Delhi District Court
Sh. Devpal vs Sh. Ram Chander on 12 October, 2022
DLND010013312015
IN THE COURT OF ADDITIONAL DISTRICT JUDGE- 01,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Presided over by :- MS. VIJETA SINGH RAWAT (DHJS)
CS No. 56461/16
Sh. Devpal
S/o Late Sh. Bhulle Ram
R/o H.No. 394, 17/139,
Near R.K. Electricals,
Ghitorni, New Delhi-110030
......... Plaintiff
Versus
1. Sh. Ram Chander
S/o Late Sh. Bhulle Ram,
R/o 289, 17/139, Near R.K.
Electricals, Ghitroni,
New Delhi-110030
2. Sh. Rupesh
S/o Sh. Ram Chander,
R/o 289, 17/139, Near R.K.
Electricals, Ghitroni,
New Delhi-110030
3. BSES
BSES Bhawan,
Nehru Place, New Delhi-110019
CS no. 56461/16
Dev Pal vs. Ram Chander Page no. 1 of 21
4. SHO
P.S. Vasant Kunj (S)
Nelson Mandela Road,
Pocket 4, Sector C,
Vasant Kunj, New Delhi-110070
........ Defendants
Suit presented On : 27.05.2015
Arguments Concluded On : 28.09.2022
Judgment Pronounced On : 12.10.2022
JUDGMENT
1. This is a suit for declaration and consequential reliefs filed by the plaintiff against his elder brother/ defendant no.1 and nephew/ defendant no.2 qua property which is shop area measuring 12.8 Sq. Yds. Situated at Khasra no.298/46, H.No.394, 17/139, Phirni Road, Ghitorni, Delhi-110030 (hereinafter, referred to as 'Suit property' and depicted in red colour site plan annexure A) (subsequently, during evidence exhibited as Ex PW-1/A).
PLEADINGS
2. It is the case of the plaintiff as per the amended plaint in the years 1990-1991 (amendment allowed vide order dated 08.12.2016) that pursuant to an oral partition by metes and bounds, the suit property fell into the share of the plaintiff which was developed by him for residential purpose and a shop was also constructed in 1995-1996. Additionally, the plaintiff has relied upon a Will, Affidavit and site plan vide which Sh. Bhulle Ram the father of the parties bequeathed the suit property to the plaintiff. Thereafter, CS no. 56461/16 Dev Pal vs. Ram Chander Page no. 2 of 21 considering that defendant no.1 had lost his job and was in pitiable financial condition, at his request, allowed defendant no.1 to use the suit property for running a general store with no occupation charges and as such, he is stated to be a licensee of the plaintiff. It was also agreed that pursuant to defendant no.1 discharging his responsibilities of settling his four daughters and defendant no.2, he would hand over the peaceful vacant possession of the suit property to the plaintiff. It is also pertinent to mention that it is disclosed in the plaint that an electricity meter in the name of defendant no.1 had been installed in the suit property before it was partitioned and it was also agreed that defendant no.1 would remove the electricity meter at the time of vacation. However, despite completing his responsibilities towards his children in 2004-2005, defendant no.1has neither vacated the suit property nor removed the electricity meter. It is alleged that since few months before filing of the suit, defendant no.1 has refused to vacate the suit property and also tried to extort the plaintiff for Rs.10,00,000/-. It is stated that the plaintiff also sought mediation of senior family members on 12.04.2015 and 19.04.2015 which was attended by both the defendants but defendant no.1 has refused to vacate the suit property. It is alleged that defendant no.1 is a trespasser, illegal occupier of the suit property and liable to be dispossessed therefrom. Legal notice dated 25.04.2015 also yielded no results leading to police complaints dated 23.03.2015, 28.04.2015 and 09.05.2015 but again to no avail. Even, it is stated that defendant no.4 has not acted upon complaint dated 12.05.2015 for removal of the electricity meter and as such, the plaintiff was constrained to file this case.
