Delhi District Court
Sh. Jitender Kumar Sood vs Sh. Rakesh Kumar on 6 April, 2011
IN THE COURT OF SH.SAURABH KULSHRESHTHA
CCJ:ARC(EAST):KARKARDOOMA COURT: DELHI
Civil Suit no:373/07
Unique Case ID no.02402C0490692004
1. Sh. Jitender Kumar Sood
2. Sh. Harvinder Kumar Sood
Both S/o Late Sh. Brij Lal Sood,
R/o 1/7220, Shivaji Park, Shahadra, Delhi-32
....... Plaintiffs
Versus
1. Sh. Rakesh Kumar
2. B.S.E.S. Yamuna Power Ltd.,
Shakti Kiran Building
Karkardooma, Delhi-92.
Through its Manager
3. Sh. Gokul Chand S/o not known
In shop part of property no. 1/7220,
Shivaji Park, Shahadra, Delhi-32.
.... Defendants
Suit for declaration and permanent injunction.
Date of Institution of the suit : 21.07.2004
Date on which judgment was reserved : 15.03.2011
Date of decision : 06.04.2011
Decision : Suit dismissed
JUDGMENT:-
1. This is a suit for declaration and permanent injunction. Suit no.373/07 Page 1/28 The plaintiff claims himself to be the co-owner of the property no. 1/7220, Shivaji Park, Shahadra, Delhi-32 by virtue of a registered Will duly executed by Late Sh. Brij Lal Sood, who was the original owner of the suit property. The defendant no. 1 is the occupier of the suit premises. The defendant no. 2 is the electricity distribution licensee/ company.
2. The version of the plaintiff is that the defendant no. 1 is an unauthorized occupant in the shop forming part of property no. 1/7220, Shivaji Park, Shahadra, Delhi-32. The Shop in question was given to Sh. Gokul Chand for running an Ice shop at a monthly rent of Rs. 1200/- per month which was subsequently increased to Rs. 1800/-. It is further averred that Sh. Gokul Chand (impleaded as defendant no.3 during the course of trial at the stage of DE however was not served at all and never appeared before the court or took part in the proceedings and is therefore deemed to be non existent as far as the suit is concerned) expired and the shop was lying locked was later on occupied by the defendant no. 1 by breaking open the locks without the consent and permission of the plaintiff and the defendant Suit no.373/07 Page 2/28 no. 1 is an unauthorized occupant in the suit premises.
3. The grievance of the plaintiff is that the defendant no. 2 without getting a no objection certificate from the owner of the property i.e. the plaintiff and his brother, illegally and arbitrarily sanctioned an electricity connection in the name of the defendant no. 1, who is an unauthorized occupant in the suit premises. It is further averred that a letter in this respect was given to the defendant no. 2 in writing on 03.01.2003, which was duly received by the defendant no.
2. A reminder dated 19.03.2004 was also issued to the defendant no. 2 and a written complaint dated 05.05.2004 was also made in this respect.
4. It is further the case of the plaintiff that on 19.05.2004, the employees of the defendant no. 2 came at the suit property, for installing the electricity meter in the name of the plaintiff. It is further alleged that at that time, a quarrel took place and the defendant no. 1 attacked the plaintiff and caused injuries to the plaintiff for which FIR no. 164/2004 was registered at PS Shahdara.
Suit no.373/07 Page 3/28
5. The plaintiff has contended that the defendant no. 2 failed to cancel the sanctioned electricity connection in the name of the defendant no. 1 and accordingly, the present suit was filed by the plaintiff. The plaintiff has prayed for a declaration declaring that the electricity connection sanctioned in the name of the defendant no. 1 at the suit premises as null and void and a permanent injunction restraining the defendant no. 2 from installing the electricity mater in the name of the defendant no. 1 at the suit premises.
