Delhi District Court
Tis Hazari Courts vs Shri Umesh Sharma on 31 October, 2011
IN THE COURT OF MS. SWATI KATIYAR, CIVIL JUDGE-III (WEST),
TIS HAZARI COURTS, DELHI
CS. NO.126/04
DATE OF INSTITUTION : 22.04.2004
DATE ON WHICH RESERVED : 01.10.2011
DATE OF DECISION : 31.10.2011
1 SMT. SANTOSH SHARMA,
W/O SHRI SURESH SHARMA,
D/O LATE LAXMI NARAIN
R/O 1933/147, GANESH PURA(A)
TRI NAGAR, DELHI-110035
2 SMT. USHA SHARMA, S/O SHRI RAKESH SHARMA,
D/O LATE LAXMI NARAIN SHARMA,
R/O 3206, LAL DARWAJA,
SEETA RAM BAZAR, DELHI-110006 .....PLAINTIFFS
VERSUS
SHRI UMESH SHARMA
S/O LATE LAXMI NARAIN SHARMA,
R/O 1727/56, NAI WALA,
KAROL BAGH, DELHI-110005 .....DEFENDANT
SUIT FOR PERMANENT INJUNCTION
JUDGMENT
1. The present suit has been filed by the plaintiffs seeking permanent injunction against the defendant. Briefly stated the case of the plaintiffs is that the parties are real brother and sisters. It is submitted that property bearing no. 1727/56, Nai Wala, Karol Bagh, Delhi-110005 (hereinafter referred to as 'suit property') is the ancestral property of the plaintiffs and defendant alongwith 5 more sisters namely Smt. Shakuntala, Smt. Nirmal, Smt. Krishna, Smt. Radha and Smt. Rani. Plaintiffs submit that the suit property was purchased by Late Sh. Chunni Lal, grand-father of the plaintiffs, defendant and 5 more sisters stated above by his own earned means and funds and he died intestate. After his death plaintiffs, defendant and 5 above stated sisters and their father Late Sh. Laxmi Narain have become co-owners of the property in question and now after the death of Late Sh. Laxmi Narain, the plaintiffs, defendant and the other five sisters have become co-owners of the property in question. It is submitted that since Late Sh. Chunni Lal died intestate, hence the suit property has devolved upon all the legal heirs of Late Sh. Chunni Lal.
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2. Plaintiffs submit that after the death of the father of plaintiffs and defendant, their Late mother started to collect rent from the tenants and looking after the property in dispute for and on behalf of the above said all legal heirs of Late Sh. Chunni Lal and after her death, the defendant with the permission of the plaintiffs started to collect the rent from the tenants and looking after the property in dispute for and on behalf of the above said all legal heirs of Late Sh. Chunni Lal and after her death, the defendant with the permission of the plaintiffs started to collect the rent of the property in dispute and giving and settling the rent account of the same. It is submitted that now all of a sudden, the defendant has stopped giving and settling the rent account of the suit property with the plaintiffs.
3. It is further submitted that in the month of November, 2003 the plaintiffs came to know from reliable sources that the defendant wanted to dispose off the property in dispute by selling the same to the builders with the tenants in possession of the suit property. It is submitted that the plaintiffs are still in the peaceful physical possession of the suit property through the tenants of the property. Plaintiffs submit that the defendant was collecting rent from the tenants of the property only with the prior permission of the plaintiffs and settling the rent account with the plaintiffs regularly since the death of their mother.
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4. Plaintiffs submit that they have also given notices to the tenants of the suit property for not giving the entire rent to the defendant as the defendant is not giving and settling the rent account with the plaintiffs. It is submitted that after getting the information that the defendant was trying to sell the suit property, the plaintiffs immediately approached the defendant and requested him not to talk with the dealers or other persons for the sale of the suit property but the defendant did not pay any heed to the request of the plaintiffs and told them that they have no any right in the property in dispute after their marriage as the suit property belongs to only his grandfather.
