Delhi District Court
Smt. Leelawati vs Smt. Shanti on 23 April, 2016
IN THE COURT OF SHRI ANKIT SINGLA: CIVIL JUDGE : 03
CENTRAL
TIS HAZARI COURTS : DELHI
Suit No. 256/11
Unique ID No. 02401C0053022011
Smt. Leelawati
W/o Shri Duli Ram
R/o Jhuggi No. N68/480,
THuts, Jhuggi Aruna Nagar,
Majnu Ka Tila
Delhi 110 054.
.......... Plaintiff
VERSUS
1. Smt. Shanti
W/o Sh. Kanhayiya.
2. Sh. Naresh
W/o Sh. Kanhayiya
3. Sh. Bhoti
W/o Late Sh. Natthu Lal
All resident of:
Gujrati Basti, Farida Chowk,
Majnu Ka Tilla, Delhi.
.........Defendants
SUIT FOR RECOVERY FOR PERMANENT INJUNCTION
Date of institution : 05.02.2011
Date for reserving for orders : 07.04.2016
Date of decision : 23.04.2016
CS No. 256/11 Leelawati Vs. Shanti Devi & Ors.
J U D G M E N T
1. Vide this judgment, I shall dispose off the present suit filed by Smt. Lilawati against the defendants Ms. Shanti, Naresh and Bhoti seeking permanent injuction against the defendants thereby restraining them, their agents, associates and relations from, dispossessing, selling the suit property Jhuggi No. N68/480, Jhuggi Aruna Nagar, Majnu ka Teela, Delhi 110 054.
2. In brief facts as averred in the plaint are that plaintiff is residing at N68/480, Thuts, Jhuggi, Aruna Nagar (herein afterwards called as suit property). It is pleaded that defendants are unsocial elements and want plaintiff to vacate the suit property/ Jhuggi in which the plaintiff is residing. It is pleaded that plaintiff had purchased this Jhuggi with malba from erstwhile owner Sh. Jagdish on 09.09.2009 vide the receipt and other documents. It is pleaded that on 02.01.2011, all the defendants visited the Jhuggi of plaintiff and told her that they have purchased the Jhuggi. It is further pleaded that plaintiff has came to know that defendants are negotiating with various persons for selling the suit property. Therefore, it is prayed by the plaintiff that decree for permanent injunction be passed restraining the defendants, their agents and associates from dispossessing, selling the suit property. The defendants filed joint WS and stated that suit is not maintainable and plaintiff is not having any right or title in the suit property and she is residing in suit property as a tenant. It is pleaded that husband of defendant no.3 had purchased the suit property from one Jagdish for a sum of Rs.35,000/ and thereafter defendant no.3 let out this property to the plaintiff on a monthly rent of Rs.1000/ to meet her CS No. 256/11 Leelawati Vs. Shanti Devi & Ors.
expenses. It is claimed that thereafter plaintiff stopped paying rent and threatened defendant no.3 to face dire consequences if she ever asked for rent.
3. On completion of the pleadings of the parties, the following issues were framed by the court vide its order dated 17.07.2012: (1) Whether the plaintiff have no locus standi to file the present suit? OPD (2) Whether the plaintiff is entitled for a relief of permanent injunction as prayed for? OPP (3) Whether the sale agreement/ affidavit was forged by the plaintiff? OPP (4) Relief.
4. On 20.05.2015, this court changed the burden of proof for issue no. 3 from plaintiff to defendants.
5. In support of her case, plaintiff has examined only one witness. PW1 is plaintiff herself. Plaintiff has relied upon following documents:
i) Ex. PW1/1 is site plan.
ii) Mark A is photocopy of cash receipt.
ii) Mark B is complaint to Chowki Incharge, Majnu Ka Tilla.
6. In evidence, the defendant has examined Smt. Boti Devi as DW1 and she has relied upon the documents Ex. DW1/1 to Ex. DW1/5. Ex.
CS No. 256/11 Leelawati Vs. Shanti Devi & Ors.
DW1/1 is Sale Agreement dated 01.02.1999 (OSR), Ex. DW1/2 is the steal tag bearing no. N68480 issued by the govt. department (OSR), Ex. DW1/3 is Icard of Jagdish issued by delhi administration dated 07.03.1990 (OSR)and Ex. DW1/4 is death certificate of Nathu Ram (OSR), Ex. PW1/5 (colly.) is complaint to the DCP dated 05.01.2012 along with postal receipt. Cash receipt dated 05.01.1999 is marked as Mark A. Issue Wise Findings Issue no.1 "Whether the plaintiff have no locus standi to file the present suit? OPD
7. The onus to prove this issue was on the defendants. However, they have not led any evidence, nor pointed towards any rules or law, during arguments mentioning the reason as to why the plaintiff had no locus standi to file the present suit, thus, this issue is decided against them.
