Delhi District Court
Brij Lal vs (1) B.C Jhangra on 28 January, 2017
IN THE COURT OF DR. HARDEEP KAUR ADJ
02(SHAHDARA)KKD COURTS/DELHI
(Old RCA No. 36/15)
RCA no. 23/2016
Brij Lal
S/o Shri Ram Avtar
R/o 13/70, Trilokpuri
Delhi. ...... Appellant
Versus
(1) B.C Jhangra
s/o Late Sh. Gian Chandigarh
R/o 11/12 Old Arjun Nagar
Delhi110051
(2) Prem Pal Jhangra
s/o Late Sh. Gian Chand
R/o C17, Ground Floor
Old Arjun Nagar,
Delhi110051 ......Respondents
Date of Institution :30.10.2015 Date of Judgment :28.01.2017 Decision :Dismissed J U D G M E N T (1) This appeal has been filed under Section 96 r/w Order 41 Rule 1 CPC against the impugned judgment and decree dated 19.08.2015 passed by Ld. JSCC/ASCJ/GJ, District Shahdara, Karkardooma Courts in Civil Suit No. 143/11 titled as "Brij Lal vs B.C. Jhangra and Anr" whereby Ld. Trial Court dismissed the suit of the plaintiff on the preliminary issue of maintainability.
Plaintiff is the appellant and the defendants are respondents. For RCA 23/2016 Brij Lal vs. B.C Jhangra & Anr. page 1/11 the sake of convenience nomenclature of the parties are same as in the suit. (2) The brief facts of the case as stated in the plaint are that plaintiff is the owner of the property no. C16 & C17, Gali No.6, Old Arjun Nagar, Delhi110051 which was purchased by him in year December 1982 from Sh. Dal Singh s/o Lala Ram who was the GPA of Sh. Ram Sarvariya & Sons through Sh. Pran Nath Sarvariya, in respect of 11/31 share out of 3 bigha 1 biswas, partly constructed and Sh Lalita Prasad s/o Sh. Prasad in respect of remaining portion i.e. 20/31 share out of Khasra no. 2186/235/1 and 2186/235/2. Sh. Dal Singh handed over the vacant and peaceful possession of both the houses to the plaintiff and has also executed a GPA, agreement to sell, affidavit, receipt, all dated 21.12.1982.
Sh. Gian Chand was also the tenant in respect of a big hall on the ground floor of the premises bearing no. C17, Arjun Nagar, Delhi51 at monthly rent of Rs 150/ per month. Later on Sh. Gian Chand raised the construction over the said big hall at first floor that is why rate of rent was enhanced to Rs. 450/ per month.
Since the plaintiff was not able to look after the suit property, therefore, Sh. Gian Chand, father of the defendants was appointed as his Special Power of Attorney and authorized to receive rent from the tenant of the premises no. C17 after deducting 25% as commission. Sh. Gian Chand let out the different portion of the said premises to different tenants at different stage, with the kind consent of the plaintiff and was also paying rent to the plaintiff for the portion occupied by him.
Plaintiff also used to visit the premises in question as and when got the time and met with Sh. Gian Chand and other tenants and to discuss the problems raised by tenants.
RCA 23/2016 Brij Lal vs. B.C Jhangra & Anr. page 2/11 Sh. Gian Chand died on 13.01.2011 leaving behind the defendants and one more son namely Harish Chand Jhangra who is residing abroad. The said three brothers became tenants in respect of the one big hall at ground floor and similar hall upon the roof of the hall at first floor. Sh. Gian Chand paid the rent upto December 2010.
A legal notice dated 13.04.2011 was duly served upon the defendants and their brother with regard to the ownership of the plaintiff with the direction not to collect rent from the other tenants and legal notices were also issued by the plaintiff through his counsel to all the tenants with the directions not to pay the rent to the defendants as the defendants are merely a tenant in respect of their respective tenanted portion.
After receiving the notice, defendants became annoyed and not only threatening the tenants of the plaintiff but also trying to encroach upon the remaining portion of the premises to show their possession which is in fact in possession of the plaintiff.
The Plaintiff is in possession of the entire premises No. C16 & C 17 Gali No. 6, Old Arjun Nagar, Delhi through his tenants including the sons of Shri Gian Chand and through himself as several flats of the premises were locked under the lock and key of the plaintiff.
