Delhi District Court
Sh. Sharad Dube (Deceased) vs Sh. Aditya Prasad Dube on 15 November, 2014
IN THE COURT OF SH. DEVENDER KUMAR, ADJ-04, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS, NEW DELHI.
CS No. 160/14
Sh. Sharad Dube (Deceased)
S/o Late Shri Niranjan Prasad Dube
Through his widow and Legal Representative
Smt. Shobha Dube
R/o 28, Central Lane,
Bengali Market, New Delhi - 110001 .... Plaintiff
Vs.
1.Sh. Aditya Prasad Dube S/o Late Sh. Ajit Prasad R/o 28, Central Lane, Bengali Market, New Delhi - 110001 Present Address:
I-404, Jaipuria Sunrise, Indira Puram, Ghaziabad (U.P)
2. Smt. Vimmi Dube (Died on 19.07.2013 & recorded vide order dated 21.2.2014)
3. Sh. Tarun Dube Sh. Aditya Prasad Dube R/o 28, Central Lane, Bengali Market, New Delhi - 110 001 Present Address:
CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 1/26 I-404, Jaipuria Sunrise, Indira Puram, Ghaziabad (U.P)
4. Smt. Sonali Dube W/o Sh.Tarun Dube R/o 28, Central Lane, Bengali Market, New Delhi - 110 001 Present Address:
I-404, Jaipuria Sunrise, Indira Puram, Ghaziabad (U.P)
5. Sh. M.C. Gupta S/o Late Shri Jiya Ram R/o B-1 (GL), Sham Nath Apartments, 12, Sham Nath Marg, Civil Lines, Delhi -110 054 .....Defendants Date of institution : 18.11.2008 Date on which reserved for judgment : 15.11.2014 Date of decision : 15.11.2014 Suit for recovery of possession under Section 6 of Specific Relief Judgment :
Vide this Judgment, I shall dispose off a suit for recovery of possession under Section 6 of Specific Relief Act and permanent injunction filed by the plaintiff and against the defendants. Brief facts of the case are as under :
1. It is the case of the plaintiff that the property bearing no. 28, Central Lane, Bengali Market, New Delhi was initially owned by Late Rai CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 2/26 Bahadur Shri Anant Prasad Dube and after his demise his two sons Late Sh. Ajit Prasad Dube and Sh. Niranjan Prasad Dube inherited it in equal proportion. It is further stated that Sh. Ajit Prasad Dube executed a Will dated 29.06.1981 thereby bequeathing his share in the said property in favour of his four sons in equal proportion, but Sh. Niranjan Prasad Dube expired in the month of August, 1984. It is further stated on 19.08.1986, the legal heirs of Sh. Ajit Prasad Dube and Sh. Niranjan Prasad Dube and other co-owners of abovesaid property entered into an agreement as per which the legal heirs of Sh. Niranjan Prasad Dube got exclusive possession of the rear portion of the house as shown brown colour in the site plan. The plaintiff being son of Late Sh. Niranjan Prasad Dube got exclusive possession of the rear portion of the premises and legal heirs of Late Sh. Ajit Prasad Dube got exclusive possession of front portion of the premises. It is further stated that the defendant no. 1 and Sh. Kapil Dube took exclusive possession of front portion of the premises. It is further stated that on 26.03.2002, two co-owners in possession of front portion of the house namely Sh. Aditya Prasad Dube and Sh. Kapil Dube relinquished their shares 1/8th share (each) by the way of two separate relinquishment deeds dated 26.03.2002 in favour of the plaintiff and handed over vacant physical possession of their portions to the plaintiff. It is further stated that the defendant no. 3 herein was a witness to relinquishment deeds and Sh. Aditya Prasad Dube and Sh. Kapil Dube also sworn two separate affidavits dated 26.03.2002 thereby admitting the possession of the plaintiff in the suit property. It is further stated that the common portion and right of usage of common passage and entrance in front of the portion of the house shown in yellow colour in site plan CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 3/26 remained with the parties. It is further stated that the plaintiff and his family were away to Hong Kong during a period from 20.05.2008 to 27.05.2008, when the defendants illegally trespassed and wrongfully dispossessed the plaintiff from the portion shown red in the site plan including the portion covered under two relinquishment deeds and affidavits of Sh. Aditya Prasad Dube and Sh. Kapil Dube. It is further stated that the defendant no. 1 & 3 subsequently became dishonest and challenged the relinquishment deeds dated 26.03.2002 by filing a civil suit bearing No. CS (OS) 272/2007 and sought restoration of possession of that portions and the said suit is still pending before the court of Ld. ADJ, Tis Hazari Court, Delhi. It is further stated that the possession of rear portion of the house was / is already with the plaintiff, but the possession which was given to the plaintiff under two relinquishment deeds and other part of front portion as shown red in the site plan comprising one room, front Verandah and a toilet has been trespassed by the defendants. It is further stated that the plaintiff was in actual, continuous and exclusive physical possession of the premises as shown red in the site plan upto 20.05.2008 but has been dispossessed from the said portion by the defendants while he was away to Hong Kong.
