Delhi District Court
Smt. Kala Wati W/O Late Sh. Kali Charan vs Smt. Urmila Devi W/O Sh. Puran Chand on 5 May, 2011
IN THE COURT OF SH. SAURABH KULSHRESHTHA:
CCJ:ARC(EAST):KARKARDOOMA COURTS: DELHI
Civil Suit no: 753/07
ID No:02402C0485322004
1. Smt. Kala Wati W/o Late Sh. Kali Charan
through attorney Sh. Yadunath Singh Tomar S/o Sh. Nathu Singh
R/o Village Amolkapura, P.S. Daudri,
Tehsil Porsa, Distt. Morena (M.P.)
2. Sh. Puran Chand S/o Sh. Kali Charan,
R/o Village Amolkapura, P.S. Daudri,
Tehsil Porsa, Distt. Morena (M.P.)
... Plaintiff
Versus
1. Smt. Urmila Devi W/o Sh. Puran Chand
R/o T-208, Gali no.1, Gautampuri, Seelampur,
Delhi-110053.
2. Sh. Ram Prakash Ojha S/o Sh. Ram Kishan Ojha
R/o T-209, Gali no.1, Gautampuri, Seelampur,
Delhi-110053.
3. Smt. Meera W/o Sh. Ram Babu
R/o Village & P.O. Umri
Distt. Bhind (M.P.)
4. Sh. Rameshwar Gupta S/o Sh. Heera Lal
R/o H. No. 221, Gali no.3,
Gautampuri, Delhi-53.
5. Sh. Sanjay S/o Sh. Puran Chand
R/o T-208, Gali no.1,
Gautam Puri, Delhi-110053.
6. Master Jeetu (Minor) S/o Sh. Puran Chand
CS NO.753/07 Page No: 1/47
7. Miss. Dolly (Minor) D/o Sh. Puran Chand
8. Master Sunny (Minor) S/o Sh. Puran Chand
All 6 to 8 above R/o T-208, Gali no.1,
Gautam Puri, Delhi-110053.
Through their mother and guardian
Smt. Urmila Devi - defendant no.1
.... Defendants
Suit for Declaration, Partition, Possession and Damages and Permanent
and Mandatory Injunction.
Date of institution of the Suit : 28.01.2004
Date on which judgment was reserved : 15.04.2011
Date of decision : 05.05.2011
Decision : Decreed
JUDGMENT:-
1. This is a suit for Declaration, Partition, Possession and Damages and Permanent and Mandatory Injunction filed by the Plaintiffs.
2. Vide order dated 08.02.2005 the present suit no. 753/ 2007 (41/04) titled as Kalawati v. Urmila Devi and suit no. 279/2010 (26/04) ti- tled as Ram Prakash Ojha vs. Urmila Devi were consolidated with suit no. 757/07 (25/01) titled as Urmila Devi v. Kalawati which was ordered to be CS NO.753/07 Page No: 2/47 treated as the leading/ main case and evidence was recorded in suit no. 757/07 (25/01).
3. The facts of the case as discernible from the pleadings of the parties are that Sh. Kali Charan and Sh. Ram Prakash Ojha (defendant no. 2) were brothers. Sh. Kali Charan and Sh. Ram Prakash Ojha (defendant no. 2) jointly purchased two properties - one T-208, Gali No. 1, Gautam Puri, Del- hi measuring 200 Sq. Yds and T-209, Gali No. 1, Gautam Puri, Delhi mea- suring 150 Sq. Yds. out of joint funds. Sh. Kali Charan occupied property bearing no. T-208 and the Plaintiff Sh.Ram Prakash Ojha started residing in property bearing no. T-209. However there was no formal partition between the two brothers.
4. The plaintiff no. 1 is the wife of Sh. Kalicharan and the plain- tiff no. 2 is the son of Sh. Kalicharan. The defendant nos. 1 is the daughter in law of Sh. Kali Charan and the wife of the plaintiff no. 2. The defendant no. 3 is the daughter of Sh. Kali Charan. The defendant no. 4 is an occupant in apportion of the property no. T-208 inducted by the defendant no. 1. The defendant nos.5,6 and 7 are the children of the plaintiff no. 2 and the defen- dant no. 1.
CS NO.753/07 Page No: 3/47
5. The version of the plaintiffs is that Late Sh. Kali Charan and the defendant no. 2 Sh. Ram Prakash Ojha were owners to the extent of 50% each in both the properties. The defendant no. 2 was residing in plot no. T-209 while Sh. Kali Charan was residing in plot no. T-208. Sh. Kalicharan expired on 10.01.1998 intestate and the plaintiffs and the defendant no. 3 succeeded to the half undivided share of Sh. Kalicharan.
6. It was further pleaded that another suit no.151/98 was filed by the defendant no. 2 Sh. Ram Prakash Ojha against the defendant no. 1 Urmi- la Devi and others and the said suit was disposed of as compromised by Sh. B.S. Chumbak, the then Ld. Civil Judge, vide order dated 25.10.1999. In the said suit the defendant no. 1 Urmila Devi had been proceeded ex-parte. A compromise was arrived at between Sh. Ram Prakash Ojha, Puran Chand and Kalawati in the said suit on the basis of a family settlement arrived be- tween Sh. Ram Prakash Ojha, Smt. Kalawati and Sh. Puran Chand.
7. Under the said family settlement dated 23.10.99 it was decided that the defendant no. 2 Sh. Ram Prakash Ojha and Sh. Kali Charan were owners to the extent of 50% each in the two properties - 208 and 209. The defendant no. 2 Sh. Ram Prakash Ojha was declared as absolute owner of CS NO.753/07 Page No: 4/47 property no. T-209 measuring 150 sq. yards and an additional area of 25 sq. yards carved out from property no. T-208 was also merged into the property no. T-209 of Sh. Ram Prakash Ojha. The remaining 175 square yards of the property bearing no. T-208 were taken by Smt. Kalawati and Sh. Puran Chand. Thus two plots of equal area of 175 sq. yards were created under the family settlement. The said family settlement also stood ratified by the daughter of Late Sh. Kali Charan namely Smt. Meera (defendant no.3). The plaintiffs further contended that that under the family settlement defendant no. 2 became the absolute owner of property no.T-209 measuring 150 sq. yards and an additional area of 25 square yards was carved out from proper- ty no. T-208 merged into property no. T-209 and he is therefore the owner of an area of 175 Sq. yds. They further pleaded that the legal heirs of Sh. Kali Charan became the owners of the remaining 175 sq. yards area of prop- erty no.T-208.
