3) of the Code of Criminal Procedure, 1973 (Cr.P.C.).
(e) The suit preferred by the plaintiff is not maintainable in the present form, as per Sections 17, 49 and 53A of the Registration Act, 1908 as the same is based on unregistered documents, which have no value in the eyes of law. The suit preferred by the plaintiff on the basis of unregistered CS DJ ADJ No. 532/2018 Page No. 7/54 documents is hit by the ratio of Suraj Lamps & Industries Pvt. Ltd. v. State of Haryana & Anr.3
(f) The suit preferred by the plaintiff is not maintainable as per the standing instruction issued by the government of national capital territory of Delhi, no agreement to sell without payment of stamp duty @ 6% circle rate can be made.
(g) The suit preferred by the plaintiff based on general power of attorney appointing and empowering an attorney other than blood relations is also contrary to standing directions passed by the government of national capital territory of Delhi.
(h) The plaintiff has preferred the suit against two minors -
defendant Nos. 4 and 5 without filing an appropriate application seeking appointing of guardian ad litem.
(i) The plaintiff has not valued the suit for the purpose of court fees and jurisdiction in accordance with law.
(j) The suit preferred by the plaintiff is based upon forged, fabricated and manipulated documents. Ashok Kumar, husband of Aarti Kashyap @Sarla in a suit titled as Ram Singh v. Ashok Kumar & Ors. - Suit No. 18/14/2012 never mentioned about execution of documents in favour of his wife and Abdul Rasheed.
16. On merits, the defendants negated the claim of the plaintiff urging that the very chain of title claimed by the plaintiff is bogus and based on forged, fabricated and sham documents, as Ashok Kumar was never the owner of the suit property, thus the subsequent transfer of suit property by Ashok Kumar to his wife Aarti Kashyap @ Sarla, by Aarti Kashyap @Sarla 3 183 (2011) DLT 1 (SC) CS DJ ADJ No. 532/2018 Page No. 8/54 in favour of Sambhu Dayal and by Sambhu Dayal in favour of the plaintiff herein has no validity in the eyes of law. In short, the plaintiff has no concern with the suit property.
17. The defendants have urged in their defence that Ram Singh (now deceased) father of the defendant Nos. 6 to 8 was the real owner of the suit property. Viran Devi (now deceased) signed and executed a registered will dated 21.12.2009 in favour of Ram Singh. Viran Devi allowed and granted license to one of her sons Ashok Kumar (now deceased) to live in the suit property on assurance that he would serve her in her old age, but after four months, Ashok Kumar betrayed his commitment and failed to maintain Viran Devi, who turned him out from the house. Thereafter, Viran Devi started living with her other son Ram Singh at E-73, Jhandewala Block, New Delhi and also requested her son Ashok Kumar to handover the possession of suit property.
18. When Ashok Kumar failed to handover the possession of the suit property to Viran Devi, Viran Devi preferred a suit for permanent and mandatory injunction against Ashok Kumar bearing suit number 278/2010. Ashok Kumar was enjoined by an injunction order dated 16.08.2010 passed in the said suit from creating any third party interest in the suit property. It is averred by the defendants in their written statement that Viran Devi in the said suit not only testified but also proved the execution of a will in favour of her son Ram Singh. Sadly, Viran Devi after recording her evidence died on 20.7.2011 and thereafter Ram Singh became absolute owner of the suit property.
19. Pursuant to the demise of the Viran Devi, Ram Singh on 13.10.2011 moved an application under Order XXII, Rule 3 and 10, CPC seeking his substitution as legal representative of Viran Devi and the same was allowed by order dated 13.12.2011. The defendants have further averred in their CS DJ ADJ No. 532/2018 Page No. 9/54 written statement that the said suit was decreed by order dated 24.04.2012 by the court of Ld. Additional Senior Civil Judge/Additional Rent Controller, South West, Dwarka based on statement made by Ashok Kumar.
20. Thereafter, Ram Singh preferred a suit for possession against Ashok Kumar bearing suit No. 413/2012 before the court of Ld. Additional District Judge, South West, Dwarka Courts, Delhi. Unfortunately, Ashok Kumar, after having filed his written statement in the said suit died on 22.07.2012. Ram Singh moved an application under Order XXII, Rule 4, CPC to implead the legal heirs of Ashok Kumar. It is further averred in the written statement that Sarla being the widow of Ashok Kumar was his sole legal heir. It is further averred by the defendants in the written statement that Sarla avoided the service of notice and consequentially she was served through substituted mode on 07.12.2012. It is further averred by the defendants in the written statement that to mislead the court, Sarla filed her reply to the said application under the name of Aarti Kashyap. The defendants have averred in the written statement that Aarti Kashyap is not the wife of Ashok Kumar and she has no right in the suit property.
21. The defendants have also averred in the written statement that after getting information with regard to the death of Ashok Kumar, the police recorded statement of his wife, Sarla on 22.07.2012 and Ashok Kumar's dead body was also identified by Sarla when the post-mortem was conducted. It is urged by the defendants that when the police recorded the statement of neighbours, namely, Harish, Mahender and Ravi Kumar, all of them in their statements admitted that the widow of Ashok Kumar is Sarla and not Aarti Kashyap.
22. The defendants have also averred in the written statement that Ram Singh in the year 2011 filed the Suit No. 140/2011, a suit for permanent injunction against his brother Mahendra, Sarla and Ashok Kumar before CS DJ ADJ No. 532/2018 Page No. 10/54 the court of Ld. Civil Judge, South West, Dwarka Courts, Delhi. It is further averred by the defendants that Sarla filed written statement along with supporting affidavit and vakalatnama duly signed under the name and style of Sarla.
23. The defendants have averred in the written statement that the plaintiff and his associates have forged and fabricated documents such as will, general power of attorney, possession letter, agreement to sell and purchase and affidavit dated 21.08.2012 and 06.05.2013. It is further averred by the defendants that the executant of the aforesaid documents had no right and authority to execute the same and they being invalid documents have no value in the eyes of law.
24. The defendants in their written statement have refuted the claim of the plaintiff that Shambu Dayal purchased the suit property from Aarti Kashyap alias Sarla widow of Ashok Kumar on 21.08.2012 through general power of attorney, agreement to sell and purchase, affidavit, cash receipt, possession letter and deed of will all dated 21.08.2012. The defendants have urged in their written statement that the said documents are forged and fabricated documents and they have no validity in the eyes of law.
25. The defendants in their written statement have categorically averred that the registered will bearing Regn. No. 969, Addl. Book No. 3, Vol. No. 443 at page Nos. 69 to 70 dated 07.08.2008 at the office of Sub Registrar
- IX, Kapashera, New Delhi was cancelled by execution of cancellation of will deed dated 21.12.2009, which was duly registered bearing Regn. No. 3337, Addl. Book No. 4, Vol. No. 1397 at page Nos. 6 to 7 dated 21.12.2009 at the office of Sub Registrar, Kapashera, Delhi. It is further averred by the defendants in their written statement that after signing and registration of cancellation of previous will i.e. registered will dated 07.08.2008 by Viran CS DJ ADJ No. 532/2018 Page No. 11/54 Devi on 21.12.2009 through the registered cancellation of will, Viran Devi signed a fresh will dated 21.12.2009 in favour of her elder son, Ram Singh, which was registered as bearing Regn. No. 2141, Addl. Book No. 3, Vol. No. 476 at page Nos. 146 to 147 at the office of Sub Registrar - IX, Kapashera, New Delhi.
26. The defendants have urged in their written statement that Ashok Kumar did not have right, title, interest in the suit property, thus the transfer of suit property based on purported documents is false, invalid and a sham. It is averred by the defendants that the suit property belongs to Ram Singh and defendant Nos. 6 to 8 and the plaintiff has no concern with the suit property. The defendants have averred in their written statement that post the demise of Ashok Kumar there are two locks on the suit property. The defendants have averred in their written statement that one lock has been put by defendant No. 1 and the other by Sarla.
27. The defendants have denied extending threats to the plaintiff and making demands of ₹1,00,000/- (Rupees One lakh only) from the plaintiff. The defendants have also denied advancing any threats that in case the plaintiff fails to pay ₹1,00,000/- (Rupees One lakh only) to the defendant No. 1, she would tear the clothes of her daughter and implicate plaintiff in a false criminal case.
28. The defendants in their written statement have denied advancing any threats to plaintiff, his family members, relatives, friends, etc. The defendants have also denied any application being filed by the plaintiff on 08.06.2013 with the local police. The defendants have further denied that the plaintiff, his friends, relatives and family members visited the suit property on 04.07.2013, and thus no question of advancing threats, and/or creation of scene arose. The defendants in their written statement have CS DJ ADJ No. 532/2018 Page No. 12/54 urged that the suit preferred by the plaintiff is false, devoid of cause of action and the same be dismissed with heavy costs.
