Delhi District Court
Sh. Davinder vs Sh. Veer Chand on 5 January, 2022
IN THE COURT OF HELLY FUR KAUR : CIVIL JUDGE - 08
(CENTRAL), ROOM NO.231, TIS HAZARI COURTS, DELHI
SUIT NO : 603292/16
CNR NO.DLCT030072482016
In the matter of :
SH. DAVINDER,
S/O SH. MOHAN LAL
R/O 6395, GALI NO. 3, BLOCK7,
DEV NAGAR, KAROL BAGH,
NEW DELHI110005 ...PLAINTIFF
VERSUS
SH. VEER CHAND,
S/O SH. BANSI LAL,
R/O 433, POCKET2,
PASCHIM PURI, MADI PUR,
NEW DELHI110039 ...DEFENDANT
Date of institution : 15.12.2016
Date of judgment : 05.01.2022
SUIT FOR CANCELLATION OF DOCUMENTS &
FOR PERPETUAL INJUNCTION.
JUDGMENT
1. Vide this judgment, I shall decide a suit for cancellation of documents and for perpetual injunction.
HELLY Digitally signed
by HELLY FUR
KAUR
FUR Date:
2022.01.05
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BRIEF FACTS OF THE PLAINT:
2. The brief facts of the plaint as alleged by the plaintiff which are necessary for the disposal of the suit are that that the grandfather of the plaintiff Late Sh. Banshi Lal have five sons, two daughters namely (1) Sh. Sant Lal (2) Sh. Mohan Lal (3) Sh. Veer Chand (4) Sh. Ramesh (5) Sh. Kewal (6) Smt. Omwati & (7) Smt. Indira @ Baby. The father of the plaintiff has expired and the defendant is the real uncle of the plaintiff. That the late grandfather of the plaintiff acquired some properties during his lifetime. The father of the plaintiff has independently purchased property bearing No.H16/306, Amrit Kaur Puri, Tank Road, Karol Bagh, New Delhi in or around the year 1975. The father of the plaintiff raised some construction over the said property during his lifetime and remained in actual physical possession of the said property as an absolute owner. The plaintiff has also been residing along with his father in the said property. That the father of the plaintiff had a number of documents including the water and electric bills as well as copy of Caste Certificate etc. showing his residence in the above said house. It is also stated that after the death of the father of the plaintiff, the title documents in the name of the father of the plaintiff are not traceable and might have been destroyed during the renovation/construction of the house. However, the plaintiff being the legal heir of the deceased inherited the said Digitally signed HELLY by HELLY FUR FUR KAUR CS No.603292/16 KAUR Date: 2022.01.05 16:20:02 +0530 Pg 2 of 21 property and remained in actual physical possession of the property. Further, that after the death of his father, the plaintiff has been residing in the said property along with his wife and that plaintiff has raised construction over the said property upto the third floor. It is also the contention of the plaintiff that he has transferred/sold the above said property to his wife Smt. Meenakshi on 14.11.2014 vide legally executed documents being the owner in possession of the above said property. That the defendant was well aware about the fact that the title documents of the property in the name of late father of the plaintiff are not traceable. However, the defendant served a frivolous legal notice date 24.05.2016 which has been duly replied by the plaintiff vide reply dated 27.05.2016. Therefore, with a malafide and dishonest intention, defendant filed a frivolous suit bearing suit No.535/2016 for possession and permanent injunction against the plaintiff on the basis of forged and manipulated documents which are sought to be canceled in the present suit. The said suit is pending adjudication before the Hon'ble Court of Sh. Sanatan Prasad, Ld. ADJ (Central) Tis Hazari Courts, Delhi wherein the defendant has been claiming himself as the owner of the house of the plaintiff. That after receiving the summons from the concerned Court, plaintiff herein filed his written statement as defendant and apprise the Hon'ble Court about the Digitally signed HELLY by HELLY FUR FUR KAUR CS No.603292/16 KAUR Date: 2022.01.05 16:20:14 +0530 Pg 3 of 21 true facts of the case and that the plaintiff herein has already sold/transferred the possession of the said property in the name of Smt. Meenakshi on 14.11.2014 and filed entire set of documents showing his possessory right qua the said property. That the plaintiff applied for the certified copies of the forged title documents filed by the defendant in the above noted suit. Thereafter, it