8. The plaintiffs have further contended there was originally a common wall with a height of 2 ½ ft. between the two properties at points CD shown in the site plan. However after the family settlement a new parti- tion wall was raised at point AB shown in the site plan dividing both the properties in an area of 175 sq. yards each was constructed. The plaintiffs CS NO.753/07 Page No: 5/47 have further alleged that on 4/5.11.2000 the defendant no. 1 in the absence of the plaintiffs and the defendant no. 2 demolished the said new partition wall at point AB and also removed the goods of the defendant no. 2 from the suit property.
9. The plaintiffs further alleged that the defendant no. 1 filed a civil suit no. 471/2000 and claimed in the said civil suit that she is the owner of the property bearing no. T-208 having purchased the same from Sh. Kali Charan on the basis of photocopies of some documents dated 07.01.1991. The plaintiffs claim that the said documents are forged and fabricated and the defendant no. 1 has no right title or interest in the property nos. T-208.The plaintiffs further pleaded that the defendant no. 1 along with the defendant no. 5 also compelled the plaintiff no. 2 to leave the property no. T-208 and acquired wrongful possession of the same.
10. The plaintiffs have further pleaded that they had filed a suit 40/2001 wherein vide order dated 22.05.2001 the Court was pleased to re- strain the defendants therein from carrying out any constructions in the suit property i.e. T-208 measuring 175 square yards and from creating any third party interests in respect of the same. However the defendant no. 1 in viola-
CS NO.753/07 Page No: 6/47 tion of the said order created third party interest in respect of the portion EFGH shown in the site plan in property no. T-208 and inducted the defen- dant no. 4 therein who is running his business in the name and style of M/s Priya Oil Depot in the said portion although he has no right to remain in possession of the same. The defendant no. 1 also constructed a toilet be- tween point B and D shown in the site plan and raised other illegal construc- tions in the property no. T-208.
11. The plaintiffs further pleaded that the defendant nos. 1 and de- fendant no. 5 to 8 were in possession of the suit property being the licensees of the plaintiff no. 2 being the wife and children of the plaintiff no. 2. The said license has been terminated vide legal notice 15.09.2003 issued by the plaintiff no. 2. The defendant no. 1 however sent a frivolous reply dated 09.10.2003.
12. The plaintiffs have contended that the defendant no. 1, the de- fendant no. 4 and the defendant no. 5 to 8 are unauthorized occupants in the portion AFGB shown in the site plan and are also liable to pay mesne prof- ites/ damages @ Rs. 1000/- per month. The plaintiffs and the defendant no. 3 are owners of 1/3rd share each in the property no. T-208 measuring 175 CS NO.753/07 Page No: 7/47 square yards after the family settlement and the same should be partitioned and separate possession of the same should be handed over to the plaintiffs.
13. The plaintiffs have prayed for a decree of Declaration declar- ing the possession of the defendant no. 4 in the portion EFGH shown in the site plan out of property no. T-208, Gali No. 1, Gautam Puri, Delhi. The plaintiffs have further prayed for a decree of possession against the defen- dant no.1, defendant no. 4 and the defendant nos. 5 to 8 in respect of the portion AFGB shown in the site plan out of property no. T-208, Gali No. 1, Gautam Puri, Delhi along with a decree of damages/ mesne profits @ Rs. 1000/- per month along with interest @ 18% per annum from the date of in- stitution of the suit till realization. The plaintiffs have further prayed for a permanent injunction restraining the defendants from raising any construc- tions in the suit property and from selling, alienating or creating any third party interest in respect of the same. The plaintiffs have further prayed for a mandatory injunction directing the defendants to restore the suit property to its original position as it existed prior to 22.01.2001. The plaintiffs have fur- ther prayed for a preliminary decree of partition declaring the plaintiffs to be owners of 2/3rd share and the defendant no. 3 to be the owner of 1/3 rd share CS NO.753/07 Page No: 8/47 in the property no. T-208, Gali No. 1, Gautam Puri, Delhi and thereafter pass a final decree for partition.
14. The main contesting defendant is the defendant no. 1 along with her children defendant nos. 5 to 8 who filed their joint written state- ment. The version of the defendant no. 1 Mrs. Urmila Devi is that she was residing alongwith Sh. Kali Charan (her father-in-law) in the property no. T-208 from during the life time of Sh. Kali Charan and Sh. Puran Chand and Smt. Kalawati were residing separately from Late Sh. Kali Charan at their native village at M.P. Smt. Urmila Devi further pleaded that her hus- band Sh. Puran Chand was not on visiting terms with his father and his rela- tions with his father Sh. Kali Charan were not cordial as there was a dispute between Sh. Kali Charan and his wife Smt. Kalawati and Smt. Kalawati also never visited Sh. Kali Charan at Delhi at property no. T-208.
15. It is further the case of the defendant no. 1 Urmila Devi that by a set of title documents viz. General Power of Attorney, Agreement to Sell, Affidavit, receipt all dated 07.01.1991 she had purchased property no. T-208, Gali no. 1, Gautam Puri, Seelampur, Delhi from Sh. Kali Charan for a sale consideration of Rs.45,000/-. The defendant no. 1 Urmila Devi has CS NO.753/07 Page No: 9/47 further contended that Sh. Kali Charan was the absolute owner of the prop- erty no. T-208, Gali no. 1, Gautam Puri, Seelampur, Delhi. She further pleaded that the original documents have been misplaced and she had lodged a report with Police station Seelam Pur in this respect. She further pleaded that Sh. Kali Charan expired on 01.01.1998.
16. The defendant no. 1 Mrs. Urmila Devi claims that the said family settlement was illegal, null and void and not binding upon her. She further averred that she came to know of the said family settlement after- wards when she obtained certified copies of the court records of suit no. 151/98. The defendant no. 1 further pleaded that on the intervening night of 12th and 13th January 2001 the common wall originally existing between the two properties was demolished by the plaintiffs and the defendant no. 2. She further pleaded that the defendant nos. 2 is in collusion with the plaintiffs. She further pleaded that there ought to be constructed a common wall be- tween the two properties at it originally stood dividing the two properties in to the original area of 200 sq. yards and 150 sq, yards respectively. She prayed for dismissal of the suit.
CS NO.753/07 Page No: 10/47
17. The defendant nos. 2 supported the version of the plaintiffs and pleaded on similar lines. The defendant no. 2 has contended that the de- fendant no. 1 is having no right, title or interest in any of the properties and has no right to remain in possession of the same. The defendant no. 2 further stated that the family settlement was rightly arrived at between Sh. Ram Prakash Ojha on one hand and the legal heirs Sh. Kali Charan on the other hand and is binding and legal. He more or less supported the version of the plaintiffs as against the defendant no. 1. The defendant no. 3 also supported and admitted the case of the plaintiffs.
