Delhi District Court
(1) Sh. Rajesh Kumar vs Sh. Om Prakash on 24 April, 2018
Sh. Rajesh Kumar v. Sh. Om Prakash & Ors.
Suit No. 83545/16
IN THE COURT OF MS. NEHA PRIYA, CIVIL JUDGE01
(SOUTH) SAKET COURTS, NEW DELHI
In the matter of:
Suit no. 83545/16
CNR No. DLST030001272011
(1) Sh. Rajesh Kumar
S/o Late Sh. Ram Charan
R/o A366, First Floor
J.J. Colony, Dr. Ambedkar Nagar
Tigri, New Delhi ...............Plaintiff
Versus
1. Sh. Om Prakash
S/o Late Sh. Ram Charan
R/o A366, Second Floor
J.J. Colony, Dr. Ambedkar Nagar
Tikri,New Delhi
Presently at:
H.No. 27, Dhobi Ghat
Parwana Lane
Underhili Road
Civil Lines, Delhi
2. Sh. Jagdish
S/o Late Sh. Ram Charan
R/o 14, Rajpur Road
Opposite M.C.D. Flats
Civil Lines, Delhi
3. Sh. Surender Kumar
S/o Late Sh. Ram Charan
R/o A366, Ground Floor
J.J. Colony, Dr. Ambedkar Nagar
Tigri, New Delhi ..............Defendants
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Sh. Rajesh Kumar v. Sh. Om Prakash & Ors.
Suit No. 83545/16
Date of Institution : 26.07.2011
Date of Pronouncement : 24.04.2018
Decision : Dismissed
SUIT FOR PERMANENT INJUNCTION
Present: None.
JUDGMENT:
1. This is a suit for permanent injunction filed by the plaintiff against his brothers defendants no. 1, 2 & 3 seeking to restrain them from creating any hurdle in the free ingress and egress of the plaintiff and his family in the first floor of suit property i.e. A366, J J Colony, Dr. Ambedkar Nagar, Tigri, New Delhi (hereinafter referred as 'Suit Property') and also from selling or alienating the Suit Property without the consent or knowledge of the plaintiff.
Averments in plaint:
2. It is submitted on behalf of the plaintiff that the Suit Property was allotted in the name of the mother of the plaintiff and defendants, Smt. Dolti Devi from the Department of DDA (Slum) sometime in the year 1975. Smt. Dolti Devi executed her last and final Will dated 15.08.1996 whereby she stated that after her death, the said property shall be equally divided amongst her four sons i.e. the plaintiff and defendants. Smt. Dolti Devi expired on 02.12.2004 and as per the Will, plaintiff was given the first floor of the Suit Property. Plaintiff was working in Belgium and often used to come and open his portion of the Suit Property. On 31.06.2011, plaintiff along with his family came to India and tried to access the first floor of the Suit Property. However, the defendants refused to allow the plaintiff to enter the Suit Property and challenged his right, title or interest 2 of 16 Sh. Rajesh Kumar v. Sh. Om Prakash & Ors.
Suit No. 83545/16therein. Plaintiff took shelter in an alternative accommodation. Again on 14.07.2011, when plaintiff tried to enter the Suit Property, he was obstructed by the defendants who threatened him of dire consequences. On 19.07.2011, plaintiff came to know that defendants are intending to sell out the entire Suit Property to some other buyer without the knowledge of the plaintiff. On 21.07.2011, plaintiff was specifically told by the defendants that they will neither handover possession of the property nor give him anything out of the sale proceeds. Having left with no other option, this suit has been filed.
Written Statement by defendants no. 1 & 2:
3. By virtue of written statement, it is submitted that the suit is not maintainable as plaintiff has not come with clean hands. Deceased mother of the plaintiff and the defendants, Smt. Dolti Devi has already divided the property in writing on 15.08.1996. The plaintiff has not been obstructed from ingress and outgress of his portion of the Suit Property.