It is further stated that the car of the plaintiff is still parked in the front left courtyard as shown in the site plan and room in front of left portion is also in possession of the plaintiff and even his goods are still lying in the said portion. It is further stated that the plaintiff contacted the defendants soon after returning from Hong Kong and made an enquiry about his dispossession but the defendants refused to allow him to get back the possession of the suit property. Plaintiff made a complaint to the concerned police on which basis an FIR No. 190/08 has been registered CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 4/26 against the defendants besides proceedings under Section 145 Cr.PC initiated by the concerned SDM. By the way of present suit, plaintiff is seeking a decree of recovery of possession of the portion shown red in the site plan and further a relief and decree of permanent injunction thereby restraining the defendants from locking the common front main gate, Common front verandah door and middle partition door and also against creating third party interest in the suit property besides obstructing the free ingress and egress of the plaintiff.
2. Defendants have filed their written statements. Defendant no. 1 Sh. Aditya Prasad Dube and defendant no. 5 Sh. M.C. Gupta have filed their separate written statements, however the other defendants No. 1 to 4 have also adopted the written statement of defendant no. 1 which was allowed vide order dated 11.02.2009. Defendant no. 1 has alleged that the suit of the plaintiff has failed to disclose any cause of action and prayer made in the suit has become infractuous as the defendant no. 1, who was the owner of the property and 1/8th undivided share holder of the property, has already entered into an agreement to sell dated 14.11.2008 with the defendant no. 5 and has received a consideration against it and has handed over the possession of the suit property to the purchaser of the property on 14.11.2008 itself. It is further stated that the agreement to sell has been executed by him much prior to filing of this suit due to this suit is not maintainable. It is further stated that this court has no pecuniary jurisdiction to entertain this suit and the same is liable to be dismissed for the want of pecuniary jurisdiction as well as payment of court fee. It is further stated that this suit is a counter blast to the suit for declaration filed CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 5/26 by Sh. Rajeev Dube & Ors. against the plaintiff regarding relinquishment deeds dated 26.03.2002 and an FIR against the present defendants is also the result of the same. It is further stated that the suit is liable to be stayed under Section 10 of CPC as earlier suit is already pending between the parties qua relinquishment deeds and this suit is squarely covered in the said relief prayed therein. Defendants have denied all the allegations of the plaintiff but have admitted that on 18.09.1986, an agreement was executed amongst the legal heirs of Sh. Niranjan Prasad Dube and Sh. Ajit Prasad Dube and portion ABCD shown in the site plan was handed over to legal heirs, however it is alleged that the relinquishment deeds dated 23.06.2002 were got executed by the plaintiff by playing fraud upon the defendant no. 1 and his brother. It is further stated that the defendant no. 1 and Sh. Kapil Dube were persons of limited means due to they were not in position to relinquish their shares voluntarily and plaintiff obtained their signatures by adopting fraudulent means. It was agreed that the front portions of Sh. Aditya Prasad Dube, Sh. Rajeev Dube and Sh. Kapil Dube were to be purchased by plaintiff for a total consideration of Rs. 2.5 Crores which was payable by the plaintiff to the defendants and other three brothers, but after obtaining their signatures on relinquishment deeds, plaintiff refused to comply with the settlement. It is further stated that the defendants never doubted the intention of the plaintiff and signed the relinquishment deeds under bonafide impression and even it was not within their knowledge as to what documents were being executed by them. However, later on, the defendants came to know about the exact nature of documents when the plaintiff refused to part with the money. It is further stated that the deceased plaintiff herein had paid a sum of Rs. 15 CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 6/26 Lacs each to the defendant no. 1 and Sh. Kapil Dube as a part consideration of a total sale amount of Rs. 2.5 Crores, out of which, Rs. 62,50,000/- was to come in the share of defendant no. 1 but no receipt was executed against it. In the same manner, Sh. Tarun Dube also signed the documents as witness under bonafide impression thereby considering the documents as mutation document and he never signed the documents in the capacity of witness to the relinquishment deed. Further, the affidavits were again obtained by the plaintiff by playing a fraud upon them. It is further alleged that the possession was never handed over to the plaintiff in pursuance of relinquishment deed as alleged and plaintiff has filed an incorrect site plan. Even plaintiff has falsely alleged that the common passage was left to be used by both parties. It is further denied for the want of knowledge that the plaintiff and his family were away to Hong Kong during the period 20.05.2008 to 27.05.2008 or defendants illegally trespassed or wrongfully dispossessed the plaintiff from the red portion shown in the site plan. It is further alleged that red portion shown in the site plan was always under the possession of defendant no. 1 and plaintiff never remained in possession of the said portion and even installation of MCB in the said portion by plaintiff as alleged was out of question. It is further stated that the plaintiff got registered a false FIR against the defendants as a counter blast to the suit filed by the brothers of defendant no. 1 against the plaintiff. It is further alleged that the front portion of the property was never handed over by the defendants to plaintiff at any point of time and even at the time of execution of relinquishment deeds. It is further stated that the defendants have already handed over the physical and vacant possession of the property to Sh. M.C. Gupta who has CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 7/26 purchased the suit property in pursuance of agreement to sell dated 14.11.2008. It is prayed that this suit is liable to be dismissed.
