Delhi District Court
(Central) Delhi vs Om Prakash on 13 July, 2012
1
IN THE COURT OF SH. SANJEEV AGGARWAL LD. ADJ03
(CENTRAL) DELHI
Suit No. 1276/08
Sh. Daya Nand,
S/o Late Sh. Jage Ram,
R/o House No. 1018,
Village & P.O. Bawana,
Delhi .....Plaintiff
Versus
1.Om Prakash, S/o Late Sh. Jage Ram, R/o House No. 857, Village & P.O Bawana, Delhi
2. Sh. Quayum S/o Sh. Natlenauen Having Shop in house No. 1018, Village & P.O.Bawana, Delhi. ...Defendants Date of Institution of the Suit : 14.10.2005 Date on which order was reserved : 25.04.2012 Date of decision : 13.07.2012 J U D G M E NT
1. Vide this judgment, I shall dispose off the suit for recovery of possession, damages/mesne profits and permanent injunction, filed by the plaintiff alongwith application of defendant No. 1 U/s 340 Cr.P.C dated 31.05.11 and another application of defendant No. 2 U/s 340 Cr.P.C Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
2dated 08.09.2006.
2. Brief facts are it is stated that the plaintiff is the owner/landlord of the entire house bearing No. 1018, Village & PO. Bawana, Delhi including one small shop in front of his house and open space as shown in Green colour in the site plan filed on record and out of this property the defendant No. 1 had illegally and unauthorizedly had taken the possession of the entire portion shown in Red Colour including the small shop and the open space in front of the said room pursuant to the order passed by the Hon'b le court of Ld. Civil Judge, Delhi which was for only room. The disputed portion has been shown in Red colour in the site plan mentioned above.
It is stated that plaintiff got this property during the lifetime of his father Sh. Jage Ram in the month of March, 1979 as per the prevailing customs and rights of the village as per the oral arrangement made by his father and the defendant No. 1.
It is further stated that by the virtue of said oral arrangement which was settled by his father the defendant No. 1, who is the elder son of Sh. Jage Ram was given built up property of 45ft x15ft consisting of two rooms and verandah on the ground floor and two rooms on the first floor of the property bearing No. 857, Village Bawana, Delhi.
It is stated that Sh. Kishan and Bal Kishan, the Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
3other two brothers of the plaintiff were given 50% share each of the built up property measuring 121 Sq Yds in the Abadi of Village Bawana and the plaintiff was given built up property measuring 32 x 15'9 in the plot No. 1018, Village Bawana, Delhi.
It is further stated that the plaintiff at the time of said settlement was in service in the Army and requested his parents i.e father and mother to stay with his children where they resided till the death of the father of the plaintiff on 22.01.1998. It is further stated that after the death of his father and the mother of the plaintiff and defendant No. 1 resided in the portion which is shown in Red colour in the site plan and the mother thereafter expired on 10.10.1999. It is stated that after the death of the father and mother of the plaintiff, the defendant No. 1 was having evil eye on the said portion as shown in Red Colour and started claiming that the late father of the parties i.e late Sh. Jage Ram had executed some will by virtue of which the entire house No. 1018, Village Bawana, Delhi was given to the plaintiff, but one room as shown in Red colour was given to him. It is stated that the defendant No. 1 had based his claim on the basis of the forged and fabricated will dated 09.03.1983, whereas an oral partition had already taken place in the month of March 1979 with the consent of the father of the parties by which the entire portion of the Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
4house No. 1018, Village & PO Bawana, Delhi was given to the plaintiff and there was no question that his father executed any such separte will in favour of defendant No. 1 which is a forged and fabricated document. It is stated that the defendant No. 1 had earlier also tried to take forcible possession of the suit premises in the year 1998 and thereafter some compromise was effected by the Viswakrma Ekta Vikas Sangh between the plaintiff and defendant No. 1 vide compromise deed dated 02.06.99.
It is stated that despite the said compromise, the defendant No. 1 was bent upon taking forcible possession of the portion as shown in Red colour in the site plan for which the plaintiff was constrained to file the suit for injunction against defendant No. 1 which is now pending in the court of Ld. Civil Judge, Delhi and the defendant No. 1 had also filed a suit for permanent injunction against the plaintiff which is also pending.
It is further stated that during the pendency of the said suit, the plaintiff had never admitted the possession of the defendant No. 1 in this portion and at one stage the said room which was having access from both the sides, i.e from inner portion as well as from the Gali, a handcuff was put by the defendant No. 1 on the lock of the plaintiff on the door, which had entrance from the Gali. The said temporary door Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
5was, however, locked by the plaintiff from inside and inner door i.e the other side window was being used by him as a door.
It is further submitted that in this proceedings, the plaintiff had filed various site plans and in one site plan, the plaintiff had not shown the inner side gate in the said portion shown in Red colour for the simple reason that, when the parents of the parties were residing in that portion, a ply was fixed by the plaintiff in that portion so that the children of the plaintiff may not interfere in the life of the parents of the plaintiff, even otherwise a gate was already there in the said portion which had been referred as property in suit.
