Delhi District Court
Rakesh vs Rajni Bala Dham on 17 October, 2015
IN THE COURT OF AASHISH GUPTA, CIVIL JUDGE
EAST, KARKARDOOMA COURTS, DELHI
Suit no. : 190/2013
Unique Case ID no. 02402C0 187862013
Rakesh
S/o Sh. Shambhu Dayal
R/o H. No. 73, Village Ghondli,
Krishna Nagar, Delhi110051.
.....Plaintiff
Versus
1. Rajni Bala Dham
W/o Sh. Ascharaj Lal Dham
R/o I69, Kirti Nagar, New Delhi.
2nd Add:
Shop No. 447, Old Lajpat Rai Market,
Delhi110006
2. Raj Rani Sharma
S/o Sh. Harbans Lal
R/o H. No. 14, Kirti Nagar,
Delhi.
3. Ramesh Sharma
R/o H. No. N14, IInd floor,
DLF Industrial Area, Kirti Nagar,
Suit no. 190/13 Rakesh V/s. Raj Rani Sharma & Ors. Page no. 1 of 15
Delhi.
2nd Add:
38, Unit No. 10, DLF Industrial Area,
Kirti Nagar, Delhi.
4. P. K. Dham
S/o Sh A. L. Dham
Add: Shop No. 447,
Old Lajpat Rai Market,
Delhi110006.
....Defendants
ORDER:
1. Vide this order, I shall decide a preliminary issue framed vide order dated 06.01.2014 which read as under:
"Whether the present suit is not maintainable in its present form? OPD.
2. Brief facts of the case, relevant for the adjudication of the aforesaid issue are as follows:
It has been stated that the Plaintiff is lawful owner and in possession of property bearing No. 662/3D [old no. 32A(L Typed)] of area measuring 115 sq. yards consisting of Ground floor, First floor and half portion of second floor with rights of upper storey construction out of Khasra No. 467/3 situated in the Abadi of Pandit Park Village Ghondli, Illaka Shahdra, Delhi51 Suit no. 190/13 Rakesh V/s. Raj Rani Sharma & Ors. Page no. 2 of 15 (hereinafter called the suit property). It is the case of the Plaintiff that the suit property was purchased by him from one Sh. Shyamji Mishra vide registered sale deed dated 17.6.13 and since then the Plaintiff is in lawful possession of the suit property and has been using the same as "second residence".
3. It has been stated that earlier the Defendant No. 3 and 4 were the tenants in the suit property and they had handed over possession to the earlier owner from whom the property was purchased by the Plaintiff. It has been stated that the Plaintiff has come to know that Defendant No. 3 and 4 in connivance with Defendant No. 1 and 2 are trying to sell the suit property on the basis of certain forged documents in the name of Defendant No. 1 and 2. It is his case that on 22.6.13 one property dealer by the name of Deepak visited the suit property on the pretext of showing the suit property to some persons for selling the same and that he had given the photocopy of title documents of suit property to the Plaintiff. That the Plaintiff aggrieved by the actions of the Defendants approached the police at PS Krishna Nagar, however, no action has been taken by the police in this regard. It has been stated that the Defendants are threatening to sell the suit property to 3rd persons without having any right or title in the suit property.
4. The Plaintiff has accordingly filed the present suit praying for a decree of permanent injunction restraining the Defendant No. 1 and 2 from selling, Suit no. 190/13 Rakesh V/s. Raj Rani Sharma & Ors. Page no. 3 of 15 alienating or from creating any 3rd party interest in respect of the suit property. The Plaintiff has also prayed that the Defendants be restrained from entering and dispossessing the Plaintiff from the suit property.
5. The Defendants have filed their written statement and have taken the preliminary objection that the suit of the Plaintiff is liable to be dismissed on the ground of suppression of material facts. It has been stated that the Defendant No. 1 and 2 were the lawful owners of the suit property vide title documents dated 3.8.1981 which were executed by the erstwhile owners Smt. Shanta and Smt. Sudershan Kumari in favour of Defendant No. 1 and 2. It has also been stated that after purchasing the property in the year 1981 the Defendant No. 1 and 2 in the year 1989 constructed the first floor and the terrace floor of the suit property in 1996. It has also been stated that in the year 1996 Smt. Rajni Bala (Defendant no. 1) transferred her rights and title in the suit property in favour of Smt. Vandana Dham W/o Defendant No. 4 and accordingly from 1996 Smt. Vandana Dham and Raj Rani Sharma (Defendant no. 2) have become the owners of the suit property. It has also been stated that for the last 32 years the Defendant No. 2 alongwith Defendant no. 1 and thereafter since 1996 alongwith Smt. Vandana Dham are in interrupted possession of the suit property. It has also been stated that the original chain of documents of the suit property is in the custody of Defendant No. 2 and Smt. Vandana Dham. It has also been stated that Defendant No. 1 is the sister of Suit no. 190/13 Rakesh V/s. Raj Rani Sharma & Ors. Page no. 4 of 15 Defendant No. 4 and Defendant No. 2 is mother of Defendant No. 3 and accordingly all the Defendants are family members.