6. The defendants appeared pursuant to service of summons and filed their separate written statements. The defendant no. 1 averred that Smt. Santosh Kumari, who is the sister of the plaintiff is the owner and landlord of the suit premises and the defendant is a tenant under Smt. Santosh Kumari and is paying rent to Smt. Santosh Kumari at the rate of Rs. 300/- per month. It is averred that Sh. Gokul Chand was earlier inducted as a tenant in the suit property by Late Sh. Brij Lal Sood and now the defendant no.1 his son has become a tenant in the suit premises.
Suit no.373/07 Page 4/28
7. It is further stated that since Smt. Santosh Kumari was issuing rent receipts in favour of the defendant no. 1 hence no NOC from the plaintiff was required. It is further averred that Ms. Santosh Kumari has no objection. It is further stated that no written permission is required from the plaintiff or from his brother for installing electricity connection and the complaint made by the plaintiff at the office of the defendant no. 2 was false and baseless.
8. It is further stated that on 19.05.2004, the employees of the defendant no. 2 came at the spot to inspect the site for installing the electricity meter, however, the plaintiff misbehaved them however a false FIR was got registered against defendant no.1.
9. The defendant no. 2 also filed its separate written statement. The defendant no. 2 averred that as per law and as per the policy of the defendant no. 2 no such no objection certificate is required for installation of the electricity meter. It was averred that the defendant no. 1 is in settled possession and claims himself to be a Suit no.373/07 Page 5/28 tenant in the suit property and therefore, has been sanctioned an electricity connection after completing the necessary formalities. It was further averred that since electricity connection had been rightly sanctioned in the name of the defendant no. 2. the officials of the defendant no. 2 had every right to install the electricity meter. The defendant no. 2 has prayed for dismissal of the suit.
10. The plaintiff filed replication to the written statements of the defendants and denied the averments made in the written statements of the defendants and simultaneously reiterated and reaffirmed the contents of the plaint.
11. Vide order dated 01.02.2005, following issues were framed in this case:-
1. Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD-1
2. Whether the plaintiff has no locus standi to file the present suit? OPD
3. Whether the plaintiff is entitled fro a decree of declaration as prayed for? OPP
4. Whether the plaintiff is entitled for a decree of permanent injunction as prayed for? OPP
5. Relief.
Suit no.373/07 Page 6/28
12. Plaintiff examined himself as PW-1 and deposed on the lines of the plaint. The plaintiff also examined Head Clerk/ official from Delhi Jal Board as PW 2 to establish that the water connection in the suit premises had been transferred in the name of the plaintiff and his brother Sh. Harvinder Kumar Sood. The plaintiff examined a police official from PS Shahdara as PW-3 to prove copy of FIR no. 164/2004 registered at PS Shahdara. PW-4, official from BSES was also examined who deposed that the electricity connections in the premises is in the name of Sh. Brij Lal Sood.
13. The defendant no. 2 examined Sh. Sunil Tiwari engineer of BSES as DW-1 who deposed on the lines of the written statement of defendant no. 2. The defendant no. 1 examined himself as DW-3 and deposed on the lines of his written statement. The defendant no. 1 examined Smt. Santosh Kumari, sister of plaintiff as DW-2 who corroborated the version of the defendant no. 1.
14. I have heard the Ld. Counsel for the parties and have perused the record.
Suit no.373/07 Page 7/28
15. My issue-wise findings are as follows:
Issue no. 3 and 4
16. The onus to prove these issues was upon the plaintiff. The question to be answered is as to whether the plaintiff is entitled to the relief of Declaration and Permanent Injunction as prayed for.
17. PW 1 has deposed that the suit premises was given to one Sh. Gokul Chand for running an ice shop and on payment of rent of Rs.1200/- per month, which was subsequently increased to Rs.1800/- per month and after the demise of Sh. Gokul Chand, the defendant had illegally and unlawfully occupied the shop in question after breaking the locks of the shop.
18. However, apart from the mere self serving ipse dixit of the plaintiff / PW 1 the plaintiff could not any other cogent and viable evidence to establish that the defendant had unlawfully occupied the shop after breaking open the locks of the shop.