29. The plaintiff did not file any replication to the amended written statement filed by the defendants.4 Issues
30. On completion of pleadings, by order dated 11.12.2015, the following issues were framed:
(i) Whether the plaintiff is in possession of the suit property? ... OPP
(ii) Whether the suit of the plaintiff is not maintainable in the present form? ...OPD
(iii) Whether the defendant No. 1 is in possession of suit property? ...OPD
(iv) Whether the suit of the plaintiff is without any cause of action? ...OPD
(v) Whether the plaintiff is entitled to decree of permanent injunction as prayed for by him in the amended plaint? ...OPP
(vi) Relief.
Evidence led by parties
31. To prove his case, the plaintiff (PW1) along with one Shabhu(sic) Dayal (PW2) stepped into the witness box. Whereas to dispel the onus casted upon the defendants, one Kailash (DW1), Raj Rani Kashyap (DW2), Anil Kumar, Jr.JA (DW3), Pranav Chaudhary, UDC (DW4), Savitri Devi (DW5), Piyali Das Kundu, Jr.JA (DW6) as their witnesses.
32. The examination of chief of the plaintiff (PW1) by way of an affidavit (Ex.PW1/1) recorded on 07.04.2016 is a verbatim lift off from the 4 See order dated 11.12.2015 CS DJ ADJ No. 532/2018 Page No. 13/54 averments made in the plaint. The plaintiff relied on the following documents:
S.No. Exhibit mark put Description and Date, if any of the on the document document
(i) Ex.PW1/A General power of attorney dated 06.05.2013 collectively (objected by defendants that the same has been tampered by the plaintiff after filing of the present suit); agreement to sale and purchase dated 06.05.2013 (objection -
mode of proof); affidavit dated 06.05.2013 (objection - mode of proof); receipt dated 06.05.2013 (objection - mode of proof), and possession letter dated 06.05.2013 (objection - mode of proof).
(ii) Ex.PW1/B (Colly.) Agreement to sell dated 21.08.2012 (objection - mode of proof); general power of attorney dated 21.08.2012 (objection -
mode of proof); affidavit dated 21.08.2012 (objection - mode of proof); indemnity bond dated 21.08.2012 (objection - mode of proof); possession letter dated 21.08.2012 (objection - mode of proof); receipt dated 21.08.2012 (objection - mode of proof), and deed of will dated 21.08.2012 (objection -
mode of proof).
(iii) Ex.PW1/C (Colly.) General power of attorney dated 18.01.2012
(objection - mode of proof); agreement to
sell dated 18.01.2012 (objection - mode of
proof); affidavit dated 18.01.2012
(objection - mode of proof); receipt dated
18.01.2012 (objection - mode of proof);
possession letter dated 18.01.2012
(objection - mode of proof), and deed of
will dated 18.01.2012 (objection - mode of
proof).
(iv) Ex.PW1/D Deed of will of Biran Devi dated
07.08.2008 (objection - mode of proof).
CS DJ ADJ No. 532/2018
Page No. 14/54
(v) Ex.PW1/E Death certificate of Biran Devi dated
07.08.2008 (objection - mode of proof).
(vi) Ex.PW1/F Demolition/allotment slip dated 29.12.1995
(objection - mode of proof).
(vii) Ex.PW1/G Cash receipt No. 56278 dated 16.11.1995
(objection - mode of proof).
(viii) Ex.PW1/H Allotment letter No. nil dated 29.12.1995
(objection - mode of proof).
(ix) Ex.PW1/I Copy of complaint dated 08.06.2013
(objection - mode of proof).
33. PW1 during his cross-examination admitted the following:
(a) The suit property belongs to Delhi Development Authority.
(b) The suit property is not a freehold property.
(c) The suit property was allotted to Biran Devi by Delhi Development Authority.
(d) PW1 purchased the suit property from Shambhu Dayal based on unregistered documents - Ex.PW1/A(Colly.).
(e) Biran Devi had two sons - Ashok and Ram Singh.
(f) Raj Rani is the daughter of Biran Devi.
(g) Ram Singh filed a suit for possession against his brother
Ashok, titled as Ram Singh Vs Ashok Kumar - CS DJ ADJ 516627/2016 (Old Suit No. 413/2012), which is pending before the court of Sh. R.L. Meena, Ld. ADJ, Dwarka Courts, Delhi.
(h) PW1 admitted that he filed an application under Order I, Rule 10, CPC in the suit Ram Singh Vs Ashok Kumar - Suit No. CS DJ ADJ No. 532/2018 Page No. 15/54 413/2012 seeking his impleadment as a necessary party and the same was dismissed by order dated 04.06.2016.
(i) Raj Rani (defendant No. 1 herein) never extended threat to him and neither demanded money from him.
(j) PW1 admitted that he did not make any complaint on 100 number on 08.06.2013. PW1 also admitted that no DD entry was recorded by the police on 08.06.2013 and the complaint is false and fabricated.
(k) Local commissioner was appointed by court in the present legal proceedings.
(l) PW1 was not present at the time of the visit of inspection of the suit property by the local commissioner.
34. Further PW1 in his cross examination testified that he does not know where the documents dated 18.01.2012 - Ex.PW1/C (Colly.) were prepared. PW1 stated that the documents dated 18.01.2012 - Ex.PW1/C (Colly.) were given to him by Shambhu Dayal. PW1 also stated that he was not present on 22.08.2012(sic) at the time of purchase of suit property by Shambhu Dayal from Aarti Kashyap. PW1 also stated that neither he had signed any documents dated 21.08.2012 - Ex.PW1/B (Colly.) nor he knows where the documents were prepared and attested. PW1 during his cross-examination on being confronted with Ex.PW1/B(Colly.) answered that the same does not bear his signatures at points 'A' to 'F'. PW1 denied the suggestion that the documents - Ex.PW1/B(Colly.) are false and fabricated.
35. PW1 during his cross-examination stated that he cannot tell whether Ram Singh was the original owner of the suit property. With regard to his absence on the date and when the local commissioner visited the suit property for inspection as per court's order, PW1 stated that he was not CS DJ ADJ No. 532/2018 Page No. 16/54 present at the suit property due to his wife being unwell. PW1 denied the suggestion that the suit property bears two locks, one of the defendant and the other lock of Sarla wife of late Ashok Kumar. On 12.05.2016, PW1 stated that he has no knowledge about the suit filed by Ram Singh and Ashok Kumar. Whereas on 06.08.2016, PW1 admitted that a suit No. 413/2012 titled as Ram Singh v. Ashok Kumar & Ors. is pending in the court of Sh. R.L. Meena, Ld. ADJ, Dwarka Courts, New Delhi.
36. PW1 also denied the suggestion that defendant No. 1 is in possession of the suit property. PW1 denied the suggestion that the defendant every time created seen (sic) whenever, PW1, his friends, family members and relatives visited the suit property. PW1 stated lack of knowledge, whether Ra Rani has made a complaint against Shamu (sic) Dayal and himself.
37. During his cross-examination, PW1 also stated that he is not aware about the death of Ashok Kumar. PW1 stated that he has never met Sarla, wife of Ashok Kumar. PW1 also stated that he is not aware about the documents filed at the time of filing of the suit or after the filing of the suit. PW1 further stated he does not have knowledge whether Sarla was residing at the property, D-241, Pappan Kalan, Dwarka or at property, D-246, Sector
- 1, Pappan Kalan, Dwarka.
38. PW1 also stated that he knows Shamu(sic) Dayal for last 18 to 20 years, who is a property dealer. PW1 stated that he has no knowledge that the documents exhibited by him on 07.04.2016 prepared by Shamu(sic) Dayal or himself were forged and fabricated. PW1 denied the suggestion that he has no right, title and interest in the suit property. PW1 also denied the suggestion that he has possession of the suit property.
39. Sambhu Dayal (PW2) tendered his evidence by way of affidavit - Ex.PW2/A on 15.09.2016. PW2 did not rely upon any documentary evidence.
CS DJ ADJ No. 532/2018 Page No. 17/5440. During his cross-examination, PW2 admitted the following:
(a) A suit is pending before the court of Sh. R.L. Meena, Ld. ADJ, Dwarka Courts, Delhi, however, PW2 is not aware whether he is a party to a suit.
(b) PW2 is aware about the will dated 21.12.2009 executed by Viran(sic) Devi in favour of Ram Singh.
(c) PW2 knows that Ashok Kumar is dead.
(d) The suit property belongs to Delhi Development Authority.
(e) Suit property was allotted in the name of Viran(sic) Devi.
(f) At the time when documents - Ex.PW1/B(Colly.) were
executed, plaintiff was not present.
(g) The documents - Ex.PW1/A(Colly.) were executed by PW2
in favour of the plaintiff.
41. During his cross-examination on 15.09.2016, PW2 stated that he is doing the business of property dealer for a decade and he knows the plaintiff for last 20 - 25 years. PW2 cited lack of knowledge about a complaint dated 20.09.2012 (Ex.PW2/DX (Colly.)) lodged at police station by Raj Rani (defendant No. 1 herein) against him. PW2 stated that he does not remember whether he lodged any complaint against Raj Rani.
