Delhi District Court
Smt. Kanti Devi vs Mr. Raju on 10 April, 2015
1
In the Court of Sh. Rakesh Pandit, Additional District Judge3, South
East, Saket Courts, New Delhi
CS No. 250/14
Smt. Kanti Devi
W/o Late Babu Lal
R/o RZ198A/15,
Tughlakabad Extn., New Delhi. .....Plaintiff
v e r s u s
1 Mr. Raju
S/o Late Sh. Babu Lal
2 Smt. Chandrawati
W/o Raju
Both R/o RZ198A/15, Tughlakabad Extn.
New Delhi. ...... Defendants
Date of institution : 06.04.2013
Received by this Court : 10.04.2014
Date when order reserved : 23.03.2015
Date of Order : 10.04.2015
J U D G M E N T
1 By this judgment I will dispose of suit for declaration sought by the plaintiff i.e. she be declared as absolute owner of CS No. 250/14 Kanti Devi Vs. Raju & Ors. page 1/15 2 property bearing no. RZ198A/15, measuring 120 sq. yards. Khasra no. 520, Tuglakabad Extension, New Delhi (hereinafter called property) and recovery of possession of property from defendants, which is the part of this property and specifically shown red in site plan (herein after called suit property). 2 The brief facts of the case as per plaintiff are that, the property was purchased by the deceased husband of the plaintiff. He expired on 09.07.2008 leaving behind 6 Legal Heirs. On 08.08.2011 all the children of deceased, relinquished their rights in the property in favour of their mother i.e. plaintiff and left with no right, title or claim. Thus, plaintiff become the absolute owner of the property.
3 Defendant no. 1 is the son of the plaintiff while defendant no. 2 is the wife of defendant no. 1 and thus daughterin law of plaintiff. They are living in one room of the property and are in possession of one shop, one hall with kitchen and bathroom, a portion of the property specifically shown red in site plan and "termed as suit property". The defendants are quarrelsome in CS No. 250/14 Kanti Devi Vs. Raju & Ors. page 2/15 3 nature and used to fight and beat the plaintiff. In one incident on 01.03.2013, both of them attacked the plaintiff. The matter was reported to PS Govind Puri. Thereafter on 07.03.2013 plaintiff dis owned the defendants by making advertisement in national newspaper "Rashtriya Sahara". All these facts were also mentioned in a complaints made to SHO PS Govind Puri dated 08.03.2013 and National Commission for Women on 18.03.2013. 4 The defendants are the family members of the plaintiff and are not minors. They are living in the suit property as being granted permission. The plaintiff revoked the permission and does not want to keep the defendants, hence this suit. 5 In the written statement filed on behalf of defendants, the relationship between parties are admitted. The extent of portion in possession of defendants, is also admitted. It is also admitted that defendant no. 1 had signed the relinquishment deed dated 08.08.2011 however it is stated that, that was made to be done fraudulently on the pretext of taking NOC for the purposes of getting pension of deceased father in the name of plaintiff. It is denied that CS No. 250/14 Kanti Devi Vs. Raju & Ors. page 3/15 4 any right to the plaintiff was relinquished by defendants. Rest of the contents of the plaint were also denied.
6 In replication plaintiff reiterated and reaffirmed the facts of the plaint and denied those of written statement. 7 On 22.11.2013 from the pleadings and documents on record, following issues were framed:
1. Whether plaintiff is entitled for a decree of the possession of the suit property as shown in red colour in the site plan attached with the plaint against the defendants? OPP?
2. Whether plaintiff is entitled for a decree of declaration to the effect that she is the absolute owner of property bearing no. RZ198A/15, measuring 120 sq. yards, khasra no. 520, Tughlakabad Extension, New Delhi, as claimed in the plaint? OPP?
3. Whether plaintiff is entitled for a decree of permanent injunction restraining the defendants and agents, associates etc., from forcibly dispossessing from the suit property and from creating any third party interest? OPP.