Defendant no. 5 has also filed a separate WS and has stated that this suit has become infractuous as defendant no. 5 has taken over the possession of the suit property at the time of execution of agreement to sell and now is in possession of the same. It is further stated that the red portion claimed by the plaintiff in this suit used to belong to Sh. Aditya Prasad Dube who has sold out the said property to him against a registered agreement to sell and possession was also handed over by defendant no. 1 to the answering defendant and this suit has been filed just to extort the money from the defendant. It is further stated that the suit is without cause of action and is liable to be dismissed. It is further stated that the suit of the plaintiff is after thought as the defendant no. 1 has filed a suit titled Shri Rajeev Dube & Ors. Vs. Sharad Dube against the plaintiff which is pending before the court of Ld. ADJ, Tis Hazari Courts for cancellation of relinquishment deeds and to this suit is counter blast to it. It is further stated that he has already purchased the suit property against consideration and suit is liable to be dismissed. Defendant no. 5 has denied all the allegations of the plaintiff and has repeated the allegations of the other defendants. It is further stated that defendant no. 5 made an enquiry from neighbour's around of the suit property about the continuous possession of the defendant No. 1 in the suit property at the time of purchasing the property, and even the defendant no. 5 came into touch with the defendant no. 1 in the month of February, 2008 itself regarding dealing of the property and after due verification from all corners and after having personal knowledge about the case, he purchased the suit property CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 8/26 from defendant no. 1 who put him into possession also. It is further stated that the defendant no. 5 is a bonafide purchaser of the suit property and is entitled for protection. It is further stated that the plaintiff has filed this suit just to extort the money and to harass him alongwith other defendants and this suit is not maintainable for the want of pecuniary jurisdiction as well as payment of court fees and is liable to be dismissed.
3. Plaintiff has filed replication to the written statement of the defendants thereby denying all the allegations and has reiterated his allegations levelled in the suit.
During the pendency of this suit plaintiff expired and his LR's have been substituted. Further the defendant no.2 also expired and application of the plaintiff under Order 22 Rule 2 CPC was allowed vide order dated 22.02.2014.
4. As per the pleadings of the parties following issues were framed by this court vide order dated 12/11/2010 as under :
(i) Whether the plaintiff was in possession of the suit property immediately prior to the six months of the present suit? OPP
(ii) Whether the plaintiff was dispossessed by the defendant no. 1 to 4 between 20.05.2008 to 27.5.2008 from the property shown in red in the site plan? OPD
(iii) Relief.
Besides these issues, two more additional issues have been CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 9/26 framed by this court vide order dated 06.02.2013 as under:
(1) Whether the suit has been under value by the plaintiff? OPD (2) Whether this court has no pecuniary jurisdiction to entertain this suit? OPD
5. To prove the case, the plaintiff has examined PW1 Smt. Shobha Dube, PW2 Sh. Gayanesh Chaturvedi, PW3 Sh. Kuljeewan Goel, PW4 Sh. Narendra Prasad Dube and closed PE. Defendants have examined DW1 Sh. Tarun Dube, DW3 Ms. Sonia Jain, DW4 Ct. Rahul Vishwakarama, D4W1 Ms. Sonali Dube, D5W1 Sh. M.C. Gupta and closed DE.
6. I have heard the arguments and perused the record. My issue wise findings are as under:
Issue no. (i) & (ii) The onus to prove issue no. 1 was fixed upon the the plaintiff and onus to prove issue no. 2 was fixed upon the defendant. However the nature of issue no. 2 shows that the onus ought to be fixed upon the plaintiff as it is the plaintiff who has to prove that he has been dispossessed without due process of law and same is being decided accordingly. Present suit has been filed under Section 6 of Specific Relief Act against dispossession of the plaintiff from the suit property without due process of law. The basic requirement of Section 6 of Specific Relief Act to reclaim the possession are as under:
(i) The title of the person who is seeking the recovery of CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 10/26 possession is not relevant.