42. PW2 stated that he was not known to Sarla, wife of Ashok Kumar , but he knows that Ashok Kumar is dead. PW2 further stated that he does not know whether Sarla alias Aarti and late Ashok Kumar have right, title or interest over the suit property or not. PW2 denied the suggestion that Sarla alias Aarti and late Ashok Kumar were not the owners of the suit property.
43. During his cross-examination, PW2 was shown the documents Ex.PW1/C(Colly.), who after seeing the same denied that they were not prepared before him. In reference to the documents - Ex.PW1/B(Colly.), CS DJ ADJ No. 532/2018 Page No. 18/54 PW2 stated that he does not remember who purchased stamp paper and where the same were notarised. PW2 further stated that he does not correctly remember who all were present at the time of execution of the documents. PW2 admitted that the plaintiff was not present. PW2 further stated that one Ghanshyam, brother of Sarla @Aarti was present. PW2 voluntarily stated that one Monu was also present at the time of execution of the document.
44. PW2 stated that he is not aware whether any local Commissioner was appointed by the court for inspection of the suit property.
45. PW2 denied the suggestion that the documents - Ex.PW1/A(Colly.), Ex.PW1/B(sic), Ex.PW1/C(sic) were forged and fabricated and the same were prepared to grab the property of the defendant Nos. 6 to 8. PW2 during his cross-examination stated that he is not aware about the contents of his affidavit - Ex.PW2/A.
46. PW2 stated that he is not aware whether Abdul Rasheed is still residing in the suit property as he had handed over the keys of the property to him in the year 2013. PW2 voluntarily stated that he took possession of the suit property from Arti Kashyap alias Sarla in the year 2012 and handed over the possession of the suit property to Abdul Rasheed in the year 2013.
PW2 denied the suggestion that he did not take possession of the suit property from Arti Kashyap alias Sarla in the year 2012 and further he did not handover the possession of the suit property to Abdul Rasheed in the year 2013. PW2 further denied the suggestion that Abdul Rasheed never resided in the suit property. DW2 further denied that he never handed over the keys of the suit property to Abdul Rasheed in the year 2013. PW2 denied that the contents of paragraph Nos. 1 to 3 of his evidence by way of affidavit (Ex.PW2/A) are incorrect and he is deposing falsely.
CS DJ ADJ No. 532/2018 Page No. 19/5447. From case record it is observed that an evidence by way of affidavit of one Rukhshana Begum, wife of Abdul Rasheed is on record, however the witness was dropped vide order dated 17.11.2016.
48. The defendants to shift the onus casted upon them and to lead rebuttal evidence examined eight witnesses in total. The defendant No. 6, namely, Kailash (DW1), one of the sons of Ram Singh was the first defendants' witnesses to step in the witness box on 23.02.2017. The evidence by way of affidavit (Ex.DW1/A) tendered by DW1 was also packed with verbatim averments made by the defendants in their written statement.
49. DW1 relied upon the following documents:
S.No. Exhibit mark put Description and Date, if any of the on the document document
(i) Ex.DW4/1 Copy of will dated 21.12.2009.
(ii) Ex.DW2/2(Colly.) Report of local commissioner along with rough sheet.
(iii) Ex.DW3/1 to Summoned record from the case file of
Ex.DW3/13 Biren Devi v. Ashok Kumar - CS No.
42/2010.
(iv) DW1/Mark A Copy of election I-card of Arti.
(v) DW1/Mark B Copy of internet election I-card of Arti.
(vi) DW1/Mark C Copy of voter list.
(vii) DW1/Mark D Copy of the post mortem report dated
22.07.2012.
(viii) Ex.DW4/2 Copy of cancellation of will dated
07.08.2008 cancelled on 21.12.2009.
CS DJ ADJ No. 532/2018
Page No. 20/54
50. On perusal of the case record, it is observed that though DW1 recorded his examination in chief on 23.02.2017 and his cross-examination was deferred at the request of the learned counsel for the plaintiff - vide order dated 23.02.2017. It is further observed that vide order dated 30.11.2017, the defendants dropped DW1 as a witness.
51. Raj Rani Kashyap (DW2) recorded her examination in chief on 23.02.2017 and her evidence by way of affidavit (Ex.DW2/A). DW2 relied upon the following documents:
S.No. Exhibit mark put Description and Date, if any of the on the document document
(i) Ex.DW2/2 (Colly) Report of local commissioner along with rough sheet.
(ii) DW2/Mark C 3 photographs filed by the local commissioner.
(iii) DW2/Mark B Copy of statement of Sarla, Harish,
(Colly.) Mahender, Ravi Kumar and Raj Rani
Kashyap (DW2) recorded on 22.07.2012.
(iv) Ex.PW2/DX Copy of complaint dated 20.09.2012.
52. DW2 testified that they were eight brothers and sisters, and the suit property is adjoining her house i.e. D - 242. DW2 stated that her mother was blind. DW2 admitted that she accompanied her mother for registration of will dated 07.08.2008. DW2 also admitted that her mother out of her own volition went to the office of Sub Registrar with Ashok to register the will dated 07.08.2008. DW2 also admitted that her mother used to reside in the suit property along with Ashok, Sarla, and Sarla was asked to leave the suit property after one month.CS DJ ADJ No. 532/2018 Page No. 21/54
53. DW2 testified that she did not accompany her mother for resgistration of any will except Ex. PW1/D. DW2 admitted that material facts have been concealed by the plaintiff. DW 2 stated that Abdul Rasheed concealed the fact of ownership of the suit property by her mother, Biran Devi.
54. DW2 also admitted that Sarla had taken ₹2,00,000/- (Rupees Two lakhs only) and had taken the possession of the suit property. DW2 stated that there are two locks on the suit property. The above lock on the suit property belongs to Sarla and the one below is of DW2. DW2 also stated that she was aware that the suit property was given on license basis by her mother to Ashok for purpose of residing and not to sell it.
55. DW2 admitted that her brother Ram Singh had filed a suit for possession, damages, declaration and permanent injunction against Ashok Kumar is pending. DW2 also admitted that she had moved an application under Order I, Rule 10, CPC seeking impleadment as party in the said suit.
DW2 admitted that the suit property was allotted in lieu of jhuggi demolished by Slum and JJ Department, MCD at Jhandewalan. DW2 also admitted that the suit property was allotted in the name of her mother as she was the head of the family.
56. Anil Kumar (DW3), JJA, Record Room (Civil), Dwarka Courts, Delhi, a summoned witness appeared pursuant to receipt of summons and produced the judicial file in the legal proceedings titled as Biren Devi v. Ashok Kumar - CS No. 42/2010. DW3 produced the following documents:
S.No. Exhibit mark put Description and Date, if any of the on the document document
(i) Ex.DW3/1 (OSR) Order dated 16.08.2010 passed by Sh.
Vikas Dhulla(sic) Ld. JSCC/ASJ(sic) in CS No. 42/10.
CS DJ ADJ No. 532/2018 Page No. 22/54(ii) Ex.DW3/2 (OSR) Order dated 24.04.2012 passed in CS No. 42/10..
(iii) Ex.DW3/3 (OSR) Statement of defendant - Ashok Kumar and plaintiff - Ram Singh dated 24.04.2012 recorded in CS No. 42/10.
(iv) Ex.DW3/4 (OSR) Decree sheet dated 24.04.2012 passed in CS No. 42/10.
(v) Ex.DW3/5 (OSR) Copy of plaint along with affidavit in CS No. 42/10.
(vi) Ex.DW3/6 (OSR) Copy of evidence affidavit of PW1 Biran Devi in CS No. 42/10.
(vii) Ex.DW3/7 (OSR) Copy of evidence affidavit of PW2 Ram Singh in CS No. 42/10.
(viii) Ex.DW3/8 (OSR) Copy of statement of PW1 Biran Devi dated 23.10.2020 in CS No. 42/10.
(ix) Ex.DW3/9 (OSR) Copy of cross-examination of PW1 Biran Devi dated 23.11.2010 in CS No. 42/10.
(x) Ex.DW3/10 (OSR) Copy of statement of Biran Devi dated 28.03.2011 in CS No. 42/10.
(xi) Ex.DW3/11 (OSR) Copy of statement of Ram Singh dated 23.10.2010 in CS No. 42/10.
(xii) Ex.DW3/12 (OSR) Copy of cross-examination of Ram Singh dated 28.03.2011.
(xiii) Ex.DW3/13 (OSR) Copy of WS along with affidavit filed by Ashok Kumar in CS No. 42/10.
CS DJ ADJ No. 532/2018 Page No. 23/5457. Pranav Chaudhary (DW4), UDC, Sub Registrar - IX Office, Kapashera, Delhi - 37 was also a summoned witness and produced the following documents:
S.No. Exhibit mark put Description and Date, if any of the on the document document
(i) Ex.DW4/1 (OSR) Will dated 21.12.2009 of Biran Devi in favour of Ram Singh.
(ii) Ex.DW4/2 (OSR) Cancellation of will dated 0708.2008 by Biren Devi on 21.12.2009.
58. Savitri Devi (DW5) recorded her examination in chief by tendering her evidence by way of affidavit (Ex.DW5/A) on 23.02.2017.
