Delhi District Court
Rahul Jain vs Smt. Rani on 30 September, 2016
Suit no.: 6596/16 Rahul Jain v. Rani and Ors.
IN THE COURT OF Ms. SADHIKA JALAN, CIVIL JUDGE,
EAST DISTRICT, KARKARDOOMA COURTS, DELHI
Suit no. 6596/2016
Rahul Jain
s/o Lt. Sh. Subhash Chand Jain
r/o X/1988, Street no. 2,
Rajgarh Extension,
Delhi
.......Plaintiff
versus
1. Smt. Rani
r/o C5/7273,
New Kondli,
Delhi110096
2. National Urban Cooperative Bank Ltd.
(Bhagodaya Urban Cooperative Bank Ltd.)
Through its Branch Manager,
At: C3/84, New Kondli,
Delhi
.......Defendants
Page no.1
Suit no.: 6596/16 Rahul Jain v. Rani and Ors.
Date of institution of the suit: 20.11.2010
Date of reservation for judgment: 19.05.2016
Date of decision: 30.09.2016
JUDGMENT:
1. A suit has been filed for declaration, mandatory and permanent injunction against the defendant, by the plaintiff.
2. It is the case of the plaintiff that he is the son of late Sh. Subhash Chand Jain who was the owner of property bearing no. C3/86, C3/87, C3/84 and C5/86 situated at New Kondli, Delhi (hereinafter referred to as the 'suit property') These plots have been merged into one and are now in possession of defendant no. 2 having been let out to defendant no. 2 by the plaintiff's father. It is further stated that the father of the plaintiff died on 25.03.1997. However, at the time of his death, the plaintiff was a minor and the mother of the plaintiff could not file the present suit as she was not aware of the ownership of her husband in the suit property. It has been stated that after the death of the father of the plaintiff, defendant no.2 in collusion with defendant no.1 stopped paying rent to the plaintiff's mother. It has been stated that the defendant no. 1 has been claiming herself as the wife of Late Sh. Subhash Chand Jain when in reality she had no relation with Late Sh. Subhash Chand Jain. It has been stated that the defendant no. 2 has been paying rent to the defendant no. 1 who is not entitled to Page no.2 Suit no.: 6596/16 Rahul Jain v. Rani and Ors.
receive the said rent and in this manner both the defendants are causing wrongful loss to the plaintiff.
3. The plaintiff has accordingly filed the present suit praying for a decree of declaration declaring the documents of title in favour of the defendant no.1 in respect of suit property as null and void. Secondly, the plaintiff has also prayed for a decree of mandatory injunction directing the defendant no.1 not to transfer or create any third party interest in the suit property. Additionally, the plaintiff has prayed for a decree of mandatory injunction directing the defendant no.2 to pay the rent to the plaintiff along with pending arrears. Lastly, the plaintiff has prayed for a decree of permanent injunction restraining the defendant no. 2 from handing over the vacant possession of the suit property to the defendant no.1.
4. The defendant no. 1 has filed his written statement and has taken the preliminary objection that the suit of the plaintiff is liable to be dismissed on the ground of suppression of material facts. It has also been stated that the suit of the plaintiff is without any cause of action and is liable to be dismissed under Order VII Rule 11 Code of Civil Procedure. It has been stated that the plaintiff under the garb of the present suit is seeking a declaration of the marriage of the defendant no.1 with Sh. Subhash Chand Jain as null and void. Further it is stated that a family settlement was arrived at between the parties after the death of Sh. Subhash Chand Jain, whereby the properties of Sh. Subhash Chand Jain were divided between the mother of the plaintiff and the Page no.3 Suit no.: 6596/16 Rahul Jain v. Rani and Ors.
defendant no.1 at the instance of the panchayat. It further pleaded that the present suit of the plaintiff is bad for non joinder of necessary parties as the other legal heirs of Sh. Subhash Chand Jain have not been made parties in the present suit. Defendant no.1 states that she is in possession of the suit property since 1997 and that there is no privity of contract between the plaintiff and the defendant no.2.
5. Replying on merits, defendant no.1 stated that she married Sh. Subhash Chand Jain in 1974 and from their marriage four sons and one daughter was born. It is further stated however, that without obtaining divorce, Sh. Subhash Chand Jain brought the mother of the plaintiff with him and from their relationship the plaintiff and his two sisters were born. The defendant no.1 has stated that after the death of Sh. Subhash Chand Jain a family settlement took place and properties of Sh. Subhash Chand Jain were divided between the mother of plaintiff and the defendant no.1. The defendant no.1 has stated that no rent was ever paid by the defendant no.2 to the mother of the plaintiff. It also been stated that the suit property was given on rent to the defendant no.2 through a registered lease deed dated 01.08.2000 and the said lease deed was executed by the defendant no.1 and not by Sh. Subhash Chand Jain as alleged. Defendant no.1 has denied the other averments as made by plaintiff in his plaint and has prayed for the dismissal of the present suit.
