Delhi District Court
Sh. Rakesh Vatsa vs Smt. Sunaina Devi on 27 November, 2018
IN THE COURT OF SH. HARISH KUMAR : ADDITIONAL DISTRICT
JUDGE -13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI
CS No. 610691/16
In re :-
Sh. Rakesh Vatsa
S/o Sh. R. N. Vatsa
R/o 10/17A-1/3, Ward No.1,
Sidh Kunj Apartments,
Near Yog Maya Temple
Mehrauli, New Delhi ........ Plaintiffs
VERSUS
1. Smt. Sunaina Devi
W/o Sh. Shiv Shankar Jha,
R/o 10/19A, 1st Floor,
Ward No.1
Near Yog Maya Temple
Mehrauli, New Delhi
2. Sh. Shiv Shankar Jha
S/o Late Sh. Lakshewar Jha
R/o 10/19A, 1st Floor,
Ward No.1
Near Yog Maya Temple
Mehrauli, New Delhi
3. Sh. Mukesh Vatsa
S/o Sh. R. N. Vatsa
R/o 1529A, Pocket B-1,
Vasan Kunj
New Delhi .......... Defendants
Date of institution of present suit : 27.01.2005
Date of receiving in this court : 26.11.2018
Date of hearing arguments : 26.11.2018
Date of Order : 27.11.2018
SUIT FOR POSSESSION, PERMANENT AND MANDATORY
INJUNCTION
CS No.610691/16 Rakesh Vatsa Vs. Sunaina Devi & Ors. Page No. 1 of 12
JUDGEMENT
This judgment shall dispose of the suit field by plaintiff for possession, permanent injunction and mandatory injunction against the defendants.
Case of the plaintiff
1. Plaintiff namely Rakesh Vatsa is the grandson of late Sh. Suraj Narayan Vatsa. Defendant No. 1 namely Smt. Sunaina Devi is the wife of defendant No. 2 namely Sh. Shiv Shankar Jha. Defendant No. 3 namely Sh. Mukesh Vatsa is the brother of the plaintiff. Defendant No. 3 is the co-sharer of the suit property and is impleaded as proforma defendant having interest in the suit property but no relief has been claimed against him.
2. The properties bearing H.No. 10/18, Ground Floor and H.No. 10/19A, First Floor (Part of one building) situated at ward No. 1, Yog Maya Mandir, Mehrauli, New Delhi-30 was owned by plaintiff's grand father Late Sh. Suraj Narayan Vatsa and was bequeathed upon the plaintiff and his brother by way of registered Will dated 31.07.1996. The suit property i.e. H.No. 10/19A is situated right above the H.No. 10/18, Ground Floor. House No. 10/19, Ground Floor is owned by Sh. Om Prakash S/o Late Sh. Shyam Sunder (cousin of Sh. Suraj Narayan Vatsa). The covered staircase to get to the suit property bearing No. 10/19A, starts from the space from H. No. 10/19 owned by Sh. Om Prakash.
3. It is the case of the plaintiff that Late Sh. Suraj Narayan Vatsa executed a registered Will dated 31.07.1996 in favour of plaintiff and his brother i.e. defendant No. 3 and Sh. Ajay Vatsa S/o Sh. Narender Narayan Vatsa i.e. cousin of the plaintiff, thereby bequeathing H.No. 10/18, Ground Floor and H.No. 10/19A, First Floor (part of one building) (hereinafter referred to as the suit property) upon them.
4. House bearing No. 10/19A, First Floor consisting of one room and CS No.610691/16 Rakesh Vatsa Vs. Sunaina Devi & Ors. Page No. 2 of 12 kothari inside of the room, was let out by Late Sh. Suraj Narayan Vats to defendant No. 2 Sh. Shiv Shankar Jha at a monthly rent of Rs.100/-. In the year 1981, defendant No. 2 requested the grandfather of the plaintiff for repair of the said property and to get installed water and electricity connections. Thereafter, electricity and water connections were installed in the name of grandfather of the plaintiff at ground floor bearing No. 10/18. Defendant No. 2 was thereafter provided facilities of water and electricity and a small kitchen was constructed and repair of the suit property was done and all expenses were borne by the grandfather of the plaintiff. Thereafter, monthly rent was increased from Rs.100/- to Rs.500/- per month. The grandfather of the plaintiff has been paying the house tax of the suit property i.e. H.No. 10/19A, regularly up to the year 1985, thereafter house tax was exempted by MCD.