5. It is further submitted that the defendant alone does not have any right, title and interest in the suit property as the plaintiffs are the co-owners/ joint owners of the suit property and even otherwise since the plaintiffs are in uninterrupted possession of the suit property through their tenants. Plaintiffs submit that they further came to know that in the month of January, February, March and even in the month of April, 2004, the defendant has talked with many builders for the sale of the suit property and they again advised the defendant not to do the same. However, the defendant threatened the plaintiffs personally as well as through his bad elements for facing dire consequences if they would interfere in his sale of the suit property. It is submitted that defendant has no right to sell the suit property or to stop to give and settle the rent account with the plaintiffs.
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6. Feeling aggrieved, the plaintiffs have filed the present suit praying that a decree of permanent injunction be passed restraining the defendant from selling or taking for the sale of the suit property to the builders or any other persons and from creating any third party interest in the suit property.
7. Per Contra, defendant submits that suit of the plaintiff is not maintainable since a suit simplicitor for permanent injunction is not maintainable. It is submitted that plaintiff has no locus standi and right, title or interest to file the present suit against the defendant. It is submitted that the plaintiff in furtherance of malafide intention by betraying the faith of the defendant, and, in conspiracy with her husband namely Sh. Suresh Sharma has filed this suit, which is based on fabricated story, forged documents and oblique motive. It is submitted that plaintiff has concealed material facts from the Court, and, as such plaintiff is not entitled for discretionary relief of injunction.
8. It is submitted that the suit is barred under Section 41(h) of The Specific Relief Act, 1963. It is submitted that plaintiff no.1 had filed a suit for permanent injunction against the defendant being Suit no. 409 of 2002 tilted as "Smt. Santosh Sharma v. Umesh Sharma" with respect to the property bearing no. 1933/147, Ganesh Pura, Tri Nagar, Delhi-35. It is submitted that the property was bequeathed by Late Sh. Laxmi Narain Sharma in favour of the defendant alongwith his other movable and immovable assets. It is submitted that the plaintiff did not claim any such right when she filed the earlier suit and hence this suit is barred under Order 2 Rule 2 CPC.
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9. It is submitted that plaintiffs have no cause of action in her favour and has not properly valued for the suit for the purpose of court fees and jurisdiction. It is further submitted that the suit is bad for non-joinder of necessary parties.
10. Defendant submits that on the day of Holi festival in the year 1985, late Sh. Laxmi Narain Sharma had invited all his kith and kin including the married daughters with their husbands, close relations including the plaintiffs and their husbands. In the said gathering and in the presence of everyone, Late Sh. Laxmi Narain Sharma bequeathed all his immovable and movable assets in favour of the defendant, his only son. Defendant states that it was made clear by Late Sh. Laxmi Narain Sharma that so long as the mother of the parties was alive, she would take care of all the immovable and movable assets since the defendant was minor at that time and after her death, each and every immovable/ movable asset would go to the defendant. It is submitted that this oral Will was bequeathed and executed by Late Sh. Laxmi Narain Sharma in the presence of close relations including Sh. D.K.Sharma. Defendant submits that all the persons including the plaintiffs, their husbands, the unmarried sisters and married sisters of the mother of the parties acknowledged and agreed to the oral Will.
11. Defendant denies that the suit property was purchased by their grandfather Late Sh. Chunni Lal or that parties are co-owners in the suit property. It is submitted that the suit property was initially allotted to Late Sh. Laxmi Narain s/o. Sh. Chunni Lal by Delhi Improvement Trust under a registered lease deed dated 06.05.1941. It is submitted that after the death of Late Sh. Laxmi Narain on 29.11.1985, all the movable and immovable assets had come into the exclusive
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ownership of the defendant by virtue of the oral Will stated above. It is denied that plaintiffs have any right, title or interest in the suit property. On these counts, it is prayed that the suit be dismissed with costs.