Page no.4 Suit no.: 6596/16 Rahul Jain v. Rani and Ors.
6. Plaintiff filed a rejoinder denying therein the submissions of defendant no.1. Plaintiff stated that the written statement filed by the defendants was misconceived and untenable.
7. The defendant no. 2 has also filed his written statement and has taken the preliminary objection that this court does not have the pecuniary jurisdiction to entertain the present suit. It is stated that the value of suit property is more than Rs. one crore. Further it is also stated that the present suit of the plaintiff is barred by law of limitation and that the present suit is bad for misjoinder of parties as the defendant no. 2 has no concern with the dispute between the parties. The defendant no. 2 has averred that the suit property was taken on rent from the defendant no.1 vide lease deed dated 01.08.2000 at monthly rent of Rs.30,888/ which has been increased to Rs.38,746/ and the said rent is being paid by the defendant no. 2 to the defendant no. 1. The defendant no.2 has denied the other averments as made by plaintiff in his plaint and has prayed for dismissal of the present suit.
8. Issues were framed in the instant matter on 22.10.2013. The issues framed are as follows--
1. Whether the plaintiff is entitled for a decree of declaration as prayed for? OPP
2. Whether the plaintiff is entitled for mandatory injunction directing the defendant no. 1 not to transfer or create any third party interest in the suit property? OPP Page no.5 Suit no.: 6596/16 Rahul Jain v. Rani and Ors.
3. Whether the plaintiff is entitled for mandatory injunction directing defendant no. 2 to pay the rent to the plaintiff with arrears as prayed for? OPP
4. Whether the plaintiff is entitled to decree of permanent injunction restraining defendant no. 2 from handing over possession of the suit property to defendant no. 1? OPP
5. Relief
9. After the matter had been fixed for evidence of the plaintiff, defendant no. 2 stopped appearing in Court and was proceeded against exparte on 05.08.2014.
10.Plaintiff examined himself in evidence as PW1 and tendered his evidence by way of affidavit Ex. PW1/A. The plaintiff placed reliance on only a copy of the ration card which was exhibited as Mark A. After PW1 was extensively cross examined, evidence of the plaintiff was closed on 20.08.2015.
11.Defendant no. 1 examined herself as DW1. She tendered her evidence by way of affidavit Ex. DW1/A. The defendant placed reliance on documents Ex. DW1/1 which was previously marked as Mark Y, Ex. PW1/D1 is already on record. The relinquishment deed executed in favour of defendant by her children is Ex. DW1/2. Photocopy of the ration card is Mark DX.
12.Defendant no. 1 also examined Sh. Sharda Sharma, wife of Sh. Brij Mohan Sharma as DW2. DW2 tendered her Page no.6 Suit no.: 6596/16 Rahul Jain v. Rani and Ors.
evidence by way of affidavit Ex. DW2/A. Defence evidence was closed on 19.05.2016.
13. Final arguments heard. Record perused. Issue wise finding in the matter is as follows.
Whether the plaintiff is entitled for a decree of declaration as prayed for?
Whether the plaintiff is entitled for mandatory injunction directing the defendant no. 1 not to transfer or create any third party interest in the suit property?
14.The plaintiff has sought that the documents of title in favour of defendant no. 1 qua the suit properties be declared null and void. The plaintiff has also sought mandatory injunction directing defendant no. 1 to not transfer or create any third party interest in the suit party. The onus to prove both these issues rested on the plaintiff.
15.It is the case of the plaintiff that the father of the plaintiff was the owner of the suit property. The plaintiff states that the suit property in question had been leased by his father to defendant no. 2. However the after the death of the plaintiff's father, the defendant usurped the property and leased the said property to defendant no. 2 claiming to be the wife of the plaintiff's father.
16.The plaintiff however has not placed on record any document to bring to fruition his claim that his father was infact the owner of the suit property or that the property was ever on lease to defendant no. 2. The plaintiff has merely Page no.7 Suit no.: 6596/16 Rahul Jain v. Rani and Ors.
placed on record photocopies of the documents of the property and also not exhibited these documents in evidence. Furthermore the assertion that the property had been leased out to defendant no. 2 is denied by defendant no. 2. PW1 in his cross examination states further that he is not aware as to whether rent for the suit property was ever paid to them by defendant no. 2. He states that it might have been paid to his father. He admits that he does not have any document to show that the suit property was ever on rent in year 1997 when his father had expired or even six months prior to that. He further admits that he had no document to show that rent was in fact being received by his father. He further states that he never approached defendant no.2 in this regard and straight away filed the present suit. The plaintiff thus has not been able to establish the claims as made by him.