5. On 06.03.1993, defendant No. 1 in collusion with defendant No. 2 and her father-in-law late Sh. Lakheshwar Jha, who was also the co-plaintiff, filed a civil suit bearing number 631/93 dated 06.03.1993 for grant of relief of permanent injunction against grandfather of the plaintiff and others. In the said suit defendant No. 1 claimed that the property bearing No. 10/18A was given to her father-in-law by Yog Maya Sanstha and supply of electricity and water connections provided by grandfather of the plaintiff were admitted by defendant No. 1 and her father-in-law. The said suit was strongly opposed by grandfather of the plaintiff and others and it was specifically mentioned in the written statement that the property No. 10/18 as claimed by Smt. Sunaina Devi and her father-in- law was wrong and original property number was 10/19A. In the said suit, in the replication filed by defendant No. 1 and her father-in-law it was specifically clarified that they had independent possession of the properties bearing No. 10/18A and 10/19A and nobody was disturbing the possession of property bearing No. 10/19A but grandfather of the plaintiff were trying to dispossess them from the property bearing No. 10/18A. The said suit was dismissed and no relief was granted to defendant No. 1 and her father-in-law on the basis of statement recorded on behalf of late grandfather of the plaintiff and others that CS No.610691/16 Rakesh Vatsa Vs. Sunaina Devi & Ors. Page No. 3 of 12 they had no connection with property bearing No. 10/18A.
6. Defendant No. 1 also filed a false and frivolous suit No. 548/04 against Sh. Mool Chand Patwari and his son for grant of relief of permanent injunction/ declaration and other consequential reliefs. In the said suit defendant No. 1 has falsely claimed that she has been in possession of property bearing No. 10/18A and property bearing No. 10/19A independently. As soon as the plaintiff got the knowledge of the above noted suit he approached the Hon'ble Court under Order 1 Rule 10 read with Section 151 CPC so as to enable the plaintiff to be made a necessary party so that the plaintiff may be in a position to defend his legal right.
7. It is further averred that defendant No. 1 is under legal obligation to handover the peaceful possession of the suit property bearing No. 10/19A to the plaintiff as the actual physical possession of the suit property was handed over to defendant No. 2 on tenancy basis. Defendant No. 2 who was entrusted as tenant with the suit property became dishonest and with ulterior motive and malafide intentions in collusion with and pre-planned conspiracy with defendant No. 1 fabricated the actual municipal house number which was issued by MCD. Defendant No. 1 have fabricated municipal house number i.e. 10/18A and they have no right to use a fabricated house number as they are using the same knowingly and deliberately to grab the property of the plaintiff and his brother.
8. It is further averred that the defendant No. 1 and 2 are trying to create a third party interest as well as trying to transfer possession of the suit property by creating an impression in the minds of public at large that they have got the ownership of the suit property. On the basis of the above alleged facts, plaintiff has approached this court praying for grant of a decree of possession in favour of the plaintiff and against the defendant No. 1 in respect of the suit property bearing No. 10/19A and decree for permanent injunction, thereby restraining the defendants No. 1 and 2 to create third party interest in respect of CS No.610691/16 Rakesh Vatsa Vs. Sunaina Devi & Ors. Page No. 4 of 12 the suit property bearing No. 10/19A. Further, plaintiff prayed for grant of decree for mandatory injunction, directing defendants No. 1 and 2 not to use fake, fabricated and forged municipal house number i.e. 10/18A. The plaintiff has also prayed that the cost of the suit may be awarded to the plaintiff.
