Delhi District Court
Shri Harish Kumar vs Smt. Maya Devi on 5 February, 2013
IN THE COURT OF SHRI RAJ KUMAR: JSCC: ASCJ: GUARDIAN JUDGE (NORTH EAST) KARKARDOOMA
COURTS, DELHI.
Suit No. 217/11
Unique Case ID No. 02402C0
Shri Harish Kumar
s/o Late Shri Mahavir Singh
r/o C-59, Panchsheel Enclave,
Bhopura, Ghaziabad, U.P.
........... Plaintiff.
VERSUS
1.Smt. Maya Devi
w/o Late Shri Nanu Ram
2.Smt. Hem Lata
w/o Late Ramvir
both r/o B-443, Gali no.1,
Ashok Nagar, Delhi-110093.
3.Shri Ram Pal
s/o Late Shri Nanu Ram
r/o G-83, Vijay Vihar Phase-I,
Rohini, Delhi.
4.Shri Narendra Giri
r/o B-443, Gali no.1,
Ashok Nagar, Delhi-110093.
......... Defendant.
Date of institution of the suit : 21.05.2011
Date on which order was reserved: 30.01.2013
Date of decision : 05.02.2013
SUIT FOR PERMANENT AND MANDATORY INJUNCTIONS.
JUDGMENT
1. The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint are that the defendant no.1 is the grandmother, defendant no.2 is the aunt and defendant no.3 is the uncle of the plaintiff in relation and defendant no.4 is the intending purchaser of the suit property. It has been further stated that Shri Nanu Ram, grandfather of the plaintiff, was the rightful and absolute owner of the immovable property bearing no. B-443, gali no.1, Ashok Nagar, Delhi, measuring 100 sq. yards, more specifically shown in red colour in the site plan annexed with the plaint (hereinafter called the suit property). It has been further stated that the suit property was purchased by the grandfather of the plaintiff in the name of defendant no.1 i.e. the grandmother of the plaintiff and the suit property was constructed by late Shri Mahavir Singh, father of the plaintiff herein, with his own funds and earnings. It has been further stated that late Shri Mahavir Singh expired on 07.06.1997 in a train accident. The case of the plaintiff is that he is having 1/4 share in the suit property but the defendants are bent upon to sell off or dispose off the suit property and hence the present suit.
2. On the basis of the abovesaid allegations, the plaintiff in the present suit has prayed for a decree of permanent injunction restraining the defendants no.1 to 3 and their agents from transferring, selling, gifting, alienating the suit property or any portion thereof to any person or from creating any third party interest in the suit property more specifically shown in the site plan annexed with the plaint. The plaintiff has also prayed for a decree of mandatory injunction directing defendant no.4 not to purchase the suit property.
3. Joint written statement has been filed on record by the defendant no.1, 2 and 4 stating therein that the plaintiff has no locus standi to file the present suit; this court has no pecuniary jurisdiction to entertain the present suit as the suit property is valued more than Rs.20 lakhs; the present suit has been filed by the plaintiff in collusion with defendant no.3 and the present suit is without any cause of action. On merits, the said defendants, have taken the stand that defendant no.1 is the absolute owner of the suit property after having purchased the same from her own earnings, istri dhan and funds. The said defendants have taken the stand that the suit property was constructed by defendant no.1 out of her own funds and no one else has any right, title or interest therein. Rest of the contents of the plaint have been denied and in the reply to the injunction application, it has been prayed that the suit of the plaintiff be dismissed with costs.
4. Written statement has also been filed on record by defendant no.3 wherein, the defendant no.3 has supported the case of the plaintiff.
5. Replication has been filed on record by the plaintiff to the written statement of the defendants reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement.
6. From the pleadings of the parties, the following issues were framed by this court vide orders dated 10.01.2012.
1)Whether the present suit has not been valued properly for the purposes of court fees and jurisdiction ? OPD
2)Whether the present suit is bad for mis-joinder and non-joinder of the necessary parties ? OPD
3)Whether the plaintiff is entitled for the relief of permanent injunction as prayed for by the plaintiff in the suit ? OPP
4)Whether the plaintiff is entitled for the relief of mandatory injunction as prayed for by the plaintiff in the suit ? OPP
5)Relief, if any.
EVIDENCE
7. The plaintiff has examined himself as PW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record his evidence by way of affidavit as Ex. P1 and the site plan as Ex. PW1/A.
