Delhi District Court
Sunder Dass vs Chottey Lal on 22 August, 2019
IN THE COURT OF MS. TWINKLE WADHWA: LD.
ADDITIONAL DISTRICT JUDGE03:PATIALA HOUSE
COURT:NEW DELHI DISTRICT
RCA No. 5323/16
Sunder Dass
S/o late Shri Dukh Choer
R/o RZ24, Braham Puri, Pankha Road,
New Delhi.
.....Appellant
VERSUS
1. Chottey Lal
S/o Late Shri Dukh Choer
R/o RZ24, Braham Puri, Pankha Road,
New Delhi.
2. Bhola
S/o Late Shri Dukh Choer
R/o RZ24, Braham Puri, Pankha Road,
New Delhi.
....Respondents
Date of Institution : 09.08.2016
Date of Final Arguments : 22.08.2019
Date of Decision : 22.08.2019
Final Conclusion : Appeal partly allowed
JUDGMENT
The Case
1. By way of present judgment, I shall dispose off an appeal filed by present appellant against the order of Trial Court dated 07.06.2016.
RCA No. 5323/16 Page 1 of 6Brief facts of the case
2. The present appellant had filed a suit before the Trial Court against his father defendant no.1 therein and his two brothers defendant nos. 2 and 3 in the said suit. It was the case of appellant (Plaintiff in suit before trial court) that appellant is residing on the first floor of the property bearing no. RZ24, Braham Puri, Pankha Road, New Delhi for the last seven years while respondents were residing on the ground floor., It was the case of appellant that it was ancestral property as well as common property of appellant and respondents, who are trying to dispossess him forcibly and without due process of law. On 06.06.1999 all the respondents/defendants asked him to vacate the first floor but he refused. On their persistent efforts to get the property vacated, he filed the said suit before the trial court. It is the case of appellant that he was permitted to reside therein by his father defendant no.1 (defendant no.1 expired during the pendency of the proceedings before the trial court). Hence he also has a right therein.
3. On the contrary, it was the case of respondents/defendants, as it was mentioned in their joint written statement, that it was a self acquired property and it was respondent no.2 Shri Chotey Lal who purchased the same from Shri Ram Kishan. Reliance is placed on unregistered documents viz., agreement dated 17.04.1989, affidavit, GPA and receipts of even date. It is the case of respondents that this RCA No. 5323/16 Page 2 of 6 being the self acquired property of respondent no.2, appellant being the real brother and son of defendant no.1, out of love and affection he was permitted to stay in the said premises. He is a licencee whose licence is revoked by respondent no.2.
4. Further the wife of the present appellant is quarrelsome and has created tension in the peaceful life of the respondents. A counter claim was also filed by respondents thereby seeking declaration that appellant has no title, interest or lien in the property and will be asked to vacate the suit proerty as a consequential relief.
Grounds of Appeal
5. It is the case of appellant that the said judgment is contrary to the facts and law and is liable to be set aside. Further it is contrary to the law laid down in Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana, 2012 (1) SCC 656. Further trial court failed to appreciate the fact that it is an ancestral property and the appellant is legally residing therein. Further the declaration sought by counter claimant cannot be allowed on the basis of unregistered and forged document as it is impressible in law. Further as respondents were not lawful owners, they could not have sought for declaration. It is specifically pleaded that the said documents are forged and fabricated and are manufactured by the respondents being unregistered. Further Ld. trial Court failed to consider the fact that both the parties have equal share in the said property.
RCA No. 5323/16 Page 3 of 6Further respondents were indirectly seeking possession without claiming the relief of title directly in their counter claim. Further Ld. Civil Judge failed to consider the fact that possession is a good title against the entire world except the true owner. Further Ld. Trial Court after observing that respondent has no title in the suit property, granted relief of eviction against the present appellant and contrary to the said principles of law. Reasons for Decision
6. Heard both the sides and gone through the record.
7. As far as dismissal of suit of the appellant is concerned, there is no infirmity or error in the judgment passed by Trial Court. It was correctly appreciated by the Trial Court that it is a bare averment that it is an ancestral property. No document was filed on record in support of his assertion. Further appellant could not establish that he was permitted to stay in the property by his father who inherited the same from his own father. Further appellant also failed to prove the fact that the said property was purchased in the name of respondent no.2 being the eldest son.
8. As none of the averments made in the plaint were proved by plaintiff in view of the specific denial by respondents, it was rightly observed that appellant has failed to prove his case. Hence, relief of permanent injunction was denied to the appellant and his suit was dismissed.
9. Coming to the counter claim as pleaded by respondents RCA No. 5323/16 Page 4 of 6 whereby seeking declaration that appellant has no title in the said property and consequential relief of eviction against the present appellant is concerned, the same was allowed by Ld. Trial Court though incorrectly so.
10. In para 15 of the judgment, Trial Court has observed that there is no dispute on the point of law that the above unregistered documents do not create any kind of title or interest qua the respondents in the suit property. The reliance placed on Suraj Lamp was also correct. However, Ld. Trial Court further went on to observe that in order to avoid any future controversies, respondents are only seeking a relief that appellant may be declared to have no right, title or interest in the property and appellant be evicted from the suit property. However, when respondents himself had no right, title or interest in the property, as was observed by trial court himself on the basis of unregistered documents, respondent had no basis to claim that appellant has not right, title or interest in the said property too. A person who himself has not right, title or interest in the property, without any basis cannot seek declaration against any other person that he may also be declared not to have any right, title or possession in the said property. Needless to say, it has come on record that the present appellant / plaintiff was in possession of the first floor. Hence, when respondent himself had no right, title or interest in the property, there was no basis for the trial court to have RCA No. 5323/16 Page 5 of 6 ordered that appellant be evicted from the premises. It is admitted by respondents that plaintiff/appellant was in possession of first floor. A possessory title is good against the entire world except the true owner. And defendants failed to prove ownership on the basis of unregistered documents. To this extent, the judgment of the trial court is set aside and the counter claim of the counter claimant / defendant is also dismissed.
11. Rest of the judgment is upheld.
TCR be sent back.
Digitally signed File be consigned to record room. by TWINKLE WADHWA TWINKLE Date: Announced in an open Court WADHWA 2019.08.22 16:54:30 On 22nd day of August, 2019. +0530 (Twinkle Wadhwa) ADJ03/PHC/NEWDELHI/22.08.2019 RCA No. 5323/16 Page 6 of 6