Issue No. 2"Whether the plaintiff is entitled for a relief of permanent injunction as prayed for?" OPP
8. The onus of proving this issue was on the plaintiff. The law relating to prohibitory injunction has been discussed by Hon' ble Supreme Court in Hon'ble Supreme Court in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) By Lrs & Ors on 25 th March, 2008 (Appeal (civil) 6191 of 2001). In this judgment Hon' ble Supreme court held that if the title of the plaintiff is under clouds then the plaintiff has to file a suit for declaration along with injunctions and simplicitor suit for the injunction are not maintainable. The relevant para is quoted here as under: CS No. 256/11 Leelawati Vs. Shanti Devi & Ors.
"....11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/ or possession with injunction as a consequential relief, are well settled. We may refer to them briefly. 11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendants, a suit for an injunction simplicitor will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simplicitor, without claiming the relief of possession.
11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper....
CS No. 256/11 Leelawati Vs. Shanti Devi & Ors.
...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 dispute or under a cloud, but he is out of 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 simplicitor.
(b) As a suit for injunction simplicitor 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 issues 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, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the CS No. 256/11 Leelawati Vs. Shanti Devi & Ors.
court may decided 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 refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
9. In the present case, plaintiff claimed herself to be owner of the suit property and also claimed that she is in possession of the same. The possession of the suit property is admitted by the defendants but, they have claimed that they are owner of the suit property. Both, the plaintiff and the defendants claim that they purchased the suit property from one Jagdish. However, no proof has been filed by any of the party that Jagdish was owner of the property.
10. The plaintiff has also failed to bring on record any original document showing that she had purchased the suit property from Jagdish, whereas defendants were able to produce the documents that they had purchased the suit property from Jagdish. No record from revenue authority or any other local authority maintaining the land records is produced by the plaintiff to show her title. Admittedly, there is no document which shows right, interest or title of the plaintiff in the suit property. It was claimed in the plaint that plaintiff purchased the suit property from Jagdish as seller had executed receipt and other documents. The document which plaintiff claimed to have executed by Jagdish is one affidavit. Needless to say that these documents does not create ownership CS No. 256/11 Leelawati Vs. Shanti Devi & Ors.
rights or title in immovable property. Similar kind of documents have been produced in original by the defendants. Since, both the parties are claiming their ownership rights from one Jagdish and both have produced the documents showing transfer of suit property by Jagdish, it can be said that there are clouds over the plaintiff's title. As there is cloud over the title of plaintiff, simplicitor suit for prohibitory injunction is not maintainable in view of observations made by Hon' ble Supreme Court in para 11.3. It was duty of the plaintiff to file suit for declaration of title and consequential relief of injunction.
Since, the simplicitor suit for injunction without seeking declaration of title is not maintainable, the issue is decided against the plaintiff.
Issue no. 3 "Whether the sale agreement/ affidavit was forged by the plaintiff?"
OPD
11. The burden of this issue was on the defendants. It is argued by the counsel for the defendant that plaintiff has failed to produce any original documents and without production of original documents, it was not possible for the defendant to prove that documents were forged. Plaintiff had filed the suit on basis of possession as well as on the basis of sale agreement and affidavit but, these documents were not produced by the plaintiff in original. Even photocopy of sale agreement was not produced. The affidavit on the basis of which the plaintiff had claimed her title is not been even marked. Thus, it can be said that these documents have not been relied by the plaintiff in her evidence.
As these documents have neither been relied upon nor proved CS No. 256/11 Leelawati Vs. Shanti Devi & Ors.
by the plaintiff in her evidence, the question " Whether these documents were forged by the plaintiff has become inconsequential". Thus, in view of the above, neither it was possible for the defendant to prove nor require to prove that the title documents of plaintiffs were forged.
Relief
12. With aforesaid observations, the suit of the plaintiff is dismissed. Parties to bear on their own costs.
Decree sheet be prepared accordingly. File be consigned to Record room after necessary compliance.
Announced in the open court today i. e. on 23.04.2016.
(ANKIT SINGLA) CIVIL JUDGE03C/THC DELHI /23.04.2016 CS No. 256/11 Leelawati Vs. Shanti Devi & Ors.
CS No.256/11Smt. Leelawati Vs. Smt Shanti & Ors.
23.04.2016 Present: None.
Vide separate judgment of even date, the suit of the plaintiff is dismissed. Parties to bear on their own costs.
Decree sheet be prepared accordingly. File be consigned to Record room after necessary compliance.
(ANKIT SINGLA) CIVIL JUDGE03C/THC DELHI /23.04.2016 CS No. 256/11 Leelawati Vs. Shanti Devi & Ors.