59. DW5, a neighbour of the defendants residing at D - 239, Pappan Kalan, Sector - 1, Dwarka, New Delhi testified that she is residing at the said address for last 15 - 16 years. DW5 stated that the suit property is located near her house. DW5 knows Raj Rani and also knew her mother and brother, namely, Ram Singh. DW5 stated that Sarla and Ashok were residing at the suit property for 15 - 16 years.
60. DW5 on being quizzed that who told her about the will of Biran Devi in favour of Ram Singh, as stated in her paragraph No. 2 of her evidence by way of affidavit, answered that she does not remember.
61. DW5 admitted that the lock on the suit property was put by Raj Rani first and then it was put by Sarla. DW5 stated that he was not present at that time when the lock was put on the suit property of Sarla. She further stated that nobody told her about this fact. DW5 stated that she does not remember if there is any name plate fixed on the suit property. DW5 also stated that no money transactions occurred before her. DW5 also stated that possession of the suit property was not handed over by Sarla to Raj Rani CS DJ ADJ No. 532/2018 Page No. 24/54 in her presence. DW5 stated that the present suit relates to the property dispute between Sarla and Raj Rani.
62. Piyali Das Kundu (DW6), Jr. Judicial Assistant from the court of Sh. Ajay Pandey, Ld. ADJ, Dwarka, New Delhi, a summoned witness, produced the record pertaining to the legal proceedings titled as Ram Singh v. Ashok Kumar - Suit No.516627/2016 and the following documents:
S.No. Exhibit mark put Description and Date, if any of the on the document document
(i) Ex.DW6/1 (OSR) Copy of plaint.
(ii) Ex.DW6/2 (OSR) Copy of WS filed by Ashok Kumar.
(iii) Ex.DW6/3 (OSR) Certified copy of order dated 04.06.2016.
63. Ajay Kumar (DW-6)(sic), Ahlamd(sic) in the court of Sh. Dheeraj Mittal, Ld. Civil Judge - II, Central, Tis Hazari Courts, Delhi, a summoned witness produced the case file titled as Ram Singh v. Mahender & Ors. - No. 95462/2016 (old case No. 550/2014) and the following documents:
S.No. Exhibit mark put Description and Date, if any of the on the document document
(i) Ex.DW6/1 (OSR) Copy of written statement filed by Smt. (sic) Sarla, Seema, Ashok Kumar.
(ii) Ex.DW6/2 (OSR) Copy of affidavit of Ashok Kumar.
(sic)
(iii) Ex.DW6/3 (OSR) Copy of affidavit of Sarla.
(sic)
(iv) Ex.DW6/4 (OSR) Copy of reply of application under Order
(sic) XXXIX, Rule 1 and 2, CPC.
(v) Ex.DW6/5 (OSR) Copy of affidavit of Smt. Sarla.
(sic)
CS DJ ADJ No. 532/2018
Page No. 25/54
(vi) Ex.DW6/6 (OSR) Copy of AD cards received by Smt. Sarla
(sic) on behalf of Ashok Kumar.
(vii) Ex.DW6/7 (OSR) Copy of AD cards received by Smt.
(sic) Sarla.
(viii) Ex.DW6/8 (OSR) Vakalatnama dated 21.08.2011.
(sic)
(ix) Ex.DW6/9 (OSR) Vakalatnama dated 29.05.2012.
(sic)
Submissions by Counsels for the Parties
64. Ms. Ritu Munjal learned counsel for the plaintiff opened her arguments on the note that the plaintiff is an owner in possession of the suit property, who is obstructed by the defendants to enjoy and visit his property.
The learned counsel further added that Abdul Rasheed is the bona fide purchaser of the suit property and was in possession of the suit property and had the same under his lock and key. The learned counsel further submitted that the defendant Nos. 1 and 6 herein got a decree in their favour in connected suit to dispossess the plaintiff and grab plaintiff's property.
65. The learned counsel for the plaintiff argued that the defence urged by the defendant's to plaintiff's claim that they are in possession of the suit property is negated from the admitted fact between the parties that a suit for possession, damages, permanent injunction was preferred by Ram Singh against Ashok Kumar about the suit property and the same was pending adjudication before this court at the time when the present suit was preferred before the establishment of Sr. Civil Judge, South West, Dwarka Courts, Delhi.
66. Ms. Munjal, learned counsel for the plaintiff made incisive submissions that there is much more in the dispute at hand than what meets the eye. The learned counsel for the plaintiff submitted that in the suit titled CS DJ ADJ No. 532/2018 Page No. 26/54 as Ram Singh v. Ashok Kumar - Suit No.516627/2016 the collusion amongst the parties to deprive the plaintiff herein of his claim on the suit property is apparent to an extent that Raj Rani agreed to handover the possession of the suit property to the legal representatives (LRs) of Ram Singh for a sum of ₹2,00,000/- (Rupees Two lakhs only) the garb of mediation settlement dated 17.01.2019. The learned counsel further added that Kailash, one of the LRs of Ram Singh came in possession of the suit property on 17.01.2019 and thereafter the possession of the suit property was handed over to Dr. V.P. Singh, the learned counsel who is representing the defendants on 31.01.2019 in the capacity of a tenant. The learned counsel for the plaintiff submitted that Dr. V.P. Singh, along with his wife and mother-in-law have been in possession of the suit property since 31.01.2019.
67. Per contra, Dr. V.P. Singh learned counsel for the defendants valiantly contended the arguments advanced by the learned counsel for the plaintiff. The learned counsel for the defendants submitted that the suit preferred by the plaintiff against the defendants must fail, as not only the plaintiff failed to prove his ownership, but also the possession over the suit property.
68. The learned counsel for the defendants argued that the documents filed by the plaintiff to prove his ownership and possession are unregistered documents, which have no value in the eyes of law and their place is in the dustbin basket as being worthless. The learned counsel for the defendants submitted that the plaintiff has failed to shift the onus to prove casted upon him and on the other hand, the defendants have not only successfully refuted all the claims of the plaintiff by leading substantial and cogent evidence.
CS DJ ADJ No. 532/2018 Page No. 27/5469. Dr. Singh contended the submissions advanced by the learned counsel for the plaintiff about the suit titled as Ram Singh v. Ashok Kumar
- Suit No.516627/2016 as being collusive. The learned counsel added that not only the said suit stands duly settled by a valid mediation compromise but also the plaintiff herein did move an application under Order I, Rule 10, CPC seeking his impleadment in the said suit in the capacity of being an owner in possession as a necessary party. The learned counsel further submitted that the plaintiff herein' said application was dismissed by order dated 04.06.2016 and the plaintiff did not challenge that order, and the same has attained finality.
70. The learned counsel for the defendants contended that the arguments advanced by the learned counsel for the plaintiff are self-serving arguments and without any legal basis, as the evidence lead in the present suit clearly reveals and prove that the plaintiff is neither the owner nor in possession of the suit property. The learned counsel for the defendants concluded his arguments on the note that the suit preferred by the plaintiff be dismissed with heavy costs and the same be awarded to the defendants.
71. Ms. Munjal, learned counsel for the plaintiff rejoined her arguments that the defendants have been obstructing the access of plaintiff, his family members, relatives and friends to visit and enjoy the suit property. The learned counsel for the plaintiff further added that substantial evidence has been lead and the defendant No. 1 (DW2) has admitted that her mother had bequeathed the suit property in favour of Ashok Kumar, who sold the same to his wife, Sarla, who sold it to Sambhu Dayal and it was from Sambhu Dayal, the plaintiff purchased the suit property. The learned counsel for the plaintiff submitted that the suit preferred by the plaintiff be decreed against the defendants and they be enjoined from interfering with the plaintiff's enjoyment and possession of the suit property.
CS DJ ADJ No. 532/2018 Page No. 28/54Reasoning and Findings
72. The issue-wise findings of the Court on careful perusal, examination of the pleadings, documents and appreciation of evidence led by the parties ensue in the following paragraphs of the judgment.
Issue No. 1Whether the plaintiff is in possession of the suit property?
73. The onus to prove issue No. 1 was casted upon the plaintiff. At the outset, this court observes that though at the time of tendering of evidence by the plaintiff, the learned counsel for the defendant objected to the mode of proof of all the documents - Ex.PW1/A(Colly.) to Ex.PW1/H relied upon by the PW1, however, the learned counsel for the defendant during the cross-examination did waive off all the objections of the mode of proof by asking questions to PW1 about the aforesaid documents. In short, the objection of the mode of proof flagged by the defendants cannot sustain by their own waiver.
74. The case urged by the plaintiff is that he had purchased the suit property from Shambhu Dayal through unregistered set of documents, viz., general power of attorney, agreement to sale and purchase, affidavit, receipt, possession letter and a will, all documents dated 06.05.2013. It is observed from the documents that the plaintiff purchased the suit property from Shambhu Dayal for a sum of ₹5,00,000/- (Rupees Five lakhs only).
75. Shambhu Dayal had purchased the suit property from one Aarti Kashyap for a sum of ₹4,00,000/- (Rupees Four lakhs only) through unregistered set of documents, viz., general power of attorney, agreement to sale and purchase, affidavit, receipt, possession letter and a will, all documents dated 21.08.2012.
