Delhi District Court
Surinder Singh Sikka vs Rajinder Singh Sikka on 11 July, 2013
IN THE COURT OF Ms. POOJA GUPTA : CIVIL JUDGE03:
SOUTH DISTRICT: SAKET COURT COMPLEX: NEW DELHI
Suit no.991/2011
Unique ID no. 02406C0157232011
IN THE MATTER OF:
Surinder Singh Sikka,
S/o Late Sh. Kartar Singh Sikka,
R/o H8A, 1st Floor, Kalkaji,
New Delhi. .....Plaintiff
Versus
1. Rajinder Singh Sikka,
S/o Late Sh. Kartar Singh Sikka,
R/o H8A, 2nd Floor, Kalkaji,
New Delhi19.
2. Smt. Paramjeet Kaur,
W/o Sh. Rajinder Singh Sikka,
R/o H8A, 2nd Floor, Kalkaji,
New Delhi19. .....Defendants
DATE OF INSTITUTION : 09.02.2011
DATE OF RESERVING THE ORDER : 10.07.2013
DATE OF DECISION : 11.07.2013
Civil Suit no.991/11 Surender Singh Sikka Vs. Rajinder Singh Sikka & Anr Page 1 of 22
JUDGMENT
1. By way of the present suit, the plaintiff is seeking permanent injunction against the defendants seeking to restrain the defendants, their servants, agents and family members from causing obstruction, hindrance any manner what so ever to the free stair case passage used for going to terrace and use of terrace on property No.H8A, Kalkaji, New Delhi as per the site plan and also to restrain the defendants from carrying out any construction on the common terrace. Facts as per the plaint
2. The father of the plaintiff Sh. Kartar Singh Sikka was absolute legal owner of the property No.H8A, Kalkaji, New Delhi consisting of ground floor, first floor and second floor and terrace. By virtue of a registered Gift Deed, the entire ground floor of the said property was gifted by Sh. Kartar Singh Sikka to the plaintiff as well as the other son namely Mahinder Singh Sikka and by virtue of separate registered Gift Deed dated 12.05.2003 the first floor was also gifted to the plaintiff who is in the exclusive possession thereof.
3. As per the registered Will dated 28.01.2004 executed by Late Sh. Kartar Singh Sikka second floor devolved upon defendant no.1 and Civil Suit no.991/11 Surender Singh Sikka Vs. Rajinder Singh Sikka & Anr Page 2 of 22 the terrace devolved upon all the four sons of Late Sh. Kartar Singh Sikka in equal shares and all the sons including the plaintiff were to have free access to the terrace with none of the occupants in the building creating any problem whatsoever for others. Further, all the sons were to pay Rs. 300/ each to the widow of Sh. Kartar Singh Smt. Shiva Rani for her petty needs.
4. The stairs are free passage for going to terrace where water storage tanks are kept and the terrace is also used by the plaintiff for drying of wet clothes and for other miscellaneous purposes. The terrace is also used by the mother of the plaintiff who lives with the plaintiff for taking sun bath in the winters.
5. About one month prior to institution of the suit, the defendants created obstruction and hindrance in the free passage to the terrace by installing an iron grill over the stair passage at second floor after the old wooden door at second floor which was bolted by the defendants only at night despite objections by the plaintiff.
6. The defendants and their family members unnecessarily lock the iron grill and allow plaintiff and his family members to access the terrace only after repeated requests and as per their will and sometimes Civil Suit no.991/11 Surender Singh Sikka Vs. Rajinder Singh Sikka & Anr Page 3 of 22 refuse to open the door and abuse the plaintiff and his family members. They have also threatened the plaintiff that they will not allow the plaintiff or any other person to go to terrace as the terrace is exclusively owned by defendant no.1.
7. About 4 days prior to the institution of the suit, plaintiff heard the defendants talking to contractor and has strong apprehension that defendants will construct permanent wall thereby blocking the free passage of staircase used for going to the terrace of the house and will illegally grab the whole terrace by making construction upon it.
8. About 10 days prior to filing of suit, the plaintiff was going to the terrace to check the water level in the evening but the defendant no. 2 refused to open the grill and on insistence, misbehaved with the plaintiff due to which the plaintiff had to came back without checking the water tanks. Hence the present suit.