Suit no.373/07 Page 8/28
19. On the contrary, defendant has examined himself as DW-1 and has categorically deposed that he is a tenant in the suit premises at a monthly rent of Rs.300/-. He has further deposed that premises in question was let out to his father Sh. Gokul Chand at a monthly rent of Rs.300/- by Late Sh. Brij Lal Sood and after the demise of Late Sh. Brij Lal Sood, Smt. Santosh Kumari, daughter of Sh. Brij Lal Sood and sister of the plaintiffs is the landlord in respect of the suit premises. He has further deposed that now he is a tenant in the suit premises and he has been regularly paying rent @ Rs.300/- per month to the said Smt. Santosh Kumari.
20. Defendant has also examined Smt. Santosh Kumari as DW-3, who is the sister of the plaintiffs. DW 3 has unequivocally deposed that her father Sh. Brij Lal Sood had given her the suit premises and authorized her to collect rent @ Rs.300/- per month and she is issuing the rent receipts to the defendant who is a tenant in the suit premises. Counsel for the plaintiffs could not elicit anything substantial in the testimonies of DW 1 and DW 3 so as to discredit their testimonies.
21. Further the rent receipts are being issued by Smt. Santosh Suit no.373/07 Page 9/28 Kumari and she was during the lifetime of Late Sh. Brjlal Sood and after the demise of Late Sh. Brjlal Sood was collecting the rent and issuing the rent receipts and therefore within the contemplation of the Delhi Rent Control Act Smt. Santosh Kumari is the landlord in respect of the suit premises.
22. The plaintiff has claimed ownership in respect of the property in question and has denied the title of Smt. Santosh Kumari on the basis of a will executed by Late Sh. B.L. Sood.
23. In the judgment titled as Daulat Ram v. Sodha reported as A.I.R. 2005 SC 233 it was held:
" ... .10. Will being a document has to be proved by primary evidence except where the Court permits a document to be proved by leading secondary evidence. Since it is required to be attested, as provided in Section 68 of the Indian Evidence Act, 1872, it cannot be used as evidence until one of the attesting witnesses at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. In addition, it has to satisfy the requirements of Section 63 of the Indian Succession Act, 1925. In order to assess as to whether the Will has been Suit no.373/07 Page 10/28 validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other... .."
24. Adverting to the facts of the case the said will has not been proved in the present proceedings in accordance with the provision of the Evidence Act. No attesting witnesses have been produced. The other requirements of a valid will have not been established by proper evidence. Therefore, as far as the present proceedings are concerned reliance cannot be placed upon the said will by the plaintiffs in order to claim ownership of the suit premises. The inevitable conclusion is that the plaintiff has failed to establish his sole ownership in respect of the suit premises qua Ms. Santosh Kumari.
25. The material on record establishes that Late Sh. Gokul Chand was a tenant in the suit premises. The plaintiff also in the plaint admitted Suit no.373/07 Page 11/28 that the premises was given on rent to Gokul Chand.
26. What is unusual was that the suit proceeded on the pretext that Gokul Chand has expired. However during the course of DE the plaintiff moved an application stating that Gokul Chand is alive and Gokul Chand was sought to be impleaded as a defendant. He was thereafter impleaded as defendant no. 3 (although there is some flaw in the memo of parties filed by the plaintiff where he is shown as defendant no. 2) in the suit. What is more astonishing is that this development was not brought on record in the connected suit. Further more this defendant no. 3 was not served at all in the present suit and therefore he never appeared to participate in the proceedings. On 14.11.2007 the defendant no. 1 submitted before the court that he does not know the whereabouts of the defendant no. 3 and thereafter the matter was fixed for further proceedings on 18.12.2007 and on that date the suit was proceeded ex parte qua the defendants without the defendant no. 3 being served. The plaintiff thereafter did not take any steps for service of the said defendant no. 3 nor got him served and the matter was fixed for final arguments and hence it is deemed that the plaintiff abandoned the claim against the defendant no. 3.