18. The defendant no. 4 pleaded that the defendant no. 1 was the owner of the property no. T-208, Gali No. 1, Gautam Puri, Delhi having purchased the same from SH. Kalicharan vide some documents dated 07.01.1991. He further pleaded that he had purchased the portion EFGH shown in the site plan from the defendant no. 1 through agreement to sell, GPA etc. and is in lawful possession thereof in capacity of its owner. He prayed for dismissal of the suit.
19. Plaintiffs filed replication to the written statements of the de- fendant no. 1 and defendant nos. 5 to 8 and the defendant no. 4 and denied CS NO.753/07 Page No: 11/47 the averments of the written statements simultaneously reiterated and reaf- firmed the contents of the plaint.
20. Vide order dated 08.02.2005, the following issues were framed in this case:
1. Whether the suit is bad for mis-joinder and non-joinder of necessary parties? (OPD1)
2. Whether defendant no.1 is the absolute owner of the property mea-
suring 200 sq. yds. Bearing no.T-208,Gali no.1,Gautam Puri, Delhi? (OPD1)
3. Whether the plaintiffs are entitled for the possession of the property bearing no.T-208, Gali no.1,Gautam Puri, Delhi? (OPP)
4. Whether the plaintiffs are entitled for relief of permanent injunction as they prayed for? (OPP)
5. Whether the plaintiffs are entitled for decree of mandatory injunction as they prayed for? (OPP)
6. Whether the plaintiffs are entitled for relief of declaration as they prayed for ? (OPP)
7. Whether plaintiffs are entitled for damages, if so, at what rate and from what period? (OPP) CS NO.753/07 Page No: 12/47
8. Whether the plaintiffs are entitled for interest, if so at what rate and from what period? (OPP)
9. Whether the plaintiffs are entitled for preliminary decree of partition as they prayed for? (OPP)
10. Relief.
21. Suit no. 757/07 (25/01) titled as Urmila Devi v. Kalawati was ordered to be treated as the leading/ main case and evidence was recorded in suit no. 757/07 (25/01).
22. In order to establish their case the plaintiffs examined plaintiff no. 2 Puran Chand as DW-1 who deposed on the lines of the plaint.
23. The defendant no. 2 Ram Prakash Ojha examined himself as DW3/1. He also examined two witnesses namely Sh. Rameshwar Dayal Sharma as DW-3/2 and Suresh Chand as DW-3/3 who corroborated the ver- sion of the defendant no. 1 Sh. Ram Prakash Ojha.
24. The defendant nos. 1, 5, 6, 7 and 8 examined five witnesses. Urmila Devi examined herself as PW-1 and deposed on the lines of her pleadings. She further examined Sh. Ram ji Lal as PW-2 who was the pur-
CS NO.753/07 Page No: 13/47 ported attesting witness of the sale documents allegedly executed by Late Sh. Kali Charan in favour of Mrs. Urmila Devi in respect of property no. T-208, Gali No. 1, Gautam Puri, Delhi. Sh. Sanjay Sharma defendant no. 5 was examined as PW-3 who corroborated the version of the PW 1. PW-4, Sh. Narain Singh, UDC with MCD produced the assessment order dated 21.05.01 in respect of property no. T-208, Gali No. 1, Gautam Puri, Delhi. PW-5 Sh. Madhav Ram Sharma, deposed that he was a tenant of Ms. Urmi- la Devi in a portion of property no. T-208, Gali No. 1, Gautam Puri, Delhi. Defendant no. 4 did not examine any witness.
25. I have heard the Ld. Counsel for the parties and have given due consideration to the rival contentions and carefully perused the record. My issue-wise findings are as follows:
Issue no.2:
26. The question to be answered is as to whether the defendant no. 1 was the absolute owner of the property no. T-208. The onus to prove this issue was upon the defendant.
CS NO.753/07 Page No: 14/47
27. Let us first of all examine as to who were the owners in re- spect of the properties bearing nos.T-208 and T-209. PW-1 Urmila Devi has deposed that late Kali Charan was the owner of property no.T-208 and he was residing in the said property. PW-1 further deposed that the entire prop- erty no. T-208 measuring 200 sq yds was owned by Late Sh. Kali Charan and Sh. Ram Prakash Ojha was the owner of property no. T-209 measuring 150 sq. yds. However PW-1 Urmila Devi could not support her contention with documentary evidence.
28. As against this the plaintiff no.2 Sh. Puran Chand examined himself as DW-1 and the defendant no. 2 Ram Ram Prakash Ojha examined himself as DW3/1. They deposed that Sh. Kali Charan and Sh.Ram Prakash Ojha had jointly purchased property no. T-209, measuring 150 sq. yards by way of a duly registered sale deed dated 19.04.1971. The original registered sale deed is Ex. DW3/1/1. DW 1 and DW 3/1 further deposed that Sh. Kali Charan and Sh.Ram Prakash Ojha had also jointly purchased property no.T-208, measuring 200 sq. yds. by way of agreement to sell, GPA, receipt etc. dated 01.01.1980 and jointly paid the entire consideration. Certified copy of the registered receipt is Ex. DW-1/2. The receipt shows that the consideration amount was paid by both Sh. Kali Charan and Sh. Ram CS NO.753/07 Page No: 15/47 Prakash Ojha. Copies of the GPA and agreement to sell are Mark A and Mark B. Counsel for the defendant no. 1 Urmila Devi could not elicit any- thing substantial in the cross examination of DW-1 and DW3/1 so as to dis- credit their testimonies on this point.
29. Thus, there is clear documentary evidence on record to the ef- fect that Sh. Kali Charan and Sh.Ram Prakash Ojha were joint owners of the property no.T-208 and T-209. Nothing contrary could be established by the defendant no. 1 and the defendant no. 1 also could not adduce any cogent and viable evidence to show that Sh. Kali Charan was the sole owner of property no.T-208. No documentary evidence was adduced by the defendant no. 1 in this respect and her contention that Sh. Kali Charan was the sole owner of property no. T-208 is merely a bald averment totally unsupported by any viable evidence whatsoever.
30. On the basis of the material on record I therefore hold that Sh.Ram Prakash Ojha and Sh. Kali Charan were owners of one half share each in property no. T-208 and one half share each in property no.T-209.
31. As far as the property no. T-209 measuring 150 sq. yds. is concerned, there is no ownership dispute between the parties. Sh. Ram CS NO.753/07 Page No: 16/47 Prakash Ojha is in possession of property no. T-209. The dispute is with re- spect to the property no. T-208. The dispute is primarily between the legal heirs of Sh. Kali Charan on one hand and the defendant no. 1 Mrs. Urmila Devi on the other hand.
