Delhi District Court
Sh. Mangal Sain Goyal vs Sh. Ajay Kumar Goyal on 27 August, 2016
IN THE COURT OF MS. NEHA, CIVIL JUDGE09,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Unique ID. 02401C1363892008
Suit No : 223/2016
Sh. Mangal Sain Goyal
S/o Late Sh. Deep Chand
R/o 212/1, Gali No. 3,
Ground Floor, Padam Nagar,
Delhi - 110007. ......... Plaintiff.
Versus
Sh. Ajay Kumar Goyal
S/o Sh. Subhash Chand
R/o 212/1, Gali No. 3,
First Floor, Padam Nagar,
Delhi - 110007. ......... Defendant.
SUIT FOR PERMANENT INJUNCTION AND TO
RECOVER OCCUPANCY OF THE SUIT PROPERTY.
Date of Institution : 24.11.2008
Date of reserving Judgment : 21.07.2016
Date of pronouncement : 27.08.2016
JUDGMENT
1. Vide this Judgment, I shall dispose of the suit of the plaintiff seeking a decree of permanent injunction and to recover Suit No. 223/16 Mangal Sain Goyal Vs. Ajay Kumar Goyal Page 1 of 18 occupancy of House No. 212/1, Ground floor, Gali No. 3, Padam Nagar, Delhi - 110007.
2. Brief facts as stated in the plaint are as follows : 2.1. The plaintiff has been residing as tenant in the ground floor portion of the property bearing no. 212/1, Gali No. 3, Padam Nagar, Delhi comprising of two rooms, storecum kitchencumbathroom, latrine, verandah and common passage and common entrance (herein after referred to as 'suit property') on a monthly rent of Rs. 450/ per month. The father of the plaintiff was inducted as tenant on the monthly rent of Rs. 150/ per month in the year 1973 and after his death on 10.04.2002, the plaintiff was acknowledged as tenant by the defendant, being legal heir of original landlord.
2.2. An electric connection vide K. No. 35200135559R, in the name of late father of the plaintiff, had been taken in the premises since 25.06.1993 and water connection has been taken in the name of the plaintiff. The plaintiff has been regularly paying the rent, electricity charges and water charges to the defendant. The erstwhile landlord had given 'No Objection Certificate' in favour of father of the plaintiff for separate electricity and water connection. Both sons of the plaintiff namely Sunil Goyal and Kapil Goyal had started residing separately after their marriage due to shortage of accommodation in the suit property.
2.3. The plaintiff took his wife to their sons on 18.10.2008 as Suit No. 223/16 Mangal Sain Goyal Vs. Ajay Kumar Goyal Page 2 of 18 she was not keeping well. They continued to stay there for sometime. When they returned to the suit property on 11.11.2008, it was found that lock was broken illegally by the landlord and their belongings such as gold and silver jewelleries, household articles etc. worth over Rs. 4 lacs and various important documents were stolen. The plaintiff immediately contacted the landlord and asked about his belongings and also to let him live in the tenanted premises. The defendant refused to honour the request. On 12.11.2008, the plaintiff made a complaint for theft, criminal trespass and illegal ejectment vide DD bearing no. 65A at PS Sarai Rohilla, but the police has not taken any action.
2.4. The defendant had illegally ejected the plaintiff from the suit property. The defendant is also extending threats to create third party interest and also to bring structural changes in the suit property. Therefore, the plaintiff has filed the present suit seeking following reliefs : Pass a decree in favour of the plaintiff and against the defendant to recovery the occupancy of property no. 212/1, Gali No. 3, Padam Nagar, Delhi comprising of two rooms, storecumkitchen cumbathroom, latrine, verandah and common passage and common entrance as shown in red colour in the site plan.
Pass a decree of permanent injunction in favour of Suit No. 223/16 Mangal Sain Goyal Vs. Ajay Kumar Goyal Page 3 of 18 the plaintiff and against the defendant thereby restraining the defedant from creating any third party interest and doing any structural change in the property bearing no. 212/1, Gali No. 3, Padam Nagar, Delhi comprising of two rooms, storecum kitchencumbathroom, latrine, verandah and common passage and common entrance as shown in red colour in the site plan.