Suit no.373/07 Page 12/28
27. The defendant no. 1 also claims that now he is a tenant in the suit premises under Mrs. Santosh Kumari. Thus whether the defendant no. 1 is a tenant or his father the defendant no. 3 is a tenant the fact remains that the defendant nos. 1 is in lawful occupation of the suit premises in the sense that he cannot be said to be a rank trespasser.
28. The limited question which is to be decided by this court is as to whether the defendant nos. 1 is entitled for a fresh/ separate electricity connection in his name in the suit premises.
29. A bare perusal of Section 43 of the Electricity Act, 2003 shows that the distribution licencee /defendant no. 2 BSES is under an obligation to provide electricity connection to the owner/ occupier of any premises.
In the judgment AIR 2004 CALCUTTA 227 it was held:
" ... ..52. Section 43 of the Act of 2003 obliges every distribution licensee to give supply of electricity to the owner or occupier of any premises. Section 43 (2) proviso clearly provides that an occupier or owner is entitled to demand separate supply at the premises subject to Suit no.373/07 Page 13/28 payment of such amount as may be determined by the Appropriate Commission. This section is wholly inconsistent with the stand taken by the CESC Limited although the present conditions of supply of CESC Limited also entitles the consumer to insist on a separate supply (Clause 3 (a)).
30. Under the Electricity Act of 2003, no licensee including CESC Limited can refuse to give supply to owners or occupiers of premises and the owners and occupiers have the right to obtain a separate supply. This is a statutory right given under the Electricity Act of 2003 and it is not open to any licensee including CESC Limited to render the statute ineffective by relying on conditions of supply framed under the earlier Act, since repealed... ... "
31. In the judgment tiled as `Fashion' Proprietor Aswani Kumar Maity v. West Bengal State Electricity Distribution Co. Ltd. Reported as 2009(4) ICC 502 it was held:
" ......If the law of the land provides that a person in possession of any premises may not be dispossessed therefrom except in accordance Suit no.373/07 Page 14/28 with law, it is implicit that the possession of the person is protected till such time that an appropriate forum holds otherwise and the person is removed from the premises under due process of law. It would then defy reason to suggest that such person can continue to be in possession but be denied an essential utility as electricity which is within the broad sweep of the right to life guaranteed under Article 21 of the Constitution....."
32. In the judgment tiled as Amarendra Singh v. Calcutta Electric Supply Corporation Ltd reported as AIR 2008 Calcutta 66(DB) it was held:
" .....In view of the provisions in Section 43 of the Elec - tricity Act, 2003, the appellant herein being the occupier is entitled to enjoy the electricity at the occupied portion of the premises in ques- tion.
33. The legality and/or validity of the occupation of the premises in question by the appellant can be decided in the civil Court Suit no.373/07 Page 15/28 but that will not prevent the said appellant from enjoying the benefit of electric connection...."
34. In Atanu Maity v. W.B. SEB, (2006) 1 CHN 640 [Date of decision : 07-11-2005, Hon' ble High Court of Calcutta] it was held that the electricity board was obliged to supply electricity to the petitioner tenant and this is exactly the obligation cast upon the Board by S. 43 of the Electricity Act, 2003. The Court observed in the instant case that in the capacity of tenant of the premises, the petitioner would be entitled to get supply of electricity through a separate meter. Supply of electricity to him would not cause any prejudice to the rights and contentions of the landlord nor would such supply create any right in favour of the petitioner insofar as the tenancy is concerned.
35. In the judgment "T. P. AEC Ltd. v. S. (Rakhial) C. Co- op. Housing Socy. Ltd" reported as AIR 2006 GUJARAT 190 (DB) it was held:
" ....19.Prima facie, I am of the considered opinion that Suit no.373/07 Page 16/28 the plaintiff is the owner/ occupier of the suit premises within the meaning and contemplation of Section 43 of Electricity Act, 2003 and therefore the defendant / distribution licencee is under an obligation to provide separate electricity connection to the plaintiff.