CS no. 56461/16Dev Pal vs. Ram Chander Page no. 3 of 21
WRITTEN STATEMENT
3. As per the amended written statement, it is denied that any family partition took place. It is stated that the defendants have been in possession of the suit property since 1987. It is denied that the suit property was constructed by the plaintiff only in the year 1995,1996 and it is stated that the plaintiff had only constructed his share in the property and no protest was ever registered by the plaintiff qua occupation of the suit property by the defendant even when the construction was on in the year 1995-1996. It is further averred that the suit property was only renovated/ re-constructed for which even defendant no.1 made a contribution. According to the written statement, the suit property was earlier being run by the wife of defendant no.1. It is also contested that any Will could have been executed by the father of the parties because the suit property is ancestral in nature and was not a self-acquired property of their father. It is asserted that the property is co-parcenary and the Will has no force. Defendant no.1 has stated that he was a government servant and was subsequently, employed in a private job and had no financial crises. Further, it is the case of the defendants that during the employment of defendant no.1, his wife was running the shop. He concedes that he had got over his responsibilities towards his children by 2005 yet, it is stated that no steps were taken by the plaintiff for 9 years to get the suit property vacated and so, the case of the plaintiff that he is the owner of the suit property is implausible. The defendants claimed that a family arrangement was arrived at and it was agreed that all sons of Late Sh. Bhulle Ram would continue to use and be in possession of properties which was already in use and possession, respectively. Relying upon the energization of the electricity meter in the CS no. 56461/16 Dev Pal vs. Ram Chander Page no. 4 of 21 suit property in the name of defendant no.1 since 1987, it has been averred that defendant no.1 has been in continuous peaceful possession of the suit property since 1987. Defendant no.1 has claimed ownership over the suit property by way of inheritance and subsequent family arrangement.
REPLICATION
4. Replication reasserts the case of the plaintiff.
ISSUES
5. Vide order dated 23.08.2017 following issues were framed :
1. Whether the plaintiff is entitled for decree for possession in respect of suit property?OPP
2. Whether the plaintiff is entitled for decree for declaration as prayed? OPP
3. Whether the plaintiff is entitled for decree for permanent injunction as prayed? OPP
4. Whether the plaintiff is entitled for decree for mandatory injunction as prayed? OPP
5. Relief.
EVIDENCE
6. To prove his case, the plaintiff examined the following witnesses.
a) PW-1, the plaintiff himself, tendered his evidence by way of affidavit as PW-1/1 in evidence alongwith following documents:
Sr. No. Documents Exhibit
1 Site Plan Ex. PW1/A
CS no. 56461/16
Dev Pal vs. Ram Chander Page no. 5 of 21
2 Photograph of the suit property Ex. PW1/A-1
3 Electricity bill in the name of plaintiff from Ex. PW1/B
15.04.2018 to 14.05.2018
4 Will dated 16.04.2010 of Sh. Bhulle Ram Ex. PW1/C
(OSR)
5 Affidavit-cum-declaration dated 09.04.2010 by Ex. PW1/D
Sh. Bhulle Ram
6 Site plan accompanying the Will Ex. PW1/E
7 Electricity bill in the name of defendant no.1 Mark X
8 Electricity bills from 1990 to 1994 Ex. PW1/G
(colly.)
9 Electricity bill from 13.02.2015 to 13.03.2015 Mark Y
10 Electricity bill in the name of Sh. Shri Pal at Ex. PW1/I
H.No.17/139, Pole No.10, Delhi-110030
11 Settlement dated 12.04.2015 Ex. PW1/J
12 Settlement dated 19.04.2015 Ex. PW1/K
13 Legal notice dated 25.04.2015 Ex. PW1/L
14 Police complaints Ex. PW1/M and
Ex. PW-1/N
15 Complaint dated 12.05.2015 to BSES Ex. PW1/O
This witness was duly cross-examined by Ld. counsel for defendant.
b) PW-2 Sh. Dev Raj, brother of both plaintiff and defendant no.1 was examined as PW-2 to prove the oral partition in the year 1990-1991 pursuant to which the plot at Khasra no.298/46, fell into the share of the plaintiff and was developed by him for residential purpose as well as the suit property/ the shop was also constructed by him. He tendered his evidence by way of CS no. 56461/16 Dev Pal vs. Ram Chander Page no. 6 of 21 affidavit which is Ex. PW-2/1 alongwith following documents:
Sr. No. Document Exhibit
1 Copy of Aadhar Card Ex. PW-2/A
Photograph (objected to mode of proof)
2 Old photograph of property bearing Ex. PW-2/B
Khasra no.298/46, H.No. 394, 17/139,
Phirni Road, Ghitroni, New Delhi-
110030
3 Current photograph of the abovesaid Ex. PW-2/C
property
He was duly cross-examined.
c) PW-3 Sh. Krishan whose deposition was on similar lines of PW-2 and
to prove family meetings dated 12.04.2015 and 19.04.2015. He was duly cross-examined.