76. Whereas Aarti Kashyap is stated to have purchased the suit property from her husband Ashok Kumar for a sum of ₹3,00,000/- (Rupees Three lakhs only) through unregistered documents, viz., general power of attorney, CS DJ ADJ No. 532/2018 Page No. 29/54 agreement to sale and purchase, affidavit, receipt, possession letter and a will all documents dated 18.01.2012.
77. This court observes that all the transactions be it between Ashok Kumar and his wife, Aarti Kashyap; Aarti Kashyap and Shambhu Dayal, and Shambhu Dayal and Abdul Rasheed regarding the suit property are through unregistered documents. The documents relied upon by the plaintiff in support of his claim of having purchased the suit property through unregistered documents is clearly hit by the ratio of Suraj Lamps & Industries Pvt. Ltd. v. State of Haryana & Anr.5 and the documents filed by the plaintiff to prove his claim as absolute and exclusive owner cannot to his aide.
78. If in a suit the court deems a local investigation6 to be requisite or proper for elucidating any matter in dispute, it may issue a commission to such person as it thinks fit directing him to investigate and to submit a report to the court. The purpose of local investigation is not to collect evidence that can be adduced in court but to obtain evidence which from its peculiar nature can be available on the spot so that the court can assess the situation better and decide the question in controversy - See Southern Command Military Engineering Services Employee Co-operative Credit Society v. V.K.N. Nambiar (dead) by LR Madhvi Devi.7 The expression 'elucidate' means to make lucid or clear, throw light upon, explain, or enlighten.
79. After such local inspection as the commissioner deems necessary and after reducing to writing the evidence taken by him, the commissioner appointed to make a local investigation must return the evidence, along 5 183 (2011) DLT 1 (SC) 6 See Section 75(b) of the Code of Civil Procedure, 1908 7 (1988) 2 SCC 292 CS DJ ADJ No. 532/2018 Page No. 30/54 with his report in writing signed by him, to the court - See Order XXVI, Rule 10, CPC. The report of the commissioner and the evidence taken by him, and not the evidence without the report, his evidence in the suit and forms part of the record.
80. Rule 10 of Order XXVI, CPC, empowers the court or the parties to the suit, with the permission of the court, to examine the commissioner personally in open court with regard to any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made investigation.
81. Though, the plaintiff has asserted that he is in the possession of the suit property, however, when the local commissioner appointed by this court visited the suit property for inspection on 19.07.2013 as the plaintiff and defendants asserted that they are in possession of suit property, this court cannot lose sight of the fact that neither the plaintiff nor his counsel joined the local commissioner for the inspection of the suit property. It is further observed that during his cross examination, the plaintiff (PW1) on being questioned stated that he could not be present for the inspection of the property by the local commissioner on 19.07.2013, as his wife was unwell. It is further observed that no document to corroborate the plaintiff's claim has been brought on record, to prove that his wife being unwell on 19.07.2013 hindered him to join the local commissioner for inspection of the suit property to ascertain who is in the possession of suit property.
82. In the case at hand, neither the plaintiff nor the defendants filed any objections or sought leave of the court to examine the local commissioner pursuant to the filing of his report, thus the report filed by the local commissioner is unrefuted evidence forming part of the judicial record.8 8 See Order XXVI, Rule 10, CPC.
CS DJ ADJ No. 532/2018 Page No. 31/5483. The report filed by the local commissioner (Ex.DW2/2 (Colly.) accompanied by spot proceedings and three colour photographs clearly show that there are two locks, one big lock and the other a smaller lock on the main door of the suit property. It is also observed from the colour photographs that a name plate of "Ashok D-241" on a white colour backdrop with 'Ashok' written in red colour and 'D-241' in blue colour. It is observed that as per plaintiff's own case, the suit property was sold by Ashok Kumar to his wife Aarti Kashyap on 18.01.2012, thereafter by Aarti Kashyap wife of Ashok Kumar to Shambhu Dayal on 21.08.2012 and thereafter purchased by plaintiff from Shambhu Dayal on 06.05.2013, however, no plausible explanation has come forward from the plaintiff that why the name plate of "Ashok D-241" was fixed on the suit property. The local commissioner's report clearly states that with the property being bolted by two locks and out of which none of the locks is stated to be that of the plaintiff, the factum of actual physical possession could not be ascertained.
84. The dictum of law is as old as the hills that one who asserts must prove and this court arrives at a finding that the plaintiff has miserably failed to lead any cogent evidence, to prove his claim that he is in the possession of the suit property. Accordingly, the issue No. 1 is decided against the plaintiff and in favour of the defendants.
Issue No. 2Whether the suit of the plaintiff is not maintainable in the present form?
85. The onus to prove issue No. 2 is casted upon the defendant. It is observed that neither any submissions were advanced by the defendants nor the same was pressed during the stage of final arguments.
86. Accordingly, the issue No. 2 is ruled against the defendants and in favour of the plaintiff for not being pressed.
CS DJ ADJ No. 532/2018 Page No. 32/54 Issue No. 3Whether the defendant No. 1 is in possession of suit property?
87. The onus to prove issue No. 3 was saddled upon the defendants. The issue at hand is eclipsed by the report of the local commissioner, which has been relied upon the defendants as Ex.DW2/2(Colly.) As observed in the preceding paragraphs of this judgment, the local commissioner in his report observed that on spot inspection, the suit property was found to be bolted and having two locks, a big lock and a small lock. The local commissioner's report states after inquiry from the defendant and the neighbour - Pushpa Devi, the smaller lock was stated to be of the defendant and the bigger lock on the small lock was stated to be of Sarla Devi, wife of late Ashok Kumar.
88. As mentioned in the opening part of the judgment that the present suit was transferred to this court at the stage of final arguments, by virtue of order dated 24.05.2018 passed by the Ld. District & Sessions Judge, South West District, Dwarka Courts, Delhi passed in a transfer application titled as Abdul Rasheed v. Raj Rani & Ors. - T.A. No. 08/2018.
89. The present suit was transferred to this court, as a suit for possession, damages, declaration and permanent injunction titled as Ram Singh v. Ashok Kumar & Anr. - CS DJ ADJ No. 516627/2016 pertaining to the same suit property was pending adjudication before this court at that point in time.
90. At this stage, I would elaborate upon the said suit, which was a suit for possession, damages, declaration and permanent injunction titled as Ram Singh v. Ashok Kumar & Anr. - CS DJ ADJ No. 516627/2016 and the same by order dated 17.01.2019 passed by this court stood decreed on a joint application under Order XXIII, Rule 3, CPC moved by the parties, as the same was settled through mediation settlement and compromise CS DJ ADJ No. 532/2018 Page No. 33/54 decree was drawn. This court in exercise of power conferred upon it by Order XIII, Rule 10, CPC requisitioned9 the judicial file of Ram Singh v. Ashok Kumar & Anr. - CS DJ ADJ No. 516627/201610 and the same was tagged with the present case.
91. Initially, the plaint in the said suit for possession, damages, declaration and permanent injunctions 11 was preferred by Ram Singh (plaintiff therein) on 14.05.2012 against his full blood brother, Ashok Kumar (defendant No. 1 therein). Pursuant to the filing of written statement by Ashok Kumar on 19.07.2012, he died on 22.07.2012. Consequentially, an application under Order XXII, Rule 4, CPC,12 to substitute Sarla, the sole legal representatives of Ashok Kumar was moved by Ram Singh.
92. A reply by Aarti Kashyap stating to be the wife of Ashok Kumar was filed on 15.03.2013, wherein it is averred that Ashok Kumar was the legal, exclusive owner and in physical possession of the suit property on basis of a registered will dated 07.08.2008 executed by his mother, Beeran Devi. After the death of Ashok Kumar, Aarti Kashyap being the widow and the sole legal heir sold the suit property to Shambhu Dayal on 21.08.2012 and handed over the possession of the suit property to him on 21.08.2012 itself. As service upon the sole legal representative could not be effected through ordinary mode, an application under Order V, Rule 20, CPC seeking permission to effect service through substituted mode was allowed by order dated 16.11.2012.
93. Pursuant to reply filed by Aarti Kashyap widow of Ashok Kumar, to the plaintiff's application under Order XXII, Rule 4, CPC and the disclosure having sold the suit property to one Shambhu Dayal, Ram Singh 9 See order dated 27.02.2019 and 28.03.2019.
10Decreed by Compromise, settlement by order dated 17.01.2019 11 Ram Singh v. Ashok Kumar & Anr. - CS DJ ADJ No. 516627/2016 12 Filed by Ram Singh on 24.08.2012 CS DJ ADJ No. 532/2018 Page No. 34/54 moved an application under Order I, Rule 10, CPC and an application under Order VI, Rule 17, CPC, amended plaint, amended memo of parties and an application under Order XXXIX, Rule 1 and 2, CPC. 13 On 21.05.2013, appearance and vakalatnama on behalf of Shambhu Dayal was filed in the said suit.