Case of the defendants
9. The defendants No. 1 and 2 have filed written statement refuting the claims of the plaintiff as stated in the plaint. The defendants have raised certain preliminary objections on the grounds of non-joinder and mis-joinder of parties. It is alleged that the present suit has been filed by the plaintiff in connivance with Sh. Mool Chand Patwari against whom the defendant No. 1 has filed a suit for permanent injunction for encroaching upon the land adjacent to the first floor of accommodation of the defendant at the ground floor. It is the case of the defendants that the first floor accommodation bearing No. 10/18A was given to the father-in-law of the defendant No. 1 in the year 1965. Father-in- law of defendant No. 1 was kept as a pujari in the Yog Maya Mandir by the "Yog Maya Sansthan". He was then given the first floor accommodation for his residence and for the residence of his family members. In front of the first floor accommodation bearing No. 10/18A given to the father-in-law of the defendant No. 1 there was a open space at that time but later on the father-in-law of defendant No. 1 constructed a tin shade on the open space bearing No. 10/19A. The defendants have paid house tax for both the accommodations. The defendants have conceded to the filing of suit for permanent injunction in the year 1993. The defendants have also raised preliminary objections that plaintiff has not approached this court with clean hands and has suppressed material facts. Also no proper court fee has been affixed by the plaintiff.
10. On merits defendants have specifically denied the claims of the plaintiff. It is the case of the defendant that defendant No. 1 has been residing on the first floor accommodation bearing No. 10/18A since her marriage with defendant No. 2. It is denied that the defendant No. 2 was tenant in the CS No.610691/16 Rakesh Vatsa Vs. Sunaina Devi & Ors. Page No. 5 of 12 accommodation bearing No. 10/19A. Defendant No. 2 was called by the grandfather of the plaintiff at his residence on the pretext to settle the matter of the electricity and water consumption by the father-in-law of defendant No. 1. Thereafter, it was the grandfather of the plaintiff in connivance with other persons had obtained signatures at gun point on blank papers and on some rent receipts from defendant No. 2. The defendant No. 2 had made a complaint to the police regarding the same. The defendant No. 1 has paid house tax of property bearing No. 10/18A and the daughter of defendants No. 1 and 2 have paid the house tax of property bearing No. 10/19A. Both the properties are in possession of the defendants since 1965.
11. It is admitted by the defendants that defendant No. 1 along with her father-in-law had filed a suit for permanent injunction against the grandfather of the plaintiff and others. It is also admitted that defendants have filed a suit against Sh. Mool Chand Patwari and his sons for relief of permanent injunction and the same is pending adjudication.
12. It is denied that defendant No. 2 was ever given on rent first floor of accommodation bearing No. 10/19A by the grandfather of the plaintiff. There is no fabrication of the number of the property. The same is correct and the same is on the record of MCD. The number of the property is 10/18A and 10/19A. Both these properties are in possession of the defendants and nobody has ever disturbed the peaceful possession of the aforesaid properties. The defendants have averred that the plaintiff wants to grab the house of defendants No. 1 and 2 and in connivance with Mool Chand Patwari etc. and want to sell the land measuring more than 1000 sq. yards to the builders. In view of the specific denial and defences raised the defendants have prayed for dismissal of the suit of the plaintiff with costs.
Replication
13. Plaintiff filed replication thereby reiterating the contents of the CS No.610691/16 Rakesh Vatsa Vs. Sunaina Devi & Ors. Page No. 6 of 12 plaint and denying the submissions made by the defendants in the written statement.
Issues
14. On the basis of the pleadings of the parties, following issues were framed vide order dated 22.09.2005:-
1. Whether the suit is not maintainable for non-joinder and mis- joinder of parties? OPD
2. Whether the suit has not been valued properly for the purposes of court fees? OPD
3. Whether the signatures of defendant No. 2 were obtained by the grandfather of the plaintiff on some blank papers and rent receipts at gun point or whether the same were also got written under force and pressure from defendant No. 2? OPP
4. Whether the plaintiff is entitled to a decree of possession as prayed for? OPP
5. Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for? OPP
6. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP
7. Whether the correct number of the suit property is 10/18A or 10/19A? Onus on parties
8. Relief Evidence
15. Plaintiff examined himself as PW-1 who tendered his affidavit in his examination in chief as Ex. PW1/1 and relied upon documents i.e. registered Will dated 31.07.1996 Ex. PW1/A, Site Plan Ex. PW1/B, Request letters by the defendant No. 2 Ex. PW1/C & D, Rent Receipts Ex. PW1/E and F, copies of House Tax Receipts Ex. PW1/G, H & I, certified copy of House Tax for the assessment year 1959 Ex. Ex. PW1/J, certified copy of the pleadings of the suit CS No.610691/16 Rakesh Vatsa Vs. Sunaina Devi & Ors. Page No. 7 of 12 bearing No. 631/93 Ex. PW1/K (colly.). He was not cross examined.