Plaintiff often comes to access his portion, and has never been obstructed. The incident of 31.06.2011, 14.07.2011, 19.07.2011 and 21.07.2011 are denied and it is reiterated that plaintiff has not been objected from ingress and outgress in the property, and has not been denied of his share. No cause of action arose in favour of the plaintiff therefore suit be dismissed. Written Statement by defendant no. 3:
4. By virtue of the written statement, it is submitted that defendant no. 3 is the rightful and exclusive owner, and in possession of the Suit Property. The Suit Property has already been sold out to defendant no. 3 by his mother during her lifetime by way of general power of attorney, agreement to sell, affidavit and receipt dated 14.01.1997. Since then, defendant no. 3 is the rightful owner and in possession of the Suit 3 of 16 Sh. Rajesh Kumar v. Sh. Om Prakash & Ors.Suit No. 83545/16
Property and has every right to use, enjoy and sell out the Suit Property. The incident set out by the plaintiff in the suit never took place. Suit is meritless and, therefore, be dismissed.
Replication:
5. By virtue of the replication, the contents of the plaint have been reiterated and the contents of the written statement have been denied. Issues:
6. Vide order dated 04.09.2013, the following issues were framed:
Issue no.1: Whether the suit is maintainable in its present form? OPP Issue no.2: Whether plaintiff is entitled to a decree of permanent injunction to restrain the defendants or their agents from creating any obstruction to free ingress or egress of the plaintiff and his family in the suit property? OPP Issue no.3: Whether plaintiff is entitled to a decree of permanent injunction to restrain the defendants or their agents from selling, alienating, disposing off the entire property bearing no. A366, JJ Colony, Dr. Ambedkar Nagar, Tigri, New Delhi? OPP Issue no.4: Relief.
Plaintiff's evidence:
7. In support of its case, plaintiff examined himself as PW1 and tendered his evidence by way of affidavit Ex. PW1/A. He relied upon Ex. PW1/1 i.e. Will/ family settlement dated 15.08.1996. PW1 was duly crossexamined by ld. Counsel for defendants no. 1 and 2. Vide order dated 10.02.2011, right of defendant no. 3 to crossexamine the plaintiff was closed.
8. Smt. Kamla, sister of plaintiff, was examined as PW2 who tendered her evidence by way of affidavit Ex. PW2/B. PW2 was duly cross 4 of 16 Sh. Rajesh Kumar v. Sh. Om Prakash & Ors.Suit No. 83545/16
examined by ld. Counsel for defendant no. 3. Despite opportunity, defendants no. 1 & 2 did not cross examine PW2.
9. Vide a separate statement, plaintiff's evidence was closed. Defendant's Evidence:
10. In support of its defence, defendant no. 1 Sh. Om Prakash examined himself as DW1, and tendered his evidence by way of affidavit Ex. DW1/A. He relied on Ex. PW1/1 i.e. Will executed by Lt. Smt. Dolti Devi.
11. Defendant no. 2, Sh. Jagdish was examined as DW2 who tendered his evidence by way of affidavit Ex. DW2/A and relied upon Ex. PW1/1 i.e. Will executed by Lt. Smt. Dolti Devi.
12. Both DW1 and DW2 were duly crossexamined by the learned counsel for the plaintiff.
13. Despite opportunity, defendant no. 3 did not lead his evidence and vide order dated 29.01.2018, his opportunity to lead evidence was closed.
Findings:
14. Ld. Counsel for the plaintiff put forth his arguments in accordance with his pleadings. Defendants no. 1 & 2 chose not to present final arguments, and defendant no. 3 did not come forward for final arguments. I have carefully perused the entire case record including the pleadings and evidence. I have also gone through the prevailing law in this regard and have heard the submissions of the learned counsels for both the sides. My issuewise findings are as under:
Issue no. 1:
Whether the suit is maintainable in its present form? OPP
15. Onus of proof of this issue is on the plaintiff. This is a suit 5 of 16 Sh. Rajesh Kumar v. Sh. Om Prakash & Ors.
Suit No. 83545/16for injunction filed by the plaintiff on the basis that he is in possession of the first floor of the Suit Property. Plaintiff has also enumerated incidents in the plaint whereby he was obstructed from entering the Suit Property by the defendants thereby clearly disclosing the cause of action for filing the suit. The plaint also conforms with the provisions of CPC. Therefore, the plaintiff has discharged the initial burden of showing the maintainability of the suit.