94. Ram Singh also died during the pendency of the suit on 26.07.2013, and an application under Order XXII, Rule 3, CPC seeking substitution of his legal representatives was moved on 05.06.2013. Thereafter, Shambhu Dayal stayed away from the proceedings, and the court vide order dated 31.10.2013 not only allowed the plaintiff's application under Order XXII, Rule 3, CPC substituting the legal representatives of plaintiff - Ram Singh, but also allowed the application under Order I, Rule 10, CPC and application under Order VI, Rule 17, CPC and consequentially, Shambhu Dayal stood impleaded as defendant No. 2.
95. The court was constrained to issue court notice to defendant No. 2 as there was no appearance on his behalf. Though, the counsel for defendant No. 2 appeared on 10.09.2014 but on a subsequent default in appearance, the defendants were proceeded ex parte by order dated 20.10.2014.
96. An application under Order I, Rule 10, CPC was moved by Raj Rani seeking impleadment as defendant in the suit. Shambhu Dayal moved an application under Order IX, Rule 13, CPC s(sic) seeking setting aside of order dated 20.10.2014. The court treated Shambhu Dayal's application as one under Order IX, Rule 7, CPC and allowed the same by imposition of costs of ₹1,500/- (Rupees One thousand and five hundred only) by order dated 19.05.2015.
13See order dated 18.04.2013 passed by Ld. ADJ, SW, Dwarka Courts, Delhi in CS DJ ADJ No. 516627/2016 (Old No. 413/2012) CS DJ ADJ No. 532/2018 Page No. 35/54
97. Amidst all this, Abdul Rasheed moved an application under Order I, Rule 10, CPC seeking his impleadment as necessary party to the suit on the ground that he had purchased the suit property from Shambhu Dayal.
98. This court observes that Abdul Rasheed's application under Order I, Rule 10, CPC was dismissed, however, the application moved by Raj Rani under Order I, Rule 10, CPC was allowed, by the court vide order dated 04.06.2016 (Ex.DW6/3(OSR).
99. At this juncture, it is important to point out that the defendants herein have placed on record the order dated 04.06.2016 14 and the same is reproduced in verbatim as under:
"04.06.2016 ORDER
1. By this order, I shall dispose of two applications under Order I Rule 10 CPC filed by the applicants namely Abdul Rasheed and Smt. Raj Rani.
2. I have heard arguments advanced by Sh. V.P. Singh Learned counsel for plaintiff and Sh. Pramod Gupta learned counsel for applicant Abdul Rasheed and Raj Rani in person and perused the record carefully.
3. During the course of arguments, Counsel for applicant Abdul Rasheed submits that plaintiff has filed a suit for recovery of possession and damages against Ashok Kumar and Shambhu Dayal. It is further submitted that present applicant Abdul Rasheed moved an application under Order 1 Rule 10 of CPC for impleading him as a necessary party in the present suit as he purchased the suit property from defendant No. 2 Shambu Dayal vide documents i.e GPA, agreement to sell, receipt, affidavit and possession letter. Counsel for the applicant, in order to show previous chain of documents regarding purchasing of suit property stated that defendant No. 2 Shambu Dayal purchased the suit property from previous owner of the suit property 14 Ex.DW6/3(OSR) CS DJ ADJ No. 532/2018 Page No. 36/54 namely Ms. Arti Kashyap @ Sarla Devi wife of Sh. Ashok Kumar (defendant no.1) through series of documents i.e. GPA, Agreement to Sell, possession letter, indemnity bond and Will. It is further submitted by counsel for the applicant that Ms. Arti Kashyap @ Sarla Devi also purchased suit property from her husband Sh. Ashok Kumar (defendant no.1) on 18.01.2012 vide documents i.e. agreement to sell, GPA, affidavit, cash receipt, possession letter, Will (all notarized documents). It is further submitted by counsel for the applicant that a Will was executed by Smt. Biren Devi, w/o late Sh. Khemkan in favour of her son namely Ashok Kumar (defendant no.1) on 07.08.2008. It is further submitted that Smt. Raj Rani (second applicant) is also witness in the said Will. It is further submitted by counsel for applicant that the applicant has also filed suit for permanent injunction pending before the Court of Ms. Neeti Suri Mishra, Learned Civil Judge, Dwarka Courts, New Delhi against Raj Rani & Ors. It is further submitted by counsel for applicant that since present applicant Abdul Rasheed has purchased the suit property, therefore, he is the necessary party in the present suit, therefore, he may be impleaded in the present suit.
4. On the contra, counsel for the plaintiff submits that the present applicant is not the necessary party in the present suit as document relied upon by applicant i.e GPA, Agreement to Sell, Receipt, Affidavit and possession letter are false and fabricated documents. Moreso, defendant no.1 could not have a right to execute the alleged document in favour of his wife on the basis of will as the said will has been revoked and cancelled by his mother Biren Devi. It is further submitted by counsel for plaintiff that in view of the said revokation of the will of defendant no.1, no subsequent document could have been executed in favour of defendant no.2 and other persons including present applicant. Counsel for plaintiff, in order to substantiate his arguments, has drawn the attention of the court on the certified copies of documents already on record and stated that Biren Devi was the owner and allottee of suit property and having two sons namely Ashok Kumar CS DJ ADJ No. 532/2018 Page No. 37/54 (defendant no.1) and Ram Singh (plaintiff). It is further submitted that Biren Devi executed a will dated 07.08.2008 in favour of her son Ashok Kumar but he could not take care of her mother, therefore, she revoked and cancelled the said will and made last will and testament dated 21.12.2009 in favour of plaintiff. It is further submitted that defendant no.1 was residing as a licencee in the suit property and he was asked to vacate the suit property by his mother but he didn't vacate. Ultimately Biren Devi filed a civil suit bearing no. 42/10 for permanent injunction against the defendant no.1 titled as "Biren Devi Vs. Ashok Kumar" in the court of Sh. Vikas Dhull, the then learned JSCC cum ASCJ/ARC. It is further submitted that defendant contested the said suit. During the proceedings of the said suit, an application u/o 39 R.1 & 2 CPC was allowed vide order dated 16.08.2010 and defendant no.1 was restrained from creating third party interest/sell the suit property. It is further submitted by counsel for the plaintiff that during the pendency of the said suit, defendant no.1 got recorded his statement with this effect that he will not create third party interest/sell the suit property. In view of the said statement of defendant no.1, a compromise decree dated 24.04.2012 was passed against the present defendant no.1. It is further submitted that since defendant no.1 was restrained from creating third party interest/sell the suit property by the said compromised decree dated 24.04.2012 or even by interim order dated 16.08.2010, therefore, any alleged transactions between defendant no.l, if any with his wife or subsequently with other persons including present applicant do not have any force or even otherwise the series of documents i.e GPA, agreement to sell, receipt, affidavit and possession letter do not have any right, title or interest in the suit property in view of law laid down in case titled as Suraj Lamp and Industries Private Ltd Vs. State of Haryana and another (2012) 1 SCC 656. It is prayed that in view of the aforesaid facts and circumstances, present applicant is not the necessary party in the present suit, therefore, the present application is liable to be dismissed.CS DJ ADJ No. 532/2018 Page No. 38/54
5. After having gone through the rival submissions of counsel of both the parties and perusal of the record, now it is relevant to refer the admitted facts which are as under:
(i) Smt. Biren Devi, mother of plaintiff and defendant no.1 filed a civil suit bearing no. 42/10 for permanent injunction against defendant no.1 with prayer to restrain defendant from creating third party interest/sell the suit property.
(ii) Defendant no.1 filed the written statement in the said suit and contested the suit.
(iii) An application u/o 39 R.1 & 2 CPC filed by Biren Devi in the said suit was allowed and defendant no.1 was restrained for creating third party interest/sell the property vide order dated 16.08.2010.
(iv) During the pendency of the said suit, defendant no.1 got recorded his statement in the said suit with this effect that he will not sell, transfer, alinating or part with possession of suit property or creating any third party interest in favour of any other person over the suit property.
(v) In view of the said statement of defendant no.1, a compromise decree was passed vide order dated 24.04.2012 in the said suit and defendant no.1 was restrained for the abovesaid act.
6. In view of the aforesaid admitted facts, it is apparent that mother of plaintiff and defendant no.1 was the owner of the suit property and she revoked and cancelled her will dated 07.08.2008 which was in favour of defendant no.1. It is also brought on record by plaintiff that her mother Biren Devi had also executed another will dated 21.12.2009 in his favour bequeathing the suit property. In view of the said fact, particularly revocation(sic) of will by Smt. Biren Devi which was in favour of defendant no.1 and subsequently a compromise decree was passed against him restraining him for creating third party interest/sell the property.
CS DJ ADJ No. 532/2018 Page No. 39/547. In view of the aforesaid facts and circumstances of the case, one question is required to be posed i.e as to how and in what capacity did defendant no.1 execute the alleged series of documents i.e GPA, Agreement to Sell, Receipt, Affidavit and possession letter in favour of her(sic) wife and subsequently her(sic) wife executed the same in favour of other persons including applicant.