6. The Defendants have further stated that the Defendants were trying to sell the suit property in open market when one property dealer Ashok approached the Defendants to get buyer for their property. The Defendants handed over a crossed copy cited documents to him. It is their case that on the basis of the same the Plaintiff has fabricated the sale deed in his favour. The Defendants have stated that the present suit has been filed by the Plaintiff on the basis of forged sale deed dated 17.6.13 by hatching a conspiracy with Shyam Mishra and others. Defendants have denied the other averments made by Plaintiff in his plaint and have prayed for the dismissal of the present suit.
7. Thus perusal of the plaint shows that the Plaintiff claims himself to be the owner of the suit property having purchased the same vide registered sale deed dated 17.06.2013. On the other hand, as per the Defendants, Defendant no. 2 and one Smt. Vandana Dham are the owner and in possession of the suit property. The factum of possession is disputed by the Plaintiff.
8. It was in such circumstances that the aforesaid preliminary issue qua maintainability of the present suit was framed because from the pleadings on record question of title coupled with possession and its adjudication seemed Suit no. 190/13 Rakesh V/s. Raj Rani Sharma & Ors. Page no. 5 of 15 necessary in the present suit. Thus parties were called upon to address arguments on the aforesaid issue.
9. I have heard arguments on behalf of the Defendants and carefully perused the record.
10. I may note herein that no arguments on the preliminary issue were advanced by the Plaintiff despite repeated opportunities to the Plaintiff. I may note that the Plaintiff was even burdened with cost in order to prod him to address arguments on the preliminary issue. Neither did he pay costs nor did he address arguments on preliminary issue. Thus the court was constrained to hear arguments on the preliminary issue on behalf of the Defendants only and decide the same based on record.
11. It is pertinent to note that the Plaintiff has claimed himself to be the owner of the suit property by virtue of registered sale deed dated 17.6.13 which has been executed in favour of the Plaintiff by one Shyamji Mishra. The Plaintiff has filed on record a copy of the said sale deed. The sale deed in favour of the Plaintiff has not given any details as to how the consideration amount of Rs.62,05,000/ has been paid by the Plaintiff to Shyamji Mishra. The Plaintiff has also filed on record one GPA dated 03.08.1981 wherein the suit property has been given by Smt. Shanta and Smt. Sudershan Kumari to Suit no. 190/13 Rakesh V/s. Raj Rani Sharma & Ors. Page no. 6 of 15 Smt. Raj Rani and Ms. Rajni Bala Dham by way of GPA, Will and affidavit. The Plaintiff has not filed any other document on record in support of his case.
12. Perusal of the sale deed dated 17.6.13 shows that one Sh. Nathu and Sh. Toli sold the property to Sardar Tirth Singh through registered sale deed on 25.1.1957. The said Sardar Tirth Singh thereafter is stated to have executed a power of attorney in favour of one Babu Ram Sharma on 12.6.73. The said Babu Ram in turn executed a power of attorney in favour of Shyamji Mishra on 26.07.95 from whom the Plaintiff is stated to have purchased the suit property. Both the power of attorneys are unregistered documents.
13. It is pertinent to note that even though the Plaintiff claims to be in possession of the suit property, there are no documents on record to show possession of the Plaintiff.
14. On the other hand, the Defendants in their written statement have taken the plea that the Plaintiff has fabricated the sale deed in his favour and that he has no title to the suit property. It has been stated that the suit property belongs to Raj Rani Sharma and Smt. Vandana Dham. The Defendants have filed on record the GPA and other documents dated 3.8.1981 wherein the suit property was transferred by Smt. Shanta and Smt. Sudershan Kumari to Smt. Raj Rani and Ms. Rajni Bala Dham. The Defendants have also filed on record the copy Suit no. 190/13 Rakesh V/s. Raj Rani Sharma & Ors. Page no. 7 of 15 of GPA, affidavit, receipt and agreement dated 21.9.1974 whereby the suit property was purchased by said Smt. Shanta and Smt. Sudershan Kumari from one Inder Sain. The Defendants have also filed on record the sale deed dated 19.5.1958 whereby one Sardar Tirath Singh sold the suit property to Ramjimal and Inder Sain.