It is further stated that after getting the injunction order in the suit filed by the defendant No. 1 against the plaintiff, the defendant No. 1 filed a false complaint against the plaintiff i.e the defendant in that suit, that a handcuff was put in that portion by the defendant in that suit and he moved an application also to remove the said handcuff with further prayer to restore the possession of the said portion to him. The said application was opposed by the defendant in that suit, i.e the plaintiff herein, stating that the handcuff was put by the plaintiff in that suit i.e the defendant No. 1 herein not by him and further that the defendant No. 1 was not in possession of the portion. In any case, the court in Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
6the said suit was pleased to direct the plaintiff in that suit to be put in possession of the said portion shown in Red Colour in the site plan and ultimately, the defendant No. 1 was put in possession of the same sometimes in April, 2002, i.e 12.04.2002. Since then the defendant No. 1 is enjoying the said portion without any authority as it is the plaintiff who was the owner of that portion who had got the same in March, 1979 arrangement/partition/division as referred earlier. Not only that the defendant No. 1 had illegally let out the said portion including the small shop to the defendant No. 2 on rent @ Rs. 4000/ per month whose possession is also absolutely illegal as the defendant No. 1 had no right, title or interest to let out the same as the possession of the defendant No. 1 was itself illegal and unauthorized, the plaintiff being the real owner of this room and open space in front of this room and small shop as shown in Red Colour in the site plan.
It is further stated that in these circumstances, the possession of the defendant No. 1 was absolutely illegal and unauthorized in respect of the portion shown in Red Colour in the site plan. It is further stated that the possession of defendant No. 1 was absolutely illegal and unauthorized and he had no right to remain in possession of the suit property, consequently the possession of defendant No. 2 is also absolutely illegal. It is also claimed that the defendant No. Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
71 is receiving rent to the tune of Rs. 4000/ per month from the defendant No. 2, hence plaintiff is claiming mesne profits @ Rs. 4000/ per month for user of the suit property by defendant No. 1 against the wishes of the plaintiff. Plaintiff has filed the present suit claiming the recovery of possession in respect of the portion, shown in Red colour in the site plan with respect to the suit property as well as relief of damages/mesne profits for a sum of Rs. 1,20,000/ alongwith interest and also relief of permanent injunction against the defendant thereby restraining the defendants from parting with the possession of the suit premises or creating any third party interest and from causing any damages to the suit property.
3. Written Statement was filed on behalf of the defendant No. 1 in which the averments made in the plaint were vehemently denied and it was stated that the suit was barred by limitation and no cause of action had arisen in favour of the plaintiff. Even otherwise, the plaintiff had filed incorrect site plan, as the suit property does not exist in the way it has been described. It is further submitted that all the documents placed on record by the plaintiff dated 24.04.98 and 02.06.99 are false documents and Lal Dora Certificate clearly mentions that it does not confer any right of ownership/licence, therefore plaintiff cannot be said to the be the owner of the suit property and plaintiff is not entitle to Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
8damages/mesne profits and other reliefs claimed. It is further stated that plaintiff has not come to this court with clean hands and wanted to grab the property of defendant No. 1 of which defendant No. 1 was a legal owner by way of registered will dated 09.03.83 executed by his father in his favour.
It is further denied that the plaintiff is the owner/landlord of the entire house property bearing No. 1018, Village & P.O. Bawana, Delhi including the small shop in front of this house and open space in front of the house more specifically shown in green colour in the site plan attached with the plaint of the entire property. It is submitted that Late Sh. Jage Ram was exclusive owner and was in possession of the properties No.(i) built up house No. 857, in Old Abadi, Bawana, Delhi measuring 45 x 15 Sq Yds, (ii) built up house No. 1018, known as shop Main Delhi Bawana Road, Bawana, Delhi, measuring 32 x 16 Sq Yds(hereinafter called the above said property) and open plot of land in the New Abadi, Bawana, Delhi measuring 121 Sq Yds which was allotted to him by the Gram Pradhan etc. It is further submitted that Late Sh. Jage Ram executed the will on 09.03.83 and by which the defendant No. 1 was given the ground floor of shop measuring 10' x 14' out of house No. 1018, Main Delhi Bawana Road, Bawana, Delhi as his share and father of the plaintiff and defendant No. 1 clearly Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
9states that no one has right to create any claim on his share as he has contributed the maximum in the upliftment and betterment of the family including his best services to me(i.e father of the plaintiff and defendant No. 1) in old days of life. Certified copy of the registered will dated 09.03.83 is attached herewith, copy of energization letter shows that 09.10.1968 is the date of emergization of electric meter in the name of Late Sh. Jage Ram, photocopy of ration card of Late Sh. Jage Ram, Lal Dora Certificate of Late Sh. Jage Ram, Voter I.D of mother and father of plaintiff and defendant No. 1.
It is further submitted that the small shop and open space in front of the house No. 1018, Main Delhi Bawana Road, Bawana Delhi is not the part of the abovesaid property as shown in Green Colour in the site plan attached with the plaint of the entire property. The small shop measuring 3' x 5' was constructed on footpath by the father of the plaintiff and defendant No. 1 long back ago and it is noteworthy that he defendant No. 1 was/is in exclusive use, occupation, physical possession of the room/shop measuring 10' x14' at ground floor out of house No. 1018, Main Delhi Bawana Road, Bawana, Delhi(hereinafter called the suit property) shown as blue colour in the site plain filed by the defendant No. 1 since 09.03.1983 including small shop measuring 3' x 5' in front of suit property and open space in front of suit property shown in Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
10black colour which is covered by tin shed(the correct site plan of the property No. 1018, Delhi Bawana Road, Delhi is attached herewith by defendant No. 1).