Facts as per written statement
9. Preliminary objections were raised by the defendants that the suit was an abuse of process of law; that the defendant was the true owner of the second floor including the terrace; that the plaintiff suppressed and concealed material facts from the court; that the Will was forged and Civil Suit no.991/11 Surender Singh Sikka Vs. Rajinder Singh Sikka & Anr Page 4 of 22 fabricated as was the gift deed as true and correct copy had not been filed; that the court lacked the jurisdiction; that no cause of arose in favour of the plaintiff and the suit was liable to be dismissed for misjoinder of necessary parties.
10. Preliminary submissions were made that Late Sh. Kartar Singh Sikka had purchased the property i.e. H8A, Kalkaji, New Delhi110019 in 1968 from his own funds and the property was reconstructed in 1977 from the funds of Sh. Kartar Singh and all four brothers and consisted of ground floor, first floor and one unfinished room at second floor. In 1990 the father of the defendant partitioned the said property amongst all the four brothers as follows:
A) Ground floor (Shop) to Mr. Mohinder Singh Sikka and Surinder Singh Sikka).
B) First Floor (residential) to Mr. Narinder Singh Sikka. C) Second floor with terrace to Mr. Rajinder Singh Sikka/defendant no.1.
11. There are two staircases, one common staircase coming from ground floor to first floor and first floor to second floor. However the terrace has a separate stair case access from the second floor since the time of Sh. Kartar Singh and was partitioned in the same condition by Sh. Civil Suit no.991/11 Surender Singh Sikka Vs. Rajinder Singh Sikka & Anr Page 5 of 22 Kartar Singh and hence the terrace being a part of second floor was given to the defendant with the consent of all his brothers.
12. All brothers took possession of their respective floors as per the family settlement and the defendant also shifted to the second floor and took exclusive possession of the same. Thereafter, the defendant constructed the second floor and developed the 70 yds out of the 100 sq. yards from his own funds. Hence defendant is exclusive possession over the property since the year 1992 without any hindrance from any corner and the plaintiff has no right to claim ownership of the same.
13. The Will was forged and fabricated as Sh. Kartar Singh was paralyzed from his neck down for about 2025 years prior to his death on 12.02.2004 and he was unable to move even at the time of marriage of the defendant and hence as he was unable to walk the Will was false and fabricated. Nobody used to visit the terrace on the second floor and even the plaintiff did not visit the terrace for 23 months even though the defendant never objected to the visit of the plaintiff. The father of the defendant gave the shop on ground floor to the plaintiff as the plaintiff has chosen the same even though the defendant was using the same for his livelihood and by way of the present suit the plaintiff was trying to Civil Suit no.991/11 Surender Singh Sikka Vs. Rajinder Singh Sikka & Anr Page 6 of 22 grab the property of the defendant
14. On merits the defendant admitted the ownership of Sh. Kartar Singh of the property H8A, Kalkaji, New Delhi and denied the averments with respect to the gift deeds as also raised suspicion about their genuineness as nothing was given to one of the sons of Sh. Kartar Singh i.e. Sh. Narender Singh Sikka. The Will has been denied as being forged and fabricated. It has been admitted that Sh. Kartar Singh expired on 12.02.2004. It has been denied that the second floor of the property devolved upon the defendant by the alleged Will and averred that defendant was in lawful possession and owner of the second floor since 1992 as the property was partitioned by Sh. Kartar Singh in 1990. The possession of the plaintiff of the first floor is also admitted. The defendant has denied erecting any iron grill over the stair passage at second floor after the old wooden door and has contended that the defendant did not make any changes of any type and position of the property on the staircase was the same as was at the time of partition by Sh. Kartar Singh. The defendant only made requests to the plaintiff to lock the door after visiting the terrace due to apprehension of theft at the second floor as the staircase the second floor was easily accessible. The Civil Suit no.991/11 Surender Singh Sikka Vs. Rajinder Singh Sikka & Anr Page 7 of 22 averments with regard to talking to the Contractor for erecting permanent wall and covering the open passage space to the terrace have been denied on merits. Rest of the averments of the written statement have also been denied on merits.