(ii) The suit is to be filed within the period of six months from the date of dispossession and it should not be against the government.
In fact, as per Section 6 of Specific Relief Act, the title of the parties is not relevant at all. As such, the plaintiff has to prove that he was in possession of the suit premises six months prior to his dispossession without following due procedure of law. A similar proposition has been laid down by various courts including the Hon'ble Supreme Court of India. It has been held by the Hon'ble High Court of Delhi in AIR 2011 Delhi 61 that in a suit for possession under Section 6 of Specific Relief Act plaintiff has to prove his previous possession and dispossession by the petitioner alleged trespasser otherwise than in due course of law within six months. It is held by the Hon'ble Supreme Court of India in (1996) CLT 18 (sic) titled Prasanna Kumar Singh V. Golak Chandra Madhulal & Anr. and (2004) SLT 41 titled Sudhir Jaggi & Anr. V. Sunil Akash Sinha Choudhary & Ors. that the suit under Section 6 is confined to finding out the possession and dispossession within a period of six months from the date of institution of the suit ignoring the question of title. As such, present suit being under Section 6 of Specific Relief Act is just confined to possession and dispossession of the plaintiff and obviously the onus lies upon the plaintiff to prove his possession at the time of his dispossession by the hands of opposite party without due process of law. However, a new dimension has been given to Section 6 by the Hon'ble High Court of Delhi in Jagmal (Deceased) Through LRs Vs. MCD, LPA No. 665/2003 and it has been CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 11/26 held that the title is irrelevant but it must be proved and established beyond doubt that the plaintiff was in prior possession of the suit property and further if the suit has been filed against the owner, plaintiff must establish and prove a better title then the owner. In view of this law laid down by the Hon'ble High Court of Delhi, it is clear that the title has become relevant to some extent and possession also must be proved beyond reasonable doubt. Further suit should not be against a rightful owner.
In the present case many facts are admitted. It is admitted fact of the parties that Rai Bahadur Sh. Anant Prasad Dube was the original owner of the entire property bearing no. 28, Central Lane, Bengali Market, New Delhi and after his demise his two sons namely Late Sh. Ajit Prasad Dube and Sh. Niranjan Prasad Dube inherited the same. Thereafter, all the LRs of Sh. Rai Bahadur Sh. Anand Prasad Dube entered into an agreement towards the devision of the property as per their shares and parties came into possession of their respective portions as per agreement dated 19.09.1986. The main dispute arose amongst the parties when Sh. Aditya Prasad Dube and Sh. Kapil Dube executed the relinquishment deeds Ex. P1 and Ex.PW1/2 in favour of Late Sh. Sharad Dube. It is the case of the plaintiff that they executed abovesaid relinquishment deeds alongwith their affidavits Ex. P3 and Ex. PW1/3 in favour of him and handed over the possession of disputed portions to the plaintiff. However, subsequently they challenged the authenticity of relinquishment deeds before the court of Ld. ADJ by filing a civil suit bearing no. 272/2007 which is stated to be pending and copy of plaint is Ex. PW1/4. Ex.PW1/4A is the copy of written statement and Ex. PW1/5 is CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 12/26 copy of replication filed in that suit. It is argued on behalf of plaintiff that the defendants herein have sought a relief of declaration and cancellation of two relinquishment deeds in the said suit and as per the contents of plaint Ex.PW1/4 of the said suit, the defendants therein including defendant Sh. Tarun Dube have sought recovery of possession of the suit property (i.e. suit property in dispute) handed over to plaintiff in pursuance of relinquishment deeds alongwith relief of permanent injunction which suggests that the possession of the suit property was duly handed over to the plaintiff herein in pursuance of said relinquishment deeds, but the said matter is still stated to be pending due to no further reliance or observation is required on that issue. (Though PW1 has admitted that the case has been dismissed but not proved in this case). However, it is clear that the possession of the property stands transferred / handed over to the deceased plaintiff by defendant no. 1 and Sh. Kapil Dube on the basis of said relinquishment deeds.
7. Further, I have gone through the contents of relinquishment deeds Ex. PW1/2 and Ex. P1 and clause 5 of abovesaid relinquishment deeds which is identical in both deeds, the possession of the suit property was handed over to the plaintiff in pursuance of those relinquishment deeds. Even the affidavits Ex. P3 and Ex.PW1/3 have also proved this fact. As such, by these documents it stands proved that the possession of the suit property was handed over to plaintiff in pursuance of these deeds. Though the defendants have objected and opposed the genuinity of these documents by stating to be forged and have alleged that the signatures of defendant no. 1 and Sh. Kapil Dube were obtained on misrepresentation of CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 13/26 the facts that the documents were required for mutation purposes and possession was never handed over in pursuance of these documents, yet the plea of the defendants cannot be accepted on the ground alone that the contents of documents are disclosing otherwise and no oral evidence can be read / led against the contents of relinquishment deeds being barred by Section 91 / 92 of Indian Evidence Act. As such, as per contents it stands proved that the possession was handed over to the plaintiff in pursuance of these documents.