There is also apprehension that defendants may create third party interest in the premises of the plaintiff by means of introducing new tenants or may dispose off the portion or the entire premises to some other persons malafidely showing themselves as owners.
Plaintiff met the defendants after the death of Sh. Gian Chad and informed them with regard to the real position in respect of the premises in suit but the behaviour and attitude of the defendants was adamant. They RCA 23/2016 Brij Lal vs. B.C Jhangra & Anr. page 3/11 finally refused to accept the plaintiff as owner and refused their status as tenants but claimed themselves as owners. No document was shown to the plaintiff despite all efforts made by the plaintiff in this regard. The plaintiff tried his level best to make them understand with regard to the ownership rights of the plaintiff but all in vein.
Thus, plaintiff prayed that defendants be restrained, from illegally dispossessing the tenants in the suit property(shown in green colour in site plan) from taking possession of portion of plaintiff and from creating third party interest in the property bearing No. C16 and C17, Gali No. 6, Old Arjun Nagar, Delhi51.
Defendant no. 1 and 2 filed their WS and stated that the present suit is liable to be dismissed as it is based upon the forged and fabricated documents for falsely showing the title/ownership of the plaintiff over the suit properties in question and hence no relief can be granted in absence of any final adjudication on the issue relating to the authenticity of the said titles documents. It is further stated that plaint is liable to be dismissed on the ground that not only the defendants are the owners of the suit properties but also that even by the way of their continuous status as owners in possession/occupation of the entire suit properties since the last 37 years they have already perfected their titles of ownership over the suit properties in question.
It is further stated that suit is liable to be dismissed in absence of any proceedings seeking cancellation of the ownership documents of the defendants which clearly shows that defendants and their family members are the genuine buyers of the properties in question.
It is further stated that defendants had purchased the properties RCA 23/2016 Brij Lal vs. B.C Jhangra & Anr. page 4/11 bearing no. C16 and C17 from previous owners who had purchased the aforesaid properties on 04.03.1974 i.e. before alleged date of the plaintiff. The plaintiff has not filed any documents for showing the title over the suit properties. The documents dated 22.12.1982 as well as other documents filed by the plaintiff are false and incorrect. The plaintiff has filed a false, forged and fabricated SPA in respect of property bearing no. 17 (G) measuring 200 sq. yards for which it is submitted that as far as 17 G is concerned, there is no property in existence in Gali No. 6 West Arjun Nagar, Delhi. As per the knowledge of defendants, deceased father of the defendants and defendants have never been the SPA of the plaintiff. It is reiterated that defendants and their family members are the owner of the properties bearing no. C16, two parts (78 sq. yards under the ownership of Prem Lal Jangra and as far as C17 (80 sq. yards) and C17 A (70 sq. yards) is concerned, are under the ownership of Sh. Prem Pal Jangra and H.C Jangra respectively. Defendants are also filing the documents, relating to the litigations between the defendants and their tenants on the same suit properties, showing the fact that the defendants are in fact having the exclusive ownership and properties possession/occupation over the entire suit properties. Defendants denied that father of the defendants was inducted as tenant in C17. Documents like rent receipt dated 14.03.1983 and GPA dated 24.09.1983 filed by the plaintiff does not even bear the signatures of the father of the defendants and hence the same are forged and fabricated documents.
It is further stated that from the bare perusal of the documents it is clear that before 1995 he was living at the same address and he never been inducted as tenant by the plaintiff. It is also clear that the father of the RCA 23/2016 Brij Lal vs. B.C Jhangra & Anr. page 5/11 defendants purchased the properties in the year 1985 but he was not living there and was only running the plywood business. It is further stated that defendants and their father had inducted tenants as the exclusive owners of the properties in question.
(5) Being aggrieved of the order of learned Trial Court, the plaintiff (appellant herein) has approached this court mainly on the following grounds :
1. It is argued on behalf of appellant that ld. Trial did not consider the legal position with regard to the maintainability of the present suit being an injunction suit only. The plaintiff stated that he is a bonafide purchaser, able to show the chain of complete documents, possession was also proved by the report of the LC and injunction suit is very much sustainable.
2. It is further argued that ld. Trial Court failed to appreciate the pendency of two applications under Order 1 Rule 10 and under order 6 Rule 17 of CPC. The said applications should not be ignored by ld. Trial court.