32. The defendant no. 1 Urmila Devi claims that she has pur- chased property no. T-208 from Sh. Kali Charan by way of a set of title doc- uments i.e. agreement to sell, GPA, receipt etc. all dated 07.01.1991. PW-1 deposed in this respect in her testimony. Defendant no. 5/ PW 3 son of PW 1 also deposed in this respect. PW-2 Ramji Lal is the purported attesting witness to the said documents. He has also deposed that on 07.01.1991 Sh. Kali Charan had transferred the property no. T-208 for valuable considera- tion to Smt. Urmila Devi and executed General Power of attorney, Agree- ment to Sell, Receipt etc, which were duly notorised.
33. The prime question to be answered is as to whether the defen- dant no. 1 Urmila Devi has established that she has become the owner of property no. T-208 by virtue of these documents.
34. PW-1 was cross examined by the counsel for the plaintiffs. She stated in her cross examination:
CS NO.753/07 Page No: 17/47 "... ...I do not remember what all papers were prepared at the time of al-
leged purchase of property bearing no. T-208 by me. I had also signed on the sale deed (registry) at the time of purchase of this property. The Papers were prepared in Shahdara court. I do not know from where the stamp paper was purchase or by whom it was purchased (Vol.) whatever was done, was done by my father in law Kalicharan. I do not know from where the docu- ments of purchase were got attested but I was present there. I do not know anything about these documents because everything was done by my father- in-law. I had informed the authorities including house tax deptt. regarding the purchase of property T-208 by me...."
35. She further stated in her cross examination:
" ....The papers which were prepared regarding purchase of property by me i.e. T-208 were lost about 5/6 years back. Those papers were lying at my house in almirah. I had the complete original set with me. I had also got prepared the photocopy of original set. One photocopy of original set was lying with original set and one copy of the set was lying in a different box with me. The almirah and box had no lock. I did not obtain the certified copy of the said documents. I have certified copy of the said registry. I do not have the certified copy with me, it might be with my counsel. I had giv- en it when I filed the case. The registry is with my husband and the same thing was told to me by my husband when I asked him for the registry. I had told this fact to my counsel. It is wrong to suggest that I never pur- chased the property bearing no. T-208 from my father-in-law. It is further wrong to suggest that I never lost any original papers. It is further wrong to CS NO.753/07 Page No: 18/47 suggest that the photocopies mark-A (Colly) are false and fabricated in or- der to raise a false claim in the property bearing No. T-208... .."
36. PW-2 is the attesting witness to the said documents. He stated in his cross examination :
"... ... .Kalicharan had sold the property in possession of the plaintiff to her in the year 1986 for a sum of Rs.45,000/-. I do not remember the date and month of the alleged sale by Kalicharan. I had signed as a witness at 3-4 places on the documents which were prepared relating to sale transaction. The documents were got registered in Seelampur. No photographs were af- fixed on the papers. It is correct that no money was handed over in my pres- ence in respect of the alleged sale. I do not know what documents were pre- pared regarding the alleged sale. I cannot tell the name of the person who had typed the documents but it were typed in my presence. The plaintiff was also present at that time when documents were prepared. Plaintiff had not signed the documents in my presence and I cannot say if she had signed later on. At that time only myself and Radhey Shyam had signed those doc- uments. I have seen the said documents only once 6 months after is execu- tion. The documents were got stolen 2 years after its date of execution when the plaintiff had gone to attend the marriage at Porsa. The plaintiff had told me about this theft. I had no personal knowledge of this fact. Plaintiff had told me that the documents were stolen from the three wheeler, the entire trunk was stolen from three wheeler. I had seen the photocopy of the docu- ments after the incident of theft but I cannot tell date, year and month but it was two years after the incident of theft. I had seen the photocopies with the CS NO.753/07 Page No: 19/47 plaintiff. I had seen the photocopies two years ago also with the plaintiff. I have not seen the photocopies of the said documents in the last two years till date. I had seen photocopies of all the papers numbering 5/6. It is wrong to suggest that defendant no.2 used to reside in this property with the plain- tiff...."
37. The cross examination of PW-1 and PW-2 shows that they were not aware as to exactly what documents were prepared. PW-1 stated that one sale deed (registry) was also prepared and it was registered and she has not obtained any certified copy of the same. However, the pleadings do not show that any sale deed was executed nor do the copies of the docu- ments on the record show that any sale deed was executed or registered. She stated that she had no knowledge as to what documents were prepared and everything was done by Sh. Kali Charan. None of the PWs have stated that what documents were prepared. PW-2 stated that plaintiff has not signed any of the documents in his presence and he did not know whether PW-1 had signed those documents. PW1 on the other hand stated that she had signed the registry. There is an apparent contradiction in the testimonies of the PW 1 and PW 2.
38. PW 2 stated that he is the real chahca of the defendant no. 1 and is therefore an interested witness. His permanent place of abode is vil-
CS NO.753/07 Page No: 20/47 lage Changoli, District Agra, U.P. and therefore his presence at Delhi on 07.01.1991 has also not been explained.
39. Further it has not been pleaded by the defendant no. 1 that she had paid any amount to Sh. Kali Charan. PW-1 also never stated that any consideration amount has been paid to Sh. Kali Charan. It has not been dis- closed as to what was the source of funds for purchase of the suit property. It is not the case of the defendant no. 1 that the defendant no. 1 is gainfully employed and the funds were self acquired funds. From where the defendant no. 1 acquired the funds is a question, which remains unanswered. On what date this amount was paid has not been mentioned by the defendant no. 1. No evidence has been led as to from where this amount of Rs. 45,000/- was procured by the defendant no. 1. No statement of bank account has been placed on record to show that any such amount was withdrawn by the de- fendant no. 1 on or before 07.01.1991. No Income Tax returns of the defen- dant no. 1 have been filed to show the source of these funds. No other ex- planation has come from the defendant no. 1.
40. There is no other evidence to show that amount of sale consid- eration was paid to Sh. Kali Charan. PW 2 also did not state that any consid-
CS NO.753/07 Page No: 21/47 eration amount was paid to Sh. Kali Charan in his presence. In fact PW 2 stated in his cross examination that " it is correct that no money was handed over in my presence in respect of the alleged sale."
41. PW 3 who is the son of the defendant no. 1 admitted in his cross examination that he was a kid at that time in the year 1991 and he can- not tell whether any papers were prepared for sale of the property to the plaintiff and hence his testimony is not of much help to the defendant no. 1. PW 5 also did not depose any thing which establishes the title of the defen- dant no. 1 in the suit property. Thus the defendant no. 1 has failed to estab- lish that any consideration amount was paid to Sh. Kali Charan. The defen- dant no. 1 has further failed to establish the execution of the said documents by Sh. Kali Charan.