It is further stated that defendant No. 1 is the legal and rightful owner of the suit property by way of registered will dated 09.03.1983 executed by the father of the plaintiff and defendant No. 1. It is specifically denied that no oral partition was done by his father in the year 1979 in the month of March, whereby any right was transferred in respect of the property by his father. It is stated that no such partition ever took place rather the late father of the defendant No. 1 Sh. Jage Ram executed registered will and divided the property amongst his sons. It is specifically denied that plaintiff ever took forcible possession of the suit property as averred in the plaint. It is denied that defendant No. 2 is the tenant of the plaintiff at the monthly rent of Rs. 4000/ or the plaintiff is entitled to the damages/mesne profits @ Rs. 4000/ per month. It is also denied that plaintiff is not entitled to damages of Rs. 1,20,000/ as no basis has been given on the basis of which plaintiff is claiming the said relief. It is also further stated that suit of the plaintiff is not properly valued for the purposes of court fees and jurisdiction. Hence the suit of the plaintiff is liable to be dismissed.
4. In this case two Written Statements had been Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
11filed by the defendant No. 2 one dated 14.12.05 and another dated 04.10.06, however it was the stand of defendant No. 2 that earlier Written Statement was not filed with his knowledge and consent and same does not bear his signature and consequently vide order dated 20.09.06 defendant No. 2 was granted an opportunity to file 2nd Written Statement on record. In the first Written Statement purportedly filed on behalf of defendant No. 2 the stand taken by defendant No. 2 is that he was not concerned with the suit property in any way as he was in the service and was working for defendant No. 1 and he had no connection with the suit property nor he was giving rent to the defendant No. 1 of amount much less to the tune of Rs. 4000/ per month.
In the 2nd Written Statement it was stated by defendant No. 2 that the defendant No. 2 was the tenant of defendant No. 1 at the monthly rent of Rs. 2500/ per month, in the portion shown in Red colour in the site plan filed on record by the plaintiff. All the other allegations have been denied stating that defendant No. 2 had nothing to do with the dispute between the parties. It was also stated that defendant No. 2 was in legal possession, as he was paying monthly rent of Rs. 2500/ per month to the defendant No. 1.
Separate Replications have been filed by the plaintiff to the Written Statement of defendant No. 1 and the Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
122nd Written Statement of defendant No. 2 in which the allegations made in the Written Statement have been denied in toto and those made in the plaint have been reiterated as correct.
5. From the pleadings of the parties vide order dated 15.05.2006, following issues were framed:
(i) Whether the suit is barred by limitation ? OPP.
(ii)Whether the suit is not maintainable and has been filed without any cause of action ? OPD
(iii)Whether the present suit in present form is maintainable or not ? OPD
(iv)Whether the plaintiff has not come to the court with clean hands ? OPD
(v)Whether the plaintiff has filed the incorrect site plan and description of the property ? OPD.
(vi)Whether plaintiff had been given the exclusive ownership right qua suit property in March 1979 as per oral arrangement/partition made by his late father Sh. Jage Ram ? OPP.
(vii)Whether the plaintiff is entitled to the possession of the suit property ? OPP.
(viii)Whether registered will executed on 09.03.1983 by father of the plaintiff and defendant No. 1 does not confer any right on defendant No. 1 ? OPP.Suit No. 1276/08
Sh. Daya Nand Vs. Om Prakash & Ors.
13(ix)Whether plaintiff is entitled to damages/mesne profits/occupation charges @ Rs. 4000/ per month period from 12.04.03 to 11.10.05 i.e for the period of 30 months ? OPP
(x)Whether plaintiff is entitled to decree of mesne profits from the date of institution till the recovery of possession ? OPP
(xi)Whether plaintiff is entitled to interest, if yes, at what rate and from when ? OPP
(xii)Whether plaintiff is entitled to decree of permanent injunction as per prayer No. (iii) in para 24 ? OPD.
(xiii)Relief.
6. Thereafter during the trial, plaintiff in support of his case has examined himself as PW1. He has also examined Sh. Manohar Lal as PW2 who is his relative, PW3 is Shri. Kishan, brother of the plaintiff. In rebuttal, defendant has examined DW1 Sh. Satish Kumar, Sub Registrar Birth & Deaths, DW2 Sh. Rameshwar Prashad, LDC from the Record Room(civil), Tis Hazari, Delhi, who has proved the relevant record pertaining to previous litigations between the parties, DW3 is Sh. Joginder, LDC from the Record Room Sessions, Tis Hazari, Delhi who has also proved the record pertaining to previous litigation between the parties, DW4 is Ct. Parvinder Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
14Kumar from ACP office Alipur, who was summoned to prove the complaint dated 19.10.90, as per the said witness the original of the same had been destroyed, DW5 is Sh. Rajender Singh, Clerk from Syndicate Bank, DW5A is Sh. Raj Singh, Assistant Manager of the same bank, DW6 is Sh. Shashi Bhushan, UDC Record Room Civil, Tis Hazari, Delhi, who has also proved the record pertaining to previous litigation between the parties, DW7 is Smt. Nirmala Devi, sister of defendant No. 1, DW8 is Sh. Virender, cousin of defendant No. 1 DW6A is defendant No. 1 himself, Defendant No. 2 has also himself appeared as D2W1.
