Delhi District Court
Pyare Lal vs . Baldev Kumar & Anr. on 31 March, 2015
Pyare Lal Vs. Baldev Kumar & Anr.
IN THE COURT OF SH. KISHOR KUMAR : CIVIL JUDGE12
(CENTRAL), TIS HAZARI COURTS, DELHI
SUIT NO : 646/14
In the matter of :
Unique ID Number : 02401C0349302013
Pyare Lal,
S/o Sh. Bhagat Singh,
R/o 3658, Gali Thane Wali,
Subzi Mandi, Delhi - 110 007. ...PLAINTIFF
VERSUS
1. Baldev Kumar,
S/o Sh. Prakash Chand,
R/o 3932, Gali Thane Wali,
Subzi Mandi, Delhi - 110 007.
2. Kamal Kumar,
S/o Sh. Laxman Dass,
R/o 3932, Gali Thane Wali,
Subzi Mandi, Delhi - 110 007.
Also at:
Lohar Mohalla,
Akalgarh, Gurudwara,
Kartarpur, Jallandhar (Punjab) ...DEFENDANTS
Date of institution : 18.07.2013
Date of judgment : 31.03.2015
SUIT FOR PERMANENT INJUNCTION
CS No.646/14 Pg 1 of 8
Pyare Lal Vs. Baldev Kumar & Anr.
JUDGMENT
1. Plaintiff has filed the present suit for permanent injunction that defendants, their attorneys, servants etc. etc be restrained from dispossessing the plaintiff from the suit property bearing No.3930, Old Subzi Mandi, Delhi06 and also to restrain the defendants from creating any third party interest in the suit property. Further case of the plaintiff is that he is running a Dhaba in the suit premises since 1960 on the ground floor, having taken the same on security (Pagri) along with the defendant in the year 1960 and since then he is in possession of the same with the defendant in partnership in 5050% ratio. It is further alleged that in July, 2012, defendant No.2 had gone to Kartar Pur. Plaintiff alone was running the Dhaba. After one week, the plaintiff who is an old man suffering from various age old ailments, closed the Dhaba due to his ill health by locking the same. When the defendant returned from Punjab, his intention became CS No.646/14 Pg 2 of 8 Pyare Lal Vs. Baldev Kumar & Anr.
dishonest and he started threatening the plaintiff of forcible dispossession from the suit premises. In this connection, on 07.08.2012, defendants reached the suit property and tried to dispossess the plaintiff. Hence, the present suit.
2. Defendants filed their Written Statement that suit property was purchased jointly by way of registered sale deed executed in the Office of SubRegistrarI, Delhi on 25.03.1967 by father of the defendant along with their other brothers i.e. Lal Chand and Ram Chander, who expired and now, their LRs are the owners of the suit property. Rest of the case of the plaintiff is denied being wrong and incorrect.
3. On the basis of pleading of the parties, following issues were framed on 22.04.2014:
1. Whether plaintiff is entitled to decree of permanent injunction, as prayed for? OPP.
2. Whether the suit of the plaintiff is not maintainable for want of necessary parties? OPD.
CS No.646/14 Pg 3 of 8 Pyare Lal Vs. Baldev Kumar & Anr.
3. Whether the plaintiff is not the owner of the suit property? OPD.
4. Relief.
4. In order to prove his case, plaintiff has examined himself as PW1 by way of his affidavit Ex.PW1/B. He has relied upon the site plan Ex.PW1/A.
5. Defendant has not led any evidence despite opportunities nor anybody appeared on their behalf even to address final arguments.
6. I have heard ld. Counsel for plaintiff and have carefully gone through the record.
7. My issue wise findings do as follow: ISSUES NO.2 & 3
Whether the suit of the plaintiff is not maintainable for want of necessary parties? OPD.
Whether the plaintiff is not the owner of the suit property? OPD.
CS No.646/14 Pg 4 of 8 Pyare Lal Vs. Baldev Kumar & Anr.
8. Onus of proving both these issues was on defendants.
Whatever the defendants have stated in their Written Statement, to substantiate the same, none of the defendants stepped into the witness box. It is also pertinent to mention that even the PW1/plaintiff has not been cross examined by ld. Counsel for the defendants. As such, the testimony of PW1/plaintiff remains unrebutted and unchallenged on record. Furthermore, the defendants have not led any evidence to discharge the onus of proving both these issues. It is also a settled proposition of law that a suit cannot be dismissed for want of any necessary party. Defendants neither disclosed in their Written Statement nor they led any evidence as to who is the necessary parties under the facts and circumstances of the present case.
9. It is not out of place to mention herein that so far as issue No. 3 is concerned, it is no where the case of the plaintiff that he is the owner of the suit property. Plaintiff has averred in his CS No.646/14 Pg 5 of 8 Pyare Lal Vs. Baldev Kumar & Anr.
plaint that he has been running a Dhaba in the suit property along with the defendant in 50% share under some partnership. The plaintiff has further stated that he had taken the suit premises on Pagri in the year 1960. However, this court finds that this plea of the plaintiff is barred u/s 5 of the DRC Act that any practice of grant or taking Pagri is an illegal act. Both these issues are accordingly disposed off. ISSUE NO.1 Whether plaintiff is entitled to decree of permanent injunction, as prayed for? OPP.
10.Onus of proving this issue is on the plaintiff. Plaintiff in support of his case, examined himself as PW1 by way of his affidavit Ex.PW1/B. His affidavit in evidence is the replica of the plaint. Testimony of plaintiff/PW1 is unchallenged and unrebutted. Therefore, in whatever capacity, the plaintiff is sitting/in possession of the suit premises, he cannot be dispossessed therefrom by the defendants or their agents, CS No.646/14 Pg 6 of 8 Pyare Lal Vs. Baldev Kumar & Anr.
attorneys, servants, etc.. etc.. without following due process of law. Plaintiff has not proved any partnership deed as alleged by him in his plaint. On the other hand, it is also seen that defendants have not filed any document in support of their averments as contained in the Written Statement. Admittedly, the plaintiff is not the owner of the suit premises. Hence, the plaintiff cannot seek the injunction against the true owner of the suit property that he should be restrained from creating any third party interest in respect of the suit property in favour of any other person. The suit of the plaintiff under the circumstances is only to the extent that he should not be dispossessed from the suit premises by the defendants without due process of law. This issue is accordingly disposed off.
RELIEF
11.In view of my discussion on the issues herein above, suit of the plaintiff is partly decreed that defendants, their agents, CS No.646/14 Pg 7 of 8 Pyare Lal Vs. Baldev Kumar & Anr.
LRs, attorneys, servants etc. are restrained from dispossessing the plaintiff from the suit premises bearing No. 3930, Old Subzi Mandi, Delhi06, as shown in red colour in the site plan Ex.PW1/A, without following due process of law. Under the circumstances, parties are left to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to Record room.
Announced in the open court Kishor Kumar on 31.03.2015 CJ12/Central/THC CS No.646/14 Pg 8 of 8