was revealed that the said documents are forged and manipulated as the defendant has no right title or interest qua the said property. In fact, the said property is the self acquired and independent property of the father of the plaintiff. Thereafter, the said property has been inherited by the plaintiff being the legal heir of the deceased. It is the claim of the plaintiff that the said documents are forged and manipulated. In fact, the defendant has been trying to forcibly take possession of the property of the plaintiff. The plaintiff filed a complaint to the S.H.O. Police Station Parshad Nagar, Delhi on 03.06.2016 vide DD No.20B against the illegal attempts of the defendant. It is further averred by plaintiff that though he has transferred the said property to Smt. Meenakshi vide legally executed documents, the plaintiff is filing the present suit for the cancellation of the forged and manipulated documents effecting the legal right of the plaintiff qua his property. On the other hand, the defendant has no right, title or interest in respect of the property mentioned herein above.
Digitally signed HELLY by HELLY FUR KAUR FUR Date: CS No.603292/16 2022.01.05 Pg 4 of 21 KAUR 16:20:29 +0530
That the defendant is claiming his ownership of the said property on the basis of forged and manipulated documents. The plaintiff is apprehending that the defendant may try to create third party interest in the said property on the basis of the said documents, in case the said documents are not declared as null and void by the Hon'ble Court. That in these circumstances, the plaintiff has left with no other option except to file the present suit against the defendant seeking cancellation of the forged documents and for perpetual injunction. Hence, the present suit with following reliefs:
(i) Order for cancellation of General Power of Attorney, Agreement to Sell, Affidavit, Will, Receipt of Rs. 1500/ all dated 22.11.1984 allegedly shown to be executed by Sh. Rati Ram S/o Sh. Mukh Ram R/o Tank Road, Karol Bagh, New Delhi5 in favour of Sh. Vir Chand S/o Sh. Bansi Lal R/o 433, Pocket2, (Paschim Puri) Madipur, New Delhi63.
(ii) Pass a decree of perpetual injunction in favour of the plaintiffs and against the defendant, his agents, servants, representatives or any other person acting on his behalf from creating third party interest in the property of the plaintiff i.e. bearing No. H16/306, Amrit Kaur Puri, Tank Road, Karol Bagh, New Delhi110005 on the basis of forged and manipulated documents sought to be cancelled by the plaintiff.
WRITTEN STATEMENT OF THE DEFENDANT:
3. The defendant filed written statement and has controverted the claim of the plaintiff while submitting that the present suit as filed and framed in the present form is not maintainable in the eyes of law and the same is only abuse and misuse of the process of law, hence same is liable to be HELLY Digitally signed by HELLY FUR CS No.603292/16 FUR KAUR Date: 2022.01.05 Pg 5 of 21 KAUR 16:20:40 +0530 dismissed. It is further stated that present suit has been filed just to harass and humiliate the defendant and plaintiff is not entitled for the relief as prayed for, in any manner at all. That the plaintiff has deliberately and malafidely concealed this material facts from this Hon'ble Court in order to take advantage of her own wrong by filing false and frivolous suit against the defendant and that no cause of action has ever arisen in favour of the plaintiff and against the defendant for filing the present plaintiff and as such, the same is liable to be dismissed Under Order VII Rule 11 C.P.C. That the plaintiff made a false and frivolous story and averments before this Hon'ble Court and has concealed and suppressed the true facts just to mislead this Hon'ble Court. Hence, the same is liable to be dismissed on this ground alone. That no proper and legal court fee has been paid by the plaintiff, hence the present suit is liable to be dismissed on this ground alone. That the present suit is the counter blast of the earlier suit filed by the answering defendant against the plaintiff which is pending in the court of Sh. Sanatan Parshad, Additional District Judge, Tis Hazari Courts, in which the next date of hearing has been fixed as on 20 th February, 2017. Hence, the present suit is liable to be dismissed on this ground alone.