DEFENCE EVIDENCE
7. On behalf of defendants, defendant no.2 testified as DW-1 and tender his evidence by way of affidavit which is Ex. DW-1/A alongwith a document executed by Sh. Bhulle Ram giving his shop in question defendant no.1 which is Ex. DW-1/1.
FINAL ARGUMENTS
8. Final arguments have been advanced by both the sides led by Sh. Vikas Tomar on behalf of plaintiff and Rajesh Sehrawat on behalf of the CS no. 56461/16 Dev Pal vs. Ram Chander Page no. 7 of 21 defendant.
REASONING AND APPRECIATION OF MATERIAL ON RECORD
9. This Court has considered the submissions and material on record. The issuewise findings are as under:
A) Issue no.2 Whether the plaintiff is entitled for decree for declaration as prayed? OPP 9.1 The onus to prove the issue is upon the plaintiff.
9.2 It has been argued on behalf of the plaintiff that he has successfully established his ownership rights over the suit property as he has not only proved the oral partition through the testimonies of plaintiff witnesses as well as even the genuineness of the Will Ex. PW-1/C has not been traversed. He has relied upon Peddu Reddiar vs. Kothanda Reddi AIR 1996 Madras 4919, and Vineeta Sharma vs. Rakesh Sharma & Ors. Diary No.32601 of 2018 decided on 11.08.2020 to urge that oral partition between co-owners is valid in law. Also, on the strength of Shub Karan Bubuna@ Shub Karan vs. Sita Saran Bubuna SPECIAL Leave Petition [C] No.17932 OF 2009 decided on 21.09.2009, it is also urged that separation of co-owners amounts to partition. Further, it is also argued that the plaintiff has developed the suit property pursuant to partition without any contribution from defendant no.1 and as such, merely on the basis of electricity connection in the name of defendant no.1 which was installed in the year 1987 as then, the property belonged to the HUF, defendant no.1 has not been able to establish either that he contributed to the development of the CS no. 56461/16 Dev Pal vs. Ram Chander Page no. 8 of 21 property or that merely on the basis of electricity meter, he was in possession of the suit property. Relying upon the testimony of PW-2, it is urged that the plaintiff has established that the electricity connection was obtained in the name of defendant no.1 and at that time, the undeveloped plot was used by the witness for cattle farming/ dairy. The plaintiff has also relied upon the electricity connection in the name of another brother Sh. Shri Pal installed in the property, now in occupation of defendant no.1, to prove that electricity connections, had been installed in the undivided ancestral properties for convenience in the name of then co-parceners and does not establish possession. Thereafter, it is urged on behalf of the plaintiff that the plaintiff witnesses have established that pursuant to development of property at Khasra no.298/46 including the suit property/ shop, defendant no.1 was inducted as a permissive user on account of relationship between plaintiff and defendant no.1 and as defendant no.1 was in financial crisis. Relying upon Thakur Kishan Singh Vs. Arvind Kumar 1994 SCC(6) 591 and L.N. Aswathama and Anr Vs. P. Prakash Civil Appeal No. 4125 of 2009 decided by the Apex Court on 21.04.2009, it is therefore, submitted that mere long and continuous possession would not constitute adverse possession if it was either permissive or possession without animus possidendi. It has been argued that testimony of plaintiff witness has established that no shop was run by the wife of defendant no.1 before defendant no.1 was inducted in the suit property, as she was a home maker. Leading the Court through defence evidence, it has been argued that the best evidence qua any family arrangement asserted by the defendants, has not been brought on record and as defendant no.1 did not enter the witness box, adverse inference is liable to be drawn against him. Reliance has been placed upon Iswar Bhai C. Patel Vs. Harihar Behara (1999) 3 SCC 475 CS no. 56461/16 Dev Pal vs. Ram Chander Page no. 9 of 21 and Iqbal Basith and others Vs. N. Subbalakshmi and Ors Civil Appeal no. 1725 of 2010 decided on 14.12.2020 by The Supreme Court. It has been argued that the document Ex. DW-1/1 purportedly executed by Late Sh. Bhulle Ram in favour of defendant no.1 is a fabricated document because it is bearing only the thumb impression of Late Sh. Bhulle Ram when in fact, Late Sh. Bhulle Ram could sign. Also, the document has not been proved, as per law. Therefore, it is submitted that the defendants could not establish their defence.