16. The onus now shifts on the defendants to prove the grounds on which the suit is stated to be not maintainable. It is averred in the written statement that this suit is devoid of cause of action and that plaintiff has not approached the court with clean hands. Although these bald allegations have been made in the written statement, defendants have not led any evidence in proof of the same. This issue is accordingly decided against the defendants and in favour of the plaintiff.
Issues no.2 & 3:
Whether plaintiff is entitled to a decree of permanent injunction to restrain the defendants or their agents from creating any obstruction to free ingress or egress of the plaintiff and his family in the suit property?
OPP Whether plaintiff is entitled to a decree of permanent injunction to restrain the defendants or their agents from selling, alienating, disposing off the entire property bearing no. A366, JJ Colony, Dr. Ambedkar Nagar, Tigri, New Delhi? OPP
17. Since common points are involved in both these issues, these are being dealt with simultaneously. The onus of proof of these issues is on the plaintiff. The basis of claim to injunctions as prayed is that the plaintiff is the owner and in possession of first floor of the Suit Property.
18. In order to be able to claim the reliefs of injunction, plaintiff has to first establish his right to continue in possession. In this regard, it 6 of 16 Sh. Rajesh Kumar v. Sh. Om Prakash & Ors.
Suit No. 83545/16has been held in Maria Margarida Sequeria Fernandes & Ors. v. Erasmo Jack de Sequeria (Dead) through LRs1, that, and I quote:
"It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive.
(a) Who is or are the owner or owners of the property;
(b) Title of the property;
(c) Who is in possession of the title documents;
(d) Identity of the claimant or claimants to possession;
(e) The date of entry into possession;
(f) How he came into possession - whether he purchased the property or inherited or got the same in gift or by any other method;
(g) In case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount;
(h) If taken on rent, license fee or lease then insist on rent deed, license deed or lease deed;
(i) Who are the persons in possession/ occupation or otherwise living with him, in what capacity; as family member, friends or servants etc;
(j) Subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and
(k) Basis of his claim that not to deliver possession but continue in possession".
19. In the present case, plaintiff has not put forward any title documents or stated about their whereabouts. No documents of possession such as utility bills, identity cards or photographs are putforward. No specific date of coming into possession of the first floor of Suit Property has been specified. The only document relied by plaintiff is Ex. PW1/1 which is claimed to be the last Will of the mother (of plaintiff and defendants) Lt. Smt. Dolti Devi. Although stated to be a Will, it is a plain 1 Judgment dated 21.03.2012 of the Hon'ble Supreme Court of India in CA No. 2968/12.
7 of 16 Sh. Rajesh Kumar v. Sh. Om Prakash & Ors.
Suit No. 83545/16paper writing bearing the signatures of the four brothers (plaintiff and defendants) as well as their mother. The document is neither stamped nor registered.
