Delhi District Court
In Re: vs ) Shri Rafiqul Hasan on 19 August, 2011
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IN THE COURT OF MS. SMITA GARG: JSCC/ASCJ(NW)
ROHINI COURTS:DELHI
Suit No. 398/09
ID No. 02404C0049892009
In re:
Mohd. Sameem
S/o Shri Qayum
R/o 138, Gauri Shankar Enclave,
Prem Nagar PhaseIII,
Nangloi, Delhi.
Presently At:
C8/130, Dalit Ekta Camp,
Behind Police Station,
Vasant Kunj, New Delhi. ............... Plaintiff
Versus
1) Shri Rafiqul Hasan
2) Shri Jamirul Hasan
Both S/o Shri Safiqul Hasan
Both R/o 138,Gauri Shankar Enclave,
Prem Nagar PhaseIII,
Nangloi, Delhi. .............Defendant
Date of Institution of the Suit : 02.03.2009
Date of Reserving Judgment : 06.08.2011
Date of Judgment : 19.08.2011
EXPARTE JUDGMENT:
1 This is a suit for recovery of possession under Section 6 of
Specific Relief Act and permanent injunction filed by the plaintiff in
respect of the plot/house bearing no. 138, admeasuring 53 sq. yards
out of Khasra No. 24/10 situated in Revenue Estate of Village
Mundka, Delhi, abadi known as Gauri Shankar Enclave, Prem Nagar
III, Mundka, Nangloi, Delhi110041 ( herein after referred to as 'suit
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premises').
2 The facts of the case as set out in the plaint are that the
plaintiff was a tenant in respect of the suit premises under the
defendant no1. On 25.03.2006, he purchased the suit property from
the defendant no1 vide General Power of Attorney, Agreement to
Sell, Affidavit, Possession Letter and Receipt for a consideration of
Rs. 50,000/. After the execution of the documents and receiving the
entire consideration amount, the formal and symbolic possession of
the suit premises was handed over by the defendant no1 to the
plaintiff. With the passage of time, the market value of the suit
property increased and the defendant no1 started pressurizing the
plaintiff to sell back the suit premises to him. Since the plaintiff
refused to do so, the defendant no1 alongwith defendant no2 and
their associates visited the suit property on 16.05.2008 and
threatened the plaintiff to vacate the same by 18..05.2008. The
plaintiff lodged a complaint against the defendants on 17.05.2008
but no action was taken. On 27.06.2008, the defendants again came
to the suit property and started throwing the household articles of
the plaintiff therefrom. Due to the intervention of the neighbours,
the defendants could not succeed in their nefarious designs and fled
away from the spot. The plaintiff was thus constrained to file a suit
for permanent injunction against the defendants. The summons of
the said suit were issued by the court to the defendants and on
07.09.2008when the plaintiff came out of his house, the defendant no2 alongwith a property dealer gave beatings to him and threatened to vacate the suit premises. The police also came to the 3 spot and the MLC of the plaintiff was got conducted. After being relieved from the Hospital, when the plaintiff went to the suit premises, he found that it had been occupied by the defendants and he was not allowed to enter the same. The plaintiff made a complaint dated 10.10.2008 to the SHO P.S Aman Vihar and National Human Rights Commission but no action was taken against the defendants. The plaintiff also filed a complaint case under Section 200 CrPC against the defendants which is pending disposal. According to the plaintiff, the defendants not only dispossessed him illegally from the suit premises but are also trying to create third party interest therein and therefore, he was constrained to file the present suit praying that:
1) a decree for recovery of possession in respect of the suit premises be passed in his favour and against the defendants,
2) a decree for permanent injunction be passed in his favour and against the defendants thereby restraining them from selling, transferring or creating any third party interest in the suit premises till the possession thereof is delivered back to the plaintiff.
3) a decree for permanent injunction be passed in his favour and against the defendants thereby restraining them from interfering in the peaceful possession and occupation of the suit premises by the plaintiff.