9.3 Per contra, it has been submitted that the cause of action is barred by limitation because in paragraph no.18 of the plaint, the plaintiff has not specified as to when was the first time when he asked the defendants to vacate the suit premises. Further, it is argued that the plaintiff is oscillating between the property being ancestral in nature and thereafter, also relying upon Will Ex. PW1/7 by the father of plaintiff and defendant no.1, implying thereby that it is not an ancestral property. It is adumbrated that the electricity connection was energized in the year 1987 and this suggests that even then, there was some construction at the property. It is urged that plaintiff has not proved since when he has come in possession and therefore, the only inference which can be drawn is that the defendants have been in continuous possession and subsequent to the family arrangement, the property fell in the share of defendant no.1. Since, it is not proved that defendant no.1 was jobless so, it has also not been established as to why the plaintiff would allow defendant no.1 to occupy the shop/ suit property and also the conduct of the plaintiff of not taking any legal action to get the property vacated till 2015 when the present suit was filed also suggests that the plaintiff acquiesced to the title of the defendant no.1 qua the shop/ suit CS no. 56461/16 Dev Pal vs. Ram Chander Page no. 10 of 21 property.
9.4 In rebuttal qua limitation, plaintiff has relied upon Sopan Rao & Anr Vs. Syed Mehmood & Ors Civil Appeal No.4478 of 2007 decided on 03.07.2019 to urge that the limitation in the present suit would be governed by Article 65 of Limitation Act, 1963 as the primary relief is of possession of the suit property.
9.5 While stating the cause of action, paragraph no.18 of the amended suit merely stipulates that 'The cause of action for filing the present suit arose when the Plaintiff has for the first time asked the Defendant no.1 to hand over the peaceful vacant possession of the said shop/ property of the Plaintiff and also remove the said electricity meter from the said shop...' Thereafter, the crux of testimony of the plaintiff as culled out from his affidavit Ex. PW-1/A is that defendant no.1 fulfilled his responsibilities towards his children by 2004-2005 and thereafter, since few months prior to filing of suit, the plaintiff was requesting defendant no.1 to hand over the possession and remove electricity meter but defendant no.1 to utter shock and surprise of the plaintiff refused to do so demanding Rs.10,00,000/-. However, when he was cross-examined, he stated as under:
'I had requested the defendant no.1 for the fist time in the year 2008 to hand over the possession of the shop to me. Defendant no.1 sought some time on the pretext of his financial hardship in order to handing over the possession of the shop to me. Thereafter, I made similar request to defendant no.1 in the year 2012 and he made the same excuse as stated above.' 9.6 Thus, even from the testimony of PW1, it is not established that in 2008 or 2012, the title of the plaintiff had been disputed by the defendants.CS no. 56461/16
Dev Pal vs. Ram Chander Page no. 11 of 21 No affirmative evidence by the defence was led on the aforesaid aspect. Be that as it may, in effect, as is understood, it has been sought on behalf of the defendants to urge that the present suit being a suit for declaration would be governed by Article 58 of The Schedule of the The Limitation Act, 1963.