3. It has been further argued that ld. Trial Court has failed to explain that what are the grounds of non maintainability of the suit and simpliciter only stated that there are clouds on the title of the plaintiff hence suit for possession and declaration is also necessary and suit was dismissed on this ground alone whereas the plaintiff is a bonafide purchaser having complete chain of documents.
4. It is further argued that ld.Trial Court has failed to consider that Local Commissioner did not visit the remaining portion of RCA 23/2016 Brij Lal vs. B.C Jhangra & Anr. page 6/11 the suit premises and the objections filed by the plaintiff in this regard are ample proof of the ownership and possession of the plaintiff.
5. It is further argued that ld. Trial Court failed to consider the facts that the plaintiff is the absolute owner having the chain of documents related to the original owner/Bhumidar whereas defendants have no chain of documents upto the Bhumidar.
6. In so far as the defendants ( respondents herein) are concerned, it is vehemently argued that the findings of the Ld. Trial Court does not require any interference. It is further argued that plaintiff (appellant herein) has no locus standi to file the present appeal as well as suit in view of the fact that respondents are the absolute owner of suit property and already in possession of the suit property. The plaintiff has not filed any documents to show ownership or possession over the suit property. Plaintiff (appellant herein) has filed the fake documents of property bearing no. 17G and on the basis of these fake documents, appellant is claiming that he is owner of property no. C16 and C17, Old Arjun Nagar Delhi whereas respondents have no concern with the property bearing no. 17G, Old Arjun Nagar and as per the knowledge of the respondents, the owner of the property bearing no. 17G is of Mrs Gurbax Kaur and copy of electricity bill is also on record. It is further argued that appellant has deliberately concealed the material facts of criminal case FIR no. 489/11 pending against the appellant and his associates. Further, appellant had filed an objection in an execution matter titled as Gyan Chand vs. Rajiv Nagar bearing No. 40/2010 alleging that he is the owner of the property bearing No. C16 & C 17 and Sh. Jagdish Kumar, Ld. ASCJ was pleased to dismiss the objection RCA 23/2016 Brij Lal vs. B.C Jhangra & Anr. page 7/11 with the remark that the documents of the objector are not genuine and appellant has also not disclosed this fact in the present matter.
It is further argued that the description of property in the documents itself is contradictory because in GPA, measurement is mentioned 200 sq. yards and 78 sq. yards and in agreement to sell the measurement is 03 bigha and 01 biswa are shown/drawn in the property bearing no. 17G which is altogether different from the property of respondents bearing no. C16 and C17 Gali No. 6, Old Arjun Nagar, Delhi, thus, the alleged documents filed by the plaintiff in the suit relates to property bearing no. 17 G whereas the defendants and his family members are the owner of the property bearing no. C16 and C17 Gali No. 6, Old Arjun Nagar Delhi, therefore no question of any ownership by the plaintiff (appellant herein) over the property of defendants (respondents herein) arises at all.
It is further argued that documents filed by respondents are registered with the Sub Registrar and the respondents have got mutation also from the concerned department, on the other hand, documents filed by the appellant herein are not even notorized by Notary Public as the same does not contain any registration number.
It is further argued that defendants/respondents have been in possession of all the rooms through their lock and keys and this fact has been confirmed by the Local Commissioner in his report.
It is further argued that Gyan Chand was the absolute owner of the said property with respect to 70 sq yards only, which was purchased by him from Sh. Rajesh Kohli, therefore no question of power of attorney holder arises at all.
RCA 23/2016 Brij Lal vs. B.C Jhangra & Anr. page 8/11 On these grounds, ld. Counsel for defendants/respondents have prayed for dismissal of appeal.
7. I have considered the rival contentions, both oral and written and also perused the Trial Court record and the impugned judgment.
Vide order dated 20.07.2015 two preliminary issue were framed in this case, which are reproduced as follows:
1. whether the suit of plaintiff is maintainable? OPD
2. Whether the plaintiff has any locus to file the present suit? OPD Both the preliminary issues discussed together by ld. Trial Court being linked together.