Facts as per replication.
15. The exclusive rights of the defendant no.1 in the terrace of the second floor has been denied and contended that the Will was not forged and fabricated and even if no Will existed even then the defendant no.1 would not have the exclusive right, title or interest in the suit property and all successors of Late Sh. Kartar Singh would have equal rights in the second floor. It has been further claimed that Sh. Kartar Singh was only partly paralyzed and it was not that he was unable to move his hands or was not in a position to speak or understand things when he was alive. The plaintiff reiterated the contents of the plaint and denied the averments of the defendant in the written statement. Issues
16. From the pleading of the parties the following issues were framed for adjudication by Ld. Predecessor of this Court on 27.09.2011:
(1) Whether the suit of the plaintiff is liable to be dismissed for Civil Suit no.991/11 Surender Singh Sikka Vs. Rajinder Singh Sikka & Anr Page 8 of 22 suppression of the material facts?OPD (2) Whether the terrace is a part of second floor and has been given to the defendant? OPD (3) Whether there was a family partition among all the four brothers in the year 1990? OPD (4) Whether the plaintiff is entitled the decree of permanent injunction? OPP (5) Relief, if any.
Evidence
17. To prove his case, the plaintiff examined himself as PW1 and tendered his evidence by way of affidavit (Ex.PW1/1) and was duly crossexamined. PW1 also relied upon the following documents:
● Gift deed dated 12.05.2003 (Ex.PW1/A)(Colly.) ● Photocopy of the Will dated 28.01.2004 (Mark A) (Colly.) ● Site plan (Ex.PW1/B)
18. The plaintiff also examined his mother Smt. Shiva Rani as PW2 who tendered her evidence by way of affidavit (Ex.PW2/1) and relied on photocopy of the Will which was already marked as Mark A. PW 2 was also duly crossexamined.
19. In support of his defence, the defendant examined only himself as DW1 and tendered his evidence by way of affidavit Civil Suit no.991/11 Surender Singh Sikka Vs. Rajinder Singh Sikka & Anr Page 9 of 22 (Ex.DW1/A) and was duly crossexamined. DW1 also relied upon the following documents:
● Photocopy of receipts issued by MCD (Mark DW1/1) (Colly.) ● Photographs of marriage (Ex.DW1/2) (Colly.)
20. Final arguments were advance on behalf of both the parties.
21. I have carefully considered the submissions made on behalf of the parties and given my thoughtful consideration to the evidence on record. From the evidence on record my issue wise findings are as under:
Issue No.3: Whether there was a family partition among all the four brothers in the year 1990?
22. This issue is being decided prior to the issue no.1 and 2 for the sake of convenience. The onus to prove this issue was on the defendants as the defendants have raised a defence to the suit of the plaintiff contending that there has already been an oral partition of the property by the father of the defendant no.1 in 1990 vide which the second floor with terrace was given to the defendant no.1.
23. The defendant no.1 as DW1 deposed in his evidence by way of affidavit (Ex. DW1/A) that in 1990 the father of the defendant partitioned the said property amongst all the four brothers as follows: A) Civil Suit no.991/11 Surender Singh Sikka Vs. Rajinder Singh Sikka & Anr Page 10 of 22 Ground floor (Shop to Mr. Mohinder Singh Sikka and Surinder Singh Sikka); B) First Floor (residential) to Mr. Narinder Singh Sikka and C) Second floor with terrace to Mr. Rajinder Singh Sikka/defendant no.1. DW1 further deposed that subsequent to the family settlement, he shifted to the second floor and took exclusive possession of the same after which whatever construction and repair took place on the second floor it was done by the defendant no.1 out of his own funds and even the taxes of the second floor was paid by the defendant. During his crossexamination, DW1 denied that his father along with his elder brother Sh. Mohinder Singh were looking after the shop at H8A, Kalkaji since the beginning and volunteered that it was only after the partition. DW1 also admitted that since 1987 the plaintiff with their brother Mohinder Singh are carrying on his shop on the ground floor. DW1 denied that no partition as claimed in his affidavit Ex. DW1/A took place and also denied that all the four brothers had equal shares in the terrace of the second floor as per the Will of their father. No other witness or any of the three other brothers was called as a witness and examined by the defendant to prove the oral partition.