36. I am of the considered opinion that the expression occupier in Section 43 of the Electricity Act, 2003 means and includes a person who prima facie is in de facto settled possession/ occupation of a premises. His possession should prima facie have some legality in the sense that he should not be a rank trespasser. A person whose entry is lawful and who is in settled possession is an occupier of the premises within the meaning of section 43 of the Electricity Act, 2003. In view of the judgments cited above I am of the opinion that Section 43 of the Electricity Act enjoins upon the licensee to provide electricity connection to the owner / occupier of any premises.
37. Adverting to the facts of the present case the defendant no. 1 is in lawful occupation of the suit premises being the son of the defendant no. 3 who was inducted as a tenant and is in settled de facto Suit no.373/07 Page 17/28 possession of the suit premises. Further more the sister of the plaintiff has submitted that the defendant no. 1 is now himself a tenant in the suit premises under her. In these circumstances the possession of the defendant no. 1 in the suit premises is settled and he cannot be evicted except by due process of law. Reference may be made to the judgments of the Hon' ble Supreme Court in "Krishna Ram Mahale v. Shobha Venkat Rao", AIR 1989 SUPREME COURT 2097 and "Rame Gowda v. M. Varadappa Naidu" AIR 2004 SUPREME COURT 4609. Thus the plaintiff is definitely an occupier of the suit premises within the contemplation of section 43 of the Electricity Act, 2003.
38. Once it is clear that he cannot be evicted except by due process of law the necessary concomitant is that he cannot be compelled to abdicate his possession by denying an essential amenity like electricity as that would amount to indirectly evicting him except by due process of law. Once the possession is protected his right to enjoy basic amenities is also protected since right to enjoy the basic amenities like electricity is necessarily linked up with possession. Suit no.373/07 Page 18/28 Electricity is an essential amenity and denial of electricity is bound to cause serious prejudice, undue hardship and extreme inconvenience to the defendant no.1.
39. In this context reference may also be made to the Order dated 22.02.2008 of the Hon'ble High Court of Delhi in Civil Writ Petition no. 4922/07 tilted as 'Prabhu Dayal vs. BSES Yamuna Power Ltd and others', wherein the Hon'ble High Court of Delhi had held :
" .......In view of the inter se dispute between the petitioners and respondents no. 2 to 5, it is apparent that the respondent no. 2 to 5 are not ready and willing to give no objection certificate. However, occupation and tenancy rights of the petitioners are not denied and have been accepted and admitted. The petitioners have right to enjoy and use the tenancy rights. The petitioners are certainly entitled to electricity connection as their occupation cannot be regarded as unauthorized. It is admitted that no decree of eviction has been passed against the petitioners. In view of the peculiar facts and circumstances of the case, it is directed that respondent no. 1 may process the Suit no.373/07 Page 19/28 application filed by the petitioners in accordance with law but without insisting on no objection certificate the landlords. On the question of arrears, it will be open for the respondent no. 1 to decide the said question. It is clarified that as and when the petitioners vacate the premises, they will inform the respondent no. 1 or the supplier company. The petitioners will also be responsible for payment of the electricity consumption charges and it will be the duty of the petitioners to ensure that the landlords / respondent no. 2 to 5 are not put in any inconvenience on account of grant of electricity connection. The petitioners will identify respondent no. 2 to 5 by filing an indemnity bond in this Court...."
40. In view of the foregoing reasons and the legal position discussed herein above I am of the considered opinion that the defendant no. 1 is entitled for a fresh/ separate electricity connection in his own name in the tenanted premises being in lawful occupation.
41. The defendant no. 2 had sanctioned an electricity connection in the name of the defendant no.1 in respect of the suit Suit no.373/07 Page 20/28 premises. The defendant no.1 has contended that at the relevant point of time when the electricity connection was sanctioned no NOC of the landlord/owner was required and therefore electricity connection was rightly sanctioned. The plaintiff has not been able to establish any illegality in the sanction of the said electricity connection. Moreover the defendant no.1 has a right to get an electricity connection sanctioned in his own name in the suit premises. Further more Smt. Santosh Kumari is the landlord of defendant no.1 and she has not objected to the sanction of electricity connection in the name of the defendant no.1.