42. Further even the alleged sale documents have not been clearly proved by the defendant no. 1. Only photocopies were placed on record. It is pertinent to note that the originals of these documents were not produced before the court. It was contended that the originals have been lost. Howev- er no permission was sought by the defendant no. 1 from the court to lead secondary evidence. The documents were not exhibited and were only CS NO.753/07 Page No: 22/47 marked as mark A (colly.). The documents comprise of Agreement to Sell, power of attorney, affidavit and receipt. The documents are not legible and are torn from various places and complete documents were not available. The said photocopies of the documents are not very legible and therefore it is not possible to compare the signatures of Sh. Kali Charan on the said doc- uments with the admitted signatures of Sh. Kali Charan.
43. There are no photocopies of the back side of the documents and hence the date of purchase and other details of purchase of the stamp papers cannot be verified. The stamp vendor has not been examined. The notary public who allegedly attested the documents has also not been exam- ined by the plaintiff. The signatures of the notary public are not clear. There is no S. No. regarding entry of the said documents in the register of the no- tary public. Hence the authenticity and veracity of the documents has not been established.
44. A document can be proved by primary evidence i.e. producing the document itself and where the original has been lost, secondary evidence can be produced. However, permission to seek secondary evidence has to be sought from the court. Secondly the plea that the original document has CS NO.753/07 Page No: 23/47 been lost has to be clearly established and thereafter the photocopies have to be proved satisfactorily. Under section 65(c) of the Indian Evidence Act, Court would grant permission to lead secondary evidence only when it comes to a conclusion that the existence and execution of the original docu- ment has been proved and it has been further established that the original document has been lost. Reference may be made to the judgments titled as Tilak Raj v. Janak Raj reported as 1998(2) R.C.R.(Civil) 348. Gurdial Kaur v. Registrar, Cooperative Societies, Punjab, reported as A.I.R. 2000 Punjab 82 and Rambhau Sadashivappa Jatkar v. Tryambak Shenfal Satbharkre reported as 2006(4) R.C.R. (Civil) 236.
45. As far as the first condition is concerned, no permission was sought from the court. The second condition is that the defendant no. 1 should establish the existence of the original and the fact that the original has been lost. Neither the existence of the original has been satisfactorily es- tablished nor the loss has been proved. The defendant no. 1 /PW-1 stated at the time evidence on 07.05.2005 that the documents were lost 5/6 years back. However, in the pleadings it has been stated that original documents have been misplaced and report in this respect was lodged by the plaintiff CS NO.753/07 Page No: 24/47 on 13.11.1998 with Seelam Pur police station. No details have been given as to how these documents were lost.
46. First of all let us examine the alleged complaint which has been lodged by the plaintiff. The said complaint has also not been properly proved. No witness from the police station has been examined so as to prove that the said complaint was infact lodged at PS Seelampur. Moreover the original acknowledged complaint has not been placed on record. It is not the contention of the defendant no. 1 that the original acknowledged complaint has also been lost. Thus neither the record from the police station was proved nor the original acknowledged complaint was produced before the court. The said complaint mark-B therefore has not been properly proved or exhibited. If the same is seen, the stamp of the police station is also not clear. It is not clear as to whether the said stamp is of any police station or not. No DD number etc. has been mentioned on the said complaint. The name of the person who received the said complaint is also not mentioned. The defendant no. 1 has therefore failed to prove that any such complaint was submitted at PS Seelam Pur.
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47. Now let us come to the contents of the said complaint mark-B. It has been stated in the said complaint that Urmila Devi had purchased one house on 07.01.1991 and had got prepared one GPA in that respect. It was further stated that the original registry of the said house is missing. However, the defendant no. 1 Urmila Devi is having one photocopy of the said registry and further that the factum regarding loss of original GPA be registered. A bare perusal of this complaint shows that it has not been mentioned that as to when and under what circumstances the original documents were lost. The complaint only talks about one GPA. However defendant no. 1 has placed on record, copy of one agreement to sell, receipt and affidavit also. The factum of loss of this agreement to sell, receipt and affidavit has not been mentioned in the said complaint. The complaint is extremely vague. The contents of the complaint have also not been proved by the defendant no. 1 in her evidence also. Again under what circumstances the said docu- ments were lost has not been stated in the evidence.
48. PW-2 on the other hand stated that the said documents got stolen two years after its execution, which is totally contradictory to the stand taken by PW-1. PW-2 has stated that the said documents had got CS NO.753/07 Page No: 26/47 stolen when the plaintiff had gone to attend a marriage. However no FIR was lodged in respect of theft of the documents.
49. In these circumstances, I am of the opinion that the defendant no. 1 has failed to clearly establish that the alleged original documents have been stolen and hence secondary evidence of the said documents is not ad- missible. The originals have not been placed before the court. Moreover I have already held that there sufficient contradictions and lacune in the evi- dence of PW-1 and PW-2 regarding the execution of the said documents. I am of the opinion that the defendant no. 1 has therefore failed to establish that said documents were in fact executed by Sh. Kali Charan in her favour. Moreover the factum of the payment of the sale consideration of Rs. 45,000/- was also not clearly averred by the defendant no. 1 and she has failed to establish that any consideration amount was paid to Sh. Kali Cha- ran for purchase of the suit property no. T-208. Accordingly, the GPA if any was even otherwise without consideration and does not enjoy the protection of section 202 of the Contract Act. The said GPA therefore stood revoked on the demise of Sh. Kali Charan. It is pertinent to mention that no will was executed by Sh. Kali Charan in this respect in favour of the defendant no. 1 CS NO.753/07 Page No: 27/47 Urmila Devi. Hence the defendant no. 1 acquires no right, title or interest in the property after the demise of Sh. Kali Charan.
50. Even otherwise Sh. Kali Charan was the owner of only half share in the said property no. T-208 and could not transfer the entire proper- ty to Urmila Devi. Sh. Kali Charan was well aware of the fact that he is hav- ing only half share in the said property and hence it is therefore not believ- able that he himself executed the documents in respect of the entire property in favour of Urmila Devi. This also crates a doubt regarding the authenticity of the said documents.
51. The result is that the defendant no. 1 has failed to establish that she had purchased property no. T-208 from Late Kali Charan. Thus Ur- mila Devi has failed to establish her ownership in respect of property no. T-208.
