Delhi District Court
Jagwati Devi vs Krishna on 12 February, 2020
IN THE COURT OF SH. VIKRAM: ACJ-cum-ARC-cum-CCJ :
NORTH EAST: KARKARDOOMA COURTS: DELHI
CS No. 647/18
CNR no. DL NE03-001033-2018
Jagwati Devi
W/o Late Sh. Rajender Singh
R/o B-93/3, Bhagirathi Vihar,
Mustafabad, Delhi-110094 ...........PLAINTIFF
Versus
Krishna
W/o Sh. Kiran Pal
D/O Sh. Babu Ram
R/o B-32, Gali no. 1,
Pratap Nagar, Village Saboli,
Delhi.
Shri Kiran Pal
W/o Late Sh. Rajender Singh
C/o Shri Prem Chand Pal
R/o 719, Vikas Kunj,
Agrola, Loni Ghaziabad,
U.P.
........DEFENDANTS
Date of Institution : 15.10.2018
Date of reserving the judgment : 21.01.2020
Date of Judgment : 12.02.2020
Decision : Decreed
JUDGEMENT
1. This is a suit filed by the plaintiff against defendants seeking permanent injunction.
CS No. 647/18 Jagwati Devi v. Krishan & Anr Page no. 1 of 9
2. Briefly, the facts as per the plaint are that the plaintiff is the owner of property bearing no. B-93, Bhagirath Vihar, Delhi- 94, measuring 50 sq yds built upto 1st floor (hereinafter referred to as suit property), which she purchased and built after selling her plot in the same locality. It is stated that plaintiff is a widow and she has four children I.e. two sons and two daughters. Both the daughters are married and living in their matrimonial home and sons were residing with her. It is stated that the elder son Veerpal is residing the at 1st floor and the younger son i.e. defendant no. 2 was residing with her.
3. It is stated that defendant no. 2 solemnized marriage with defendant no. 1 on 19.11.2011 but after the marriage the relation between defendant no. 1 & 2 got estranged even though they had a female child. It is stated that due to temperamental difference of defendant no. 1 there was no peace in the family as she used to level allegations against her and her other son and daughters also. Therefore, plaintiff disowned both defendants from movable and immovable property through publication in newspaper and requested them to leave the house. The defendants, however, did not exceed to the request and their behavior remained quarrelsome.
4. It is stated that on 05.03.2014 defendant no. 1 left her matrimonial home and did not return despite efforts and after that despite the efforts of conciliation between defendants, defendant no. 1 filed complaints against plaintiff and defendant no. 2 and got FIR no. 199/14 registered against them in PS CS No. 647/18 Jagwati Devi v. Krishan & Anr Page no. 2 of 9 Gokulpuri. It is also stated that defendant no. 1 made complaints before CAW cell and on the recommendation of CAW cell another FIR under Section 498-A/406/34 IPC was registered against plaintiff and her family members. It is also stated that defendant no. 1 also filed a petition under section 9 of Hindu Marriage Act seeking restitution of conjugal rights and further filed another complaint under Section 12 of Domestic violence Act against defendant no. 2 and his family members. It is also stated that defendant no. 1 also filed petition under 125 Cr.P.C. for seeking maintenance.
5. It is stated by the plaintiff that defendant no. 2 has left the house of plaintiff as he has been disowned by the plaintiff and debarred from the property of the plaintiff and since then he is residing at the address mentioned in the memo of parties. It is stated that on 08.09.2018 defendant no. 2 tried to enter in to the premises alongwith police showing one decree sheet under Section 9 of HMA and with the help of police, defendant no. 1 forcefully tried to enter the house of plaintiff but due to timely intervention of counsel of plaintiff they were stopped and as a call was made at 100 number both the parties were brought to police station. It is stated that defendant no. 1 again tired to enter the house of plaintiff on 09.09.2018 with the help of some bad elements but again due to intervention of neighbors defendant no. 1 was prevented. It is also stated that on 11.10.2018 defendant no. 1 again came alongwith her brother but she was not allowed to enter. However, in the anger defendant no. 1 locked the door of the house of the plaintiff from outside and confined the plaintiff in the house from where she CS No. 647/18 Jagwati Devi v. Krishan & Anr Page no. 3 of 9 was released on the intervention of police only. It is stated that defendant no. 1 has caused huge trouble in life of plaintiff because of which plaintiff is not able to live peacefully and enjoy her property. Plaintiff has stated that there are various cases pending between the parties in different courts and defendant no. 1 is hellbent on to take law in her own hands and forcefully enter the house of plaintiff where she does not have any right to reside as her husband i.e. defendant no. 2 is residing at different place. Therefore, plaintiff has filed the present suit.
6. On these pleadings, plaintiff has prayed for decree of permanent injunction against the defendants restraining defendants from forcefully entering the premises of plaintiff and disposes of the plaintiff without due process of law and also prayed for decree of injunction not to make any intervention in the peaceful possession of plaintiff in any manner.
7. Defendant no. 2 failed to appear despite service of summons, therefore, defendant no. 2 was proceeded ex-parte.
8. In Written statement, defendant no. 1 took preliminary objections that plaintiff has no locus standi to file the present suit as she is not the owner of the property and as she has not filed previous chain of documents in the property. Defendant also took the objection that the suit of the plaintiff is liable to be dismissed as she is in collusion with defendant no. 2 as there is a decree against defendant no. 2 under Section 9 of HMA to take the defendant no. 1 to her matrimonial house and since CS No. 647/18 Jagwati Devi v. Krishan & Anr Page no. 4 of 9 this is a court order no injunction can be granted. Defendant no. 1 has also taken the preliminary objection that plaintiff has raised false plea that defendant no. 2 is not residing with her whereas defendant no. 2 is residing in the house of plaintiff i.e. mother.