20. The manner of proving a Will has been elaborated upon by the Hon'ble Supreme Court as well as the Hon'ble High Court of Delhi in several judgments upon conjoint reading of Section 63 of the Indian Succession Act, 1925 and read with Section 68 of the Indian Evidence Act, 1872. As per judgment of Girija Datt Singh v. Gangotri Datt Singh2, the manner in which the propounder has to discharge the burden to prove the Will is as under:
"(i) it was signed by the testator in the presence of the two attesting witnesses;
(ii) the witnesses should have seen the testator sign the Will, or have been told by him that he had signed it;
(iii) The attesting witnesses, or one of them must depose to these facts, in the subsequent probate or other action concerning the Will. In the absence of attesting witnesses, of course, it is open to the propounder to prove the Will like any other document, provided that proof of the facts mentioned in Section 63 and 68 are led. (emphasis supplied)"
21. Further, it has been held in Janki Narayan Bhoir v. Narayan Namdeo Kadam,3 that and I quote:
"On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the Will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that 2 AIR 1955 SC 343 3 (2003) 2 SCC 91 8 of 16 Sh. Rajesh Kumar v. Sh. Om Prakash & Ors.Suit No. 83545/16
attestations were also made properly as required by clause (c) of Section 63of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for [proving] due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a Will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides a document, which is required by law to be attested, shall not be used as evidence until one attesting witnesses at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the court. In a way, Section 68 gives a concession to those who want to prove and establish a Will in a court of law by examining at least one attesting witness even though the Will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a Will. To put in other words, if one attesting witness can prove execution of the Will in terms of clause (c) of Section 63 viz attestation by two attesting witnesses in the manner contemplated therein, the examination of the other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by the other witness also it falls short of attestation of Will at least by two witnesses for the simple reason that the execution of the Will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act"(emphasis supplied).
22. It has been held in the case of Banga Bihara v. Baraja 9 of 16 Sh. Rajesh Kumar v. Sh. Om Prakash & Ors.
Suit No. 83545/16Kishore Nanda,4 that, and I quote:
"It is now well settled that requirement of the proof of execution of a Will is the same as in case of certain other documents for example gift or mortgage. The law requires that the proof of execution of a Will has to be attested at least by two witnesses. At least one attesting witness has to be examined to prove execution and attestation of the Will. Further, it is to be proved that the executant had signed and/or given his thumb impression in presence of at least two attesting witnesses and the attesting witnesses had put their signatures in presence of the executant. (emphasis supplied)"
23. Further, in the judgment of Jagdish Prasad v. State5, it has been held that:
"A plain reading of Section 63 of the Indian Succession Act, 1925 makes it clear that it declares the substantive law regarding execution of unprivileged Wills and mandates that the testator has to sign or affix his mark or under his direction some other person has, in his presence, signed the Will, and the signature on the mark of the testator or the signature of the person signing for the testator should appear to reflect the intention to give effect to the writing as a Will and that it should be attested by two or more witnesses, each of whom should have seen the execution of the Will and in token thereof should sign the Will as witnesses in the presence of the testator, it not being necessary that the two witnesses should be simultaneously present to witness the execution of the Will".
24. Furthermore, in the case of S. S.Srivastava v. State & Ors.6, the Hon'ble High Court of Delhi referred to various judgments, and held as follows:
"19. It is well settled that a document has to be proved 4 (2007) 9 SCC 728 5 Judgment dated 03.03.2015 of the Hon'ble High Court of Delhi in FAO (OS) 355/2008 6 2007 IV AD (Delhi) 314 10 of 16 Sh. Rajesh Kumar v. Sh. Om Prakash & Ors.Suit No. 83545/16
by primary evidence. A Will being a document has also to be so proved except where the court permits a document to be proved by leading secondary evidence. In a judgment of the Supreme Court reported at JT 2006 (9) SC 415 B. Venkatamuni v. C.J. Ayodhya Ram Singh & Ors. the court noticed earlier judgments and reiterated the stipulation provided in Section 68 of the Indian Evidence Act, 1872 that since a Will is required to be attested, it cannot be used as evidence until at least one of the attesting witnesses has been called for the purpose of proving its execution, if there be an attesting witness, and subject to the process of the court and capable of giving evidence. In addition, it has to satisfy the requirements of Section 63 of the Indian Succession Act, 1925. In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence.