3. The defendant has contested the suit and filed the written statement taking preliminary objections that the suit is without any cause of action and is not maintainable. The present suit is an abuse of process of law and the plaintiff has concealed the material facts from the Court. The suit property was voluntarily vacated by the plaintiff in the month of November, 2007 which the plaintiff and his father were permitted to hold on humanitarian ground without any charge, being the relative (maternal uncle) of father of the defendant.
4. It is stated that the plaintiff vacated the suit premises and handed over peaceful and vacant possession after taking premises bearing no. 257, Ist floor, Gali No. 7, Padam Nagar, Delhi on rent. The telephone connection, earlier installed in the suit premises, was also got transferred to the residence of the plaintiff in the premises bearing no. 257, Ist floor, Gali No. 7, Padam Nagar, Delhi. The defendant cleared the water and electricity charges in the month of July, 2008 and he has also got Suit No. 223/16 Mangal Sain Goyal Vs. Ajay Kumar Goyal Page 4 of 18 the electricity and water connection in his name in the month of September 2008.
5. It is further stated that the plaintiff has taken the other premises on rent and the marriage of his sons were also solemnized from said premises. The marriage invitation card would also fortify the fact that the plaintiff along with his family members started residing in house no. 257. The defendant let out the suit property in the month of November, 2007 to one Mr. Sunil Kumar vide rent agreement dated 26.02.2008. The plaintiff has handed over actual and physical possession of the suit property and therefore, the plaintiff is not entitled to any relief.
6. The plaintiff has filed the replication to written statement wherein it has reiterated the averments made in the plaint.
7. On completion of pleadings, following issues were framed by the then Ld. Predecessor of this Court on 24.05.2010 for consideration :
1. Whether the suit of the plaintiff is liable to be dismissed for want of cause of action ? OPD.
2. Whether the plaintiff vacated the suit property voluntarily in November 2007 ? OPD.
3. Whether the plaintiff was tenant of the defendant in respect of suit property ? OPP.
4. Whether the plaintiff is entitled to relief of recovery of occupancy of the suit property Suit No. 223/16 Mangal Sain Goyal Vs. Ajay Kumar Goyal Page 5 of 18 against the defendant as prayed for ? OPP.
5. Whether the plaintiff is entitled to decree of permanent injunction as prayed for ? OPP.
6. Relief.
8. The parties were then called upon to lead their respective evidence. The plaintiff examined himself as PW1 who tendered his evidence by way of affidavit Ex. P1 wherein he has reiterated the averments of the plaint. He has relied upon the following documents: i. Site plan as Ex. PW1/A. ii. Criminal complaint to PS Sarai Rohilla as Ex. PW1/B. iii. Ration card as Mark A. iv. Election Card of the plaintiff and his wife as Mark B and Mark C respectively.
v. Bill of Delhi Jal Board as Mark D. vi. Electricity bill dated 08.01.2008 as Mark E.
9. The plaintiff examined Sh. Pan Singh, Assistant Grade - I, from NDPL, Shakti Nagar, Nagia Park, Delhi as PW2. He produced the record relating to K.No. 35200135559 which was in the name of Sh. Ajay Kumar Goyal. He has produced the latest electricity bill for the period 24.10.2012 to 07.12.2012 as Mark F, account statement w.e.f. 14.03.2011 to 24.10.2012 as Mark G and copy of reply sent by record room (BHR), NDPL Suit No. 223/16 Mangal Sain Goyal Vs. Ajay Kumar Goyal Page 6 of 18 dated 06.09.2012 as Mark H.