8. Now the issue arises as to whether the plaintiff was in possession of the suit property six months prior to his dispossession or not? To prove this fact, the plaintiff has examined Smt. Shobha Devi being LR of the plaintiff who has expired after filing of this suit. The plaintiff has relied upon the site plan Ex. PW1/1 and has demarcated the various portions in possession of both parties including red portion which is a disputed portion and suit property to this case. PW1 has deposed during cross examination and has admitted that the portion shown in brown demarcated as ABCD is in her exclusive possession. It is further deposed that the portion shown in blue colour in site plan, as on day, is in possession of Sh. Anil Prasad Dube and Rajeev Dube. It is further admitted that the suit bearing no. 272/2007 titled Rajiv Dube V. Sharad Dube has been dismissed on 07.09.2009 by Ld. ADJ, Tis Hazari Courts, Delhi. It is further admitted that the portion shown in red colour in site plan Ex. PW1/1 was also a subject matter to the said suit no. 272/07. It is voluntarily deposed that the plaintiffs in the said suit had prayed for restoration of possession of red portion shown in the site plan from CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 14/26 Sh.Sharad Dube i.e. plaintiff herein. It is denied that till 14.11.2008, defendant no. 1 was in continuous possession of the suit property. It is further deposed that the portion shown in blue colour in site plan Ex. PW1/1 is in possession of Sh. Rajiv Prasad Dube and Sh. Anil Dube who are living in Lucknow and same portion has been kept locked. It is further admitted that the portion shown in yellow colour is in common use of occupants and plaintiff is in occupation and possession of portion shown in brown colour in the site plan. It is further deposed that on the date of filing of present suit i.e. 17.11.2008, the portion shown in red colour in site plan Ex.PW1/1 was in possession of Sh. Aditya Prasad Dube, Vimmy Dube, Mr. Tarun Dube, Ms. Sonali Dube and their minor child namely Master Tarushree Dube. It is further admitted that after execution of agreement dated 18.09.1986, she alongwith her husband started residing in the rear portion of the property and family of Mr. Aditya Prasad Dube started residing in the front portion. It is further admitted that till 27.05.2008, the relation between her husband and Mr. Aditya Prasad Dube were cordial and upto 20.05.2008 they were having visiting terms. It is further deposed that the defendants have dispossessed her during the pendency of previous suit titled Rajiv Dube & Ors. V. Sharad Dube.
PW2 has deposed that he is an electrical contractor by profession and has issued a receipt Ex. PW1/6 in favour of the plaintiff with respect to electrical work of rewiring in the premises done at the instance of plaintiff. During cross examination, he has reaffirmed that deceased plaintiff got done the rewiring in the premises in his possession through him.
PW3 Sh. Kuljeewan Goel is a material witness who was CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 15/26 appointed a Local Commissioner by the court vide order dated 19.11.2008 and visited the suit property. He prepared the spot proceedings report Ex. PW1/29 and a detailed report Ex. PW1/27 besides taking photographs Ex. PW1/28A to PW1/28W. During cross examination, he has deposed that he was not present in the court at the time of his appointment as Local Commissioner and even was not aware as to how his name was picked by the court but he received the information from the plaintiff and visited the spot on 20.11.2008 at about 4.00 pm. It is further deposed that at the time of his visit to the suit property four persons were present in the premises and baby/child was sleeping in the room. It is further deposed that no person namely Sh. M.C. Gupta was present in the premises at the time of his visit and it is denied that the defendant nos. 1 to 4 were present in the premises in the capacity of visitors to remove certain articles from the premises, but it is deposed and reiterated that the defendant no. 1 to 4 were present at the spot and their articles were lying there. It is further deposed that he did not visit the site on 20.11.2008 or the possession of the disputed portion was with the defendant no. 5. It is further deposed that when he visited the suit property then came to know about the identity of defendants no. 1 to 4 and he was accompanied by process server with notice. It is further deposed that he entered into the suit property from rear / back side as the front gate was locked and met the defendants no. 1 to 4 in varanda which shown in yellow colour in the site plan Ex. PW1/1. It is further deposed that the defendant no. 1 was earlier sitting in the room in the portion shown in blue colour but later on he came into the varanda where defendants no. 2 to 4 were already present. It is further deposed that he verified and found that the site plan was in accordance with the CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 16/26 site. It is further deposed that the door at point X2 shown in Ex. PW1/1 was opened by defendant no.4 i.e. Ms. Sonali. It is further deposed that when he entered into the suit property he was also not aware about the factum of the possession of the same and was not aware who was in possession of the portion shown in blue, red, green and brown colours shown in the site plan. It is deposed that he was apprised about the factum of possession by the defendants no. 3 and 4 who were doing most of the talks. It is admitted that he accepted the plea of possession as told to him by the plaintiff as well as defendants. It is further deposed that some articles like furniture, clothes, etc were lying in the premises shown in the red portion and he entered into the red portion from the door at point X4 shown in site plan Ex. PW1/1 and door was not locked as a baby was sleeping inside the room. It is further deposed that at the time of his visit neither the furniture was being removed nor tempo was parked outside. It is further deposed that he was told by defendant no. 4 Ms. Sonali that the room in red portion in which child was sleeping and other room were in her possession. It is further deposed that the portion shown in green colour and marked as DGYX was neither in possession of any of the defendants nor he verified the possession of the brown portion shown as ABCD in Ex. PW1/1.