12. Replication was not filed despite repeated opportunities granted and finally the opportunity was closed vide order dated 23.03.2005. On completion of pleadings, following issues were framed on 23.03.2005 viz :
1. Whether the simplicitor suit for permanent injunction is not maintainable? OPD
2. Whether the plaintiff has the locus standi to file the present suit? OPP
3. Whether the suit is barred under Section 41 (h) of Specific Relief Act? OPD
4. Whether the suit is barred by Order 2 Rule 2, CPC? OPD
5. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD
6. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? OPP
7. Relief, if any.
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13. In evidence, plaintiff no.1 examined herself as PW1 and tendered documents Ex.PW1/1 to Ex. PW1/16. Ex. PW1/1 is the notice dated 30.03.2004 given to the tenant Sh. Makhan Lal. Ex. PW1/2 to Ex. PW1/4 are the postal proofs. Ex.
PW1/5 is the undated letter given to tenant Sh. Chander Mohan alongwith postal proofs Ex. PW1/6 to Ex. PW1/8. Ex. PW1/9 is the letter dated 30.03.2004 issued to tenant Sh. Vinod Kumar Handa alongwith postal proofs Ex. PW1/10 to Ex. PW1/12. Similarly, Ex. PW1/13 is the letter dated 30.03.2004 issued to tenant Sh. Inderveer Singh alongwith postal proofs Ex. PW1/14 to Ex. PW1/16. Defendant examined himself as DW1 and tendered documents Ex. DW1/1 and Ex. DW1/2. Ex. DW1/1 is the original indenture dated 29.01.1941 in favour of Late Sh. Laxmi Narain and Ex. DW1/2 is the original indenture dated 14.08.1963 in favour of Late Sh. Laxmi Narain.
14. Orall arguments were advanced by Shri K.S. Singh, Ld. Counsel for the defendant. Repeated opportunities were given to the plaintiffs to advance final arguments or file written submissions but the plaintiffs failed to advance final arguments. Accordingly, from the submission made and from careful perusal of the record and analysis of evidence, my issuewise fining on each of the issues is as follows:
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Issue no. 1: Whether the simplicitor suit for permanent injunction is not maintainable? OPD and Issue no. 3: Whether the suit is barred under Section 41 (h) of Specific Relief Act? OPD The onus of proving these issues was upon the defendant. Defendant states that the present suit for simplicitor injunction would not be maintainable and the suit is barred by Section 41 (h) of Specific Relief Act, 1963.
A perusal of the record show that the plaintiffs have claimed that the suit property is ancestral and that they are co-owners of the same alongwith defendant. It is pertinent to note that the plaintiffs are not claiming their share in the suit property so as to crystallize the same so that the defendant can be restrained from disposing off their share. It is a settled law that no injunction can be granted against a lawful owner of the immovable property (Vide Premji Ratansey Shah v. Union of India, 1994(5) S.C.C. 547; Dharamvir v. Naresh Kumar, CXXXIX (2005) Punjab Law Reporter 5217; Ranukanta Mullaiah v. Sircilla Rajamma, 2007(5) R.C.R.(Civil) 441 (A.P.)) and in this case as per the plaintiffs, parties are the co-owners of the suit property. Under such circumstances, a simplicitor suit for permanent injunction would not be maintainable.
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Section 41(h) of The Specific Relief Act, 1963 states that an injunction cannot be granted when an equally efficacious relief can certainly be obtained by any other usual mode of proceeding. In the present case, an equally efficacious relief was available to the plaintiffs to seek their share from the suit property but the plaintiffs have failed to seek the same. The suit is accordingly hit by Section 41(h) of The Specific Relief Act and is not maintainable in its present form. The issues are decided in favour of the defendant and against the plaintiffs.
Issue no. 4: Whether the suit is barred by Order 2 Rule 2, CPC? OPD The onus of proving this issue was upon the defendant. Defendant states that the present suit is barred by Order 2 Rule 2, CPC since plaintiff no. 1 had earlier filed a suit bearing no. 409 of 2002 titled as "Smt. Santosh Sharma v. Umesh Sharma" in respect of property bearing no. 1933/147, Ganesh Pura, Trinagar, Delhi-35. It is submitted that this property was also bequeathed by Late Sh. Laxmi Narain Sharma to the defendant alongwith his other movable and immovable assets. It is submitted that the plaintiff had not claimed any such right earlier when she filed the abovesaid suit and hence this suit would be hit by Order 2 Rule 2, CPC.