10. The plaintiff also examined Sh. Hari Chand, Meter Reader, Delhi Jal Board, Pratap Nagar, Delhi as PW3. He produced the report of ZRO that mutation in the name of Sh. Ajay Goel was made in the year 2008, the report is Ex. PW3/1. He also produced the application to Zonal Revenue Officer (Water) to make available the mutation record in the name of Sh. Ajay Goel from Sh. Mangal Sain Goyal as Ex. PW3/2 and the photocopies of water bills as Mark A, B and C.
11. The plaintiff also examined HC Raj Kumar, No. 341/N, PS Sarai Rohilla as PW4. He brought the record i.e. DD no. 65B dated 12.11.2008 from PS Sarai Rohilla which is Ex. PW4/1.
12. The plaintiff did not examine any other witness and PE was closed vide order dated 20.09.2013.
13. The defendant examined Sh. Ajay Kumar Goel as DW1. He has tendered his evidence by way of affidavit Ex. DW1/1. He has relied upon the following documents : i. Rent Agreement as Ex. DW1/A. ii. Water Bill bearing no. 40061 dated 10.07.2008 as Mark DW1/B. iii. Water bill bearing no. 78178 dated 01.10.2008 as Mark DW1/C. iv. NDPL bill receipt no. 96805 as Mark DW1/D. v. NDPL bill bearing no. 0806363365 dated 25.06.2008, NDPL bill bearing no. 0808035449 Suit No. 223/16 Mangal Sain Goyal Vs. Ajay Kumar Goyal Page 7 of 18 dated 26.08.2008, bill bearing no. 0810726192 dated 27.10.2008, bill bearing no. 0812363346 dated 20.12.2008 and bill bearing no.
0904095181 dated 21.04.2009 as Mark DW1/E to DW1/I respectively.
14. The defendant examined Sh. Ram Chander as DW2 who tendered his evidence by way of affidavit Ex. DW2/A. Sh. Raj Singh Atri was examined as DW3 who tendered his evidence by way of affidavit Ex. DW3/A. The defendant also examined Sh. Sunil Kumar Chahal as DW4 who tendered his evidence by way of affidavit Ex. DW4/A.
15. The defendant did not examine any other witness and DE was closed vide order dated 04.05.2016.
16. All the witnesses were cross examined by the respective counsels. Parties were then called upon to advance their final arguments in the matter.
17. I have heard the Ld. Counsels for the parties and have perused the case file. Written arguments was filed on behalf of both parties. My issuewise findings are as follows :
18. ISSUE NO. 1 : Whether the suit of the plaintiff is liable to be dismissed for want of cause of action ? OPD.
19. The onus to prove this issue was placed upon the defendant. Ld. Counsel for the defendant has contended that the plaintiff had vacated the premises voluntarily and therefore, he has no cause of action to file the present suit.
Suit No. 223/16 Mangal Sain Goyal Vs. Ajay Kumar Goyal Page 8 of 1820. I have considered the submissions and have gone through the plaint and annexures.
21. It is settled that in order to decide the issue of cause of action, only the allegations in the plaint are to be looked into and not the defence disclosed by the defendant.
22. The plaintiff has filed the present suit contending that the plaintiff was residing in the ground floor of suit property at a monthly rent of Rs. 450/. He has been regularly paying the rent to the defendant. The sons of the plaintiff were residing separately in a hired accommodation after their marriage. On 18.10.2008, the plaintiff took his wife to the house of his sons as she was not keeping well. They continued to stay there for sometime. On 11.11.2008, when the plaintiff and his wife returned, they found that the landlord had illegally broken the lock and removed his belongings. Complaint was lodged with the police. However, the police did not take any action and therefore, plaintiff has filed the suit seeking relief of recovery of occupancy of the suit property and permanent injunction thereby restraining the defendant from creating any third party interest or doing any structural change in the suit property.
23. The plaintiff has alleged that the defendant had removed his belongings in his absence and has illegally dispossessed him. The material on record prima facie show a cause of action in favour of the plaintiff against the defendant. Accordingly, this issue is decided in favour of the plaintiff and against the Suit No. 223/16 Mangal Sain Goyal Vs. Ajay Kumar Goyal Page 9 of 18 defendant.