9. On merits, defendant denied the contents of the plaint and specifically denied any wrong being committed by her.
10. From the pleadings on 01.04.2019, the following issues were framed:-
i) Whether plaintiff is entitled to the decree of permanent injunction as prayed for? OPP
ii) Whether there is collusion between defendant no.1 (which should have been plaintiff) and defendant 2, if yes, its consequences on the suit or on the plaintiff? OPD-1.
iii) Relief.
11. Thereafter, the matter was listed for plaintiff's evidence. In order to prove her case, plaintiff examined herself as PW-1 and tendered in evidence her affidavit Ex. PW 1/1 (which is reiteration of plaint). She relied upon following documents:-
Ex. PW1/A Documents of identification i.e. Adhar card (OSR) Ex. PW1/B Site plan Ex. PW1/C Copy of GPA Mark A Copy of FIR no. 153/15, PS Harsh Vihar Mark B Copy of FIR no. 199/14 PS CS No. 647/18 Jagwati Devi v. Krishan & Anr Page no. 5 of 9 Gokulpuri.
Mark C Copy of petition under section
12 of DV Act
Mark D Copy of petition under section
125 Cr.P.C
Mark E Copy of decreed sheet under
section 9 HMA
12. With her evidence, plaintiff closed her plaintiff's evidence. Thereafter, the matter was listed for DE in which defendant no. 1 appeared as DW-1 and filed and affidavit Ex DW 1/A. However, subsequently after some cross examination defendant stopped appearing in the court and vide order dated 17.12.2019 the defendant's right to get herself cross examined was closed with direction that her evidence shall not be read in the trial.
13. I have heard the counsels and perused the record. My issue-wise findings are as under:-
Issue No. 1:
i) Whether plaintiff is entitled to the decree for permanent injunction as prayed? OPP
14. Plaintiff has proved that she is in possession of suit property and is the owner of the same. The issue no. 1 was framed on the basis of prayer clause A & B where plaintiff is seeking decree of permanent injunction against both the CS No. 647/18 Jagwati Devi v. Krishan & Anr Page no. 6 of 9 defendant, their agents, their employees and their associates from entering into the house of the plaintiff without due process of law and from forcefully dispossessing the plaintiff and disturbing her right of possession.
15. Plaintiff has proved that she is owner of the property on the basis of documents Ex PW 1/C (colly) which shows that she has purchased the property from one Sh. Yamin. Although the defendant no. 1 has challenged the ownership but she failed to bring any substance on record to prove that plaintiff is not the owner of the property or that the documents Ex PW 1/C are forged and fabricated documents. The plaintiff has not only deposed but brought on record various complaints and copies of FIR which shows that all is not well within this family and as plaintiff has proved through Ex PW 1/D-1 that defendant no.2 is residing at some other place, the right of defendant no. 1 to enter the suit property gets extinguished. All defendant no. 1 can claim, being wife of plaintiff, even under section 9 of HMA, is the right to residence with her husband i.e. defendant no. 2 who is not residing in the suit property.
16. Defendant no. 1 has alleged that there is collusion between plaintiff and defendant no. 2 but despite opportunities defendant no. 1 has failed to bring anything on record to show that defendant no. 1 had filed any case or reply/filed WS in any case showing his residence at suit property. It is pertinent to record here that defendant no. 2 is already ex-parte and there is no submission on behalf of defendant no. 2 to infer any collusion between plaintiff and defendant no. 2. Since the CS No. 647/18 Jagwati Devi v. Krishan & Anr Page no. 7 of 9 plaintiff is the owner of the property, right of son or daughter in law in the suit property, as settled in various judgments, is only of licencee and once they have vacated the premises the defendants can not re-entered into the premises except with the consent of plaintiff or any order in that regard from any court of law. Defendant no. 1 & 2 therefore, have not right to enter into the property of the plaintiff and as already discussed the life of plaintiff has been disturbed because of the pendency of litigations between defendant no. 1 & 2 where plaintiff has also been dragged unnecessarily, she deserves to protect her peace and therefore, entitled to injunction in her favour and against defendant. Therefore, issue no. 1 is decided in favour of plaintiff and against defendants.
Issue no.2.
ii) Whether there is collusion between defendant no. 1 & 2 and if yes its consequences?
17. Onus to prove this issue was on defendant no. 1 and there is no evidence from her side. As discussed in issue no. 1 also, the defendant has failed to bring any substance in cross examination to suggest any inference of collusion between defendant no. 2 and plaintiff. Thus issue is also decided in favour of plaintiff and against defendants.
Relief:
18. In view of the findings of issues, the suit of plaintiff is CS No. 647/18 Jagwati Devi v. Krishan & Anr Page no. 8 of 9 decreed in favour of plaintiff and against the defendants. Defendants are restrained from forcefully entering into the suit property without due process of law and also restrained from interfering the peaceful possession of the property of the plaintiff.
19. Decree sheet be prepared accordingly. File be consigned Digitally signed by to record room after. VIKRAM VIKRAM Date:
2020.02.13 15:30:23 +0530 Announced in the open court (VIKRAM) on 12th February, 2020 ACJ-cum-ARC-cum-CCJ North-East District, KKD Delhi.
CS No. 647/18 Jagwati Devi v. Krishan & Anr Page no. 9 of 9