52. Thus the net result is that the defendant no. 1 has failed to es- tablish that she is the absolute owner of property no. T-208, Gali No. 1, Gautam Puri, Delhi or that she is having any proprietary right, title or inter- est in the suit property. Issue no. 2 is therefore decided in favour of the plaintiffs and against the defendant no. 1.
CS NO.753/07 Page No: 28/47 Issue nos. 6
53. The question to be answered is as to whether the plaintiffs are entitled to the relief of declaration that the possession of the defendant no. 4 in the portion mark EFGH shown in the site plan pot of property no. T-208, Gali No. 1, Gautam Puri, Delhi is illegal and unauthorized.
54. I have already held that the defendant no. 1 has therefore failed to establish that the documents dated 07.01.1991 were in fact execut- ed by Sh. Kali Charan in her favour. The defendant no. 1 has no right title or interest in the property no.T-208, Gali No. 1, Gautam Puri, Delhi.
55. The defendant no. 4 pleaded that the defendant no. 1 was the owner of the property no. T-208, Gali No. 1, Gautam Puri, Delhi having purchased the same from SH. Kalicharan vide some documents dated 07.01.1991. He further pleaded that he had purchased the portion EFGH shown in the site plan from the defendant no. 1 through agreement to sell, GPA etc. and is in lawful possession thereof in capacity of its owner. He prayed for dismissal of the suit. No evidence was led by the defendant no. 4.
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56. The defendant no. 4 therefore admitted that he is in possession of the portion EFGH shown in the site plan. He further claimed that he had purchased the said portion from the defendant no. 1 by way of agreement to sell, GPA etc. He however neither gave the details of such documents nor filed them. He therefore did not prove the said documents at all. The con- tents of his WS also show that he was not aware as to how the defendant no. 1 is the owner of the property. He cannot be said to be a bonafide purchaser.
57. PW1/ defendant no.1 in her cross examination stated that Sh. Rameshawar Gupta is in possession of 65 sq. yards of the property no. T-208 shown in green colour in the site plan Ex. PW 1/D1. She further stat- ed that she had mortgaged the said portion to Rameshwar Gupta. She denied that she has sold the said portion to Rameshwar Gupta after 22.05.2001. Thus there is apparent contradiction in the stands taken by the defendant no. 1 and the defendant no. 4.
58. Moreover defendant no. 4 claims to be a transferee from the defendant no. 1. When the defendant no. 1 could not establish her title in re- spect of the property the necessary concomitant is that the defendant no. 4 also has no right title or interest in the suit property.
CS NO.753/07 Page No: 30/47
59. Thus the possession of the defendant no. 4 in the portion mark EFGH shown in green colour in the site plan of property no. T-208, Gali No. 1, Gautam Puri, Delhi is illegal and unauthorized and the plaintiffs are entitled to a declaration to that effect.
Issue no. 3
60. I have already held that the defendant no. 1 has therefore failed to establish that the documents dated 07.01.1991 were in fact execut- ed by Sh. Kali Charan in her favour. The defendant no. 1 has no right title or interest in the property no.T-208, Gali No. 1, Gautam Puri, Delhi.
61. DW1 and DW3/1 have deposed that Sh. Kali Charan and Sh. Ram Prakash Ojha were owners of one half share each in the properties nos. T-208 and T-209. DW3/2 and DW 3/3 also corroborated their version. Their version is also supported by documentary evidence. Counsel for the defen- dant no. 1 could not elicit anything substantial in their testimonies so as to discredit their testimonies.
62. The inevitable conclusion therefore is that Sh. Kali Charan and Sh. Ram Prakash Ojha were the owners of one half share each in the CS NO.753/07 Page No: 31/47 properties nos. T-208 and T-209. It is clear that Sh. Kali Charan died intes- tate on 01.01.1998. Sh. Kali Charan left behind three legal heirs Smt. Kalawati (wife), Sh. Puran Chand (Son) and Smt. Meera (daughter). Half share of Sh. Kali Charan in the aforesaid two properties devolves upon the aforesaid three legal heirs by way of intestate succession in terms of section 8 of the Hindu Succession Act.
63. Further Suit no.151/98 titled as Sh. Ram Prakash Ojha Vs. Sh. Kali Charan and ors. was disposed of by Sh. B.S. Chumbak, the then Ld. Civil Judge on the basis of a compromise. A family settlement dated 23.10.99 took place between Sh.Ram Prakash Ojha on one hand and Smt. Kalawati and Sh. Puran Chand on the other hand. The memorandum of the family settlement was filed in the court along with application for compro- mise and the suit was disposed of as compromised. The aforesaid docu- ments are Ex. DW3/1/3 (colly.).
64. DW1 and DW3/1 have deposed in respect of the said family settlement. DW3/2 and DW 3/3 also corroborated their version. Their ver- sion is also supported by documentary evidence. Counsel for the plaintiff CS NO.753/07 Page No: 32/47 could not elicit anything substantial in their testimonies so as to discredit their testimonies.
65. It is further contended by the plaintiffs that the said family set- tlement was arrived at with the consent of Smt. Meera, daughter (defendant no. 3) of Sh. Kali Charan. She has filed written statement in the present suit and in the said written statement has admitted the said family settlement. Therefore the said family settlement was a legal family settlement between all the legal heirs of Sh. Kali Charan on one hand and Sh. Ram Prakash Ojha on the other hand. Since Mrs. Urmila Devi had no right, title or inter- est in the property in question she was not required to be made a party to the said family settlement.
66. In the judgment tiled as Kale v. Deputy Director of Consoli- dation reported as AIR 1976 SUPREME COURT 807 the Hon' ble Supreme Court held:
"... ... ..In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
CS NO.753/07 Page No: 33/47 (1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family.
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangements may be even oral in which case no registration is necessary;
(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immoveable properties and therefore does not fall within the mischief of Section 17 (2) (sic) (Sec. 17 (1) (b) ?) of the Reg-
istration Act and is, therefore, not compulsorily registrable; (5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has not title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and ac- knowledges him to be the sole owners, then the antecedent title must be as- sumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same;
CS NO.753/07 Page No: 34/47 (6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement... ."
67. Further more family settlements generally meet with approval of the Courts. Such settlements are governed by a special equity principles taking into account the well being of a family. Courts give effect to a family settlement upon the broad and general ground that its object is to settle ex- isting or future disputes regarding property amongst members of a family. Reference may be made to the judgments titled as Ram Charan Das v. Girjanadini Dev reported as AIR 1966 SC 323 and Sahu Madho Das Ors. v Pandit Mukand Ram reported as 1955 (2) SCR 22.