However, on the strength of Ashok Kumar Vs. Mohd. Rustam (2016) 227 DLT 385 wherein the Delhi High Court has placed reliance upon:
'.... 17. I am supported in my aforesaid view by:
A. Ghanshyamdas Vallabhadas Gujrathi Vs. Brijraman Rasiklal MANU/MH/0449/1984 where a Division Bench of the High Court of Bombay negatived the contention as found favour with the learned Additional District Judge in the impugned order and held that the main relief being of possession, and declaration being an ancillary relief, the proper Article of the Limitation Act would be Article 65 and not Article 58 of the First Schedule;
B. State of Maharashtra Vs. Pravin Jethalal Kamdar (2000) 3 SCC 460 where it was held that the factum of the plaintiff besides the relief of possession having sought declaration also is of no consequence and in such a case the governing article of the Schedule to the Limitation Act is Article 65;
C. Mechineni Chokka Rao Vs. Sattu Sattamma MANU/AP/0751/2005 where the High Court of Andhra Pradesh reiterated that to a suit based on title but claiming declaration of title to the suit property with consequential relief of possession, Article 65 would apply and Article 58 would have no application; Article 58 applies only to a case where declaration simpliciter is sought i.e. without any further relief; the 89th Report of the Law Commission recommending for amendment of Article 58 by adding the words "without seeking further relief" after the word "declaration" in the first column of Article 58, so as to avoid any confusion was also noticed;
D. Ashok Kumar Vs. Gangadhar AIR 2007 AP 145 where the High Court of Andhra Pradesh again held that a suit for declaration of title and consequential relief of possession filed within twelve years from the date when the defendant dispossessed the plaintiff cannot be held to be barred by limitation;
CS no. 56461/16Dev Pal vs. Ram Chander Page no. 12 of 21 E. C. Natrajan Vs. Ashim Bai (2007) 14 SCC 183 where it was held that if the suit has been filed for possession as a consequence of declaration of the plaintiff's title, Article 58 will have no limitation;
F. Boya Pareshappa Vs. G. Raghavendra Nine MANU/AP/3549/2013 where the High Court of Andhra Pradesh while reiterating the earlier view further reasoned that Part V of the Schedule to the Limitation Act specifically deals with category of suits relating to immovable property and having regard to the categorisation made in the Schedule, the limitation provided in Article 65 in Part V is to prevail over Article 58 contained in Part III; it was further reasoned that under Section 27 of the Limitation Act, the right in immovable property stands extinguished after the expiry of the period prescribed for filing of suit for possession thereof; therefore, if the period falls short of the requisite period of 12 years, the right over an immovable property will not get extinguished; thus when a person has a right over an immovable property which right is not extinguished, he can lay the suit in respect of immovable property, even praying for the relief of declaration, at any time within the period of 12 years at the end of which only his right would get extinguished; therefore declaratory suits pertaining to immovable property are governed by Articles 64 and 65 and not by Article 58 of the Act;
G. Seetharaman Vs. Jayaraman (2014) 2 MWN (Civil) 643 where also it was held that a title over immovable property cannot extinguish unless the defendant remains in adverse possession thereof for a continuous period of 12 years or more and therefore Article 65 of the Schedule to the Limitation Act applies to a suit for declaration of title and for recovery of possession of immovable property.' , this Court is of the view that the limitation in the present matter would be governed by Article 65 of The Limitation Act, 1963. Accordingly, there is no evidence on record to hold that the suit is barred by limitation as it was not filed within the stipulated period of 12 years of arising of cause of action.
9.7 The claim of title of the plaintiff over the suit property is two pronged. Firstly, the claim is based upon property bearing khasra no. 298/46, House no. 394, 17/139, Phirni Road, Ghitorni, Delhi 110030 area CS no. 56461/16 Dev Pal vs. Ram Chander Page no. 13 of 21 measuring 150 sq. yds. where the suit property / shop is situated, being part of the corpus of ancestral property of father of the plaintiff which were partitioned by metes and bounds in the year 1990 - 1991 among the co- parceners and as such, the plaintiff was placed in possession of the aforementioned property which he developed for residential purpose and also constructed the suit property / shop in the year 1995 - 1996. Secondly, he has also based his claim over the aforementioned property upon a Will dated 16.04.2010 Ex. PW1/C executed by his father in his favour and as such, it is also shown that the aforementioned property was the property of his father.
9.8 It is therefore, relevant at this stage to recapitulate the law on partition. In Kalpana Balupuri Butta Vs. Pritendra Kumar Butta CS(OS) 108 of 2016 decided on 27.07.2018, the Delhi High Court has held as under :
'...25. For a partition to take place, both the parties amongst whom oral partition is pleaded must be the owners or must have a share in the property which is claimed to have been partitioned. Title in one, who earlier did not have any share in the property, cannot for the first time be created in the guise of partition. The same is the position with respect to a family settlement. Supreme Court, in S.K. Sattar S.K. Mohd Choudhari Vs. Gundappa Ambadas Bukate (1996) 6 SCC 373, though in the context of a challenge by a tenant to a partition claimed by the landlord to seek eviction of a tenant, after noticing Kale Vs. Deputy Director of Consolidation (1976) 3 SCC 119, held (a) a family arrangement as distinct from a transfer of property, is a transaction between members of the same family for the benefit of the family so as to preserve the family property, the peace and security of the family, avoidance of family disputes and litigation and for saving the honour of the family; (b) such an arrangement is based on the assumption that there was an antecedent title in the parties and the agreement acknowledges and defines what that title is; and, (c) it is for this reason that a family arrangement by which each party takes a share in the property has been held as not amounting to a "conveyance of property" from a CS no. 56461/16 Dev Pal vs. Ram Chander Page no. 14 of 21 person who has title to it to a person who has no title. In Kale supra, as also in earlier judgments in Tek Bahadur Bhujil Vs. Debi Singh Bhujil AIR 1966 SC 292 and Ram Charan Das Vs. Girjanandini Devi AIR 1966 SC 323, it was held that it was not necessary to show that every person taking a benefit under a family arrangement had a share in the property; it was enough if they had a possible claim or a semblance of a claim. This was explained in V.N. Sarin Vs. Major Ajit Kumar AIR 1966 SC 432 as meaning, that each coparcener got a specific property in lieu of his undivided right in respect of the totality of the property of the family.