8. The answer of the said question is apparently coming in the negative form because the mother of plaintiff and defendant no.1 during his life time had revoked her will dated 07.08.2008 which was in favour of defendant no.1 and she also filed a civil suit for permanent injunction against defendant no.1 which was also decreed against the defendant no.1. In view of the said facts and circumstances, it is apparent that defendant was not having any right to execute the series of documents in favour of his wife and subsequently his wife was also not having any right to transfer the property to other persons including the applicant. Moreover, the alleged series of documents relied upon by applicant do not create right, title or interest in the suit property in view of law laid down in Suraj Lamp's case (Supra) except suit for filing of specific performance of contract.
9. With the said observations, I am of the considered view that applicant has not shown a prima facie case for showing that he is a necessary party in the present suit. However, if he has any right accuring by the alleged document then he may file a separate suit. Present application filed by applicant Abdul Rasheed is devoid of merit, accordingly same is dismissed.
10. Now, coming on the second application under Order 1 Rule 10 of CPC filed by applicant Raj Rani.
11. During the course of arguments, applicant Raj Rani submits that she is the daughter of Smt. Biren Devi, therefore, she is having right in the suit property. She CS DJ ADJ No. 532/2018 Page No. 40/54 further submitted that she is also in possession of suit property.
12. Counsel for the plaintiff submits that since the applicant is in possession of the suit property, therefore, she may be made as a necessary party in the present suit as possession of the suit property is to be taken from her.
13. After having gone through the submissions of applicant and counsel for plaintiff, I am of the considered view that since plaintiff has himself admitted that the present applicant Smt. Raj Rani is in possession of the suit property and possession of the suit property is to be taken from her, therefore, she is the necessary party. With these observations, present application filed by applicant Raj Rani is allowed.
14. It is to be clarified that whatever observations made in the present order shall not effect the merit of the case."
[Emphasis added by underlining and highlighting of text]
100. The order dated 04.06.2016 remains unchallenged by Abdul Rasheed. Interestingly, after dismissal of Abdul Rasheed's application under Order I, Rule 10, CPC, Shambhu Dayal once again stayed away from the legal proceedings and consequentially, he was proceeded ex parte by order dated 26.10.2016.
101. At this stage, this court observes that the testimony of Shambu Dayal (PW2) that he is not aware about pendency of suit before the court of Ld. Addl. District Judge, South West, Dwarka Courts, Delhi is impeached, as not only there is appearance on his behalf in the said suit, but also an application seeking setting aside of an ex parte order was moved on his behalf under Order IX, Rule 13, CPC (sic) and the ex parte order was indeed set aside by the court.
CS DJ ADJ No. 532/2018 Page No. 41/54102. Penultimately, the suit for possession, damages, declaration, and permanent injunction titled as Ram Singh v. Ashok Kumar & Anr. - CS DJ ADJ No. 516627/2016 was settled through mediation, as per mediation report dated 07.12.2017, wherein Kailash one of the legal representatives of Ram Singh agreed to pay a sum of ₹2,00,000/- (Rupees Two lakhs only) to Raj Rani, who would hand over the vacant, peaceful possession of the suit property to Kailash. The said suit titled as titled as Ram Singh v. Ashok Kumar & Anr. - CS DJ ADJ No. 516627/2016 was decreed in terms of mediation settlement as settled and compromised by order dated 17.01.2019.
103. This court also deems appropriate to observe herein that though the present suit and the suit titled as Ram Singh v. Ashok Kumar & Anr. - CS DJ ADJ No. 516627/2016 related to the same property, but the parties in both the suits were different. It is also observed that from order dated 04.06.2016, wherein the plaintiff herein' application under Order I, Rule 10, CPC was dismissed, it is apparent nay evident that Abdul Rasheed was not in the possession of the suit property and it was Raj Rani, who was found to be in possession of the suit property. It is once again impressed that Abdul Rasheed never challenged the order dated 04.06.2016 before appellate/superior courts and the same has attained finality.
104. On perusal of the amended written statement filed by the defendants, it is observed that though the defendants have not averred in their pleadings how and when they came in the possession of the suit property, even though the amended written statement was filed by the defendants as on 11.12.2015, however, during the cross examination of DW2, namely, Raj Rani by the plaintiff, DW2 admitted that Sarla had taken ₹2,00,000/- (Rupees Two lakhs only) from her and given her the possession of the suit property. It is also observed from the testimony of DW2 that there are two CS DJ ADJ No. 532/2018 Page No. 42/54 locks on the suit property. DW2 has stated that the above lock is of Sarla and the one below Sarla's lock is her lock. The fact of there being two locks on the suit property is also corroborated by the local commissioner's report. It is further observed that no evidence has been led by the plaintiff to counter this claim of the defendants. From the above admission extracted by none other than the plaintiff himself during the cross-examination of DW2, this Court can easily arrive at a conclusion that the defendant No. 1 being put in possession by Sarla is probable and hence proved.
105. In view of the above observations and findings, this court arrives at the conclusion that the defendant No. 1 has shifted the onus casted upon her with regard to issue No. 3, and whereas the plaintiff has already been found to fail to prove his possession. Accordingly, the issue No. 3 is decided in favour of the defendants and against the plaintiff.
Issue No. 4Whether the suit of the plaintiff is without any cause of action?
106. The onus to prove issue No. 4 was saddled upon the defendants. Dr. V.P. Singh, learned counsel for the defendants argued that the plaintiff has preferred a suit for permanent injunction against the defendants in the alleged capacity of absolute owner and in exclusive possession of the suit property on the strength of unregistered documents. The learned counsel further added that very documents upon which the plaintiff has laid his claim are hit by the judgment of the Apex Court in the case of Suraj Lamps & Industries Pvt. Ltd. v. State of Haryana & Anr.15
107. The learned counsel for the defendants submitted that the defendants have proved by placing on record not only the cancellation of will dated 07.08.2008 by Biren Devi but also the will dated 21.12.2009 by Biren Devi in favour of Ram Singh by summoning the relevant wills from the office 15 183 (2011) DLT 1 (SC) CS DJ ADJ No. 532/2018 Page No. 43/54 of Sub Registrar - IX, Kapashera, Delhi. The learned counsel further added that once the very will by Biren Devi in favour of Ashok Kumar stood cancelled, Ashok Kumar never had any right, intertest to transfer the same in favour of his wife, and his wife in favour of Shambu Dayal and ultimately Shambhu Dayal in favour of Abdul Rasheed. The learned counsel further submitted that once the fountainhead of the suit property arising from Ashok Kumar stood cut off from the roots, it does not lie in the mouth of the plaintiff to stake any claim upon the suit property and plead that a cause of action has arisen in his favour and against the defendants.
108. Ms. Ritu Munjal, learned counsel for the plaintiff contended that it is abundantly clear that Ram Singh and his now legal representatives were never in possession of the suit property, else there would have never been a reason and cause of action for Ram Singh to prefer a suit for possession, damages, declaration and permanent injunction titled as Ram Singh v. Ashok Kumar & Anr. - CS DJ ADJ No. 516627/2016 against his own brother during his lifetime.
109. The learned counsel added that Ashok Kumar had become the absolute owner of the suit property by virtue of will executed in his favour and who sold the same to his wife on 18.01.2012 for a sum of ₹3,00,000/- (Rupees Three lakhs only). The learned counsel submitted that Shambhu Dayal purchased the suit property from Sarla @ Arti Kashyap for a sum of ₹4,00,000/- (Rupees Four lakhs only) by five set of documents dated 21.08.2012 and the same was sold by Shambhu Dayal to the plaintiff for a sum of ₹5,00,000/- (Rupees Five lakhs only) by five set of documents dated 06.05.2013. The learned counsel submitted that with the defendants interfering and obstructing the plaintiff, his family members, relatives, CS DJ ADJ No. 532/2018 Page No. 44/54 friends, etc., the plaintiff has averred and proved substantial cause of action to maintain the suit.
110. After having carefully deliberated over the contentions of the learned counsel for the parties, I would like to point out that the submission advanced by Dr. V.P. Singh that the defendants have proved the will dated 21.12.2009 of Biren Devi in favour of Ram Singh. It is observed that though Biren Devi and Ram Singh are both dead now, however, the will dated 21.12.2009 of Biren Devi bequeathing the suit property in favour of Ram Singh is found not to be proved in accordance with law. It is further observed that the defendants have merely proved the fact of the will dated 21.12.2009 (Ex.DW4/1(OSR)) being registered with the office of Sub Registrar - IX, Kapashera, Delhi. The defendants have not proved the will in accordance with law - See Section 68 of the Indian Evidence Act, 1872, as none of the attesting witnesses of the will has testified before this court.