16. Plaintiff further examined PW-2 Sh. Kamesh Saha, LDC, RKD Branch, Delhi High Court who brought the judicial file of criminal writ petition No. 114/05 titled as "Sunaina Devi vs. State & ors". Copy of the same is Ex. PW2/1. He was also not cross examined.
17. Plaintiff also examined PW-3 Sh. Raman Kumar, Data Entry Operator, Election Commission. He brought voter list for the year 2013 pertaining to ward I of Mehrauli having seven poling stations i.e. 85, 86, 117 to
121. Voter list has been exhibited as Ex. PW3/A (colly.). He was also not cross examined.
18. Plaintiff also examined PW-4 Sh. M.K. Verma, Assistant Zonal Inspector, Property Tax Department, South Zone, SDMC who brought the summoned record i.e. Form A (Assessment form for the year 01.04.1974), copy of the same is Ex. PW4/A (OSR). He also brought property tax return for the year 2005-06, 2006-07, 2007-08 which was filed by Smt. Vijay Laxmi dated 27.11.208, copy of the same is Ex. PW4/B (OSR). The attested true copy of Form B year 1959-60 is Ex. PW1/J. He was also not cross examined.
Thereafter, plaintiff evidence was closed.
19. Defendants No. 1 and 2 after filling written statement and after framing of issues and contesting for almost three years were proceeded against ex-parte vide order dated 30.09.2008. Defendant No. 3 was proceeded against ex-parte vide order dated 12.05.2005.
Findings
20. After going through the pleading, evidence, material on record and appreciating arguments of Ld. Counsel for the plaintiff, issues wise findings are as under:-
CS No.610691/16 Rakesh Vatsa Vs. Sunaina Devi & Ors. Page No. 8 of 12 ISSUE No. 1:- Whether the suit is not maintainable for non-joinder and mis- joinder of parties? OPD
21. Onus to prove this issue is upon the defendants. Apart from bald allegation nothing has been pointed out by the defendants as to who were the necessary parties who were not impleaded and who are the parties who have been un-necessarily impleaded. Hence, issue No. 1 is decided against the defendants and in favour of the plaintiff.
ISSUE No. 2:- Whether the suit has not been valued properly for the purposes of court fees? OPD
22. Onus to prove this issue is upon the defendants. Defendants have not led any evidence. Defendants have also not cross-examined the plaintiff witnesses. For the relief of possession, the plaintiff has valued the suit at Rs. 6,00,000/- and for the relief of permanent and mandatory injunction at Rs.130/- each. There is nothing on record to disbelieve the valuation given by the plaintiff particularly for the relief of possession. Therefore, issue No. 2 is decided against the defendants and in favour of the plaintiff.
ISSUE No. 3:- Whether the signatures of defendant No. 2 were obtained by the grandfather of the plaintiff on some blank papers and rent receipts at gun point or whether the same were also got written under force and pressure from defendant No. 2? OPD
23. Onus to prove this issue is upon the defendants. Defendants have not led any evidence and therefore, the assertion made by them have not been proved by them. Therefore, issue No. 2 is decided against the defendants and in favour of the plaintiff.
ISSUE No. 4:- Whether the plaintiff is entitled to a decree of possession as prayed for? OPP ISSUE No. 7:- Whether the correct number of the suit property is 10/18A or 10/19A? Onus on parties CS No.610691/16 Rakesh Vatsa Vs. Sunaina Devi & Ors. Page No. 9 of 12
24. Plaintiff in the plaint has categorically averred that late Sh. Suraj Narayan Vatsa bequeathed H.No. 10/18 which is on ground floor and H.No. 10/19A which is on first floor i.e. above house No. 10/18. However, the defendants have claimed that the father-in-law of defendant No. 1 was given the first floor accommodation bearing No. 10/18A and in front of the same there was a open space on which father-in-law of the defendant No.1 constructed a tin shade on open space now bearing No. 10/19A. The defendants claimed that they are in possession of both the properties bearing No. 10/18A and 10/19A independently. Plaintiff has claimed possession only of H.No. 10/19A because as per plaintiff floor above the House No. 10/18 bears municipal number 10/19A comprising of one room with kothri inside as duly shown in red color in the site plan Ex PW1/B.