PW4 Sh. Narender Prasad Dubey has also proved the correctness of site plan Ex.PW1/1, and dimensions and respective possession in portions of the respective parties. He has also deposed that the relinquishment deeds were executed by Sh. Aditya Prasad Dube in favour of Sh. Sharad Dube was executed in the year 2002.
CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 17/26 Defendants have examined DW1 who has deposed during cross examination that in the year 2008, the plaintiff Sh. Sharad Dube owned two vehicles i.e. make Honda City and Zen and used to park in front portion of the premises. It is further deposed that the two cars can be parked in front courtyard/open portions comprising blue and yellow portion. It is further admitted that Sh. Aditya Prasad Dube was present before the court of Ms. Navita Kumari Bagga and raised his hand when the court called his name. It is further deposed that his father or his mother has not authorized him to make the statements on their behalf. It is further deposed that he had filed a civil suit no. 272/2007 in Tis Hazari Courts against the plaintiff. It is further admitted that the portion DXYG shown in site plan Ex. PW1/1 has been remained in possession of plaintiff since 2002. It is denied that he has sought the repossession of same portion in the suit bearing no 272/2007. It is admitted that an FIR has been lodged against him and family members and trial is still pending. It is further admitted that a MCB distribution box is installed in the red portion and electricity supply in the premises shown red colour in site plan except portion blue is to be regulated by this MCB box only. It is further admitted that the possession of red portion shown in site plan was with him between the period from 27.05.2008 upto 01.12.2008.
The testimony of D4W1 is material who has deposed in examination in chief that the possession of suit property always remained with her and family members and plaintiff was never in possession of the suit property. However, during cross examination, she has deposed that she could not tell as to whether her father in law Sh. Aditya Prasad Dube CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 18/26 transferred his 1/8 share in the suit property in favour of plaintiff on 26.03.2002. It is further deposed that she did not go through the plaint and written statement of this case prior to filing of her affidavit or her appearance before this court and she was instructed by her counsel to appear and to depose but she deposed of her own. It is further admitted that the plaintiff and his wife were residing in the suit property upto the death of plaintiff and wife of plaintiff is still residing in the suit property. She was well aware about the visit of Ld. Local Commissioner appointed by this court but she was not aware whether he visited the suit property on 20.11.2008. It is further admitted that she was not aware about the subject matter of agreement executed on 18.09.1986. It is further admitted that the room shown in site plan as DGXY is in possession of the wife of plaintiff since 2002 till date and portion shown in red colour in site plan was also in possession of plaintiff from the year 2002 upto 20.05.2008. She was not aware as to whether plaintiff was in abroad on 20.05.2008 but it is admitted that telephone no. 3736351 was installed in the premises in the name of her father-in-law. It is further admitted that at the time of visit of local commissioner her father in law was present in the room Mark D4W1/X but he was not talking on phone as landline was not installed in the said room. It is further admitted that in the intervening night on 26/27.05.2008 at about 2.30 - 3.00 am, plaintiff made a call to her on the abovesaid telephone number after coming back from abroad and asked her to open the gate as the common keys available with him were not able to open the lock and she opened the gate. It is further admitted that her statement in para 3 of her affidavit is incorrect and blue portion shown in site plan was in her possession. It is further admitted that the vehicle CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 19/26 shown in Ex. PW1/28F belongs to the plaintiff and in the month of May 2008 she put a chain at the door at the portion Mark 'X' shown in photograph Ex.PW1/28A. It is further admitted that in Ex.PW1/14 the names of plaintiff and his brothers have been shown. She did not remember whether she resided in suit property upto December, 2008, but shifted to Subash Nagar, however she did not remember the exact address. It is further admitted that she shifted to I-404, Indira Puram, Ghaziabad from the suit property which was purchased by her father in law in the year 2009. It is further admitted that her father in law received money from Sh. M.C. Gupta and purchased the abovesaid property. She did not remember as to whether all the defendants were present at the time of service of summons upon the defendants.