42. However, this court is cognizant of the fact that in case of any dues in respect of the electricity connection in the name of the defendant no. 1 in respect of suit property no further electricity connection would be installed by the licencee without clearance of the aforesaid dues. Hence, the interest of the co owner i.e. plaintiff is also to be safeguarded. It is therefore advisable that in case the electricity connection in the name defendant no.1, is energised the defendant no. 2 would take an additional refundable security deposit of Rs.10,000/- Suit no.373/07 Page 21/28 from the defendant no. 1 along with an indemnity bond.
43. However as far as the present suit is concerned the plaintiff is not entitled to a decree of declaration that the electricity connection sanctioned in the name of the defendant no. 1 was illegal, null and void or for a permanent injunction restraining the defendant no. 1 from installing any electricity connection in the name of defendant no.1 in the suit premises.
Issue No. 1 :
44. The onus to prove this issue was upon the defendant. The question to be answered is to whether suit is bad for non-joinder of parties.
45. The plaintiff is a co owner of the property in question and general rule is that a co owner is competent to file a suit for recovery of possession against trespasser or tenant (whose tenancy has been determined) without joining other co owners as a party to the suit if the suit operates for the benefit of all the co owners.
Suit no.373/07 Page 22/28
46. However, there are exceptions to this rule. Where the other co owners do not give their consent for ejecting the tenant, it cannot be said that still one co owner can file a suit for recovery of possession. The other exception is where the plaintiff co owner denies the title of the other co owner, then he is precluded from filing such a suit without impleading other co owners as parties. Thirdly where one of the co owners is the landlord in respect of premises and other co owner sues for ejectment of the tenant without the consent of the landlord/co-owner the suit would not be maintainable without the landlord/co-owner being impleaded as a party.
47. In the judgment titled as Valasala v. Sundaram Nadar re- ported as 1993(2) Civ.C.C. 662 it was held:
" ... ... 13. But the question still arises as to whether the plain - tiff in this case can recover possession from the defendants. An exception to the Rule above mentioned has been made where the suing co owner claims exclusive title to the property in derogation or denial of the rights of the oth- er co owners. In such an event, the co owner whose rights are denied or against whose interest the plaintiff is suing is a necessary party to the suit, and his absence will be fatal to the suit itself. The decision of the Madras Suit no.373/07 Page 23/28 High Court namely Thimmayya v. Siddappa, AIR 1925 Mad. 63 is in point on this question. The principle was reiterated by K.S. Hegde, J. in the Mysore High Court in Shivangouda v. Gangawita AIR 1967 Mys. 143, al- ready referred to. The entire matter was discussed by the Karnataka High Court in Rajabibi v. Azeerali, AIR 1974 Karn. page 115 where Malimath, J. as he then was, held that if a co-sharer instituted a suit in ejectment against a trespasser, repudiating the claim of the other co -sharers and claiming exclusive title in himself, such a suit will not be maintainable in the absence of the other co- sharers... ... "
In the judgment titled as "Rajabibi v. S. Ameerali" reported as AIR 1974 KARNATAKA 115 it was held:
" ... .. If one of the Co-sharers instituted a suit for ejection against a trespasser, repudiating the claim of the other co-sharers and claim- ing exclusive title in himself, such a suit would not be maintainable in the absence of the other co-sharers. Non-impleading of the co-sharers in a suit of this nature is a fatal defect, as the co-sharers are not only proper parties but are necessary parties... ... "
48. Adverting to the facts of the present case all these situations co Suit no.373/07 Page 24/28 exist. Although the present suit has been filed by a co owner against a tenant/ occupant though not for ejectment yet the same analogy and the same principles can be applied in the present suit also. The plaintiff claims himself to be the owner of the property and is denying the title of his sister namely Ms. Santosh Kumari who is otherwise a co-owner on the ground that a will was executed by Late Sh. B.L. Sood in favour of the plaintiffs, whereby and where under the plaintiff and his brother have become the absolute owners of the suit premises. Thus, it is clear that by way of the present suit the plaintiff is denying the title of their sister Ms. Santosh Kumari, who is otherwise a co owner. Further I have already held thatte sister of the plaintiff Ms. Santosh Kumari has accepted the defendant as her tenant and Ms. Santosh Kumari has not given her consent for filing of such a suit against the defendant. Hence the suit filed by the plaintiffs without impleading Ms. Santosh Kumari is not maintainable. The result is that Santosh Kumari is a necessary party to the present suit and the plaintiff had not bothered to implead Ms. Santosh Kumari in the present suit despite the fact that the defendant had taken a specific plea that Ms. Santosh Kumari was the landlord respect of the suit premises and the shop had fallen in the share of Smt. Santosh Kumari on the demise of owner Sh. B.L. Sood. The suit is accordingly bad for non joinder of a necessary party and must fail on Suit no.373/07 Page 25/28 this count.