25. It is not in dispute that defendants No.1 and 2 are in possession of House No. 10/19A. Plaintiff also proved the letters of request Ex PW1/C and Ex PW1/D and rent receipts Ex PW/E and Ex PW1/F which documents were allegedly got written from contesting defendants on the gun point but defendants have chosen not to cross examine the plaintiff's witnesses nor did they choose to lead their own evidence to prove their own averments/stands nor did they come forward to prove that the portion under their occupation have different municipal number. Defendants did not come forward to dispute the site plan Ex PW1/B relied upon and proved by plaintiff nor did they come forward to show that site plan is not in accordance with actual site. Hence, in this circumstance plaintiff has been successful in proving that they are the owner of the suit property as duly shown in the red color in the site plan Ex PW1/B and defendants No. 1 and 2 were tenant in the suit property and that it bears municipal No. 10/19A. Defendants neither proved their case nor did they succeed in demolishing the plaintiff's case.
26. Defendants have not come forward to object the suit on the ground that their tenancy is protected under Delhi Rent Control Act. It is worthwhile to CS No.610691/16 Rakesh Vatsa Vs. Sunaina Devi & Ors. Page No. 10 of 12 note that there is no presumption of law that tenancy with rent below Rs 3500/- p.m. shall be governed by Delhi Rent Control Act. It is only in those area where Delhi Rent Control Act, 1958 is specifically made applicable by notification that tenancy with rent below Rs 3,500/- p.m. shall be governed by the said Act. Defendants in their plea also has not taken this specific defense that suit of the plaintiff is barred by Section 50 of Delhi Rent Control Act,1958 which also goes to show that tenancy of defendants No. 1 and 2 is not protected under the said Act. Hence, both issues No. 4 and 7 are decided in favour of the plaintiff and against the defendant No.1 and 2.
ISSUE No. 5:- Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for? OPP ISSUE No. 6:- Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP
27. Both issues are taken up together. Onus to prove these issues are upon the plaintiff. However, in view of the findings recorded on issues No.4 and 7, the issues under consideration are hereby decided in favour of the plaintiff and against the defendants No. 1 and 2.
Relief In view of the findings recorded on all issues suit of the plaintiff is allowed and decree of possession is hereby passed in favour of the plaintiff against defendants No.1 and 2 in respect of suit property i.e. House No. 10/19A, First Floor, Ward No. I, Yog Maya Mandir, Mehrauli, New Dlehi -30 as duly shown in red color in the site plan Ex PW1/B. Decree of mandatory injunction is also hereby passed in favour of the plaintiff against defendants No.1 and 2 thereby directing defendants No. 1 and 2, their relatives, agents, employees etc. not to represent the suit property as House No. 10/18A, First Floor, Ward No. I, Yog Maya Mandir, Mehrauli, New Dlehi -30.
Decree of permanent injunction is also hereby passed in favour of CS No.610691/16 Rakesh Vatsa Vs. Sunaina Devi & Ors. Page No. 11 of 12 the plaintiff against defendants No.1 and 2 thereby restraining defendants No. 1 and 2, their relatives, agents, employees etc. from transferring the possession of the suit property i.e. House No. 10/19A, First Floor, Ward No. I, Yog Maya Mandir, Mehrauli, New Delhi -30 as duly shown in red color in the site plan Ex PW1/B, to any person other than plaintiff.
Parties to bear their own cost.
Decree sheet be prepared accordingly.
File be consigned to Record Room after necessary compliance.
Digitally signed by HARISH HARISH KUMAR
KUMAR Date:
2018.11.27
16:07:36 +0530
(Harish Kumar)
Announced in the open Court. ADJ-13 (Central)/THC
(Judgment Contains 12 pages) Delhi/27.11.2018
CS No.610691/16 Rakesh Vatsa Vs. Sunaina Devi & Ors. Page No. 12 of 12