24. During her crossexamination, PW2 deposed that the Civil Suit no.991/11 Surender Singh Sikka Vs. Rajinder Singh Sikka & Anr Page 11 of 22 property had been partitioned once but further deposed that there was no partition in the year 1990. PW2 further deposed she did not remember what was given to whom whoever was sitting in whatever property was given to them. PW2 deposed that Narender Singh was given the first floor but then deposed that Sh. Narender does not live on his first floor as on date and further deposed that he does not have any share in the property as on date. PW2 further deposed that he took money in lieu of his share from her husband. PW2 admitted he did not have any share in the property. Thus, through the crossexamination the defendant was able to impeach the veracity and credibility of PW2 and hence her testimony cannot be relied upon in respect of the partition.
25. The plaintiff as PW1 during his crossexamination, also gave evasive answers in respect of the partition in 1990. PW1 deposed that he did not have any information whether the property was divided by his father in 1990. PW1 further deposed that he was very young and hence did not have any knowledge as to whether by way of family settlement done by his father in 1990 and ground floor shop was given to Sh. Mohinder Singh Sikka and Sh. Surender Singh Sikka, first floor which was residential was given Sh. Narender Singh Sikka and second floor Civil Suit no.991/11 Surender Singh Sikka Vs. Rajinder Singh Sikka & Anr Page 12 of 22 with terrace was given to Sh. Rajinder Singh Sikka. Thus, during the crossexamination, on oath, the plaintiff did not specifically deny the event of the oral partition. Even the testimony of the PW1 of being too young does not inspire confidence as on 14.08.2012 as per his own sworn testimony he was aged about 51 years which would make PW1 to be around 29 years old in 1990 and he cannot be said to be too young to understand whether any oral family settlement took place This coupled with the evasive denial of the plaintiff makes the uncorroborated testimony of the PW1 as unreliable even more so in view of the specific denial of the fact of partition in the replication.
26. Be that as it may, the oral testimony of DW1 remains uncorroborated by any oral and documentary evidence even more so in the absence of even the oral testimony of the other persons allegedly present at the meeting in 1990. As the Evidence Act requires that for a fact to be treated as proved, upon consideration of the materials on record, the existence of the fact is made believable to the court or it is considered that the existence of the fact so probable that a prudent man ought to act under the supposition that it exists under the given circumstances, the absence of any corroborating witness I do not find that Civil Suit no.991/11 Surender Singh Sikka Vs. Rajinder Singh Sikka & Anr Page 13 of 22 the defendant has been able to show such existence of facts as is required under the Act, and hence the defendant has not been able to discharge its onus. Thus, the defendant has not been able to prove that any family settlement took place in 1990 and accordingly issue no.3 is decided against the defendant and in favour of the plaintiff. Issue No.1: Whether the suit of the plaintiff is liable to be dismissed for suppression of the material facts?
27. The onus to prove this issue was on the defendants. The defendants raised a blanket objection in their written statement in respect of suppression of material facts by the plaintiff without specifying what material facts had been concealed by the plaintiff. During the course of the final arguments, it was argued that the facts which had been suppressed were in respect of the family settlement/partition. In view of my findings on issue no.3, this issue also remains unproved and hence this issue is also decided against the defendants and in favour of the plaintiff.
Issue No. 2: Whether the terrace is a part of second floor and has been given to the defendant?
28. The onus to prove this issue was on the defendants. DW1 in his evidence by way of affidavit (Ex. DW1/A) has deposed that terrace Civil Suit no.991/11 Surender Singh Sikka Vs. Rajinder Singh Sikka & Anr Page 14 of 22 was always a part of the second floor. DW1 further deposed that terrace is the part of the second floor and was given to the defendant no.1 with the consent of all the brothers. No question was put to DW1 in respect of the same during his crossexamination and the testimony of the DW1 went unrebutted and unchallenged. However, in view of the finidings on issue no.3, the defendants have not been able to prove that the terrace was given to the defendant no.1, and hence this issue is decided against the defendants and in favour of the plaintiff.