4. Whether plaintiff has no cause of action to file the present suit? OPD.
CS No. 250/14 Kanti Devi Vs. Raju & Ors. page 4/15 5
5. Whether the suit is not maintainable in the present form? OPD.
6. Whether the suit is not properly valued for the purpose of court fees and jurisdiction and plaintiff has not affixed the proper court fees? OPD.
7. Whether plaintiff has not come to this court with the clean hands and suppressed the material facts? If so, to what effect?
8. Relief.
8 To prove its case plaintiff examined two witnesses. PW1 Kanti Devi deposed examinationinchief by way of affidavit. She deposed the facts in terms of her plaint and relied on following documents: Sr.no. Document/Particulars Exhibit(s) 1 Relinquishment deed dated 08.08.11 Ex. PW1/1 2 Site plan Ex.PW1/2 3 Complaint to SHO PS Govind Puri dated Ex.PW1/3 08.03.13 4 Complaint to National Commission of Women Ex.PW1/4 with receipt dated 18.03.2013 5 Courier receipt of complaint dated Ex.PW1/5 08.03.2014 CS No. 250/14 Kanti Devi Vs. Raju & Ors. page 5/15 6 6 Courier receipt of complaint to National Ex.PW1/6 Commission of Women 7 Copy of Newspaper Rashtriya Shahara Ex.PW1/7 dated 07.03.2013 8 Certified Copy of order/judgment dated Ex.PW1/8 13.01.2014 passed by Sh. Dinesh Kumar 9 PW2 Sh. Balbir deposed examinationinchief by way of affidavit. He deposed the facts in terms of plaint and relied on following documents: Sr.no. Document/Particulars Exhibit(s) Pages 1 Relinquishment deed Ex. PW1/1 (already exhibited) 4 10 After the closure of PE. Matter was fixed for DE. 11 To prove its case defendants examined two witnesses. DW1 Raju deposed examinationinchief by way of affidavit. He deposed the facts in terms of his written statement. 12 DW2 Sohan Lal could not able to tell about the facts of the affidavit and thus his statement cannot be relied for any purpose. CS No. 250/14 Kanti Devi Vs. Raju & Ors. page 6/15 7 13 After closure of DE, final arguments were heard. 14 I have gone through the pleadings, documents on record, evidence and submissions forwarded by counsels for the parties.
15 My issue wise opinion is as under: ISSUE NO. 4, 5 & 7 Issue no. 4: Whether plaintiff has no cause of action to file the present suit? OPD.
Issue no. 5: Whether the suit is not maintainable in the present form? OPD.
Issue no. 7: Whether plaintiff has not come to this court with the clean hands and suppressed the material facts? If so, to what effect?
16 The onus to prove these issues were upon the defendants (though while framing issues court had not inadvertently put burden of issue no. 7 on any party but by implication it appears to be on defendants as they have alleged those facts in their written statement). They have stated in their written statement that plaintiff CS No. 250/14 Kanti Devi Vs. Raju & Ors. page 7/15 8 was not having any cause of action to file the present case and the case is not maintainable in the present form. As far as the pleadings are concerned, as per the plaintiff, defendants are residing in the suit property as permission was granted and due to their bad behavior towards plaintiff she wants to evict them. Similarly, in the evidence also PW1 i.e. plaintiff herself had stated the same in para 6 of her affidavit Ex.PW1/A. During crossexamination this witness reiterated this fact of pleading. So, the plaintiff was having cause of action for filing the present suit. Similarly, there is clout on the title of the plaintiff i.e. relinquishment deed in her favour, caused by the defendants, she was having every right to get the said clout removed by way of seeking declaration. So, in these circumstances it can be safely said that the plaintiff was having cause of action to tile the present suit and in present form.
17 Defendants have taken preliminary objection no. 4 stating that the plaintiff has not come to the court with clean hands. During the crossexamination of the witnesses or during the time of arguments, defendants failed to establish as to what are the facts CS No. 250/14 Kanti Devi Vs. Raju & Ors. page 8/15 9 which are concealed by the plaintiff or the facts which shows that plaintiff approached the court with unclean hands. So, in these circumstances, the defendants failed to discharge the onus of proving these issues.