24. ISSUE NO. 2 : Whether the plaintiff vacated the suit property voluntarily in November 2007 ? OPD.
25. The onus to prove this issue was placed upon the defendant. The defendant has contended that the plaintiff had voluntarily vacated the suit property in the month of November, 2007. Ld. Counsel for the defendant has argued that the defence witnesses have proved, on the balance of probability, that the premises was vacated by the plaintiff voluntarily in the month of November, 2007.
26. On the other hand, Ld. Counsel for the plaintiff has argued that the testimony of defence witnesses are not reliable and the defendant has not been able to tell specific time and date when the plaintiff vacated the premises which proves that the plaintiff was illegally dispossessed from the suit property.
27. I have considered the submissions and have perused the material on record.
28. The defendant has been examined as DW1. The DW1 had stated in the affidavit that the plaintiff vacated the suit premises in the month of November, 2007.
29. DW1 has stated, during crossexamination, that the plaintiff vacated the suit property in his presence. He has further stated that he cannot tell when the plaintiff had vacated the property. The defendant has not been able to tell any date when the property was vacated by the plaintiff.
Suit No. 223/16 Mangal Sain Goyal Vs. Ajay Kumar Goyal Page 10 of 1830. The defendant has also examined two neighbours to prove that the plaintiff vacated the premises in the month of November, 2007. DW2 Ram Chander, during crossexamination, had stated "The plaintiff had taken his belongings in the Rickshaw at the time of vacating the property. He had removed his belongings at about 23 pm". The witness has stated that he was not called by anyone to witness that Mangal Sain Goyal was vacating the property. He has voluntarily stated that he does work of ironing just across the road infront of the property of Ajay Kumar Goel. DW2 Sh. Ram Chander has further stated that he does not remember the day or date when Mangal Sain Goyal vacated the property.
31. DW3 Raj Singh Atri has also stated during cross examination, "So far as I remember, Mangal Sain Goyal had taken his belongings in manual cycle rikshaw." He has also stated that he does not remember the exact time when Mangal Sain Goyal removed his belongings however, it was day time.
32. It is clear from the testimony of defence witnesses that they have not been able to tell the date when the suit property was vacated by the plaintiff. The burden was upon the defendant to show that the plaintiff vacated the suit property in November, 2007. However, any of the defence witness has not been able to tell the date.
33. The defendant has failed to bring any electricity or water bill immediately after the period of November, 2007 to show Suit No. 223/16 Mangal Sain Goyal Vs. Ajay Kumar Goyal Page 11 of 18 that the electricity and water was transferred in his name after the plaintiff vacated the premises in the month of November, 2007. Even DW4 Sh. Sunil Kumar Chahal has categorically stated that he lived in the suit property from 26.02.2008 to 21.10.2010. The defendant has failed to bring any material to show that the plaintiff vacated the suit property in the month of November, 2007.
34. The defendant has contended that the plaintiff had vacated the premises voluntarily. Now, this Court shall examine whether the defendant has been able to prove this fact on the balance of probability.
35. No doubt, DW2 Sh. Ram Chander and DW3 Sh. Raj Singh Atri have not been able to tell the date or time when Mangal Sain Goyal had vacated the property. However, their testimony is reliable to the extent that Mangal Sain Goyal had removed his belongings in their presence.
36. DW2 Sh. Ram Chander is a person who is doing ironing work just across the property in question. His presence is natural at the spot. DW3 Sh. Raj Singh Atri has stated that Mangal Sain Goyal had shifted in a property which is nearby his another property in the name of his mother. The witness has been asked whether he has seen Mangal Sain Goyal removing the articles from Gali no. 3 and keeping his belongings in house at Gali no.7. DW3, Raj Singh Atri has specifically stated that he had seen Mangal Sain Goyal removing the articles as well as keeping Suit No. 223/16 Mangal Sain Goyal Vs. Ajay Kumar Goyal Page 12 of 18 the articles in Gali No. 7 as he lives in Gali No. 6 and that is the only Gali used for going to Gali No. 7 from Gali No. 3.