7. I have heard Ld. Counsel for the plaintiff Sh. P.C.Kaushik and Ld. counsel for defendant no. 1 Sh. N.K.Jha and Ld. Counsel for the defendant No. 2 Sh. D.S.Pawaria and perused the record. Counsel for the plaintiff has relied upon following judgment III(2010) SLT 759. On the other hand, in rebuttal Ld. Counsel for the defendant No. 1 has relied upon the following judgments:
(i)AIR 2006 Andhra Pradesh 8
(ii)AIR 2006 Andhra Pradesh 12
(iii)AIR 2003 Supreme Court 2418
(iv)AIR Supreme Court 2427
(v)AIR 2012 Supreme Court 206
(vi)AIR 2009 Supreme Court 2966 Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.15
(vii)AIR 2009 Supreme Court 2972
8. My issue wise findings are as under:
ISSUE NO. 1The onus to prove this issue was upon the plaintiff. Defendant No. 1 has simply raised the plea in his Written Statement that the present suit was barred by limitation without specifying how and under what circumstances the present suit was barred by limitation. In any case, the onus was upon the plaintiff to satisfy the court that the suit was within limitation. As per pleadings, the plaintiff has averred that the defendant No. 1 on the basis of alleged wills had tried to take forcible possession of the suit property in the year 1998 and also in the year 1999, when some compromise was effected between the plaintiff and defendant No. 1 by the Vishwakarma Ekta Vikas Sangh, even after that the defendant No. 1 tried to take forcible possession of the suit property. The limitation for filing the suit for possession on the basis of previous title or possession is 12 years, when the plaintiff is dispossessed or the possession of the defendant become adverse to the plaintiff. The present case has been filed in October, 2005, therefore it is well within limitation. This issue is decided in favour of the plaintiff and against the defendants.ISSUE NO. 2 Suit No. 1276/08
Sh. Daya Nand Vs. Om Prakash & Ors.16
The defendant No. 1 has only taken a bald plea in his Written Statement that the present suit is not maintainable. He has not specified under which provisions of law prevailing in India the present suit is not maintainable and was barred. From the pleadings of the plaintiff and the evidence lead by PW1 on the record it cannot be said that the present suit is without any cause of action. More so, as defendant No. 1 has been claiming his right with regard to the suit property on the basis of wills set up by him allegedly executed in his favour by his deceased father, therefore the claim of the plaintiff for claiming possession of the suit property from which he had been allegedly dispossessed by the defendant cannot be said to be without any cause of action, therefore the present suit is well maintainable and has been filed with a valid cause of action. This issue is also decided in favour of the plaintiff and against the defendants.ISSUE No. 3
The onus to prove this issue was also upon the defendants. The defendants have also not lead any evidence on record which shows that this suit was not maintainable, nor they have specified any law which bars the filing of the present suit in the present form which has been filed by the plaintiff for possession and mesne profits/damages with regard to the portion from which the plaintiff has alleged that defendant Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.17
No. 1 had illegally dispossessed him, therefore in the absence of any contrary fact and law brought to the notice of this court during evidence and trial it can be clearly stated that the present suit is well maintainable. This issue is also decided in favour of the plaintiff and against the defendants.ISSUE No. 4
The onus to prove this issue was upon the defendants. Defendants have not lead any evidence to show that there is any unfair practice or deception done by the plaintiff before filing the present suit or that the plaintiff had concealed any material facts from this court, which disentitles the plaintiff from getting the relief claimed or filing the present suit or whether the conduct of the plaintiff was such, which disentitle him from claiming or filing the present suit. This issue is also decided in favour of the plaintiff and against the defendants accordingly.ISSUE NO. 5
The onus to prove this issue was also upon the defendants. PW1 has stated this fact in his plaint and has reiterated the same in his evidence and has filed the site plan and filed the site plan with regard to the suit property Ex PW1/1 and portion in his possession and the disputed portion has been shown in Red colour in the site plan. PW1 was cross examined on the authenticity of the site plan filed by him, by Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.18
Ld. Counsel for defendant No. 1 counsel for defendant No. 1. PW1 in his cross examination has admitted that small shop measuring 3 x 5 and open space in front of house No. 1018 is not the part of the property as shown in the site plan and that it was correct that he made open space and the small shop as the part of 1018 Village and PO Bawana Delhi and it was correct that small shop has not been shown in the site plan. He further reiterated that his site plan was correct. On the other hand, the defendant has appeared as DW6A and has also proved his part of the site plan ExDW8/10. From the perusal of the site plan filed by the plaintiff which is ExPW1/1 and the site plan relied upon by the defendant No. 1 which is Ex DW8/10, it appears that there is some discrepancy in both the site plans, but after Juxtaposing the same, it appears that both the site plans i.e ExPW1/1 and ExDW8/10 are substantially the same. Plaintiff in the said plan ExPW1/1 has also shown a tin shed portion covered by tin sheets in the portion marked Red, whereas the said tin shed portion has been shown separately in Yellow colour in the site plan filed by defendant No. 1 ExDW8/10 and there is no irregularity or infirmity in both the plans, as the small shop consisting of tin shed and part of the footpath has been shown separately by the defendant No. 1 in the site plan ExDW8/10, whereas the plaintiff in his site plan ExPW1/1 has shown the entire portion Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.19
of tin shed and front portion of the same in Red colour, but in these circumstances, it cannot be said that the site plan filed by the plaintiff shows incorrect description of the suit property, therefore this issue is also decided in favour of the plaintiff and against the defendants.ISSUES NO. 6, 7 & 8
These issues are taken up today, as they are interconnected with each other.