D5W1 has also deposed that he approached to Sh. Aditya Prasad Dube who was ready to sell his one portion of the property situated on ground floor. It is further deposed that he did not inspect the case file of civil suit no. 272/2007 before entering into agreement. It is further admitted that the relinquishment deeds pertaining to the property in favour of Sh. Sharad Dube was well within his knowledge at the time of entering into transaction of the property. It is further deposed that Mr. Sharad Dube had no objection to sell out the property. It is further deposed that he informed the concerned police at the time of taking over the possession of the suit property and even visited the suit property about 7-8 times before entering into agreement to sell and visits were made during the period from July -November, 2008. It is further deposed that he was not aware about FIR No. 190/08 lodged against Sh. Aditya Prasad Dube & Ors. It is further admitted that he purchased the stamp paper between 14th -16th, CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 20/26 August, 2008 for execution of agreement and agreement was executed and registered in the month of November only because of the internal disputes amongst the brothers. He was not aware as to whether police visited the property on 01.12.2008 when Ms. Sonali Dube was in possession of the property.
DW3 Ms. Sonia Jain has proved the summoned record Ex.
PW3/1. DW4 Ct. Rahul Vishwakarma has proved the document Ex.PW4/1.
9. After going though the testimonies of all witnesses, it is clear that PW1, DW1 and D4D1 have categorically deposed that the plaintiff was / is still in possession of the portion ABCD shown in site plan Ex.P1/1. Even it is proved beyond reasonable doubt that red portion shown in site plan was duly handed over by the defendant no. 1 and Sh. Kapil Dube to the deceased plaintiff at the time of execution of relinquishment deeds P1 and Ex. PW1/1 alongwith affidavits P3 & Ex.PW1/3.. D4W1 Ms. Sonali Dube has deposed and proved beyond reasonable doubt that the plaintiff was in possession of suit property as shown red in the site plan between the period from 2002 to 20.05.2008. As per the report of local commissioner and spot proceedings and report Ex.PW1/27 and Ex.PW1/29, it is again proved that the suit property was found in possession of the defendants during his visit. D4W1 has also admitted that she was present in the premises at the time of visit of PW3.
It is the case of the plaintiff that he went to Hong Kong on 20.5.2008 alongwith family and air tickets have been proved as Ex. PW1/22 to Ex. PW1/24, but when he came back to Delhi on 27.05.2008, he found himself to be dispossessed. It is further stated by the plaintiff that CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 21/26 he made a call to D4W1 to make an enquiry as to why the door was not being opened from his keys and she informed that the lock had been changed. D4W1 has affirmed these allegations of the plaintiff during her testimony. D4W1 has also admitted that a call was made by the plaintiff during the intervening night on 26/27.05.2008 and she attended the same. She has admitted telephone number as well on which call was made by the plaintiff. Plaintiff had also made a police complaint with the concerned police and thereafter got lodged an FIR Ex.PW1/25 against the defendants. DW3 has also affirmed that a criminal case is pending against them regarding the same incident and D5W1 has also verified this fact. PW3 has deposed to the extent that defendant no. 5 was not present at the spot and even presence of defendants no. 1 to 4 in the premises as visitors to remove their articles from the premises by a vehicle also could not be proved. This fact suggests that the defendant no. 5 was not present at the spot at any point of time during the visit of Ld. local commissioner and possession of the suit property was never handed over to him.
Further, it is the case of the defendants that the suit property had already been sold out by the way of agreement to sell dated 14.11.2008 alongwith possession to defendant no. 5, but D5W1 was not aware as to when the papers of agreement to sell were purchased and even handing over the possession alongwith Agreement to Sell also could not be proved. Further, he has admitted during cross examination that he was in touch with the defendant no. 1 since the month of February, 2008 and purchased the suit property from defendant no. 1 after due verification from all corners and after having even personal knowledge about the pendency of case between the parties. This deposition suggests that the CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 22/26 defendant no. 5 entered into an agreement to sell of property despite knowing that the property was disputed and the possession was being sought by defendant no. 1 from the plaintiff by a civil suit filed by Sh. Rajeev Dube & Ors. against the plaintiff. As such, defendant no. 5 deliberately entered into agreement to sell to purchase the disputed property and he may not be said a bonafide purchaser. In fact, it has been duly proved beyond reasonable doubt that the plaintiff was in possession of the suit property at the time of leaving to Hong Kong on 20.05.2008 but he was dispossessed by the defendants during the period of his staying abroad upto 27.05.2008. It is further proved by DWs that a common portion shown in yellow colour in the site plan was being commonly used and the vehicle of the plaintiff is still parked in the said portion which also proved the joint possession of the plaintiff on the common portion, though it is not much disputed. In fact, with the testimonies of PWs, plaintiff has proved that he was in possession of the suit property prior to 6 months of filing of present suit and has been dispossessed by the defendants during the period w.e.f. 20.05.2008 to 27.05.2008. The defendant no. 1 has not deposed himself before this court despite his availability and adverse infrance is also to be drawn against him. As far as relief of Permanent Injunction is concerned PW1 has deposed in examination in chief that the defendant has blocked the ingress or egress of the plaintiff by putting lock on the door, middle portion door and front portion etc. and defendants have not much cross examined the PW1 on this aspect and this testimony has proved that plaintiff is entitled for this relief as well.