Issue No.4: Whether the plaintiff is entitled the decree of permanent injunction?
29. The onus to prove this issue was on the plaintiff. By virtue of Section 38 of the Specific Relief Act, 1963 the relief of permanent injunction can be granted when there a breach of obligation existing against the plaintiff. By way of permanent injunction a defendant can be perpetually enjoined inter alia from the commission of an act contrary to the rights of the plaintiff. Thus, it is for the plaintiff to prove and establish his rights and it is only thereafter that the defendant can be enjoined from the commission of the act contrary to the rights of the plaintiff.
Civil Suit no.991/11 Surender Singh Sikka Vs. Rajinder Singh Sikka & Anr Page 15 of 22
30. In the present case, the plaintiff has claimed to have equal rights in the terrace alongwith the defendant no.1 and other two brothers on the basis of a registered Will (Mark A). PW1 has deposed to for the first time in Ex. PW1/1 that the original of Mark A is in the possession of the defendant no.1. However, no notice as contemplated under Section 66 of Indian Evidence Act has been deposed to as having been served by the plaintiff upon the defendant. The defendants have denied the existence of the Will Mark A and as the execution of the Will is not admitted, it was for the plaintiff to prove the same. As per Section 68 of the Indian Evidence Act, a document required by law to be attested can be proved by testimony of atleast one attesting witness. However, for reasons best known to the plaintiff, no attesting witnesses were examined by the plaintiff to prove Mark A and hence the Will Mark A remains unproved and its contents cannot be read in evidence. Even the testimony of PW2 in respect of the Will being hearsay cannot be looked into. Thus, the plaintiff has not been able to prove his right in the terrace under the Will being the contents of the document.
31. An alternate plea was taken up by the plaintiff in its replication in respect of equal rights in the terrace as successors of Late Civil Suit no.991/11 Surender Singh Sikka Vs. Rajinder Singh Sikka & Anr Page 16 of 22 Sh Kartar Singh, however the said plea was taken for the first time in the replication and was also not deposed to on oath by PW1 and hence cannot be looked into. Further as per the own deposition of PW1 in Ex. PW1/1, the defendant no.1 has claimed to be the exclusive owner of the terrace i.e. the suit property. Thus, a cloud has been raised over the title to the terrace. However it is a settled proposition of law that in a simplicitor suit for injunction, the question of title is not to be looked into for which the plaintiff has to seek appropriate remedy before the appropriate forum.
32. While the DW1 deposed during his crossexamination that all the occupants of property no.H8A, Kalkaji including ground and first floor have a right to go to terrace through the common staircase, the same cannot be interpreted to prove the extent of existence of any right of the plaintiff in the terrace as it only indicates that for the purpose of going to the terrace the common staircase is to be used as a matter of right.
33. Be that as it may, to prove that the defendant has breached any right of the plaintiff, the plaintiff as PW1 has deposed that the stairs are free passage for going to terrace where water storage tanks are kept and the terrace is also used by the plaintiff for drying of wet clothes and Civil Suit no.991/11 Surender Singh Sikka Vs. Rajinder Singh Sikka & Anr Page 17 of 22 for other miscellaneous purposes. PW1 has further deposed that the terrace is also used by the mother of the plaintiff who lives with the plaintiff for taking sun bath in the winters. During his crossexamination, PW1 deposed that he accessed the terrace every 3 to 4 days to check the water and to dry their clothes.
34. PW1 has further deposed that about one month back, the defendants created obstruction and hindrance in the free passage to the terrace by installing an iron grill over the stair passage at second floor after the old wooden door at second floor which was bolted by the defendants only at night despite objections by the plaintiff. PW1 further deposed that the defendants and their family members unnecessarily locked the iron grill and allowed plaintiff and his family members to access the terrace only after repeated requests and as per their will and sometimes refused to open the door and abused the plaintiff and his family members. PW1 further deposed that the defendants have also threatened the plaintiff that they will not allow the plaintiff or any other person to go to terrace as the terrace is exclusively owned by defendant no.1. PW1 has further deposed that about 10 days prior to filing of suit, the plaintiff was going to the terrace to check the water level in the Civil Suit no.991/11 Surender Singh Sikka Vs. Rajinder Singh Sikka & Anr Page 18 of 22 evening but the defendant no.2 refused to open the grill and on insistence, misbehaved with the plaintiff due to which the plaintiff had to came back without checking the water tanks.