37. No contradiction has come during the crossexamination of DW2 Sh. Raj Singh Atri or DW3 Sh. Raj Singh Atri so as to create any doubt over their statement that Mangal Sain Goyal had vacated the property in their presence and removed his belongings in cycle rickshaw. DW2 and DW3 have categorically stated that the plaintiff had taken his belongings in rickshaw in their presence.
38. The plaintiff has failed to show that DW2 and DW3 are interested witnesses. He has also failed to show that there is any connection between the defendant and these witnesses. No enmity with the plaintiff is shown or proved. The two defence witnesses, produced on behalf of the defendant, have proved on the balance of probability that the plaintiff had voluntarily vacated the suit property and removed his belongings from the suit property. Accordingly, this issue is decided in favour of the defendant and against the plaintiff.
39. ISSUE NO. 3 : Whether the plaintiff was tenant of the defendant in respect of the suit property ? OPP.
40. The onus to prove this issue was placed upon the plaintiff. Plaintiff has claimed that he was tenant under the defendant at monthly rent of Rs. 450/. However, the defendant has contended that the plaintiff was only permissive user and occupier of the premises, being the relative of father of the Suit No. 223/16 Mangal Sain Goyal Vs. Ajay Kumar Goyal Page 13 of 18 defendant.
41. I have considered the submissions and have perused the material on record.
42. The plaintiff, in his evidence by way of affidavit, has stated that he was tenant on the ground floor portion and was acknowledged as tenant by the defendant. He has also stated that regular payment of rent was made to the defendant.
43. The defendant has also entered the witness box to prove that the plaintiff was not a tenant but a permissive occupier. However, during crossexamination, DW1 has stated, "I know that the plaintiff was tenant of the suit property though it was never told by my grandfather or by my father".
44. Perusal of testimony of DW1, Ajay Kumar Goyal shows that he had knowledge that the plaintiff was tenant in the suit property. The evidence of the DW1 makes it clear that the plaintiff was tenant in the suit property. Therefore, this Court holds that the plaintiff has proved, on the balance of probability, that he was tenant in the suit property. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
45. ISSUE NO. 4 : Whether the plaintiff is entitled to relief of recovery of occupancy of the suit property against the defendant as prayed for ? OPP.
46. The onus to prove this issue was placed upon the plaintiff. Ld. Counsel for the plaintiff has argued that the plaintiff was Suit No. 223/16 Mangal Sain Goyal Vs. Ajay Kumar Goyal Page 14 of 18 illegally dispossessed from the tenanted premises and therefore, he is entitled to recover the possession of the suit property from the defendant.
47. Ld. Counsel for the defendant, on the other hand, has argued that the plaintiff has voluntarily vacated the property and thereafter, the property was let out to tenant Sh. Sunil Kumar, S/o Sh. Devki Nandan vide rent agreement dated 26.02.2008 and the allegations made by the plaintiff that he remained in possession of the property upto 18.10.2008 is totally false.
48. I have perused the record and considered the submissions.
49. The plaintiff has contended that on 18.10.2008, he took his wife to their sons as she was not keeping well. On 11.11.2008, when the plaintiff and his wife returned to the suit property, they found that the landlord had illegally broken the lock and stole his belongings. The plaintiff has examined himself as PW1 to prove the allegation that he was illegally dispossessed from the suit property. The defendant has examined himself, two neighbours and tenant Sunil Kumar to prove that the plaintiff had voluntarily vacated the suit property.
50. There is oral evidence of both the sides. The oral evidence of the plaintiff is countered with the oral evidence of the defendant.