This issue is accordingly decided against the plaintiffs and in favour of defendant.
Issue no. 2
49. The onus to prove this issue was upon the defendant. The question to be answered is a to whether the plaintiffs have no locus standi to file the present suit
50. I have already held that Sh. B.L. Sood was the original owner of property in question and he had inducted the father of the defendant no. 1 as a tenant and accordingly since the defendant no. 1 has also inherited the tenancy after the demise of his father his status is also that of a tenant in the suit premises. The defendant being a tenant cannot question the validity of the titled/ownership of Late Sh. B.L. Sood in view of the provisions of Section 116 of the Evidence Act.
51. It is also not in dispute that Sh. B.L. Sood expired leaving behind the plaintiff who is his son, one more son and a daughter namely Suit no.373/07 Page 26/28 Mrs. Santosh Kumari. Thus the plaintiff is definitely a co owner of the property in question being the legal heir of late Sh. B.L. Sood.
52. Law is well settled that until and unless partition by metes and bounds is effected a co owner is the absolute owner of each and every inch of the joint property. He owns very part of the composite property alongwith others and it cannot be said that he is only a part owner or a fractional owner of the property. Reference may be made to the judgment titled as Sri Ram Pasricha v. Jagnnath reported as AIR 1976 SC 2335. A co owner, is therefore within his rights to file a suit against a tenant.
53. The present suit is suit for Declaration and Injunction against a tenant filed by a co owner. It is another fact whether the plaintiff is entitled to the relief or not but it cannot be disputed that plaintiff being a co owner has the right to file the present suit. It is also another fact that whether the plaintiff ought to have impleaded Ms. Santosh Kumari as a party.
54. Be that as it may the Plaintiff being the co owner of the property in question has a right to file the present suit for Declaration and Injunction against the defendant tenant/occupier. Accordingly, I hold that Suit no.373/07 Page 27/28 plaintiff has the locus standi to file the present suit.
This issue is accordingly decided in favour of plaintiffs and against the defendant.
Relief:-
55. Issue nos. 1, 3 and 4 have been decided against the plaintiff and in favour of the defendant. In view of my given findings and observations on aforesaid issues, the plaintiff is not entitled to a decree of declaration that the electricity connection sanctioned in the name of the defendant no. 1 was illegal, null and void or for a permanent injunction restraining the defendant no.1 from installing any electricity connection in the name of defendant no.1 in the suit premises. Hence the plaintiff is not entitled to the relief claimed.
The suit is accordingly dismissed. Parties are left to bear their own costs. File be consigned to record room.
Announced in the open (SAURABH KULSHRESHTHA) Court on 06.04.2011 CCJ/ARC(East)
(Judgment contains 28 pages.) KARKARDOOMA COURTS, DELHI Suit no.373/07 Page 28/28