35. In his evidence by way of affidavit Ex. PW1/1, sworn before the oath commissioner on 07 February 2012 and tendered in evidence in court on 31.07.2012, the plaintiff has deposed that about 'one month back' the alleged iron grill was constructed over the stairs by the defendants causing obstruction whereas the suit itself was instituted in Febraury 2011. PW2 in her evidence by way of affidavit (Ex. PW2/1) has deposed that the defendants have unnecessarily blocked the free staircase passage leading to the terrace by installing a grill which they opened only at their Will and denied free access to the terrace. On the other hand, in his evidence by way of affidavit EX. DW1/A, the defendant no.1 has denied installing any gate at the suit premises. Even during his cross examination, DW1 has denied the suggestion that he had unauthorizedly installed the iron grill and volunteered that the iron grill was already installed in the passage for the last 25 years. Merely from the oral testimony of the plaintiff witnesses as neither any period or date has been specified on which date the gate was allegedly installed by the defendants Civil Suit no.991/11 Surender Singh Sikka Vs. Rajinder Singh Sikka & Anr Page 19 of 22 nor any photographs showing installation by the defendant no.1 has been proved by the plaintiff, thus the plaintiff has not been able to prove that the iron grill was installed by the defendants.
36. The oral testimony of PW1 also does not prove any obstruction by the defendants and even during his crossexamination, PW1 gave an evasive answer and deposed that he did not remember when was the first time he was stopped by the defendants from going to the terrace. The testimony of the PW1 also does not inspire confidence for the reason that while as per his own deposition the defendants allegedly locked the grill only at night then it is not clear as to why the occasion would arise for the obstruction in checking water and drying clothes which in ordinary course of human conduct would be carried out before night.
37. PW2 further deposed that in winters she used to take sunbath on the terrace but due to the misbehaviour and restraints put by the defendants, she could not use the same for her purposes. However, PW2 has admitted during her crossexamination that the defendant no.1 has never stopped her from going to the terrace. Thus, even by testimony of PW2 the plaintiff has not been able to prove any obstruction by the Civil Suit no.991/11 Surender Singh Sikka Vs. Rajinder Singh Sikka & Anr Page 20 of 22 defendant no.1.
38. PW1 has further deposed that few days prior to the filing of the suit, he heard the defendants talking to contractor and has strong apprehension that defendants will construct permanent wall thereby blocking the free passage of staircase used for going to the terrace of the house and will illegally grab the whole terrace by making construction upon it. PW2 has also deposed that the defendants intend to carry out unauthorised construction over the joint terrace. However, the testimony of PW2 is conspicuously silent as to the source of her information of the intention of the defendants to carry out construction. No overt act has been ascribed to the defendants in the testimony of either of the plaintiff witnesses in respect of the construction hence the question of legality or illegality thereof does not arise.
39. Though DW1 has admitted in his crossexamination that he wants to cover the open area/veranda, however, by way of the present suit the plaintiff has sought permanent injunction against carrying out construction on the "common terrace" and not the open space. Hence as the plaintiff has failed to prove not only that the terrace is common but also failed to prove installation of the grill as well as obstruction by the Civil Suit no.991/11 Surender Singh Sikka Vs. Rajinder Singh Sikka & Anr Page 21 of 22 defendants and accordingly this issue is decided against the plaintiff and in favour of the defendants.
Relief
40. In view of my findings on issue no.4, the suit of the plaintiff is dismissed. Parties to bear their own costs.
41. Decree Sheet be prepared accordingly.
42. File be consigned to the Record Room after necessary compliance.
Announced in the Open Court
on 11.07.2013 (Pooja Gupta)
Civil Judge03(South District)
New Delhi
Civil Suit no.991/11 Surender Singh Sikka Vs. Rajinder Singh Sikka & Anr Page 22 of 22