4. In reply on merits, the contents of para 1 of the plaint have been admitted.
That the contents of para 2 of the plaint have been stated to be absolutely Digitally signed HELLY by HELLY FUR KAUR FUR Date:
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wrong and it is vehemently denied that the grandfather of the plaintiff acquired some properties during his life time as alleged. It is further denied that the father of the plaintiff has independently purchased the property bearing No.H16/306, Amrit, Kaur Puri, Tank Road, Karol Bagh, New Delhi in or around the year, 1975 as alleged. It is also denied that the father of the plaintiff raised some construction over the said property during his life time and remained in actual physical possession of the said property as an absolute owner as alleged and that plaintiff has also been residing along with his father in the said property as alleged. On the contrary, the defendant is owner of the suit property by way of title deeds/documents i.e. General Power of attorney, Agreement to sell, Affidavit, Will and receipt all dated 22nd November, 1984 having purchased the same from its erstwhile owner for a lawful consideration. The plaintiff is the nephew of the defendant and that the plaintiff requested the defendant to allow him to reside in the said property as he was not having any shelter to live. Being his nephew, the defendant allowed him to reside in the said property as a licensee. It is further submitted that after some time, the attitude of the plaintiff became rude towards the defendant. Therefore, the defendant asked the plaintiff to vacate the said premises. However, the plaintiff threatened the defendant not to come in the said property otherwise the Digitally signed HELLY by HELLY FUR KAUR FUR Date:
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plaintiff will implicate the defendant in some false and frivolous cases and/or the defendant will face dire consequences. It is contended that the plaintiff was allowed to live in the said premises as a licensee and his license has been already terminated by giving a legal notice dated 24 th May, 2016 which has been duly served upon the plaintiff and a false and frivolous reply on behalf of plaintiff has been also received by the counsel. The defendant has also waited for a considerable time that the plaintiff would vacate the same after the service of the legal notice but they have failed to do so. It is further submitted that the plaintiff has mentioned different facts in order to grab the suit property because the defendant is owner of the suit property. It is the claim of the defendant that he has already terminated the license of the plaintiff due to this the possession of the said suit property of the plaintiff is that of an unauthorized occupants. That after the service of the legal notice by the defendant to the plaintiff, defendant came to know that the plaintiff has started showing the said premises to the unknown persons and the plaintiff have openly threatened that he will transfer the possession or sell the same to any other persons and no body can restrain him from doing so. The defendant has also filed a suit against the plaintiff and after that the defendant came to know that the plaintiff has illegally sold the suit property in his occupation and possession to Smt. Meenakshi (defendant No.2 in HELLY Digitally signed by HELLY FUR KAUR FUR Date:
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that suit) wife of the plaintiff herein through transfer documents i.e. General Power of Attorney, agreement to sell, affidavit, will, cash receipt and possession letter all dated 14 th November, 2014. Defendant further came to know that Smt. Meenakshi, (defendant No.2 in the said suit) has further sold out the basement to Sh. Rajinder Kumar & Sh. Parveen both sons of Sh. Sant Lal R/o 16/201, Amrit Kaur Puri, Tank Road, Karol Bagh, New Delhi, the defendants No.3 and 4 in the said suit) through registered sale deed dated 26th February, 2016 for a consideration of Rs.4,10,000/. Defendant further came to know that Smt. Meenakshi allegedly being the owner of the entire suit property has