Both the parties have lead extensive evidence with regard to the above issues which forms the main bone of contention between the parties and the entire case rest upon the decision of the aforesaid issues which are most material issues in the context of the present case.
As per the pleadings of the parties, the plaintiff has claimed that the suit property bearing NO. 1018, Village & PO. Bawana, Delhi belonged to his father Sh. Jage Ram, who was the owner of the same and in the year of March,1979 a oral partition had taken place with the consent of the father of the parties i.e between the father of the plaintiff and defendant No. 1 by virtue of which the entire portion of suit property bearing NO. 1018, Village & PO. Bawana, Delhi was given to the plaintiff by virtue of mutual understanding. The division/partition was himself done by his deceased father amongst different family members including the other Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.20
brothers of the plaintiff. By virtue of said oral settlement the defendant No. 1 was given built up property bearing No. 857, Village Bawana, Delhi.
It is stated that defendant No. 1 started claiming his right to the portion as shown in Red colour in the site plan and even tried to take forcible possession of the same in the year 1988 just after the death of father of the parties.
The case of the defendant to the contrary is that the documents placed on record by the plaintiff were forged and fabricated and even Lal Dora Certificate on the basis of which the plaintiff relies heavily does not confer any right of ownership/licence on the certificate holder and the portion shown in Red Colour in the site plan by the plaintiff actually belongs to defendant No. 1 and defendant No. 1 is real and legal owner of the said property by way of registered will dated
09.03.83, executed by his father in his favour, by virtue of which his deceased father had given ground floor of the shop measuring 10ft x 14ft ouf of the house bearing NO. 1018, Village & PO. Bawana, Delhi and the plaintiff had no right, title or interest in the same and that defendant No. 1 was in legal possession of the same by virtue of the court order passed by Ld. Civil Judge, Delhi. Both the parties have lead evidence on their respective claims set up above. Plaintiff has himself appeared in the witness box as PW1 and has reiterated his Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
21stand regarding oral partition and that the plaintiff was the owner of said property bearing No bearing NO. 1018, Village & PO. Bawana, Delhi, as per oral partition effected by his mother in the year 1976 in the presence of other family members. The testimonial deposition of PW1 regarding the said oral partition is well settled by the testimony of PW2 Sh. Manohar Lal who is the Son of real Bua/Uncle of the plaintiff who has also reiterated the said factum of oral partition or that the said house fell into the share of the plaintiff as per said settlement. Similarly another witness Shri. Kishan has also deposed on the same lines regarding the oral partition as has been deposed by PW1 and PW2 in their testimonial depositions. All the other aforesaid witnesses have been extensively cross examined on the said aspect by Ld. counsel for defendant No. 1 baring giving suggestion to the said witness no material cross examination has been done by Ld. counsel for defendant No.1, nor anything could be elicited from the mouths of the said witnesses which could show the fact that the testimonial depositions of said witnesses namely PW1, PW2 and PW3 were of unreliable nature, even otherwise PW2 and PW3 were the close relatives of PW1 and defendant No. 1, therefore they should be the best persons to know about said oral partition and from the testimonial deposition of PW1, PW2 and PW3 it is apparent that prior to the death of father of the plaintiff and Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
22defendant No. 1 they were residing in the disputed portion shown in Red colour in the site plan.
Once the plaintiff had discharged the initial factum of proving the oral partition as set up by him in his pleadings the onus shifted upon the defendant to disprove the same, as per defence set up in his Written Statement It is the admitted case of the parties that their father was the owner of the property bearing NO. 1018, Village & PO. Bawana, Delhi, as defendant has himself set up a will allegedly executed by his father, which also shows that defendant No. 1 also admits that his father was the owner of the suit property. The plaintiff in his evidence has proved a Lal Dora Certificate ExPW1/2 issued in his favour by the concerned SDM, though it is written in the Lal Dora Certificate itself that it may not confer any right of ownership/licence in favour of the holder of the same. However, from the said document it is apparent that the possession of the plaintiff with regard to the suit property is not unlawful, rather it was legal one and shows that the plaintiff was in legal possession of the suit property and he did not come into possession of the suit property in illegal manner.
From the evidence and the documents on record including the order passed by Ld. Civil Judge, Delhi in suit No. 357/99 dated 07.03.02 ExPW1/5 it is apparent that defendant Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
23No. 1 was in possession of the portion shown in Red colour at present and that sometime prior to that which is apparent from the previous litigation between the parties and the record.
The entire case of the defendant No. 1 rests upon the will set up by the defendant No. 1. In this case, however the will set up by the defendants dated 09.03.83 has not been proved as per law, as none of the attesting witnesses to the said will, namely, Jeet Ram and Sh. Bhola, advocate have been summoned for their examination by defendant No. 1 to prove the said will as per Section 67 and 68 of the Indian Evidence Act.