3 Upon being served with the summons, the defendants appeared and file their written statement wherein they took the preliminary objection that the suit is bad for misjoinder of defendant no2,, that the plaintiff has not approached the court with clean 4 hands and that the suit is an abuse of process of law. On merits, it has been denied that the plaintiff was ever inducted as tenant in the suit premises or that the defendant no1 sold the suit premises to the plaintiff. According to the defendants, the defendants no1 being a blind person allowed the plaintiff to stay with him in the suit premises but on 01.07.2008, the wife of the defendant no1 died under suspicious circumstances and the plaintiff disappeared from the suit premises before the arrival of the police. When the defendant no1 decided to sell the suit property and shift to his native place, the plaintiff contacted him and claimed to be the absolute owner of the suit property by virtue of documents dated 15.04.2006. The defendant no1 asked the plaintiff to show the documents to him but the plaintiff went away from the suit premises. According to the defendants, since the plaint does not disclose any cause of action in favour of the plaintiff, the same is liable to be dismissed.
After filing the written statement, the defendants stopped appearing in the case and were proceeded exparte on 23.02.2010. 4 In support of his case, the plaintiff entered into the witness box as PW1. He led evidence on affidavit wherein he supported the averments of the plaint and proved the site plan of the suit premises as Ex. PW1/1, General Power of Attorney, Agreement to Sell, Affidavit, Possession Letter and Receipt executed by the defendant no1 in his favour on 25.03.2006 as Ex. PW1/2 ( colly), certified copy of the order dated 19.12.2009 passed by the Ld. MM in the complaint case no. 684/01/08 titled as " Shamim Vs. Rafikul Hasan & Ors."
5alongwith the copy of FIR No. 392/09 U/s 323/341/506 IPC P.S Aman Vihar as Ex. PW1/3 (colly), copy of the complaint dated 17.07.2008 alongwith courier receipt as Mark P1, copy of the suit for permanent injunction bearing no. 274/09 pending at Tis Hazari Court as Mark P2, copy of dasti summons issued in the said suit as Mark P3 and copy of MLC of the plaintiff as Mark P4.
The plaintiff has also examined Shri Salim Khan as PW2 who has also led evidence on affidavit and has supported the case of the plaintiff. He has deposed that the documents of the suit premises which were executed by the defendant no1 in favour of the plaintiff were witnessed by him and that the possession of the suit property was handed over to the plaintiff in his presence. 5 I have heard the counsel for plaintiff and perused the record carefully.
6 The testimony of both the PWs have remained uncontroverted and unchallenged since the defendants have chosen to remain exparte. From the unrebutted testimony of PWs and the documents placed and proved on record and in the absence of any evidence to the contrary, it is evident that the vacant and peaceful possession of the suit premises was handed over by the defendant no1 to the plaintiff on 25.03.2006. According to the plaintiff, since he has been illegally dispossessed from the suit premises by the defendants on 07.09.2008, he was constrained to file suit under Section 6 of Specific Relief Act against them. Since the present suit has been instituted by the plaintiff on 02.03.2009 i.e within six months of his dispossession from the suit premises, it stands 6 established that the plaintiff is entitled to a decree for possession of the suit premises under Section 6 of the Specific Reliefs Act.
As far as the relief of injunctions are concerned, there can be no doubt that the plaintiff shall suffer irreparable loss and injury if the defendants succeed in selling or creating third party interest in the suit premises. Since the balance of convenience also lies in favour of the plaintiff, the defendants are restrained from selling, transferring or creating any third party interest in the suit premises till the possession of the suit premises is delivered back to the plaintiff.
In view of the above discussion, a decree for possession of the plot/house bearing no. 138, admeasuring 53 sq. yards out of Khasra No. 24/10 situated in Revenue Estate of Village Mundka, Delhi, abadi known as Gauri Shankar Enclave, Prem NagarIII, Mundka, Nangloi, Delhi110041 is passed in favour of the plaintiff and against the defendants. The defendants are also restrained from selling, transferring or creating any third party interest in the suit premises till its possession is delivered back to the plaintiff.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court ( Smita Garg)
on 19.08.2011 JSCC/ASCJ(NW)
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S 398/09
19.08.2011
Pr. None for plaintiff.
Defendant exparte.
Vide separate judgment announced in the open court, the suit of the plaintiff has been decreed and a decree for recovery for possession of the plot/house bearing no. 138, admeasuring 53 sq. yards out of Khasra No. 24/10 situated in Revenue Estate of Village Mundka, Delhi, abadi known as Gauri Shankar Enclave, Prem Nagar III, Mundka, Nangloi, Delhi110041 has been passed in favour of the plaintiff and against the defendants. The defendant are also restrained from selling, transferring or creating any third party interest in the suit premises till its possession is delivered back to the plaintiff.
Decree sheet be prepared accordingly.
File be consigned to record room.
( Smita Garg ) JSCC/ASCJ(NW) Delhi:19.08.11