8. In the cross examination PW1 has stated that he has not seen the documents of the property no. B-443, gali no.1, Ashok Nagar, Delhi-93. PW1 further states that he cannot tell from whom the property in question was purchased as he was minor at that time. PW1 has admitted it to be correct that the property in question was purchased in the year 1978. PW1 has denied the suggestion that the property in question was purchased in the name of Smt. Maya Devi w/o Shri Nanu Ram in the year 1978. By way of volunteer, PW1 states that the property in question was purchased in the name of his grandfather namely Nanu Ram. PW1 has admitted it to be correct that Smt. Maya Devi was doing the job of selling the milk and cow dung. PW1 has admitted it to be correct that Shri Nanu Ram was a heart patient and he was got treated by Smt. Maya Devi being his wife. PW1 has admitted it to be correct that Smt. Maya Devi had sold the portion of the said property measuring 47 sq. yards to Smt. Shashi Prabha on 04.02.2011. PW1 has admitted it to be correct that Smt. Maya Devi had also executed the Sale Deed. PW1 has admitted it to be correct that Smt. Maya Devi had also executed the gift deed of the remaining portion of 53 sq. yards of the said property on 04.02.2011 in the name of Smt. Hem Lata i.e. defendant no.2. PW1 has admitted it to be correct that he is well aware about the execution of sale deed and gift deed in the name of the abovesaid persons. PW1 has further admitted it to be correct that Smt. Maya Devi is living with Smt. Hem Lata i.e. defendant no.2. PW1 has admitted it to be correct that Smt. Hem Lata and Smt. Shashi Prabha are the actual owners of the said property by virtue of the said two deeds. PW1 further states that he is not aware as to what was the value of the suit property at the time of filing of the present suit. PW1 further states that he is also not aware as to what is the value of the suit property as on date. PW1 further states that he cannot deny or admit the suggestion that the value of the suit property was Rs.20 lakhs at the time of filing of the present suit. PW1 has denied the suggestion that Smt. Maya Devi was the absolute owner of the suit property or that she has already disposed off the suit property. PW1 has admitted it to be correct that the purchaser who has purchased the property from Smt. Maya Devi, has raised the construction of the double storey upon the suit property.
9. The defendants have examined defendant no.2 Smt. Hem Lata as DW1 and in her evidence by way of affidavit, she has reiterated and reaffirmed the stand as taken by the defendants in the written statement filed on record by the defendants no.1, 2 and 4. She has filed on record her affidavit as Ex. D1, the original SPA as Ex. DW1/1, photocopy of the GPA, Agreement to Sell and Receipt collectively as Ex. DW1/2 (OSR), photocopy of the Gift Deed as Ex. DW1/3 (OSR).
10. In the cross examination, DW1 has stated that the defendant no.1 had gifted the property to her in February 2011 prior to the filing of the present suit. DW1 has further stated that in the suit property, she herself and her mother-in-law alongwith the children are residing. DW1 further states that the gift deed Ex. DW1/3 bears her photo.
11. The defendants have further examined defendant no.4 Shri Narender Giri as DW2 and in his evidence by way of affidavit this witness has also reiterated and reaffirmed the stand as taken by the defendants no.1, 2 and 4 in the written statement filed on record by them. He has filed on record his affidavit as Ex. D2 and photocopy of registered sale deed as Ex. DW2/1 (OSR).
12. In the cross examination DW2 states and admits it to be correct that his wife is in a good state of health. DW2 further states that his wife is a housewife and his wife had sold her own house no. B-451, gali no.1, Ashok Nagar, Delhi and the other house no. C-458, was sold in January 2011. DW2 further states that he has not placed any documentary proof alongwith the written statement or in the affidavit in respect of selling of the aforesaid houses. DW2 further states that he has not placed any documentary proof alongwith his written statement or in his affidavit in respect to the arrangement of Rs.15 lakhs.
13. Defendant no.3 has examined himself as DW3 and this witness in his evidence by way of affidavit, has reiterated and reaffirmed the stand as taken by him in the written statement thereby supporting the case of the plaintiff. He has filed on record his affidavit as Ex. D3.
14. In the cross examination, DW3 has stated that his father was having two houses in his ancestral village Distt. Buland Sheher, U.P. and the said property was the ancestral property. DW3 further states that after selling the said houses, they came to Delhi. DW3 has further stated that the house in question was purchased from the funds of the ancestral property.
15. I have carefully gone through the entire material on record and heard the rival submissions of Ld. counsels for both the parties.
16. My issuewise findings on the abovesaid issues are as under:
Issues No. 1.
17. In the written statement, the defendants have taken stand that the suit has not been valued properly for the purpose of court fees and jurisdiction. The plaintiff i.e PW1 in the cross has stated that he is not aware about the value of the suit property at the time of the filing of the present suit and he cannot admit or deny the suggestion that the value of the suit property was Rs.20 lakhs at the time of filing of the present suit. But it has to be seen that the present suit is a suit for permanent and mandatory injunctions simplicitor. The plaintiff in para no.17 of the plaint, has valued the suit accordingly and appropriate court fees have been paid. As such, I am of the opinion that the defendants have failed to prove that the present suit has not been valued properly for the purposes of court fees and jurisdiction. Accordingly, issue no.1 is decided against the defendants and in favour of the plaintiff.