20. So far as signatures appearing of witnesses on a Will are concerned, in AIR 1955 SC 346 (at page 351) Girja Datt Singh v. Gangotri Datt Singh, the court noticed that neither of the two attesting witnesses were called as a witness to depose to the fact of the attestation. The court held that it could not be presumed from the mere signatures of the two witnesses appearing at the foot of the endorsement of the registration that they had appended their signatures to the document as attesting witnesses or can be construed to have done 11 of 16 Sh. Rajesh Kumar v. Sh. Om Prakash & Ors.Suit No. 83545/16
so in their capacity as attesting witnesses. The provisions of Section 68 of the Indian Evidence Act which required the attesting witness to be called as a witness to prove the due execution and attestation of the Will has to be complied with in order that such person be treated as an attesting witness.
22. Again, in AIR 1959 SC 443 H. Venkatachala Vs. B.N. Thimmajamma, the Apex Court held that the requirements under Section 68 of the Evidence Act are required to be satisfied by the parties who placed reliance on such document in a court of law.
23. The law as has been laid down in Section 68 of the Evidence Act is imperative and requires stringent compliance. In AIR 1990 Kerala 146 Puramu Singh Vs. Bharatan, it was held by the court that this statutory provision does not permit use of a document which is required in law to be attested as evidence till such time that the same is proved strictly in accordance with the statutory provisions. There can be no dispute that the Will is required to be attested by two persons.
24. In the instant case, the petitioner has failed to produce the attesting witness as a witness in support of his petition. Undoubtedly, the petitioner has failed to discharge the onus and burden of proof cast on him under Section 68 of the Evidence Act. It is not the petitioner's case that the Will was executed by the Testator in his presence. In any case, the petitioner is not a witness to the execution of this Will. In the light of the principles laid down in the authoritative judicial precedents noticed above, it has, therefore, to be held that he has failed to prove the execution of the Will dated 28th August, 1977 as the last Will and Testament by the Late Shri Ram Singh Srivastava (emphasis supplied)".
25. Analyzing the facts of the present case in light of aforesaid legal position in the present case, the sign/ thumb impression of the Lt. Smt. Dolti Devi have not been recognized on Ex. PW1/1 by any of the 12 of 16 Sh. Rajesh Kumar v. Sh. Om Prakash & Ors.
Suit No. 83545/16witnesses. It is not averred/ established that the plaintiff and defendants signed on the Will as attesting witnesses thereto. None of the witnesses have come forward to depose that the Will, Ex. PW1/1 was executed in their presence by Lt. Smt. Dolti Devi or that her signatures were present thereon. PW1 has stated during cross examination that "My mother had expressed her will in the family settlement, Ex. PW1/1 (OSR). All my brother had appended their signatures on Ex. PW1/1 (OSR). We are four brothers namely Sh. Om Prakash, Sh. Jagdish, Sh. Rajesh and Sh. Surender. My mother had executed the document during her lifetime. I can identify the thumb impression on my mother. (Vol. She was not literate)". Therefore, even PW1 has deposed as to the sign of the brothers being present on the Will but he too has not recognized his mother's thumb impression thereon. In this view of the matter, alleged Will Ex. PW1/1 has not been proved.
26. Even otherwise, Ex. PW1/1 does not say that it is the last Will of Lt. Smt. Dolti Devi. The document was executed in 1996 whereas Lt. Smt. Dolti Devi is stated to have been expired in 2004. Therefore, the possibility of some other document relating to the Suit Property to have been executed during this time cannot be ruled out especially considering that defendant no. 3 has stated in his written statement that by virtue of documents of 1997, Suit Property was sold to him. Also, the contents of Ex. PW1/1 simply state that the Suit Property, after the death of Lt. Smt. Dolti Devi, will come to all the four brothers namely Sh. Om Prakash, Sh. Jagdish, Sh. Rajesh and Sh. Surender (being the plaintiff and defendants herein), in equal proportion and that they shall be entitled to the sale proceeds in equal portion upon sale of the Suit Property. There is no mention whatsoever of the first floor of the Suit Property coming to the 13 of 16 Sh. Rajesh Kumar v. Sh. Om Prakash & Ors.
