Delhi District Court
7. In Anathula Sudhakar vs . P. Buchi Reddy, (2008) 4 Scc on 6 June, 2016
IN THE COURT OF SH. DEEPAK SHERAWAT, JSCC-CUM-
ASCJ-CUM-GUARDIAN JUDGE (WEST): DELHI
Suit No. 74/15
Unique Case I.D. No. 02401C0378332015
Sh. Umesh Chand Gupta
S/o Sh. Hira Lal Srivastava
R/o WZ-63/1, Ramgarh Colony
First Floor, Near Basai Darapur
Delhi.
...........Plaintif
Versus
1. Smt. Ram Dulari
W/o Sh. Hira Lal Srivastava
R/o WZ-63/1, Ramgarh Colony,
Ground Floor, Near Basai Darapur,
Delhi.
2. Sh. Raju Gupta @ Srivastava
S/o Sh. Hira Lal Srivastava
R/o WZ-63/1, Ramgarh Colony,
Ground Floor, Near Basai Darapur,
Delhi.
3. Palkum
D/o Raju Gupta @ Srivastava
R/o WZ-63/1, Ramgarh Colony,
Ground Floor, Near Basai Darapur,
Delhi.
4. Sh. Sachin
S/o Sh. Hira Lal Srivastava
R/o WZ-63/1, Ramgarh Colony,
Fourth Floor, Near Basai Darapur,
Delhi.
5. Ms. Usha Rani
CS no. 74/15 Page no.1/6
D/o Sh. Hira Lal Srivastava
R/o WZ-63/1, Ramgarh Colony,
Second Floor, Near Basai Darapur,
Delhi.
.........Defendants
Date of filing of the suit : 02.09.2015.
Date of reserving order : 06.06.2016.
Date of pronouncement of order : 06.06.2016.
ORDER
06.06.2016
1. Vide this order, I shall decide the following preliminary issue.
"Whether the suit is maintainable in its present form in the absence of alternative efficacious remedy".
2. The suit of the plaintif is that the defendant no. 1 is mother of the plaintif and defendants no. 2,4 & 5 are brothers and sisters of the plaintif. The father of the plaintif and the defendants Sh. Hira Lal Srivastava was owner of suit property bearing no. WZ-63/1, First Floor, Ramgarh Colony, Near Basaidarapur, New Delhi. The said property is now comprised of four floors and at the ground floor the defendant no. 1 to 3 are residing. The plaintif is residing at the first floor since 1969, defendant CS no. 74/15 Page no.2/6 no. 5 is residing at the second floor and defendant no. 4 at the third/fourth floor. Initially, all the members of the family are residing jointly but later on an oral partition was reached between the parties and presently, all the members are occupying their respective portion according to the said oral partition. In the month of December, 2014 a dispute arose between the plaintif and defendant no. 2 in respect of property no. WZ-74-A, Ramgarh Colony, Near Basaidarapur, New Delhi and the defendant no. 2 wanted to dispossess the plaintif from the said property and the plaintif had to file a civil suit which was withdrawn by him under the pressure of defendants. However, thereafter, the attitude of defendant no. 2 became hostile towards the plaintif and defendant no. 2 alongwith other defendants tried to dispossess the plaintif from the suit property. On 18.07.2015, the defendants came over the suit property and tried to take forcible possession of the property from the plaintif.
3. In the written statement the defendants have stated that the plaintif has no concerned with the suit property and their father had already debarred him from all his properties. In the year 1996-97, the plaintif demanded a share in the property and the defendant no. 2 and their father purchased property no. WZ-83-A, Ramgarh Colony, New Delhi for the plaintif and their father executed a Will dated 14.05.1992 in favour of defendant no. 1,4 & 5 and CS no. 74/15 Page no.3/6 after his death the defendants became owner of the suit property. In the year 2010 the plaintif sold the property WZ-83-A and shifted to rental accommodation at WZ-69 Ramgarh Colony, New Delhi. In the month of December, 2011, the plaintif and his son Varun Srivastava requested the defendants to give on rent one room at first floor of the suit property to which the defendants agreed and a rent agreement dated 05.01.2012 was executed between the plaintif and defendant no. 4. However, subsequently, the plaintif and his family broke open the lock of other room and tried to take possession thereof.
4. I have heard the arguments and perused the record.
5. The present suit has been filed for grant of injunction by the plaintif to protect his possession in the suit property from the defendants. However, the title of the plaintif in the suit property is not clear which has been specifically denied by the defendants. The defendants have also placed on record the copy of the rent agreement dated 05.01.2012 which has been executed between the son of the plaintif and the defendant no. 4. The plaintif has not questioned the genuineness of the said rent agreement and has merely denied that no such agreement was executed. The plaintif in the plaint has stated that he is also having the possession of the property no. WZ-74-A, Ramgarh Colony, New Delhi from CS no. 74/15 Page no.4/6 which the defendant no. 2 tried to dispossess him. It is not clear as to how the plaintif came into the possession of the said property when he is in possession of the suit property after the oral partition. The plaintif has also not disclosed as to when such oral partition was arrived at between the parties.
6. Under these circumstances, the title of the plaintif to the suit property becomes doubtful and in order to dispel the said doubt the plaintif should have asked for declaration of title. Besides, the plaintif should have also asked for the cancellation of the agreement dated 05.01.2012. A mere suit for injunction is not maintainable.
7. In Anathula Sudhakar Vs. P. Buchi Reddy, (2008) 4 SCC 594 it was held that where the plaintif is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintif will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintif is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintif will have to file a suit for declaration, possession and injunction.
8. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant CS no. 74/15 Page no.5/6 or challenge to plaintif's title raises a cloud on the title of plaintif to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property.
9. In the present case, a clear doubt has been raised over the title of the plaintif in respect of the suit property and the plaintif has not sought any relief of declaration therefore, suit is not maintainable and as such dismissed.
10. File be consigned to Record Room.
Announced in open Court Dated 06.06.2016. (DEEPAK SHERAWAT) JSCC-cum-ASCJ-cum Guardian Judge (West), Delhi 06.06.2016 CS no. 74/15 Page no.6/6