also sold out ground floor of the said property to one Smt. Shahabi, W/o Mohd. Aslam in January, 2016, (the defendant No.5 in the said suit). It is further submitted that the plaintiff has got no right, title or interest in the suit premises either to hand over the possession of any portion of the said premises or to create any kind of interest of third party or to transfer the same to any person and the plaintiff has abused and manhandled the defendant. That the contents of para 3 of the plaint as stated are absolutely wrong and specifically denied. It is vehemently denied that the father of the plaintiff had a number of documents including the water and electric bills as well as copy of Caste Certificate etc. to show suit property as his residence. It is further denied HELLY Digitally signed by HELLY FUR CS No.603292/16 FUR KAUR Date: 2022.01.05 Pg 9 of 21 KAUR 16:21:22 +0530 that after the death of the father of the plaintiff the title documents in the name of the father of the plaintiff are not traceable and might have been destroyed during the renovation/ construction of the house and that the plaintiff being the legal heir of the deceased inherited the said property and remained in actual physical possession of the property as alleged. It is submitted that the alleged documents filed by the plaintiff are maneuvered, false, frivolous and fabricated by the plaintiff in order to take advantage of his own wrongs thereby depriving the defendant from his legal rights in the suit property and to grab the said property. That the contents of the para 4 of the plaint/suit as stated are absolutely wrong and specifically denied and it is vehemently denied that after the death of his father, the plaintiff has been residing in the said property along with his wife as alleged. It is further denied that the plaintiff has raised construction over the said property upto third floor as alleged. It is submitted that the plaintiff intentionally and deliberately transferred the said property in favour of his wife Smt. Meenakshi in order to take advantage of his own wrongs. That the contents of para 5 of the plaint/suit as stated are absolutely wrong and specifically denied and it is vehemently denied that the defendant was well aware about the fact that the title documents of the property in the name of late father of the plaintiff are not traceable as alleged. It is submitted that sending of the HELLY Digitally signed by HELLY FUR KAUR FUR CS No.603292/16 Pg 10 of 21 Date:
2022.01.05 KAUR 16:21:35 +0530 said notice is not denied. However, the plaintiff sent a false and frivolous reply of the said notice. It is vehemently denied that with a malafide and dishonest intention, the defendant filed a frivolous suit bearing Suit No.535/2016 for the possession and permanent injunction against the plaintiff. It is specifically denied that the said suit has been filed by the defendant on the basis of forged and manipulated documents sought to be cancelled in the present suit as alleged. On the contrary, present suit is a counter blast of the suit filed by the answering defendant against the plaintiff as stated above. That the contents of para 6 of the plaint need no reply being matter of record. That the contents of para 7 of the plaint are absolutely wrong and specifically denied. It is vehemently denied that it was revealed that the said documents are forged and manipulated as the defendant has no right, title or interest qua the self acquired and independent property of the father of the plaintiff as alleged. It is submitted that the allegations are false, frivolous and afterthought and that the plaintiff can not take advantage of his own wrongs. The contents of para 8 of the plaint are absolutely wrong and it is specifically and vehemently denied that the said documents are forged and manipulated. It is further denied that the defendant has been trying to forcibly take possession of the suit property from the plaintiff as alleged. Filing of the said complaints, if any are denied HELLY Digitally signed by HELLY FUR KAUR FUR Date:
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for want of knowledge. The contents of para 9 of the plaint are absolutely wrong and it is specifically and vehemently denied that the defendant has no right, title or interest in respect of the suit property. It is further submitted that the plaintiff and/or any other persons have no right, title or interest over the property in question. The contents of para 10 of the plaint are absolutely wrong and it is specifically and vehemently denied that the defendant is claiming his ownership over the property on the basis of forged and manipulated documents. It is further specifically denied that the plaintiff is apprehending that the defendant may try to create third party interest in the said property on the basis of the said documents as alleged. That the contents of para 11 of the plaint/suit are stated to be absolutely wrong and hence, specifically denied. The contents of para 12 of the plaint are stated to be absolutely wrong and it is vehemently denied that the cause of action for filing the present suit first arose in favour of the plaintiff and against the defendant in the month of May, 2016 when the defendant served a frivolous legal notice to the plaintiff and on 27 th May, 2016 when the plaintiff replied the same and thereafter, when the defendant tried to forcibly took possession of the suit property in suit and the plaintiff reported the matter in writing to the local police on 3rd June, 2016 as alleged in the para under reply. It is further denied that the cause of action further arose when the Digitally signed HELLY by HELLY FUR KAUR FUR Date:
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plaintiff received the summons from the Hon'ble Court of Sh. Sanatan Prasad, A.D.J., (Central), Tis Hazari Courts, Delhi of civil suit no.535/2016 for his appearance as a defendant on 7 th July, 2016 and thereafter when the plaintiff filed written statement before the Hon'ble Court as alleged in the para under reply. It is further denied that the cause of action further arose when the plaintiff came across with the forged and manipulated documents and obtained the certified copies of the same in July,2016 as alleged. It is further denied that the defendant is still trying to create third party interest in the suit property on the basis of forged, fabricated and manipulated documents and claiming himself as the owner of the said property and the cause of action is still subsists as alleged. It is submitted that there is no cause of action ever arose in favour of the plaintiff and against the defendant and that the present suit is a counter blast to the earlier suit filed by the defendant. Rest of the contents have also been denied in toto. REPLICATION:
5. Plaintiff filed replication to the written statement of the defendant denying the case of the defendant; reiterating and reaffirming the case as set up by the plaintiff in the plaint.
ISSUES:
6. From the pleadings of the parties, following issues were framed for trial vide HELLY Digitally signed by HELLY FUR CS No.603292/16 FUR KAUR Date: 2022.01.05 Pg 13 of 21 KAUR 16:22:04 +0530 Order dated 28.08.2017 by ld. Predecessor:
1. Whether plaintiff is entitled for order of cancellation of General Power of Attorney, Agreement to Sell, Affidavit, Will and receipt all dated 22.11.1984, as prayed for? OPP.
2. Whether plaintiff is entitled to decree of perpetual injunction, as prayed for? OPP.
3. Relief.
PLAINTIFF'S EVIDENCE:
7. PW1 is plaintiff himself who tendered his evidence by way of affidavit Ex.PW1/A. PW1 relied on following documents:
1. Ex.PW1/1 which was deexhibited and marked as Mark A copy of voter I card of Late Sh. Mohan Lal.
2. Ex.PW2 caste certificate of the year 1983 of Late Sh. Mohan Lal.
3. Ex. PW1/3 death certificate of Late Sh. Mohan Lal dated 16.10.2005.
4. Ex. PW1/4 (Colly.) two electricity bills dated 16.11.2007 and 29.05.2013.
5. Ex. PW1/5 (Colly.) two electricity bills dated 08.05.2013 and 01.02.2016 and water bill.
6. Ex. PW1/6 (OSR) copy of ration card of plaintiff.
7. Ex. PW1/7 which was deexhibited and marked as Mark B copy of PAN card.Digitally signed
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8. Ex.PW1/8 (Colly. running into 4 pages) GPA dated 14.11.2014.