Suit No. 83545/16share of the plaintiff as contended in the plaint as well as in the evidence.
27. It is also pertinent to note that there is no document placed on record to show the right of Lt. Smt. Dolti Devi herself in respect of the Suit Property at the time of execution of the said document Ex. PW1/1. PW1 has stated on oath that Lt. Smt. Dolti Devi was the owner of the said property since it was alloted in her name from Department of DDA (Slum) in 1975. However, no documents have been putforward in support of this assertion. As per Section 114 illustration (g) of the Indian Evidence Act, 1872, the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. No allotment or ownership documents in the name of Lt. Smt. Dolti Devi have been placed on record. This leads to an adverse inference under illustration (g) of Section 114 of the Indian Evidence Act, 1872.
28. Plaintiff has also not putforward any other document to show his current ownership or possession of the Suit Property. Although it is admitted by DW1 as well as DW2 that the first floor of the Suit Property was constructed by the plaintiff, that his household articles are lying in the Suit Property, and that only plaintiff and his family members were using the first floor of the Suit Property, however, in the absence of any material on record showing the right of the defendants themselves on the Suit Property, their admissions with respect to the rights of the plaintiff in the Suit Property are of little or no effect at all.
29. The other witness examined on behalf of the plaintiff i.e. PW2, being the sister, has also stated on oath that the first floor belongs to the plaintiff. However, the only basis for her to say so is that she saw the plaintiff get the first floor constructed. She too has failed to produce any credible evidence showing the right either of Lt. Smt. Dolti Devi or the 14 of 16 Sh. Rajesh Kumar v. Sh. Om Prakash & Ors.
Suit No. 83545/16plaintiff in the Suit Property. Thus, plaintiff has failed to lead any credible evidence to establish his claim of possession over the Suit Property.
30. Further, plaintiff has also failed to lead any oral/ documentary evidence to support his contention that he had visited the suit property on 31.06.2011, or 14.07.2011 and was obstructed by the defendants.
31. It is an elementary rule of civil litigation in this country that a plaintiff must stand or fall on the strength of his own case. 7 He cannot be entitled to a decree merely because the defendants failed to contest the suit. Plaintiff cannot rely merely on the weaknesses of the defence for considering his case proved. The fact that defendant no. 3 failed to lead evidence to support his claim of ownership over Suit Property or that defendants no. 1 & 2 assisted the case of the plaintiff, will not entitle the plaintiff to a decree especially when right of defendants themselves in the Suit Property is not clear.
32. There is no credible evidence in proof of any right of the plaintiff, be it ownership or possession, in the Suit Property. Plaintiff has miserably failed to establish his possession and enjoyment of Suit Property as on date of filing of the suit. Therefore, question of granting injunction in respect thereto does not arise. Accordingly, these issues are decided in favour of the defendant and against the plaintiff.
Issue no. 4:
Relief.
33. In view of the findings on the aforesaid issues, documents on record, pleadings of the parties, and evidence led by the parties, the plaintiff has failed to prove its case on the scale of preponderance of probabilities. Accordingly, suit of the plaintiff is dismissed. 7 Ganpatlal v. Nandlal Haswani, AIR 1998 MP 209; Harish Mansukhani v. Ashok Jain 2009 (109) DRJ 126(DB) 15 of 16 Sh. Rajesh Kumar v. Sh. Om Prakash & Ors.
Suit No. 83545/1634. No order as to costs.
35. Decree sheet be prepared accordingly.
36. File be consigned to the record room after due indexing and pagination.
(NEHA PRIYA) Civsil Judge01(South) Saket Courts/New Delhi 24.04.2018 Announced by me in the open court today on 24.04.2018. All the 16 pages of this order have been checked and signed by me.
(NEHA PRIYA) Civil Judge01 (South) Saket Courts/New Delhi 24.04.2018 16 of 16