51. The plaintiff had summoned record of Delhi Jal Board to prove that he remained in possession till 18.10.2008. Delhi Jal Board Official, Sh. Hari Chand / PW3 has produced the details Suit No. 223/16 Mangal Sain Goyal Vs. Ajay Kumar Goyal Page 15 of 18 of water connection. PW3 has categorically stated that earlier the connection was in the name of Mangal Sain Goyal and from 16.9.2008, the said connection was mutated in the name of Ajay Goyal. Though, the plaintiff has denied the suggestion that the water connection was got transferred in the name of defendant in September, 2008, the plaintiff has failed to offer any explanation as to how the water connection was transferred in the name of the defendant on 16.09.2008 if the plaintiff remained in possession till 18.10.2008.
52. The plaintiff has placed on record copy of water bill and electricity bill which are mark D and mark E. Perusal of the same would show that the same are photocopies. Therefore, those bills are not admissible in evidence.
53. The plaintiff has alleged that he was illegally dispossessed by the defendant. However, the plaintiff has failed to bring any material except the copy of police complaint to show that he was illegally dispossessed from the suit property. There is nothing on record to show that the plaintiff was in possession of the suit property in the month of September and October, 2008 as claimed.
54. Plaintiff has contended that he had paid electricity bills by cheque upto September, 2008 and he had also paid water bills upto September, 2008 by cheque. However, the plaintiff has not produced the record of cheques vide which he has allegedly made payment of electricity and water bills till September 2008.
Suit No. 223/16 Mangal Sain Goyal Vs. Ajay Kumar Goyal Page 16 of 18He has also even not summoned the bank official to prove that the payment by way of cheque were made from the account of the plaintiff to Delhi Jal Board or NDPL for the suit premises till September, 2008.
55. Hon'ble Supreme Court in the Gopal Krishan G Kettkar Vs. Mohd. Hazi Latif & Ors., AIR 1968 SC 1413 has held that where parties are in possession of best evidence which would throw light on the issue and controversy withholds it, then the Court ought to draw an adverse inference against him notwithstanding that the onus of proof does not lie on him.
56. In the case in hand, the plaintiff failed to bring on record the requisite documents. The plaintiff has not produced the best evidence in his possession.
57. DW4 Sunil Kumar Chahal has been examined by the defendant to prove that Sunil Kumar was given the property on rent after the plaintiff vacated the premises. DW4 has stated that he was living on rent in the property of Ajay Kumar Goyal from 26.2.2008 to 21.10.2010. Nothing contradictory has come during crossexamination of DW4 Sh. Sunil Kumar so as to create any doubt over his testimony. There is also nothing on record to show that DW4 Sh. Sunil Kumar has any enmity with the plaintiff. This Court has already observed while deciding issue no. 2 that the defendant has proved on the balance of probability that the plaintiff vacated the suit premises voluntarily.
58. In view of discussion hereinabove, this Court holds that Suit No. 223/16 Mangal Sain Goyal Vs. Ajay Kumar Goyal Page 17 of 18 the plaintiff has failed to discharge onus upon him that he was forcible dispossessed from the suit property. Therefore, this Court holds that the plaintiff is not entitled to relief of recovery of occupancy / possession of the suit property. This issue is accordingly decided in favour of the defendant and against the plaintiff.
59. ISSUE NO. 5 : Whether the plaintiff is entitled to decree of permanent injunction as prayed for ? OPP.
60. The onus to prove this issue was placed upon the plaintiff. Record show that during hearing on 28.11.2008, Ld. Counsel for the plaintiff has given statement that the plaintiff waives the relief seeking decree of permanent injunction to the extent creating any third party interest. In view of the said statement that the plaintiff does not press for the relief of permanent injunction as prayed in para B of the prayer clause, this issue is accordingly disposed of.
61. Relief.
62. In view of findings of this Court on the aforesaid issues, this Court holds that the plaintiff is not entitled to any relief. The suit of the plaintiff is dismissed. Parties to bear their own costs. Decree Sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Pronounced in the open court (NEHA)
on 27th August, 2016 Civil Judge09, Central
Tis Hazari Courts, Delhi
Suit No. 223/16 Mangal Sain Goyal Vs. Ajay Kumar Goyal Page 18 of 18