DW6A has admitted in his cross examination that it was correct that witness to the wills had died prior to the death of his father and the said fact was known to him at the time of filing of the case. Sh. Jeet Ram was the resident of their village and he did not know where he died. He further admitted in his cross examination that he had also filed a certified copy of the will in the court, but he does not remember the date of execution of the will. At the time of registration of the will Sh. Jeet Ram and one advocate Sh. Bhola accompanied his father, but he was on duty on that day and both the attesting witnesses had died now, but their sons were still alive. In view of the said admissions made by DW6A Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
24in his cross examination that the sons of the attesting witnesses were still alive, yet no efforts were made by DW6A i.e defendant No. 1 to summon those witnesses to prove the attestation of the will set up by him, as the said witnesses could have proved by way of secondary evidence that the said wills bore the signatures of their father. Even then no such efforts were made to prove the due execution of the will by leading secondary evidence as per provisions of Indian Evidence Act. Further no witness has been examined from the office of the Sub Registrar to prove that the said will propounded by defendant No. 1 was indeed registered with the office of Sub Registrar as per law as claimed by defendant No. 1. In the absence of the same no presumption regarding genuineness of the said will can be raised in favour of due execution of the said wills. From the aforesaid discussion, it is apparent that defendant No. 1 has failed to prove the will set up by him regarding portion shown in Red colour in the site plan pertaining to the suit property bearing NO. 1018, Village & PO. Bawana, Delhi, which was his defence in the present case. In the absence of the same the defence set up by defendant No. 1 fails and consequently he has no legal right to remain in possession of the portion shown in Red colour in the site plan ExPW1/1.
Further defendant No. 1 in his cross examination Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
25has made some important admissions which has important bearing to the outcome of the present case. For instance, DW6A has admitted in his cross examination that it is correct that the his parents were residing in the front portion of house bearing NO. 1018, Village & PO. Bawana, Delhi which was a shop to look after the family of Daya Nand(plaintiff) and he also admitted that they were so residing there till his death on 22.01.1998 and after the death of his father, his mother resided in that portion till her death on 10.10.1999 and it was also correct that his parents were residing in the portion shown in Red colour in the site plan ExPW1/1. He also admitted as correct that the Lal Dora Certificate is in the name of Dayanand. He also admitted it was correct that till his parents were alive he was not residing in the property No. 1018, Village & PO. Bawana, Delhi.
Further one witness examined by defendant No. 1 namely Smt. Nirmala Devi DW7 has made certain admissions in her cross examination which also goes against the defence set up by defendant No. 1. The defendant No. 7 is none other than the real sister of the plaintiff and defendant No. 1. She stated in her cross examination that it is correct that Dayanand was not residing whole year in his house as he was posted in the Army, Again said he used to visit his house daily when he was posted at Delhi. Her mother used to look Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
26after the children of Sh. Dayanand when he was posted in the Army outside Delhi. It is correct that there was a window in the shop which opened in the portion of Sh. Dayanand. From that window the persons residing inside the house can see the persons residing in the suit shop and the persons i.e her parents can also see from their suit shop through the window about the persons residing inside the house. It is correct that till the death of her father and later on her mother that window was remained opened throughout so that her parents could look after the children of Sh. Dayanand in his absence, however there was no window in the gallery used for the entrance of Sh. Dayanand in the suit shop.
From the above admissions made by defendant No. 1 who had appeared as DW6A and DW7 pointed out above, it appears that there was a window in the shop which was being used for the residence by the parents of the plaintiff and defendant No. 1 which opened in the portion of the plaintiff and from that window a person residing in the portion of the plaintiff could see the person residing in the said shop and vice versa and the said window was also open as admitted by DW7. The very fact that the said window was open from the said shop and from the portion of the plaintiff shows that the said portion was indeed in the possession of the plaintiff at all the times, when his parents were residing in the said portion Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
27shown in Red cololur alongwith him prior to their death. Taking into account the entire evidence as a whole including the testimonies of PW1, PW2 and PW3 and that of DW6A and DW7 it is apparent that the version of the plaintiff has more probative force on the probability scales, where the probability of happening of any event is measured and the version set up by the plaintiff are more plausible and credible than the version set by the defendant No. 1. The defendant No. 1 was claiming his rights in the portion shown as Red colour in the site plan ExPW1/1, on the basis of a will which defendant No. 1 has miserably failed to prove, therefore the version set up by the defendant No. 1 has no probative force as it has no evidentially value or creditability to rely upon. As discussed above that even though the plaintiff has only Lal Dora Certificate in his favour though it may not be the document of title, but at the same time it shows that the possession of the plaintiff with regard to the suit property was legal one, and it shows that the plaintiff did not come into the possession of the suit property in illegal manner, whereas the defendant No. 1 has failed to show that he had any legal right to remain in portion shown in Red colour in the site plan. In these circumstances, issue No. 6 and 7 are decided in favour of the plaintiff and against the defendant No. 1 with the rider that by virtue of Lal Dora Certificate ExPW1/2 the plaintiff cannot be Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
28said to have absolute title with regard to the suit property bearing No. 1018, Village & PO. Bawana, Delhi and the plaintiff will have his rights pertaining to the suit property strictly, as per grant which is contained in ExPW1/2 and limited to the rights as conferred in the document ExPW1/2, therefore subject to the said rider issues No. 6 & 7 are decided in favour of the plaintiff and against the defendants and issue No. 8 is also decided in favour of the plaintiff and against the defendants. Issues No. 6, 7 & 8 are answered accordingly.
ISSUES NO. 9,10 & 11These issues are taken up today, as they are interconnected with each other.