ISSUE NO. 6
Whether the suit is not properly valued for the purpose of court fees and jurisdiction and plaintiff has not affixed the proper court fees? OPD. 18 The onus to prove this issue was upon the defendants. In para 3 of the preliminary objection, the defendants had taken this plea that the suit is under valued and proper court fee has not been placed. No arguments are done by any of the parties on this issue and it appears that they have given up this issue. 19 Moreover, after the Hon. High Court's struck down the amendments in Court Fee Act, the court fee paid appears to be appropriate and the suit is properly valued. So, this issue also goes against the defendants and in favour of plaintiff. ISSUE NO. 2 CS No. 250/14 Kanti Devi Vs. Raju & Ors. page 9/15 10 Whether plaintiff is entitled for a decree of declaration to the effect that she is the absolute owner of property bearing no. RZ198A/15, measuring 120 sq. yards, khasra no. 520, Tughlakabad Extension, New Delhi, as claimed in the plaint? OPP?
20 The onus to prove this issue was on the plaintiff. It is argued by the counsel for the defendants that there was likelihood of marriage of sister of defendant no. 1 and due to that reason there was necessity of funds after the death of father of defendant no. 1. The present NOC Ex.PW1/1 was executed by defendant no. 1 and other members on the pretext that the NOC shall be used for the purposes of getting pension of deceased father. On the other hand, it is argued by counsel for the plaintiff that there was no requirement for NOC for the purposes of pension.
21 As far as execution of Ex.PW1/1 by defendant no. 1 is concerned, it is the admitted case of defendant no. 1 that he had signed Ex.PW1/1. His case is that it got signed fraudulently and for some different purpose i.e. getting pension in the name of mother/plaintiff. As far as Ex.PW1/1 is concerned, it does not speak anything regarding its use for service benefits of deceased husband CS No. 250/14 Kanti Devi Vs. Raju & Ors. page 10/15 11 of plaintiff. On the other hand, it specifically speaks how the other coheirs including defendant no.1 of Late Babu Lal (deceased father of defendant no. 1) are relinquishing their share in favour of Smt. Kanti Devi. Moreover in the crossexamination of DW1, he had admitted the execution of this document and even admitted that he had gone to the office of Registrar for this purpose. As far as this document is concerned, it is a registered document duly proved by plaintiff and execution admitted by defendants. In these circumstances this document stands proved. The defence taken by the defendants do not stands on account of following reasons:
(i) In his written statement he has taken the plea that the relinquishment deed was required for the purpose of getting the pension of Late Sh.
Babu Lal. On the other hand in his cross examination it is stated that it is on account of the marriage of his sister and the requirement of money.
(ii) Ex.PW1/1 does not speaks anything about its requirement for the purposes of pension.
(iii) Moreover defendants failed to call any document from the office of deceased husband of plaintiff which could have shown that the document was used for getting CS No. 250/14 Kanti Devi Vs. Raju & Ors. page 11/15 12 pension.
(iv) Since the plea of fraud was forwarded by the defendants so the facts leading to fraud are to be established by the defendants. However, defendants could not bring or establish those facts on record and in these circumstances those facts remains unestablished and unproved.
22 So, in these circumstances, it can be safely said that Ex.PW1/1 was properly executed document in which defendant no. 1 had voluntarily signed the same and released his share in the property in favour of plaintiff i.e. his mother who thus have a clear title on the property and after the execution of Ex.PW1/1, the defendant no. 1 is left with no right, title or interest in the property including suit property. So, the issue is decided in favour of plaintiff and against the defendants.
ISSUE NO. 3
Whether plaintiff is entitled for a decree of permanent injunction restraining the defendants and agents, associates etc., from forcibly dispossessing from the suit property and from creating any third party interest? OPP.
23 The onus to prove this issue was on plaintiff. On CS No. 250/14 Kanti Devi Vs. Raju & Ors. page 12/15 13 account of my issue wise opinion and especially on issue no. 2, it is held that plaintiff is the owner of the property. In these circumstances, she has every right to guard her property so that nobody can create any interest in the property. 24 So, plaintiff is able to prove that she is entitled for injunction, so that defendants shall not create any third party interest in the property including suit property. So, this issue is decided in favour of plaintiff.