10. So far the defence of defendants that the plaintiff was not CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 23/26 handed over the possession of the suit property at the time of execution of relinquishment deeds, or some money transaction was to be taken place between the parties and transaction could not be completed by the plaintiff is concerned, it has no force. It is against the contents of relinquishment deeds and civil suit pending between the parties. (stated to be dismissed as deposed by PW1). As such, it is not a defence. Further, the defendants have pointed out many objections against the report and spot proceedings of PW3 which have been proved as Ex. PW1/27 and Ex.PW1/29 but these objections are only discrepancies in the report of local commissioner about his appointment or allegations of collusion with the plaintiff etc., but no such material has been placed on record by the defendants to prove these allegations, accordingly discrepancies in appointment of local commissioner could not be a ground to discard the report of local commissioner in any manner. As such, the plaintiff has proved this case that he was in possession of suit property at the time of dispossession and his dispossession was without due process of law.
Additional issues No. 1 & 211. The onus to prove these issues was fixed upon the defendant. To discharge the onus defendants have led oral arguments instead of proving any document on record. Ld. Counsel for defendants have argued that the suit should have been valued at least on the basis of circle rates for the purpose of court fees and jurisdiction and court fees ought to be affixed accordingly. It is further argued that the defendant no. 5 has executed an agreement to sell with the defendant no. 1 who purchased the CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 24/26 property for a sum of Rs. 29 Lacs but the plaintiff has valued this suit for Rs. 18,42,520/- only. However, Ld. Counsel for plaintiff has submitted that the measurement of the suit property is altogether different and less then the property which was subject matter of agreement to sell.
I have gone through the record. The defendants have pointed out the under valuation of the suit but defendants have not proved any such document on record to prove what is actual valuation of the suit property and in the absence of any such material on record it could not be said that the valuation of plaintiff is deficient. Though the plaintiff has valued this suit for Rs. 18,42,520/- and agreement to sell executed between the defendant no. 1 & 5 has reflected the valuation of Rs. 29 Lacs, yet there is a difference of measurement of the suit property and valuation came approximately to the same. As such, the plea taken by the defendants is not sustainable. Further, the defendants have argued that the valuation of the suit could be at least as per circle rates, but even no such current rates have been placed on record by the defendants to prove as to what were the then circle rates of the property in the relevant year for which the suit property was to be assessed. As per material available on record, it could not be proved that the valuation of suit property is not correct or this court has no pecuniary jurisdiction to entertain this suit. As such, defendants have failed to discharge the onus to prove these issues and both the issues are decided in favour of the plaintiff and against the defendants.
CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 25/26 Relief :
12. Plaintiff has proved the main issues that he (now LRs) was in possession of suit property and has been dispossessed without due process of law, accordingly I hereby pass a decree of recovery of possession under Section 6 of Specific Relief Act, regarding the red portion shown in site plan Ex. PW1/1, arising out of property bearing No. 28, Central Lane, Bengali Market, New Delhi in favour of the plaintiff and against the defendants. Further the defendants / their LRs / Assignor / Attorney etc. and any other person acting for and on their behalf are hereby restrained permanently by the decree of permanent injunction from restraining the ingress and egress of the plaintiff by locking the common front main gate and common front varanda door etc. of the property bearing No. 28, Central Lane, Bengali Market, New Delhi and are further restraining from selling, transferring or creating third party interest in the portion shown in red in the site plan without due procedure of law. Plaintiff further shall be entitled for cost of the suit.
13. The suit property is in possession of Court Receiver as per order dated 02.03.2009 and Court Receiver is directed to hand over the possession of the suit property to the LRs of the plaintiff within the period of four weeks. Decree Sheet be prepared accordingly. File be consigned Record Room after due compliance.
Dated:- 15.11.2014 (Devender Kumar)
Announced in the open Court ADJ-04, New Delhi District,
Patiala House Courts, Delhi.
CS No. 160/14 Sharad Dube Vs. Aditya Prasad Dube & Ors. 26/26