The onus to prove these issues was upon the plaintiff. The plaintiff while appearing as PW1 has stated in his affidavit that portion shown in Red colour is fetching rent of Rs. 4000/ per month, which defendant No. 1 is receiving from defendant No. 2 and the said portion is being used by the defendant No. 2 against the wishes of the plaintiff. The defendant No. 1 had come into the possession of the said portion shown in Red colour in April, 2002. PW1 has been cross examined by Ld. counsel for defendant No. 2. However, in his cross examination PW1 has stated that defendant No. 2 is the tenant in respect of the suit property at the rent of Rs. 2500/ per month. Defendant No. 1 has also been cross Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
29examined by defendant No. 2. The defendant No. 1 who has appeared as DW6A has denied the suggestion that he defendant No. 2 was paying rent to him by way of cheque rather his stand was he had taken loan from him which he was repaying. He also admitted that he has moved an application before NDPL authority to disconnect the electricity connection from the shop in possession of defendant No. 2. Defendant No. 2 has himself appeared in the witness box and stated that he is the tenant under defendant No. 1 at the monthly rent of Rs. 2500/ per month from 2002 and that after receiving summons from the court he put his appearance and requested some time to file Written Statement , thereafter he came to know that some other person filed Written Statement on his behalf forging his signatures as the deponent puts his signatures in Hindi, whereas the affidavit dated 14.12.2005 was signed in English. It is also stated in his affidavit that earlier the rent was paid to the defendant No. 1 through cheque. The defendant No.2 was also cross examined on behalf of counsel for defendant No. 1. Defendant No. 2 accepted that he was arrested by the police in the fraud case and that he was also arrested on the charge of of selling illicit liquor, but at the same time he categorically stated that he was the tenant under defendant No. 1 with respect to the portion shown in Red colour which is shop. He categorically denied that he had Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
30worked for the defendant no. 1 at any point of time rather he was his tenant. As discussed above, the defendant No. 2 denied that he had filed the first Written Statement which he claims to have been filed by someone else on his behalf, without his knowledge and the same does not bear his signatures. The defendant No. 1 has failed to prove his stand that defendant No. 2 was his servant or that he was running the shops in question, as defendant No. 1 has failed to place on record any document in the shape of licence under Shops and Establishment Act or any other authority showing that he was running the shop at the said portion shown in Red colour in ExPW1/1, nor any witness has comeforth to say that defendant No. 1 was indeed running the said shop while defendant No. 2 was working as his tenant.
The defendant No. 1 in his cross examination as DW6A also admitted that defendant No. 2 had taken loan of Rs. 2 lacs from him for the marriage of his sister, thereafter he was repaying the loan by way of cheques of different amounts and that he had mentioned the said fact in his Written Statement, but the said plea of defendant No. 1 has not been proved on record, as no witness has been examined to prove that the defendant No. 2 had taken any loan from defendant No. 1 much less to the tune of Rs. 2 lacs. In the absence of the said plea of loan set up by defendant No. 1 the version of Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
31defendant No. 2 that he was the tenant @ Rs. 2500/ per month in respect of the portion shown in Red colour appears to be correct on preponderance of probabilities, more so, as defendant No. 2 has disowned the first Written Statement filed on the record in which the stand taken was that the defendant No. 2 was servant of defendant No. 1 which plea has not been established in any case by evidence lead on record.
As discussed above, the defendant No. 1 has failed to prove that his possession in the suit property i.e 1018, Village & PO. Bawana, Delhi as shown in Red colour in ExPW1/1 is a legal one or that he had any legal right to remain in the possession of the said portion, whereas the plaintiff has proved that he has legal right for the enjoyment of the said portion in view of findings on issues No. 6, 7 & 8, therefore it follows as a corollary that the defendant No. 1 has no right to receive rent from defendant No. 2 with regard to the said portion for which he had no legal right or title. Since the plaintiff has been able to prove that he has necessary legal right with regard to the said portion, therefore plaintiff is entitled to receive mesne profits/occupation charges @ Rs. 2500/ per month from 12.04.2003 to 11.10.2005 @ Rs. 2500/ per month. Since the said portion was still in possession of defendant No. 2 who is claiming himself as a tenant through defendant No. 1. The plaintiff is also entitled to mesne profits Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
32for the said portion shown in Red colour in the site plan Ex PW1/1 from the date of institution of suit till recovery of possession. However, the plaintiff shall be liable to pay court fee on the said amount w.e.f 12.10.2005 till the date of decree. Plaintiff is also entitled to interest @ 6% per annum on the said amount from 12.04.03 till the date of recovery of possession.
Issues No. 9, 10 and 11 are decided accordingly. ISSUE NO. 12.
In view of my findings given on issue No. 6, 7 & 8it follows as a corollary that defendants have no right to create any third party interest or part with the possession of the same to any other person till the possession of the suit premises is actually handed over to the plaintiff in respect of the premises as shown in Red colour in the site plan ExPW1/1. The defendant No. 1 has failed to show that he has any legal right in respect of above suit property and defendant No. 2 is only claiming through defendant No. 1, therefore he cannot have better title than defendant No.1 through whom he is claiming his tenancy rights, as it is settled law nobody can give to any other person a better title than he himself has. Consequently, a decree of permanent injunction is hereby passed in favour of the plaintiff and against the defendants, thereby restraining the defendant No. 1 and 2 from parting with the possession of the suit property or from creating any third party interest in Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
33the suit property as shown in Red colour in the site plan pertaining to the property bearing No. 1018, Village & PO. Bawana, Delhi till further orders.