27. Supreme Court, recently in Theiry Santhanamal Vs. Viswanathan (2018) 3 SCC 117 held that partition deed can be entered into between the parties who are joint owners of the property; a father, as an absolute owner of the property, could not give away portions of the property to his sons by entering into partition deed; in case the father wanted to give the property of which he was the absolute owner, to his sons, it could be done by Will or by means of a gift deed/donation etc.; however the claim of the plaintiff in that case was not on that basis; it was not stated anywhere whether the necessary formalities, conditions or rules laid down for donation inter vivos or gift, so as to enforce a document, were complied with; in the absence of pleadings, no evidence also to that effect was produced; similarly, under a Family Settlement, pre-existing rights only can be apportioned and no new rights can be created.' 9.9 Also, as per Vineeta Sharma (Supra), the Courts while dealing with the pleas of oral partition are required not to accept it readily and a heavy burden of proof of proponent of oral partition is cast upon the plaintiff to establish the same by way of separate occupation of portions, appropriation of the income, consequent entry in revenue records and production of contemporaneous public documents.
9.10 Now in the light of above, when the facts of the present case are analyzed, the plaintiff has first to establish that khasra no. 298/46, House no. 394, 17/139, Phirni Road, Ghitorni, Delhi 110030 constituted a co-parcenary property alongwith others which were partitioned between the co-owners CS no. 56461/16 Dev Pal vs. Ram Chander Page no. 15 of 21 and such partition was acted upon. It is also, a well settled proposition of law that partition of property can only be among those who have a share or interest in it. Whereas, the plaintiff claimed that the aforesaid property was ancestral property of his deceased father, there is no pleading to the effect who constituted the co-parcenary and who participated in the oral partition. This also becomes relevant in view of the second basis of claim of title set up by the plaintiff on the basis of Will dated 16.04.2010 Ex. PW1/C wherein the testator / father of the plaintiff has stated that he is the absolute owner and in possession of the aforesaid property which he has bequeathed to the plaintiff. This claim in Ex. PW1/C is contradictory to the earlier claim that the aforesaid property was ancestral and could be partitioned. If, the father of the plaintiff claims to have absolute ownership of the suit property on 16.04.2010, it being a co-parcenary property which could be partitioned, are mutually destructive pleas. Thus, even the statement of PW-2 that Khasra no.298/46, H.N. 394, 17/139, Phirni Road, Ghitorni, Delhi-110030 was an ancestral property in possession of HUF and after partitioned by the father of the plaintiff and defendant no.1 came to the share of the plaintiff, suffices no purpose. The plaintiff did not produce any contemporaneous document or entries in revenue records to prove that a genuine partition had taken place. This again assumes importance as subsequently, even in the year 2010, father of the plaintiff/ defendant no.1 still proclaims by way of his Will Ex. PW-1/C, relied upon by the plaintiff as his own property. Hence, as it has not been established that the suit property constituted the corpus of co- parcenary of which the plaintiff was a co-parcener and could participate in any partition, the first basis of claim of title has to fail. Even though, as per the written statements, defendants have asserted that the property was ancestral in nature and that it was by way of family arrangement given to CS no. 56461/16 Dev Pal vs. Ram Chander Page no. 16 of 21 defendant no.1, he has not entered the witness box to prove the same. Be that as it may, the plaintiff has to first stand on his own legs and cannot take the benefit of the lacuna in defence raised.