17.Furthermore, it is also pertinent to note that the plaintiff in his pleadings has made no averments in relation to as to what are the title documents of the defendant. The plaintiff has never during the course of trial moved for an application to ask the defendant to place on record the title documents for the suit property. The evidence instead has been in relation to whether the family arrangement Ex. DW1/1 had been reached between the parties and whether defendant no. 1 was the first or the second wife of the father of the plaintiff. The entire cross examination of the defendant was done in respect to whether the defendant is the wife of the Page no.8 Suit no.: 6596/16 Rahul Jain v. Rani and Ors.
plaintiff's father or not. No consequent relief however had been sought by the plaintiff in this regard.
18.Assuming that the plaintiff is able to establish that the defendant no. 2 is the second wife of the plaintiff. He would still not be entitled to any declaration in his favour since his actual claim to the property is based on his father being the owner of the suit property and he as a legal heir is now entitled to a share in the suit property. However when the plaintiff himself has not been able to establish that whether his father was infact the owner of the suit property, it does not matter whether the plaintiff establishes that defendant no. 2 is infact the second wife and not the first wife of the plaintiff.
19.Moreover it is an admitted fact that the defendant is in possession of the suit property. The plaintiff has not been able to establish any right, title or interest qua the suit property. The plaintiff is thus not entitled to the relief of injunction. The plaintiff thus has not been able to prove either of the reliefs sought by him. Both issue no. 1 and 2 stand decided against the plaintiff and in favour of the defendant.
Whether the plaintiff is entitled for mandatory injunction directing defendant no. 2 to pay the rent to the plaintiff with arrears as prayed for? OPP Page no.9 Suit no.: 6596/16 Rahul Jain v. Rani and Ors.
20.The plaintiff sought a mandatory injunction against defendant no. 2 stating that defendant no. 2 be directed to pay rent to the plaintiff alongwith arrears till date and not entertain any obstruction by defendant no. 2 qua the suit property. The onus to prove this issue rested on the plaintiff.
21.As discussed above, the plaintiff had stated in his pleadings that his father was the owner of the suit property and had leased the said property to defendant no. 2. However the plaintiff has not placed on record any document to show that the property was infact leased by his father to defendant no.
2. He admits that he does not have any document to show that the suit property was ever on rent in year 1997 when his father had expired or even six months prior to that. He further admits that he has no document to show that his father was in fact receiving any rent. Further it is admitted by the plaintiff in the cross examination that there is a duly registered lease deed between defendant no. 1 and 2.
22.Defendant no. 2 in written statement filed denied that they had ever paid any rent to the plaintiff's father or that the property had ever been leased by him. It was the contention of the defendant that the privity of contract for them exists between them and defendant no.1 and thus defendant no. 2 as a third party has no concern with this transaction. Any relief that plaintiff may have is qua defendant no. 1 and not defendant no. 2.
23.Though, defendant no. 2 is exparte in the matter, the burden is still upon the plaintiff to establish his own case. There is Page no.10 Suit no.: 6596/16 Rahul Jain v. Rani and Ors.
also force in the contention as raised by defendant no. 2. Even if plaintiff had been able to prove his case against defendant no. 1. Defendant no. 2 could not be compelled to pay rent to the plaintiff. A decree would have affected the transaction between defendant no.1 and defendant no. 2 but would not have automatically created rights between the plaintiff and defendant no. 2.
24.In the instant matter, the plaintiff has not been able to discharge the burden placed upon him. This issue thus stands decided against the plaintiff.
Whether the plaintiff is entitled to decree of permanent injunction restraining defendant no. 2 from handing over possession of the suit property to defendant no. 1?
25.The onus to prove this issue rested on the plaintiff. As stated in the above discussion, the plaintiff has not been able to show any right, title or interest qua the suit property. In light of the discussion above, no permanent injunction can be granted restraining defendant no. 2 from handing over the possession of the suit property to defendant no. 1. Issue is thus decided against the plaintiff and in favour of the defendants.
Relief
26.As the plaintiff has not been able to prove the case as set forth by him, the suit of the plaintiff is dismissed. Parties to Page no.11 Suit no.: 6596/16 Rahul Jain v. Rani and Ors.
bear their own costs. Decree sheet of dismissal be prepared. Pending applications, if any, accordingly stand disposed off. File be consigned to record room.
Announced in Open Court on 30.09.2016 Sadhika Jalan CJ/East/Karkardooma 30.09.2016 Page no.12