9. Ex. PW1/9 (Colly. running into 3 pages) agreement to sell dated 14.11.2014.
10. Ex. PW1/10 (Colly. running into 2 pages) affidavit dated 14.11.2014.
11. Ex. PW.1/11 Will dated 14.11.2014.
12. Ex. PW.1/12 cash receipt dated 14.11.2014.
13. Ex. PW.1/13 possession letter dated 14.11.2014.
14. Ex. PW.1/14 copy of legal notice dated 24.05.2016.
15. Ex. PW.1/15 reply of legal notice dated 27.05.2016.
16. Ex. PW1/16 which was deexhibited and marked as Mark C copy of complaint dated 03.06.2016.
17. Ex. PW1/17 copy to copy of GPA dated 22.09.1984.
18. Ex. PW1/18 copy to copy of agreement to sell dated 22.09.1984.
19. Ex. PW1/19 copy to copy of affidavit dated 22.09.1984.
20. Ex. PW1/20 copy to copy of Will dated 22.09.1984.
21. Ex. PW1/21 copy to copy of receipt dated 22.09.1984.
DEFENDANT'S EVIDENCE:
8. DW1 is defendant himself, whose examination in chief is by way of affidavit Ex.DW1/A. DW1 relied upon following documents:
1. Ex. DW1/1 (OSR) copy of GPA dated 22.11.1984. Digitally signed
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2. Ex. DW1/2 (OSR) copy of agreement to sell dated 22.11.1984.
3. Ex. DW1/3 (OSR) copy of affidavit dated 22.11.1984.
4. Ex. DW1/4 (OSR) copy of Will dated 22.11.1984.
5. Ex. DW1/5 (OSR) copy of receipt dated 22.11.1984.
6. Ex. DW1/6 copy of legal notice dated 24.05.2016.
7. The documents mentioned in the affidavit Ex. DW1/7 to Ex. DW1/13 have not been filed alongwith the written statement and application filed by the defendant for taking the said documents on record was dismissed vide order dated 22.11.2018.
9. DW2 is Smt. Omwati whose examination in chief is by way of affidavit Ex.DW2/A.
10. I have heard the arguments and perused the record. Issuewise findings as follows:
ISSUE NO.1 Whether the plaintiff is entitled for order of cancellation of General Power of attorney, Agreement to sell, Affidavit, Will and receipt all dated 22.11.1984, as prayed for ? OPP.
11. At the outset, it is to be noted that the documents sought to be canceled have been executed by a third person in favour of the defendant and therefore plaintiff is a nonexecutant. Ergo, the plaintiff is , in effect, claiming declaration under section 34 and not a cancellation under Section 31 of HELLY Digitally signed by HELLY FUR CS No.603292/16 FUR KAUR Date: 2022.01.05 Pg 16 of 21 KAUR 16:22:33 +0530 Specific Relief Act, 1963. To fortify my reasoning, I shall rely upon an extract from the judgment of Deccan Paper Mills. Co. Ltd. V. Regency Mahavir Properties & Ors. In relation to section 39 of Specific Relief Act, 1877 (pari materia with Section 31 of Specific Relief Act, 1963):
"The expression "any person" does not include a third party, but is restricted to a party to the written instrument or any person who can bind such party."
12. Now, the question remains whether the plaintiff is entitled to declaration of such documents as null and void or not. In this regard, before delving further, it may be considered that as per the plaint, property has been sold to Ms. Meenakshi, wife of the plaintiff. Meaning thereby, according to this claim, plaintiff has no right to sue the defendant for declaration of documents as null and void since he has no title in the property anymore. Nonetheless, another aspect may not be ignored. The plaintiff has claimed to have sold the property to his wife by way of GPA Sale through documents Ex.PW1/9 to Ex.PW1/13. It is a settled law that title cannot be transferred by way of GPA or agreement to sell rather only by way of registered sale deed or by way of operation of law or gift or will (when the testator dies). (Suraj Lamps v. State of Haryana 2011 (183) DLT 1) Therefore, the court cannot be oblivious to the law and is accordingly proceeding Digitally signed HELLY by HELLY FUR KAUR CS No.603292/16 FUR Date:
Pg 17 of 21 2022.01.05 KAUR 16:22:44 +0530 further to adjudicate on merits.
13. It is the claim of the plaintiff that father of the plaintiff independently purchased property bearing No.H16/306, Amrit Kaur Puri, Tank Road, Karol Bagh, New Delhi (suit property). Right here, it is pertinent to mention that no evidence has been brought on record in this regard. More so, there is no averment in the plaint as to details of the documents or mode through which plaintiff's father had purchased the property. In fact, it is averred in the plaint that the title documents of father of plaintiff have not been traced and might have been destroyed during renovation/ construction. However, no supporting evidence has been brought nor any secondary evidence has been led of the documents. Therefore, it seems a bald assertion. It is must to mention here that though electricity bills Ex.PW1/4 (Colly.) and Ex.PW1/5 (Colly.) are in the name of father of the plaintiff, however, it is banal to say that they cannot constitute proof of claim of the plaintiff qua ownership/title of the father.