111. The order dated 24.04.2012 16 passed by the Ld. Addl. Sr. Civil Judge/Additional Rent Controller, Dwarka Courts, Delhi in a suit titled as Biran Devi v. Ashok Kumar - CS No. 42/2010 reveals that the Ashok Kumar submitted that he shall not sell, transfer, alienate, part with possession of suit property or create any third-party interest in the suit property. The order dated clearly mentions that the plaintiff intends to file a separate suit for possession against the defendant and which was filed. It is further observed that the statements of Ashok Kumar and Ram Singh were also recorded in the said suit on 24.04.2012.17
112. The plaintiff during his cross-examination admitted that he purchased the suit property from Shambhu Dayal on the basis of unregistered documents. The plaintiff also admitted that his application 16 Ex.DW3/2 (OSR) 17 Ex.DW3/3(OSR) CS DJ ADJ No. 532/2018 Page No. 45/54 under Order I, Rule 10, CPC preferred in Ram Singh Vs Ashok Kumar - CS DJ ADJ 516627/2016 (Old Suit No. 413/2012) was dismissed by order dated 04.06.2016. This court finds that above all, the plaintiff during his cross-examination admitted that the defendant No. 1 never extended threat to him nor demanded money from him. The plaintiff has also admitted that on 08.06.2013 he did not make any complaint on 100 number and no daily diary (DD) entry was record on 08.06.2013. The plaintiff admitted during his cross-examination that the complaint is false and fabricated.
113. The only logical conclusion which can be arrived at on appreciation of evidence led by the parties is that the alleged transaction between Ashok Kumar, and his wife Sarla on 18.01.2012 is eclipsed by doctrine of lis pendens, and the same is apparent nay evident from the order dated 16.08.2010. 18 Consequentially, the transactions between Sarla and Shambhu Dayal and thereafter Shambu Dayal and Abdul Rasheed suffer the same fate in light of order dated 16.08.2010 19 statements of Ashok Kumar and Ram Singh both dated 24.04.201220, order dated 24.04.201221 and decree sheet dated 24.04.201222 recorded and passed in Biran Devi v. Ashok Kumar - CS No. 42/2010. Accordingly, this court finds that the legal maxim nemo dat quod non habet, one cannot transfer a better title than what he/she has, applies on its fours to the facts of the case at hand.
114. That said, as held in the preceding paragraphs of this judgment that the documents relied upon by the plaintiff to claim his ownership, possession are unregistered documents and the same have already been found to be self-serving documents and have no validity in the eyes of law.
18Ex.DW3/2 (OSR) 19 ibid.
20Ex.DW3/3 (OSR) 21 Ex.DW3/2 (OSR) 22 Ex.DW4/4 (OSR) CS DJ ADJ No. 532/2018 Page No. 46/54 With the plaintiff having failed to make out his case of ownership and in possession of the suit property, this court finds and rules that no cause of action has arisen in favour of the plaintiff to prefer the present suit against the defendants. Accordingly, the issue No. 4 is ruled and answered in favour of the defendants and against the plaintiff.
Issue No. 5Whether the plaintiff is entitled to decree of permanent injunction as prayed for by him in the amended plaint?
115. The onus to prove issue No. 5 was casted upon the plaintiff. The plaintiff' claims of ownership and possession over the suit property have been found to be disproved. It is also observed that this court has ruled that no cause of action has arisen in favour of the plaintiff to maintain the suit against the defendants.
116. The prayer clause of the amended plaint reads as under:
"PRAYER It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to pass a decree of permanent injunction in favour of the plaintiff and against the defendants, thereby restraining the defendants, their friends, relatives, agents, associates from interfering of the frequent visit of the plaintiff, his friends, relatives, etc. of the said flat.
Any other relief which this Hon'ble Court may deems fit and proper may be pleased to pass in favour of the plaintiff and against the defendants."
117. From perusal of the prayer clause, it is clear as daylight that the plaintiff has preferred a suit for simpliciter injunction without seeking any other relief against the defendants, despite his claim of ownership and possession being thwarted by the defendants not only in the present suit but also in the dismissal of application under Order I, Rule 10, CPC by CS DJ ADJ No. 532/2018 Page No. 47/54 order dated 04.06.2016 passed in suit Ram Singh Vs Ashok Kumar - CS DJ ADJ 516627/2016 (Old Suit No. 413/2012).
118. Reliance is placed upon the judicial pronouncement of the Apex Court in Anathula Sudhakar v. P. Buchi Reddy,23 the relevant extract of the said judgment is reproduced as under:
"13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
14. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant ( 23 2008) 4 SCC 594 CS DJ ADJ No. 532/2018 Page No. 48/54 or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property.
On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the Court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
15. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.
CS DJ ADJ No. 532/2018 Page No. 49/5416. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the Court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where Court feels that parties had not proceeded on the basis that title was at issue, the Court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs.
xxxxx xxxxx
21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy.
Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the CS DJ ADJ No. 532/2018 Page No. 50/54 case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the Court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the Court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight- forward, the Court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The Court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
[Emphasis added by underlining and highlighting of text]
119. On careful reading of the judgment of Anathula Sudhakar v. P. Buchi Reddy's,24 His Lordship R.V. Raveendran in paragraph No. 14 of his 24 ibid.
CS DJ ADJ No. 532/2018 Page No. 51/54erudite judgment has deftly provided the palliative answer to the question that when would a relief of declaratory decree be adequate. It is observed that the Apex Court has in clear words provided the recourse which is open for the plaintiff when a cloud over his title is raised in a suit for simpliciter injunction. The Apex Court held that where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for an injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. It is observed that the Apex Court not only held that once a cloud over title is raised, the plaintiff need to amend the plaint and convert the suit into one for declaration but in the alternative, the plaintiff may withdraw the suit for bare injunction, with permission of the Court to file a comprehensive suit for declaration and injunction. The Apex Court even held that the plaintiff may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
120. The Apex Court has provided the clear recourse to be adopted when in a suit for simpliciter injunction a cloud over the title of the plaintiff is raised, which is either to amend the plaint and convert the suit into a declaration or withdraw the said suit with permission of the Court and file a comprehensive suit but to reject the plaint by placing reliance upon Anathula Sudhakar v. P. Buchi Reddy's,25 without giving an opportunity to the plaintiff to seek the very recourse provided in the same judgment is a great travesty of law. In the case at hand the defendants from the word 25 ibid.
CS DJ ADJ No. 532/2018 Page No. 52/54'go' not only in the present suit, but also in a suit titled as Ram Singh Vs Ashok Kumar - CS DJ ADJ 516627/2016 (Old Suit No. 413/2012), where the plaintiff's application under Order I, Rule 10, CPC was dismissed by order dated 04.06.2016 passed by the Ld. Addl. District Judge, South West, Dwarka Courts, Delhi and the defendants in the present suit challenged the plaintiff's claim of being owner and in possession of the suit property. The plaintiff has with open eyes despite clear observations in order dated 04.06.2020 neither amended the present suit i.e., a suit for simpliciter permanent injunction, nor preferred a fresh comprehensive suit asserting his rights by seeking a declaratory decree and other consequential reliefs against the defendants in the nature of him being the owner in possession/out of possession of the suit property.
121. Further, the Apex Court in paragraph 21(a) of the judgment in Anathula Sudhakar v. P. Buchi Reddy,26 has held, "Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter." In the present case, the plaintiff has come running knocking the doors of this Court that the defendants are interfering and obstructing him, his family members, relatives, and friends from visiting the suit property. Though, the plaintiff in the pleadings has urged that the defendant No. 1 advanced threats, demanded a sum of ₹1,00,000/- (Rupees One lakh only) from him and lodged a complaint against the defendants, however, in the cross- examination of the plaintiff (PW1), the plaintiff has made clear admissions contrary to the case pleaded by him. Alas! This is not a case of mere interference in plaintiff's lawful possession and/or the plaintiff being under an imminent threat of dispossession, rather this is a case where the very 26 ibid.
CS DJ ADJ No. 532/2018 Page No. 53/54right, title and claim of owner in possession of the suit property was under
a dark cloud.
122. Considering the above observations and findings, this court rules that the issue No. 5 be decided against the plaintiff and in favour of the defendants.
Issue No. 6Relief
123. With clear findings of issue Nos. 1 and 5 against the plaintiff and also the findings of issue Nos. 3 and 4 in favour of the defendants and against the plaintiff, this court is of the considered opinion that no case for any relief is made out in favour of the plaintiff and against the defendants.
124. Accordingly, it is ordered that the suit be dismissed. Parties to bear their own costs. All interim application(s) stand dismissed as infructuous. Decree sheet be drawn accordingly.
125. The original documents filed by the parties be returned against acknowledgment only after filing of the certified copies of the same by the concerned parties, with necessary endorsements, as per Rules. The Ahalmad of the court is also directed to return the judicial file of Ram Singh v. Ashok Kumar & Anr. - CS DJ ADJ No. 516627/2016, 27 requisitioned28 under Order XIII, Rule 10, CPC.
126. File be consigned to record room only after due compliance and necessary action.
HARGURVARIND Digitally signed by HARGURVARINDER SINGH JAGGI ER SINGH JAGGI Date: 2021.01.04 16:27:30 +05'30' Pronounced in the open Court (Hargurvarinder Singh Jaggi) on January 04, 2021 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi 27 Decreed by Compromise, settlement by order dated 17.01.2019 28 See order dated 27.02.2019 and 28.03.2019.
CS DJ ADJ No. 532/2018 Page No. 54/54