ISSUE NO. 1
Whether plaintiff is entitled for a decree of the possession of the suit property as shown in red colour in the site plan attached with the plaint against the defendants? OPP?
25 The onus to prove this issue was on plaintiff. On account of my issue wise opinion especially on issue no. 2, it is held that plaintiff is the absolute owner of the property. It is also established that defendants are not having any right, title or interest in the suit property.
CS No. 250/14 Kanti Devi Vs. Raju & Ors. page 13/15 14 26 Plaintiff also deposed on record that she does not want to kept defendants in the suit property on account of the bad behavior of defendants towards her. To prove the bad behavior on record, plaintiff relied on Ex.PW1/3 and Ex.PW1/4. As per these documents, plaintiff had stated that she was met with bad behaviors by defendants and had reported about the ill deeds of the defendants to SHO PS Govindpuri on 08.03.2013 and to National Commission for Women on 18.03.2013. No crossexamination was conducted of this witness on this aspect and these facts goes unrebutted and thus proved. So, these documents show that witness/plaintiff was suffering bad behavior from the defendants. So, this shows that she has having every cause of action to evict the defendants from the suit property. So, in these circumstances, plaintiff is able to prove that she is entitled for possession of the suit property. So, this issue is decided in favour of plaintiff and against the defendants.
RELIEF 27 In view of my issue wise, plaintiff is able to prove her case, so following reliefs follows: CS No. 250/14 Kanti Devi Vs. Raju & Ors. page 14/15 15
(i) A decree of declaration is passed in favour of plaintiff and against the defendants whereby it is declared that plaintiff is owner of the property i.e. RZ198A/15, measuring 120 sq. yards, Khasra No. 520, Tughlakabad Extension, New Delhi built up from basement to First Floor.
(ii) A decree of permanent injunction is passed in favour of plaintiff and against the defendants whereby the defendants etc., are restrained from creating any third party interest in the entire property i.e. RZ198A/15, measuring 120 sq. yards, Khasra No. 520, Tughlakabad Extension, New Delhi built up from basement to First Floor.
(iii) A decree of possession of immovable property is passed in favour of plaintiff and against the defendants with respect to suit property i.e. one shop, one hall, kitchen, bathroom specifically shown red in site plan Ex.PW1/2.
(iv) Cost of the suit is also awarded in favour of plaintiff.
28 Decree sheet be prepared accordingly. 29 File be consigned to Record Room.
Announced in the open court (Rakesh Pandit) on 10.04.2015 Addl. District Judge03, South East, Saket Courts, New Delhi CS No. 250/14 Kanti Devi Vs. Raju & Ors. page 15/15 16 CS no. 250/14 Kanti Devi Vs. Raju & Ors.
10.04.2015 Present: None.
Vide separate judgment the suit of the plaintiff is decreed, so following reliefs follows:
(i) A decree of declaration is passed in favour of plaintiff and against the defendants whereby it is declared that plaintiff is owner of the property i.e. RZ198A/15, measuring 120 sq. yards, Khasra No. 520, Tughlakabad Extension, New Delhi built up from basement to First Floor.
(ii)A decree of permanent injunction is passed in favour of plaintiff and against the defendants whereby the defendants etc., are restrained from creating any third party interest in the entire property i.e. RZ198A/15, measuring 120 sq. yards, Khasra No. 520, Tughlakabad Extension, New Delhi built up from basement to First Floor.
(iii)A decree of possession of immovable property is passed in favour of plaintiff and against the defendants with respect to suit property i.e. one shop, one hall, kitchen, bathroom specifically shown red in site plan Ex.PW1/2.
(iv)Cost of the suit is also awarded in favour of CS No. 250/14 Kanti Devi Vs. Raju & Ors. page 16/15 17 plaintiff.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
(Rakesh Pandit) Addl. District Judge03, South East, Saket Courts, New Delhi/10.04.2015 CS No. 250/14 Kanti Devi Vs. Raju & Ors. page 17/15