14. It is secondly the claim of the plaintiff that he owned the suit property by way of inheritance after death of his father. Plaintiff has filed death certificate of his father Ex.PW1/3. However, it would be imprudent to ignore that it is not at all the claim of the plaintiff that he was the only heir of his father to inherit the property. In fact, during final arguments, on query it was Digitally signed HELLY by HELLY FUR CS No.603292/16 FUR KAUR Date:
Pg 18 of 21 2022.01.05 KAUR 16:22:58 +0530 submitted on behalf of the plaintiff that he has a sister. Even otherwise, it bears repetition to say that the plaintiff claims to have derived rights from him and the title of the father has not been proved. It is worth noting that plaintiff did not even examine his wife or his sister as a witness.
15. At this juncture, I deem it prudent to note the bare wording of Section 34 of Specific Relief Act which states:
Discretion of court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation.--A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not in existence, and whom, if in existence, he would be a trustee.
16. A plain reading of the provision reveals that relief of declaration is discretionary, though needless to say that the exercise of discretion should be judicial and based on sound principles. Having said that, in view of the HELLY Digitally signed by HELLY FUR CS No.603292/16 FUR KAUR Date: 2022.01.05 Pg 19 of 21 KAUR 16:23:08 +0530 above observations on merits of the case, it is not deemed prudent to exercise discretion in favour of the plaintiff who failed to show his right on the basis of which he has sought relief under this issue.
17. Hence, this issue is decided against the plaintiff and in favour of defendant.
ISSUE NO.2 Whether plaintiff is entitled to decree of perpetual injunction, as prayed for? OPP.
18. In the present suit, plaintiff has prayed for perpetual injunction to restrain the defendant from creating third party interest in the suit property on the basis of forged and manipulated documents sought to be canceled by the plaintiff. Evidently, the injunction is prohibitory in nature since it seeks to restrain the defendant from doing certain act.
19. It is a well settled law that as per Section 38 of Specific Relief Act, 1963, perpetual prohibitory injunction can be granted when there is a right/obligation in favour of plaintiff and there is breach or apprehension of its breach by the defendant. Here, the injunction sought is to restrain the defendant from creating third party interest. In this regard, two aspects need to be considered. Firstly, the plaintiff claims that he is no more the owner of the suit property, though he has allegedly transferred the property to his wife by way of merely GPA and agreement sell. Secondly, even otherwise, I HELLY Digitally signed by HELLY FUR KAUR CS No.603292/16 FUR Date:
Pg 20 of 21 2022.01.05 KAUR 16:23:18 +0530 have already given findings in the first issue that plaintiff could not prove his interest in the property even prior to transferring of rights to his wife. Needless to say that a person cannot be restrained from creating third party interest in the suit property at the instance of a person who is unable to show his interest or title. More so, injunction is an equitable relief and while applying judicial mind and also adopting approach of a reasonable prudent man, present case is not a fit case to grant injunction in favour of the plaintiff.
20. Hence, this issue is also decided against the plaintiff and in favor of defendant.
RELIEF
21. In view of the discussion hereinabove, it is held that plaintiff has failed to prove his case. Therefore, suit of the plaintiff is dismissed.
22. No order as to costs.
23. Decree sheet be prepared accordingly.
Digitally signed
HELLY by HELLY FUR
24. File be consigned to Record Room. FUR KAUR
Date: 2022.01.05
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Announced in the open court (HELLY FUR KAUR)
on 05.01.2022 Civil Judge - 08 (Central)/Delhi
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