Delhi District Court
Through:Special Attorney vs Sh. Dharam Singh (Since Deceased) ... on 26 November, 2013
IN THE COURT OF MS. RUCHI AGGARWAL ASRANI,
CIVIL JUDGE, CENTRAL-02, TIS HAZARI COURTS, DELHI
Unique ID No. 02401C0163132002
Suit No. 137/2013
Sh. Ram Singh (since deceased) through his LRs:-
S/o Late Sh. Hans Ram,
R/o WZ-464 & 135-E, Naraina Village,
New Delhi.
Through:Special Attorney
Smt. Leela Devi W/o Sh. Ram Singh
R/o WZ-464 & 135-E, Naraina Village,
New Delhi.
i) Smt. Leelawati (Wife-deceased)
ii) Sh. Naresh Kumar (son)
iii) Sh. Ramesh Kumar(son)
iv) Sh. Rakesh Kumar(son)
v) Smt. Sarla Devi (daughter) ....PLAINTIFF
VS.
1 Sh. Dharam Singh (since deceased) through his LRs:-
S/o Late Hans Ram
i) Smt. Ram Kali (widow)
ii) Sh. Ram Niwas (son)
iii) Sh. Om Prakash (son)
iv) Sh. Suresh (son)
All R/o WZ-403, Naraina Village,
New Delhi-110028.
Suit No. 137/2013 Page 1 of 11
2 Sh. Om Prakash
S/o Sh. Dharam Singh
Both R/o WZ-403 & WZ-464,
Naraina Village, New Delhi. ....DEFENDANTS
Date of institution: 22.11.2003
Date of reserving of judgment: 19.11.2013
Date of pronouncement of judgment: 26.11.2013
Decision: Dismissed
JUDGMENT
The plaintiff had filed the present suit against the defendants for recovery of possession of immovable property. However, during the course of proceedings, the plaintiff and defendant no. 1 expired and their legal heirs were brought on record after which the suit was proceeded further by them.
Plaintiff's version:-
The plaintiff had stated the following:-
2 The plaintiff and defendant no. 1 are real brothers and defendant no. 2, nephew of the plaintiff and son of defendant no. 1. Besides the plaintiff and defendant no. 1, there are two more brothers, namely, Sh. Amar Singh and Sh. Kude.
The father of the plaintiff and defendant no. 1, Sh. Hans Ram, Suit No. 137/2013 Page 2 of 11 was the owner of property bearing no. WZ - 403 and WZ - 464 in Naraina Village, New Delhi.
3 The said property was partitioned by the father, Sh. Hans Ram, amongst the four brothers and since then they have been residing in their respective portions along with their families.
4 Property no. WZ - 464 is in a smaller area than WZ
- 403 and therefore, property no. WZ - 464 besides the share of the plaintiff and defendant no. 1 in WZ - 403, fell to the share of the plaintiff and defendant no. 1. After partition, the plaintiff, defendant no. 1 and the other brothers added to their respective shares in property no. WZ- 403.
5 A dispute arose between the brothers relating to the property no. WZ - 403 for the unauthorised encroachment by the defendants into the common space left in the property for common use. A suit was filed by the plaintiff against the defendants which was compromised. Another suit bearing suit no. 176/2003 was filed for injunction which is still pending. The defendants are not honest and have evil eyes on the share of the other brothers. On 17.10.2003, during the said injunction suit, when the plaintiff was suffering from serious illness and Suit No. 137/2013 Page 3 of 11 was bed ridden, the defendants broke open the lock put on one of the rooms of the plaintiff situated towards the outer side of the property bearing no. WZ - 403 and his family members have taken possession of the said room which was always in the possession of the plaintiff. The defendants have thus, dispossessed the plaintiff without his consent. The wife of the plaintiff informed the police and with the intervention of the neighbours, the plaintiff requested the defendants to handover the vacant and peaceful possession of the suit property to the plaintiff but the plaintiff did not accede to the request and again denied on 10.11.2003 and 12.11.2003. Hence, the present suit has been filed.
Defendants' version:-
6 The defendants have contested the suit of the plaintiff on the following grounds:-
i. The plaint is liable to be rejected as there is no cause of action to file the present suit.
ii. The suit is barred under Order 2 Rule 2 CPC as a suit for permanent injunction was by the plaintiff alongwith Sh. Amar Singh and Sh. Kude on 25.08.2003 in which no relief of Suit No. 137/2013 Page 4 of 11 possession has been claimed.
iii. That the suit is barred by res judicata.
iv. The plaintiff has no locus standi to file the present suit as he is neither the owner nor has any right, title or interest in the suit property.
v. That the plaintiffs have not approached this court with clean hands and has suppressed material facts, vi. That the suit is bad for non-joinder of necessary parties.
vii. That the plaintiff is stopped from filing the present suit by way of his own act, acquiescence and conduct, viii. That the suit is not properly valued for the purposes of court fees and jurisdiction.
7 On merits, the defendants have denied all the allegations of the plaintiff and have stated that the property was never partitioned by the father of the plaintiff, defendant no. 1 and the other two brothers but after the death of the their father, they had partitioned the same and the suit property i.e. room fell Suit No. 137/2013 Page 5 of 11 to the share of the defendant no. 1 and since then the suit property has been in his possession. This fact has been admitted by the plaintiff in his earlier suit bearing suit no. 299/1993 which was later compromised. The defendants have denied that they had broken open the lock of the door of the plaintiff's room and have stated that since 23.09.1994 i.e. the date of partition, the said room has been in exclusive possession of the defendant. It is further stated that there is no cause of action and therefore the suit of the plaintiff is liable to be dismissed.