It has been rightly observed by ld. Trial court that the present suit is for permanent injunction to restrain the defendants from illegally dispossessing the tenant in the suit premises shown in green colour in site plan from taking possession of portion shown in red colour in site plan in possession of plaintiff and from creating 3rd party interest in property no. C 16 & C17 Gali No. 6 Old Arjun Nagar, Delhi. Further that the plaintiff has claimed that he purchased the suit property in the year 1982 and inducted Gh. Gian Chand (father of the defendants) as a tenant in the suit property. Sh. Gian Chand raised some unauthorized construction in the suit property and later on he was appointed as SPA and authorized to receive the rents from the tenants of the said premises. Sh Gian Chand let out different portions of the suit premises to different tenants at different stages and after his death in 2011, defendants became tenants in the suit property.
Further that though the plaintiff has claimed defendants should RCA 23/2016 Brij Lal vs. B.C Jhangra & Anr. page 9/11 not illegally dispossess the tenants from the the suit premises, yet plaintiff chosen not implead any tenant who might be dispossessed. The plaintiff has not even spelt out the name of of the tenants in the suit property. Importantly, the tenants in the suit property will have a cause of action to file the suit if they are being threatened with dispossession. However, the tenants have not filed a case against the defendants and plaintiff on his own has sought to prevent an alleged dispossession threat of the tenants from the defendants.
Further that the plaintiff claims to be owner of the suit property by filing property documents i.e. GPA etc. The defendants also claim to be owner of the suit property. The defendants have pleaded that property no. C 16 was owned by them having derived the title through chain involving Ms. Pushpa Devi Verma who purchased the same on 04.03.1974 and remained in possession till 19.09.1988 when she sold 78 sq. yards to Smt. Kusum Juneja and Kanchan Juneje and then said 78 sq. yards was sold to Mr. Jitender Pal on 07.04.1989, who then sold it to M/S B.C Jhangara and Sons (HUF) on 31.03.2001. The other part of the property of Pushpa Devi was sold on 25.05.1989 to Mr. Satpal Malik who had sold the same to Prem Lal Jhangra (defendant no. 2). Regarding the property at C17, it belongs to P.L Jhangra and Harish Chand Jhangra. The defendants has filed the chain of the property documents since very long.
Further, plaintiff has not challenged the property documents of the defendants who are in possession of the suit property since long.
Further, earlier the application under order 39 Rule 1 & 2 CPC of the plaintiff was dismissed subject to cost of Rs. 10,000/ vide order dated 05.06.2013. Against the said order, an appeal was preferred which was also RCA 23/2016 Brij Lal vs. B.C Jhangra & Anr. page 10/11 dismissed vide order dated 19.02.2014. The said order referred to non maintainability of the suit in view of Judgment of Hon'ble Supreme Court of India in " Anathula Sudhakar vs. P. Buchi Reddy (dead) by LRs and Ors 2008 (4) SCC 594"
Ld. Trial Court rightly observed that in the given facts of the case, when the defendants have property documents in respect of the suit property and also the possession since long, and the plaintiffs claim ownership on the basis of some documents, then the plaintiff can not simplicitor file a simple suit for injunction without seeking declaration and possession.
Plaintiff/appellant has filed suit for permanent injunction regarding property no. C16 & C17, Gali No. 6, Old Arjun Nagar, Delhi51 but he filed the documents relating to property bearing no. 17 G, Old Arjun Nagar, Delhi51 which are not documents pertaining to property regarding which plaintiff/appellant filed suit for permanent injunction.
This Court is of further opinion that even applications of plaintiff u/o 1 Rule 10 CPC and u/o 6 Rule 17 CPC would have been allowed by the Trial Court, then also suit of the plaintiff was not maintainable as documents filed by plaintiff were of different property i.e. property bearing no. 17 G, Old Arjun Nagar, Delhi51 and was liable to be dismissed.
In my opinion, in the facts and circumstances of the case, I find no In my opinion, in the facts and circumstances of the case, illegality in the impugned order / judgment of Ld. Trial Court dated 19.08.2015. The appeal is hereby dismissed. Trial Court record be sent back along with copy of this order. File be consigned to record room after necessary compliance.
(Announced in the open Court (Dr. Hardeep Kaur)
on 28.01.2017) ADJ02/Shahdara/KKD.
RCA 23/2016 Brij Lal vs. B.C Jhangra & Anr. page 11/11
RCA 23/2016 Brij Lal vs. B.C Jhangra & Anr. page 12/11