15. It is pertinent to note herein that if the suit property was sold by Sardar Tirth Singh on 19.5.1958 by virtue of a registered sale deed (copy of which has been placed on record) there is no question of he having sold the same property by a notarized GPA in favour of Babu Ram Sharma as has been stated in the sale deed dated 17.06.13 (on which the Plaintiff is relying). It is pertinent to note that the father's name of said Sardar Tirth Singh in the sale deed dated 17.06.13 is stated to be "Sh. Ishar Dass" while in the sale deed dated 19.05.58 his father's name is stated to be "Sh. Amar Dass". Whether the Plaintiff as well the Defendants are referring to the same Sardar Tirth Singh or not is not clear. Be that as it may, I have before me a registered sale deed dated 19.05.58 as per which the suit property was sold to one Ramjimal and Inder Sain through whom the suit property subsequently came into the hand of Defendant no. 1 and 2 and as on this date, as per the Defendants, it stands in the name of Defendant no. 2 and Vandana Dham.
16. It is pertinent to note that while the Defendants in this matter have filed Suit no. 190/13 Rakesh V/s. Raj Rani Sharma & Ors. Page no. 8 of 15 on record the complete chain of documents in respect of the suit property, on the other hand it is surprising that the Plaintiff has not filed on record any document to show as to how Shyamji Mishra became the owner of the suit property.
17. I may also mention that the Defendants have filed on record a number of documents which not only includes the complete chain of title documents but also the receipt of property tax which have been deposited by the Defendants in respect of the suit property. The MCD receipts in favour of the Defendants are of the year 1999, 2000, 2002 and 2006. The Defendants have also filed on record the rent receipts in respect of the suit property and the electricity and the telephone bills in respect of the suit property to show their possession.
18. Now I have before me a sale deed without the complete chain of documents through which the same purportedly fell in to the hands of Shyamji Mishra against complete chain of documents produced by the Defendants to show the title of Defendant no. 2 alongwith one Mrs. Vandana Dham to the suit property. It is pertinent to note that an application under order 39 rule 1 & 2 CPC of the Plaintiff was also dismissed on the ground of non production of chain of documents through which Shyamji Mishra became the owner of the suit property. Despite such dismissal, Plaintiff has taken no steps to bring on Suit no. 190/13 Rakesh V/s. Raj Rani Sharma & Ors. Page no. 9 of 15 record any such chain of documents showing title of Shyamji Mishra over the suit property. Thus simply put Defendants are disputing the title of the Plaintiff over the suit property. In my opinion, whether the Plaintiff is actually the owner of the suit property or not cannot be decided in a simplicitor suit for permanent injunction.
19. In this matter the Plaintiff is claiming to be the owner of the suit property on the basis of a registered sale deed which itself appears to be a suspicious document in as much as it does not even detail the mode of payment of consideration of the purported sale amount of Rs.62,05,000/. Again as per the said sale deed Sardar Tirth Singh purportedly sold the suit property to one Babu Ram Sharma. As noted above, Sardar Tirth Singh, as per the Defendants sold the suit property (115 sq. yards out of 230 sq. yards) through a registered sale deed in favour of Ramjimal and Inder Sain from whom the property was subsequently purchased by one Smt. Shanta and Smt. Sudershan Kumari. Said Smt. Shanta and Smt. Sudershan Kumari sold the suit property to Defendant no. 1 and 2. Thus as noted above if the suit property was sold by Sardar Tirth Singh on 19.5.1958 by virtue of a registered sale deed (copy of which has been placed on record) there is no question of he having sold the same property by a notarized GPA in favour of Babu Ram Sharma as has been stated in the sale deed dated 17.06.13 (on which the Plaintiff is relying). The aforesaid facts raises a serious doubt on the capacity of Shyamji Mishra to have executed a Suit no. 190/13 Rakesh V/s. Raj Rani Sharma & Ors. Page no. 10 of 15 sale deed in favour of the Plaintiff. In my opinion, the document i.e. the sale deed relied by the Plaintiff is a suspicious document and a cloud has been raised on the title of the Plaintiff to the suit property. It is settled law that in a simplicitor suit for permanent injunction complicated questions relating to title should not be gone into. The respective parties should prove their title in a separate suit for declaration of title.