68. The result is that under the said family settlement and conse- quent compromise decree Sh. Ram Prakash Ojha became owner of entire property no. T-209 along with 25 sq yds from property no.T-208 which was merged into the property no. T-209 so that he becomes owner of 175 sq. yds. of the property and legal heirs of Sh. Kali Charan became the owners of 175 sq yds. of property no.T-208 as per the site plan Ex. PW 1/ D1. The said site plan is the correct site plan available on record and PW 1 has also ad-
CS NO.753/07 Page No: 35/47 mitted the same. PW 1 has not been able to prove her site plan Ex. PW 1/A. The said family settlement was mere a memorandum prepared after the fam- ily arrangement had already been made for information of the court for the purpose of arriving at a compromise in the suit hence the same did not re- quire registration. It should be the endeavour of the court to give effect the said family settlement.
69. The said family settlement was a legal and binding family set- tlement as far as the legal heirs of Sh. Kali Charan are concerned. The daughter of Sh. Kali Charan namely Meera has also ratified the said agree- ment which shows that the said agreement was entered with her consent and approval and she was a willing party in the said family settlement. Since the defendant no. 1 has failed to establish that she had any share in the property of Sh. Kali Charan she cannot question the said family settlement. On the basis of the said family settlement the said Suit no.151/98 titled as Sh. Ram Prakash Ojha Vs. Sh. Kali Charan was disposed of as compromised. Smt. Urmila Devi was the one of the parties in that suit, however, she was pro- ceeded ex-parte. However, since the defendant no. 1 has not been able to es- tablish that she has any right, title or interest in the property no. T-208 she CS NO.753/07 Page No: 36/47 cannot question the said family settlement or the subsequent compromise decree.
70. I have already held that the defendant no. 1 has no proprietary right, title or interest in the property no. T-208, Gali No. 1, Gautam Puri, Delhi. The defendant no. 1 is therefore not entitled to construct any wall at point CD of the site plan Ex.PW1/D1 as the said wall cannot be constructed in view of the family settlement between the parties and the subsequent compromise decree. In fact the family settlement enjoins upon the parties to construct a new partition was at point AB of the site plan Ex.PW1/D1. Since under the family settlement the portion ABCD shown in site plan Ex.PW1/D1 measuring 25 sq. yards has been given to the plaintiff and a new partition wall at point AB of the site plan Ex.PW1/D1 is required to be constructed and the defendant no. 1 has no rights in the two properties there- fore the defendant no. 1 has no right to obstruct the construction a common wall at the said point AB of the site plan Ex.PW1/D1. The defendant no. 2 is the owner of the said portion ABCD shown in site plan Ex.PW1/D1 measur- ing 25 sq. yards and the defendant no. 1 has no right, title or interest in the same.
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71. Thus the result is that the legal heirs of late Sh. Kali Charan are the owners in respect of the property no. T-208, Gali No. 1, Gautam Puri, Delhi measuring 175 sq. yards after the family settlement shown in red and green colour in the site plan Ex. PW1/D1 and bounded by the points AFGB. The plaintiff no. 1 is the owner of 1/3rd share. The plaintiff no. 2 is the owner of 1/3rd share and the defendant no. 3 is the owner of 1/3rd share.
72. The occupation of the defendant no. 1 of the property no. T-208 along with her children (defendant nos. 5 to 8) can only be described as a licensee of Sh. Kalicharan or in capacity of the wife of Sh. Puran Chand. The said license stands terminated on account of legal notice 15.09.2003. The defendant no. 1 and the defendant no. 5 to 8 are therefore liable to vacate the suit property and hand over the possession of the same to the plaintiffs and the defendant no. 3.
73. However although the defendant nos. 1,5,6,7 and 8 have no right, title or interest in the property yet they under law have a right to be maintained by the plaintiff no. 2 being his wife and children and mainte- nance includes provision for residence although there is no order of mainte- nance passed by any other competent court. In case any such order is passed CS NO.753/07 Page No: 38/47 by a competent court in future directing the plaintiff no. 2 to provide resi- dence to the defendant nos. 1,5,6,7 and 8 they would be entitled to reside in the portion allotted to the plaintiff no. 2 on partition be metes and bounds al- though they would be liable to be evicted from the portion falling in the share of the plaintiff no. 1 and the defendant no. 3.
74. I have already held that the possession of the defendant no. 4 in the portion mark EFGH shown in the site plan of property no. T-208, Gali No. 1, Gautam Puri, Delhi is illegal and unauthorized and therefore the plaintiffs are entitled to recover the possession of the said portion from the defendant no. 4.
75. Hence the plaintiffs and the defendant no. 3 are entitled to re- cover the possession from the defendant nos. 1,4,5,6,7 and 8 of the of the suit property no. T-208, Gali No. 1, Gautam Puri, Delhi measuring 175 sq. yards after the family settlement shown in red and green colour in the site plan Ex. PW1/D1 and bounded by the points AFGB.
This issue is therefore decided in favour of the plaintiffs. Issue no. 9.
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76. I have already held that the legal heirs of late Sh. Kali Charan are the owners in respect of the property no. T-208, Gali No. 1, Gautam Puri, Delhi measuring 175 sq. yards after the family settlement shown in red and green colour in the site plan Ex. PW1/D1 and bounded by the points AFGB. The plaintiff no. 1 is the owner of 1/3rd share. The plaintiff no. 2 is the owner of 1/3rd share and the defendant no. 3 is the owner of 1/3rd share. The plaintiffs are therefore entitled to a preliminary decree for partition in that respect.
This issue is therefore decided in favour of the plaintiffs. Issue no.4
77. I have already held that the legal heirs of late Sh. Kali Charan including the plaintiffs are the owners in respect of the property no. T-208, Gali No. 1, Gautam Puri, Delhi measuring 175 sq. yards after the family set- tlement shown in red and green colour in the site plan Ex. PW1/D1 and bounded by the points AFGB and the defendant nos. 1,4,5,6,7 and 8 have no right, title or interest therein. Hence the plaintiffs are entitled to a permanent injunction restraining the defendants from raising any constructions in the suit property and from selling, alienating or creating any third party interest in respect of the same.
CS NO.753/07 Page No: 40/47 Issue no. 5
78. The plaintiffs have further prayed for a mandatory injunction directing the defendants to restore the suit property to its original position as it existed prior to 22.01.2001.
79. The plaintiffs have that the legal heirs of late Sh. Kali Charan including the plaintiffs are the owners in respect of the property no. T-208, Gali No. 1, Gautam Puri, Delhi measuring 175 sq. yards after the family set- tlement shown in red and green colour in the site plan Ex. PW1/D1 and bounded by the points AFGB and the defendant nos. 1,4,5,6,7 and 8 have no right, title or interest therein.