9.11 If we now examine the second basis of claim of title based upon Will Ex. PW1/C, the Ld. Counsel for the plaintiff has argued that the same was not required to be proved as the genuineness of the same was not questioned by the defendants. Per contra, the defence has argued that since the property was co-parcenary property, the will has not sanctity in the eyes of law.
9.12 It has not been proved by the plaintiff that the property bearing Khasra no.298/46, H.No. 394, 17/139, Phirni Road, Ghitorni, Delhi-110030 was only a self-acquired property of father of the plaintiff & defendant no.1 which could be bequeathed by the Will. Also, it is pertinent to note that Will Ex. PW-1/C was required to be proved as per Section 68 of Indian Evidence Act and its mere tendering in evidence by the plaintiff is not sufficient compliance for proof of the document. Therefore, the same cannot be looked into. Hence, no further discussion on the basis of the second claim would be of any benefit. Thus, as declaration is a discretionary relief, the same is declined as the plaintiff has not been able to prove a clear exclusive title over the suit property.
9.13 Hence, the issue is decided against the plaintiff.
B) Issue no.1 Whether the plaintiff is entitled for decree for possession in respect of suit property?OPP
10. The onus to prove the issue was upon the plaintiff.
CS no. 56461/16Dev Pal vs. Ram Chander Page no. 17 of 21 10.1 While arguing on the issue of limitation, placing reliance upon Sopan Rao & Anr. (Supra), it has been urged that the main relief in the present suit is for possession of the suit property.
10.2 Per contra, relying upon Anathula Sudhakar vs. P. Buchi Reddy (Dead) by LRs and Ors. Appeal (civil) 6191 of 2001 decided on 25.03.2008 by Supreme Court. It has been submitted that as the plaintiff has not been able to establish his claim of title, he also cannot be granted the relief of possession which is a consequential relief.
10.3 In paragraph no.17 of Anathula Sudhakar vs. P. Buchi Reddy (Dead) by LRs and Ors., it has been held as under:
'.....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 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 CS no. 56461/16 Dev Pal vs. Ram Chander Page no. 18 of 21 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 straight-forward, 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 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.' 10.4 Essentially, the tenor of the plaint is that the possession of the suit property is premised upon the title which the plaintiff has been claiming over the suit property both having received the same by way of partition as well as on the basis of a Will executed by his father. However, this Court has already opined under issue no.2 that the plaintiff has failed to establish his exclusive title over the suit property. Thus, relief of possession being a consequential relief has to be denied. The issue therefore, is decided against the plaintiff.
C) Issue no. 3 Whether the plaintiff is entitled for decree for permanent injunction as prayed? OPP
11. The onus to prove the issue is upon the plaintiff.
CS no. 56461/16Dev Pal vs. Ram Chander Page no. 19 of 21 11.1 However, in view of discussion on issue no.2, since this relief is also consequential, the same cannot be granted. Reliance is placed upon Anathula Sudhakar (Supra).
D) Issue no.4 Whether the plaintiff is entitled for decree for mandatory injunction as prayed? OPP
12. The onus to prove the issue is upon the plaintiff.
12.1 The plaintiff has argued that since the electricity connection in the name of defendant no.1 had been installed when the suit property belonged to the HUF and thereafter, the property has been acquired by the plaintiff vide partition or Will, defendant no.3 should be directed to remove the same.
12.2 Per contra, the defendants have denied that the electricity connection is unauthorized which should be removed.
12.3 On the basis of evidence led, installation of the electricity meter in the name of defendant no.1 has been proved since 1987. Thereafter, removal of the same is premised on the title over the property having been exclusively acquired by the plaintiff by way of the partition or Will. However, as already discussed above, neither partition nor Will Ex PW-1/C could be proved to establish exclusive rights of the plaintiff over the property. Therefore, the relief being consequential has to be denied.
E. Relief.
13. In view of the above discussions, the suit is dismissed.
CS no. 56461/16Dev Pal vs. Ram Chander Page no. 20 of 21 14. Decree sheet be prepared accordingly. 15. File be consigned to records. Pronounced in open Court (Vijeta Singh Rawat) on 12.10.2022 Additional District Judge-01, New Delhi District, Patiala House Courts, New Delhi CS no. 56461/16 Dev Pal vs. Ram Chander Page no. 21 of 21