8 Replication to the written statement of the defendant was also filed on behalf of the plaintiff, denying the contents of the written statement and reiterating and reaffirming the contents of the plaint.
9 From the pleadings of the parties, vide order dated 25.08.2006, following issues were framed:-
1 Whether plaintiff is entitled for possession of suit property under Section 6 of Specific Relief Act? OPP.
2 Whether there is no cause of action in favour of plaintiff
and against the defendant? OPD.
3 Whether suit is barred by resjudicata? OPD.
Suit No. 137/2013 Page 6 of 11
4 Whether suit is barred under Order 2 Rule 2 & 3 CPC?
OPD.
5 Whether suit is bad for want of necessary parties? OPD.
6 Whether suit is not properly valued for the purposes of
court fees and jurisdiction? OPD.
7 Relief.
10 In order to prove her case, the plaintiff had filed her
affidavit as PW-1. However, she expired and thereafter, Sh.
Naresh Kumar was examined as PW-1. The plaintiff also examined Sh. Rakesh Kumar as PW-3 and Sh. Amar Singh as PW-4. The affidavit of PW-4 bears the mark Ex. PW-2/A, however, he was examined as PW-4 vide statement dated 07.07.2011 and therefore, his evidence shall be read as of PW-4. The plaintiff further examined Sh. Kude Ram as PW-5. On the other hand, the defendants examined defendant no. 2 as DW-1.
11 Final arguments were addressed by Ld. Counsels for both the parties. I have carefully perused the record and given my considered thoughts to the arguments addressed by Ld. Counsels for the parties and my findings on various issues are as under:-
Suit No. 137/2013 Page 7 of 11ISSUE No. 1:-
Whether plaintiff is entitled for possession of suit property under Section 6 of Specific Relief Act? OPP.
12 Onus to prove this issue was placed upon the plaintiff. In order to prove the case of the plaintiff, PW-1 deposed on the lines of the plaint, however, in his cross- examination, he admitted that "It is correct that the disputed room at Point-X in Ex. PW-4/D-2 was in possession of Sh. Dharam Singh even at the time of filing of the suit and even before filing the suit. It is correct that before filing the suit, Dharam Singh had not trespassed the said disputed room. Vol. We filed the suit as we were having less share in the property. I do not know when my affidavit in evidence was prepared."
13 Even PW-4 in his cross-examination has deposed that "The disputed room measuring 9x9.3' at point X had fallen to the share of Dharam Singh in plan filed by the defendants...Even before the said partition, disputed room was in possession of Dharam Singh."
14 PW-5, admitting the version of the defendants, deposed that "The room at point-X in site plan Ex. PW-4/D-2 fell to the share of Sh. Dharam Singh in the partition and Dharam Suit No. 137/2013 Page 8 of 11 Singh was even in the possession of this room at the time of partition."
15 From the above depositions of the plaintiff's witnesses, it is clear that the disputed room was in possession of defendant no. 1 before the partition took place ; at the time of partition; before the filing of the suit and at the time of filing of the suit. None of the witnesses of the plaintiff have been able to establish that the defendants had dispossessed the plaintiff within six months from the filing of the suit. Since, the witnesses of the plaintiff have not supported the version of the plaintiff and have demolished the case of the plaintiff, this issue is decided against the plaintiff.
ISSUE No. 2:-
Whether there is no cause of action in favour of plaintiff and against the defendant? OPD.
16 Onus to prove this issue was placed upon the defendants. In view of the discussion in paragraph nos. 12 to 15, it is clear that the defendants did not dispossess the plaintiff and therefore, no cause of action arose in favour of the plaintiff. In fact, PW-1 has admitted that the suit was filed only because they had lesser share and not because they had a right to file Suit No. 137/2013 Page 9 of 11 the same. Accordingly, this issue is decided against the plaintiff and in favour of the defendants.
ISSUE No. 3:-
Whether suit is barred by res judicata? OPD.
17 Onus to prove this issue was placed upon the defendants. However, the previous suit titled as Ram Singh Vs. Dharam Singh and Anr. bearing suit no.299/93 was compromised and not heard and final decided on merits. Therefore, the suit cannot be said to be barred by res judicata. Accordingly, this issue is decided against the defendants.
ISSUE Nos. 4, 5 & 6:-
Whether suit is barred under Order 2 Rule 2 & 3 CPC?
OPD.
Whether suit is bad for want of necessary parties? OPD.
Whether suit is not properly valued for the purposes of court fees and jurisdiction? OPD.
18 Onus to prove these issues was placed upon the defendants. However, the defendants have not led any evidence or placed any document on record to prove these Suit No. 137/2013 Page 10 of 11 issues. Therefore, these issues are decided against the defendants.
RELIEF:-
19 In view of the above discussion, the plaintiff is not entitled to any relief from this court and therefore, the suit is dismissed. No order as to costs. Decree sheet be drawn accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court today on this 26th day of November, 2013.
(Ruchi Aggarwal Asrani) Civil Judge, Central-02 Tis Hazari Courts,Delhi.
Suit No. 137/2013 Page 11 of 11