80. However the plaintiffs have not been able to establish by any clear evidence as to what exactly was the position in the suit property prior to 22.01.2001. No photographs etc. have been filed. It has not been clearly proved that which all illegal constructions were made by the defendant no. 1 which were earlier not there.
81. However it has only come in evidence that the defendant no. 4 is running some Oil depot in the portion EFGH shown in the site plan in the CS NO.753/07 Page No: 41/47 suit property which was earlier not there. The defendant nos. 1 and 4 were in possession of the documents and the details as to when the defendant no. 4 entered into possession of the property however they have neither filed the said documents nor given the details. The plaintiffs have deposed that de- fendant no. 4 has been inducted after wards and there is no reason to disbe- lieve the plaintiffs. The defendant nos. 1 and 4 are therefore under an obli- gation to restore the position of the said portion as it existed prior to 22.01.2001 when the defendant no. 4 was not inducted in the suit property. To this extent the plaintiffs are entitled to a mandatory injunction directing the defendant nos. 1 and 4 are therefore under an obligation to restore the position of the said portion EFGH shown in green colour in the site plan as it existed prior to 22.01.2001 when the defendant no. 4 was not inducted in the suit property.
This issue is therefore partly decided in favour of the plain- tiffs.
Issue nos. 7 and 8
82. The question which is left to be decided is with respect to pay- ment of damages. Although the defendant nos. 1,5,6,7 and 8 have no right, CS NO.753/07 Page No: 42/47 title or interest in the property yet they under law have a right to be main- tained by the plaintiff no. 2 being his wife and children and maintenance in- cludes provision for residence although there is no order of maintenance passed by any other competent court. Their possession of the property can- not be described that of rank trespassers. It was only that these persons could have been evicted only by the due process of law. The plaintiff no. 2 was a co-owner of undivided 1/3rd share in the property he can only be de- scribed as the owner of each and every inch of the property. The defendant nos. 1,5,6,7 and 8 could therefore have resided in the property qua his share for which no damages can be claimed from them. I am of the opinion that no damages/ mesne profits are payable by the defendant nos. 1,5,6,7 and 8.
83. However the case of the defendant no. 4 is on a different foot- ing. He appeared in the suit and filed his Written Statement and contested the suit and has not vacated the suit premises. His possession in the suit premises is illegal and he has no right, title or interest in the suit property. He is in possession of a portion measuring 65 sq. yards bounded by points EFGH shown in the site plan. He has been running an oil depot in the said portion. He has made illegal gain by occupying the said portion and de-
CS NO.753/07 Page No: 43/47 prived the plaintiffs and the defendant no. 3 of the gains which they could have made by occupying the same.
84. It is well settled that pendente lite and future damages can be awarded at a rate higher than that which has been claimed. The said portion could in possession of the defendant no. 4 could have at least fetched a rent of Rs. 1000/- per month keeping in mind its area and the factum of use of the same for commercial purposes. Moreover the PW 1 deposed that she had mortgaged the said portion to the defendant no. 4 for Rs. 7 lacs. Hence it cannot be disputed that the said portion could have at least fetched a rent of Rs. 1000/- per month. Hence the plaintiffs and the defendant no. 3 are en- titled to damages/ mesne profits @ Rs. 1000/- per month from the defendant no. 4 from the date of institution of the suit till the date of handing over of vacant possession by the defendant no. 4.
Issue no. 1
85. The question to be answered is as to whether the suit is bad for misjoinder or non joinder of parties. The onus to prove this issue was on the defendant no. 1.
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86. The defendant no.1 has failed to establish that any part has been improperly joined in the present suit. All parties in the present suit are necessary parties. It has also not been established that there is any other nec- essary party or property party who has not been joined as a defendant in the present suit.
87. I therefore hold that the defendant no.1 has failed to establish that the suit is bad for misjoinder or non joinder of parties. This issue is therefore decided in favour of the plaintiffs and against the defendant no. 1. RELIEF
88. In these facts and circumstances the suit of the plaintiffs is de- creed for the following reliefs:
89. A decree of declaration is granted in favour of the plaintiffs and against the defendants declaring the possession of the defendant no. 4 in the portion mark EFGH shown in green colour in the site plan Ex. PW1/D1 of property no. T-208, Gali No. 1, Gautam Puri, Delhi as illegal and unau- thorized.
CS NO.753/07 Page No: 45/47
90. A decree of recovery of possession is granted in favour of the plaintiffs and the defendant no. 3 and against the defendant nos. 1,4,5,6,7 and 8 directing them to hand over the vacant the of the suit property no. T-208, Gali No. 1, Gautam Puri, Delhi measuring 175 sq. yards after the family settlement shown in red and green colour in the site plan Ex. PW1/D1 and bounded by the points AFGB to the the plaintiffs and the de- fendant no. 3.
91. A decree of permanent injunction is granted in favour of the plaintiffs and against the defendant nos. 1,4,5,6,7 and 8 restraining the de- fendants from raising any constructions in the suit property no. T-208, Gali No. 1, Gautam Puri, Delhi and from selling, alienating or creating any third party interest in respect of the same.
92. A decree of mandatory injunction is granted in favour of the plaintiffs and against the defendant nos. 1,4,5,6,7 and 8 directing them to re- store the position of the said portion EFGH shown in green colour in the site plan Ex. PW1/D1 of property no. T-208, Gali No. 1, Gautam Puri, Delhi as it existed prior to 22.01.2001.
CS NO.753/07 Page No: 46/47
93. A decree of damages/ mesne profits (pendente lite and future) is granted in favour of the plaintiffs and the defendant no. 3 against the de- fendant no. 4 directing the defendant no. 4 to pay damages / mesne profits @ Rs. 1000/- per month from the date of institution of the suit till the date of handing over of vacant possession by the defendant no. 4.
94. A preliminary decree for partition is passed declaring the plaintiff no. 1, the plaintiff no. 2 and the defendant no. 3 to be owners of and entitled to 1/3rd share each in the suit property no. T-208, Gali No. 1, Gau- tam Puri, Delhi measuring 175 sq. yards after the family settlement shown in red and green colour in the site plan Ex. PW1/D1 and bounded by the points AFGB and the damages awarded against the defendant no. 4.
95. Suit is decreed in the aforesaid terms. Parties are left to bear their own costs. Decree Sheet be prepared accordingly.
Announced in the open (SAURABH KULSHRESHTHA) Court on 05.05.2011 CCJ/ARC(East)
(Judgment contains 47 pages.) KARKARDOOMA COURTS, DELHI CS NO.753/07 Page No: 47/47