Issue No.2.
18. The onus to prove issue no.2 is upon the defendants. During the course of arguments, Ld. Counsel for the defendants has failed to argue as to how the present suit is bad for non joinder and mis joinder of the parties. During the cross examination of the plaintiff i.e. PW1 as well, this aspect of the matter has not been touched. As such, I am of the opinion that the defendants have failed to prove that the present suit is bad for join joinder and mis join of the parties. Accordingly, issue no.2 is decided against the defendants and in favour of the plaintiff.
Issues no.3 and 4.
19. Both these issues are taken up together as the same are connected interse, overlap each other and relate to the prayer clause of the present suit.
20. The factual controversy and the material aspect of the evidence, led by the parties, has already been narrated herein above.
21. During the course of arguments, Ld. Counsel for the plaintiff has argued that the defendants have failed to prove their case. It has been further argued that the defendants have concealed the best evidence. It has been further argued that the defendant no.3 has supported the case of the plaintiff and rather, there is an admission on the part of defendant no.3 with respect to the case of the plaintiff. It has been further argued that the defendant no.4 is the subsequent purchaser. It has been further argued that gift deed and sale deed have not been proved by the defendants. Whereas, Ld. Counsel for the defendants no.1, 2 and 4 has argued that defendant no.4 has no concern with the suit property and the property in question was purchased by the wife of defendant no.4. It has been further argued that the present suit has been filed by the plaintiff in collusion with defendant no.3 and the plaintiff himself has admitted in the cross examination about the sale of the property. It has been further argued that no declaration has been sought for by the plaintiff and the present suit is not maintainable in the present form. It has been further argued that the plaintiff has failed to prove on record that the property in question is the ancestral property. It has been further argued that by virtue of section 14 of the Hindu Succession Act, defendant no.1 who is a woman, is the absolute owner of her property. It has been further argued that the sale deed and gift deed were not required to be proved. Ld. Counsel for the defendants no.1, 2 and 4 has relied upon an authority cited as 2001 (2) Civ. C.R. 628 (S.C.) titled as Suredner Kumar Vs. Nathulal, wherein it has been held as under:-
"Transfer of Property Act, 1882- Section 123- Gift Deed- Immovable property- Registered deed- Donor admitting execution of gift deed in favour of appellant- No need to examine attesting witnesses- Deed can be said to be daily proven."
22. As stated by me herein above, the material aspects of the evidence led by the parties, has already been narrated herein above. Needless to mention that the present suit is a suit for permanent and mandatory injunctions simplicitor. No further relief has been sought for by the plaintiff. Plaintiff has filed the present suit on the ground that the suit property is the ancestral property which was purchased in the name of defendant no.1 i.e. in the name of the grandmother of the plaintiff by his grandfather namely Shri Nanu Ram. It has to be seen that in the cross examination, PW1 i.e. the plaintiff has stated by way of volunteer that the property in question was purchased in the name of his grandfather namely Shri Nanu Ram. As such, the abovesiad deposition of PW1 is diametrically opposite to his stand as taken by the plaintiff in the plaint. Furthermore, it has to be seen that in the cross examination, PW1 has categorically admitted about the execution of the sale deed and the gift deed in favour of Smt. Shashi Prabha, wife of defendant no.4 and Smt. Hem Lata defendant no.2 herein. PW1 i.e. the plaintiff has categorically admitted that Smt. Hem Lata and Smt. Shashi Prabha are the actual owners of the said property by virtue of the said two deeds. I am of the opinion that Ld. Counsel for the defendants no.1, 2 and 4 has rightly pointed out that the present suit is not maintainable in the present form because the plaintiff has neither sought for the relief of partition nor the relief of cancellation nor the relief of declaration despite the fact that in the cross examination he has categorically admitted the execution of the sale deed and gift deed in favour of Smt. Shashi Prabha and Smt. Hem Lata. Further more, it has to be seen that PW1 has categorically admitted in the cross that Smt. Maya Devi i.e. defendant no.1 had executed the abovesaid sale deed and gift deed in favour of Smt. Shashi Prabha and Smt. Hem Lata. Defendant no.1 Smt. Maya Devi who is a woman, to my mind, by virtue of section 14 of the Hindu Succession Act, becomes the absolute owner of her property. To my mind, if the cross of PW1, narrated herein above is carefully gone through, the same is sufficient to demolish the entire case of the plaintiff. As such, I have no hesitation to hold that the plaintiff has utterly failed to prove issues no.3 and 4 in his favour accordingly, both the abovesaid issues are hereby decided against the plaintiff.
Relief.
In the light of my findings upon the issues no.3 and 4 the suit of the plaintiff is hereby dismissed but with no orders as to costs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court ( RAJ KUMAR)
on this 05th day of February 2013 JSCC/ASCJ/G. Judge (NE)
Karkardooma Courts, Delhi.