PW1 in her cross examination admits that there was another suit filed by her in the year 2002 against the defendant which is subjudice as on date. However, PW1 further deposed that the other suit was for property other than the one involved in the present suit. Under such circumstances, it was necessary for the defendant to have filed certified copies of the earlier pleadings in the present matter so that the applicability of Order 2 Rule 2 CPC to the present case could be appreciated. But the defendant has failed to file the pleadings of the earlier suit bearing no. 409 of
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2002. In absence of the same, it cannot be said that the defendant has discharged his onus. The issue is accordingly decided against the defendant.
Issue no. 5: Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD The onus of proving this issue was upon the defendant. However, beyond raising a preliminary objection, defendant has failed to show as to how the present suit is not properly valued. It is to be kept in mind that the maintainability of the suit is an entirely distinct issue. But so far as the present suit is concerned, plaintiffs have merely asked for permanent injunction and paid fixed court fees on the same. Thus, it cannot be said that the suit is not properly valued. The issue is accordingly decided in favour of the plaintiff.
Issue no. 2: Whether the plaintiff has the locus standi to file the present suit? OPP and Issue no.6: Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? OPP The plaintiffs have filed the present suit stating that the parties are the co-owners of the suit property which is an ancestral property belonging to their grandfather Late Sh. Chunni Lal and therefore, defendant be restrained from creating any third party interest in the same. However, plaintiffs have placed on record no document from which it can be ascertained that the suit property is an ancestral property belonging to their grandfather Late Sh. Chunni Lal.
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PW1 in her cross examination states, "The suit property is the ancestral property but I have no documentary proof to show the same........I am not aware as to when the suit property was purchased by my grandfather. ....". Plaintiffs have not examined any other witness to prove that the suit property is an ancestral property. Thus, neither the plaintiffs have any documentary proof nor they have produced any other witness to prove the factum of suit property being an ancestral property belonging to their grandfather Late Sh. Chunni Lal.
On the other hand, defendant has placed on record Ex. DW1/1 and Ex. DW1/2 to show that the suit property was allotted to the father of the parties Late Sh. Laxmi Narain Sharma. DW1 deposed in his cross examination that the suit property belonged to his father and admitted that there was no Will in writing executed by his father with respect to the suit property. DW1 deposed that the Will was oral. As per the defendant, the oral Will was executed in the presence of family members of the parties. However, DW1 has examined no witness who could have proved the alleged oral Will.
Be that as it may, the onus of proving the issues was upon the plaintiffs which the plaintiffs have failed to discharge. The issues are accordingly decided against the plaintiffs.
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Issue no.7: Relief, if any.
In view of the observations made under the preceding issues, the suit of the plaintiff is dismissed with costs. Decree Sheet be prepared. File be consigned to Record Room.
Announced in the Open Court (SWATI KATIYAR)
Today i.e 31.10.2011 CIVILJUDGE-III(W)/DELHI
31.10.2011
CS. No. 1260/04
31.10.2011.
Present: Plaintiff in person.
Put up for Judgment at 2:00 PM
CJ (West) III/Delhi
31.10.2011.
31.10.2011.
At 11:30 PM
Present: Shri K.S. Singh, Ld. Counsel for Defendant alongwith defendant in
person.
Ld. Counsel for Defendant has made oral submissions.
Put up for Judgment at 2:00 PM CJ (West) III/Delhi 31.10.2011.31.10.2011.
At 2:00 PM Present: None Vide separate Judgment, the suit of the plaintiff is dismissed with costs. Decree Sheet be prepared. File be consigned to Record Room.
(SWATI KATIYAR) CJ (West) III/Delhi 31.10.2011.