20. At this stage I may rely upon the judgment of the Hon'ble Supreme Court of India in the matter of Anathula Sudhakar vs. P. Buchi Reddy (dead) by LR's and Ors., reported as AIR 2008 SC 2033. It shall be helpful to quote the relevant paragraphs of the said judgment which reads as follows:
"17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over Plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy.
Where the Plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with Plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with Suit no. 190/13 Rakesh V/s. Raj Rani Sharma & Ors. Page no. 11 of 15 possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because Suit no. 190/13 Rakesh V/s. Raj Rani Sharma & Ors. Page no. 12 of 15 some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to Plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
(emphasis supplied)
21. Now in the present case I have already noted that a cloud has been raised on the title of the Plaintiff in the suit property. Again both the parties are claiming themselves to be in possession of the suit property. I may note that while Plaintiff has not filed any document to show his possession, Defendants have placed on record various documents to show their possession. Be that as it may, the Plaintiff as well as the Defendants are claiming possession of the suit property. As laid down by the Hon'ble Supreme Court of India in the case of Anathula Sudhakar (supra), in this matter, the possession of the suit property being disputed by each of the parties alongwith title, therefore, in my opinion, this is a fit case where the cloud on the title of the Plaintiff shall have to be cleared by him and he shall be required to prove de jure possession on the basis of the title to the suit property. This is because without deciding de jure possession it shall not be possible to hold in the present matter as to whether the suit property is in possession of the Plaintiff or the Defendants. By necessary inference for deciding de jure possession the issue of title shall Suit no. 190/13 Rakesh V/s. Raj Rani Sharma & Ors. Page no. 13 of 15 directly and substantially arise for consideration in this matter. As laid down by the Hon'ble Supreme Court of India in the aforesaid judgment a finding of title, normally, cannot be recorded in a simplicitor suit for injunction.
22. It is to be noted that in this matter the sale deed of the Plaintiff is a suspicious document for reasons already recorded. That being the case, the present case cannot be said to be a case where the issue of title can be decided in the present suit based on the pleadings before this court. This is because complicated questions of fact with regard to title of Shyamji Mishra to the suit property; purported execution of GPA by Sardar Tirth Singh in favour of Babu Ram Sharma; possession of the Plaintiff over the suit property etc. shall arise which shall have to be decided before any finding with regard to the title and de jure possession of the Plaintiff on the suit property can be returned.
23. In my opinion, in view of the ratio laid down by the Hon'ble Supreme Court of India in the matter of Anathula Sudhakar vs. P. Buchi Reddy (dead) by LR's and Ors., reported as AIR 2008 SC 2033 this is a fit case where the aforesaid complicated questions of fact and law relating to title of the suit property cannot be decided in the present suit of permanent injunction. In my opinion, in view of the aforesaid judgment, in the present case the Plaintiff herein should be relegated to the remedy by way of comprehensive suit for declaration of title instead of deciding the issues regarding title and de jure Suit no. 190/13 Rakesh V/s. Raj Rani Sharma & Ors. Page no. 14 of 15 possession of the Plaintiff in the present suit for mere permanent injunction.
24. I may note that this is not a simple and straightforward case where this court can decide upon the issue regarding title, even in this suit for injunction. This is because not only the Defendants are disputing the title of the Plaintiff but even the sale deed on which the Plaintiff claims title of the suit property is a suspicious document. In such circumstances, it is but incumbent for the Plaintiff to seek a declaration qua his title over the suit property before seeking simplicitor injunction in the manner done in the present case.
25. In view of the aforesaid, in my opinion, the present suit is not maintainable in view of the ratio laid down by the Hon'ble Supreme Court of India in the matter of Anathula Sudhakar vs. P. Buchi Reddy (dead) by LR's and Ors., reported as AIR 2008 SC 2033.
Thus the issue under consideration is decided in favour of the Defendants and against the Plaintiff. The Plaintiff is relegated to the remedy by way of comprehensive suit for declaration of title to the suit property.
All pending applications, if any, are disposed off as having become infructuous. No order as to costs.
Announced in the open AASHISH GUPTA
Court on 17th of October, 2015 Civil Judge/East
KKD Courts, Delhi
Suit no. 190/13 Rakesh V/s. Raj Rani Sharma & Ors. Page no. 15 of 15