9. In the present case there are two applications filed U/s 340 Cr.P.C, one by defendant No. 1 and other by defendant No. 2.
In the application filed by defendant No. 1 U/s 340 Cr.P.C it is stated that defendant No. 2 after service of summons appeared in the court and filed his Written Statement and affidavit on 14.12.05 claiming that he was the servant of defendant No. 1and he had no concern with the suit property, thereafter he again sought permission from the predecessor of this court and again filed Written Statement and he claimed that he was the tenant of defendant No.1, both the claims are contradictory to each other and same cannot stand together, therefore same attract the provisions of 340 Cr.P.C against defendant No. 1.
10. Reply was filed by defendant No. 2 to the said application stating that the said application is mischievous and is contrary to the record and the earlier Written Statement was not filed on behalf of defendant No. 1 and the same had been disowned by the defendant No. 2, therefore the averments made in the said application are false and application is liable to be dismissed.
Suit No. 1276/08Sh. Daya Nand Vs. Om Prakash & Ors.
3411. In the application U/s 340 Cr.P.C moved by the defendant No. 2, it is the plea of defendant No. 2 that defendant No. 2 is the tenant in respect of the suit property at the monthly rent of Rs. 2500/ per month and defendant No. 1 with malafide intentions has played fraud/mischief by submitting Written Statement on behalf of defendant No. 2 claiming him to be the tenant instead of servant. The service of notice was not effected upon defendant No. 2 and defendant No. 2 came to know about the pendency of the case from reliable sources and Written Statement earlier filed on record has been filed on behalf of defendant No. 1 in order to mislead the court and thereafter defendant No. 2 also made a complaint to the police. In these circumstances, the action of defendant No. 1 attracts provisions of 340 Cr.P.C.
12. Reply has been filed by the defendant No. 1 to the said application stating that he said application is mischievous and is liable to be dismissed, as earlier Written Statement filed by defendant No. 1 claiming himself to be the servant of defendant No. 1 and thereafter defendant No. 2 disowned the same and put a plea that he was the tenant of defendant No.1, therefore no ground for proceeding U/s 340 Cr.P.C is made out and the application is liable to be dismissed.
13. After going through the record, there is no Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
35material on the basis of which it can be said that the earlier Written Statement had been filed on behalf of defendant No. 1 by forging the signatures of defendant No. 2. Similarly, there is no scientific evidence on the record that the earlier Written Statement was filed by defendant No. 2 who later on disowned the same for ulterior motives.
In the present case none of the parties had the courage to move an application for sending the said disputed signatures/handwriting for forensic examination, therefore there is no material on record on the basis of which it can be inferred that the earlier Written Statement purportedly filed on behalf of defendant No. 2 was infact filed by defendant No. 1 by forging his signatures. Similarly, there is no material to reach this conclusion that the earlier Written Statement was indeed filed by the defendant No. 1 who later on took a contrary plea that he was the tenant of defendant No. 1 in respect of the suit property, whereas earlier he had taken a plea that he was the servant of defendant No. 1. Therefore, in these circumstances, it would not be expedient in the interest of justice to make a complaint U/s 340 Cr.P.C either against defendant no. 1 or defendant No. 2. Both the applications stand dismissed.
RELIEF In view of my findings on the above issues, a Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
36decree of possession is hereby passed in favour of the plaintiff and against the defendants, thereby directing the defendants to handover the vacant and peaceful possession of the property bearing No. 1018, Village & PO. Bawana, Delhi as shown in Red colour in the site plan ExPW1/1.
Further a decree of mesne profits/damages is hereby passed in favour of the plaintiff and against defendant No. 1 @ Rs. 2500/ per month w.e.f 12.04.2003 to 11.10.2005 and further the plaintiff is also held entitled to mesne profits/damages from the date of institution of the suit till the recovery of possession, however the plaintiff shall be liable to pay court fee on the said amount w.e.f 12.10.05(i.e date of institution) till the date of decree.
The plaintiff is also held entitled to interest @ 6% per annum on the afore amount from 12.04.03 till the date of possession, however decree sheet shall not be prepared till the plaintiff pays the court fees on the afore amount @ 2500/ per month w.e.f 12.10.2005 till the date of decree.
Further a decree of permanent injunction is hereby passed in favour of the plaintiff and against the defendants thereby restraining the defendants from parting with the possession of the suit property or from creating any third party interest in the portion shown in Red colour in the site plan ExPW1/1 with respect to the suit property bearing Suit No. 1276/08 Sh. Daya Nand Vs. Om Prakash & Ors.
37No. 1018, Village & PO. Bawana, Delhi till further orders. Parties are left to bear their own costs. Decree sheet be prepared accordingly as directed above subject to the plaintiff making the payment of the court fees.
Further vide this same judgment, application of defendant No. 1 U/s 340 Cr.P.C dated 31.05.11 and another application of defendant No. 2 U/s 340 Cr.P.C dated 08.09.2006 have both been dismissed.
File be consigned to record room.
ANNOUNCED IN THE OPEN (Sanjeev Aggarwal)
COURT ON 13.07.2012 ADJ(Central03)
Delhi/13.07.2012
Suit No. 1276/08
Sh. Daya Nand Vs. Om Prakash & Ors.
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Suit No. 1276/08
Sh. Daya Nand Vs. Om Prakash & Ors.
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Suit No. 1276/08
Sh. Daya Nand Vs. Om Prakash & Ors.