Delhi District Court
(2) Smt. Sangmitra @ Sukanya vs Prem Singh Sagar Ors 1 / 19 on 11 September, 2019
IN THE COURT OF CIVIL JUDGE-01, SOUTH EAST DISTRICT,
SAKET COURTS COMPLEX, SAKET, NEW DELHI
Presiding Officer: Ms. Anuradha Prasad, DJS
Suit No.52347/16
In the matter of:-
(1) Gurbinder Singh,
S/o Sh. Padam Singh
(2) Smt. Sangmitra @ Sukanya
W/o Sh. Gurbinder Singh
D/o Sh. Kalicharan,
Both R/o H. No.153A,
Tajpur Pahari, Ram Sukh Camp,
Badarpur, New Delhi ........... Plaintiffs
And
(1) Prem Singh Sagar
S/o Sh. Raja Ram
(2) Smt Bhagwan Devi,
D/o Sh. Raja Ram
W/o Sh. Kalicharan
(3) Hukum Singh
S/o Sh. Babu Lal
(4) Sultan
S/o Sh. Maddam
(5) Raj Kumar
S/o Sh. Bhim Singh
(6) Chatrapal
S/o Sh. Gyani Ram
(7) Bhup Singh
CS No.52347/16 Gurbinder Singh Anr Vs. Prem Singh Sagar Ors 1 / 19
S/o Sh. Sohan Pal
(8) Anil
S/o Sh. Virender
(9) Dinesh
S/o Sh. Suresh Chand
(10) Dharam Prakash
S/o Sh. Prem Singh Sagar
All residents of:-
153A, Tajpur Pahari, Ram Sukh Camp,
Badarpur, New Delhi .........Defendants.
Date of institution of Suit : 10.01.2014
Date on which Judgment was reserved : 02.08.2019
Date of pronouncement of the Judgment : 11.09.2019
1.The Case 1.1. The bone of contention in the present case is the property admeasuring 95 sq. yds. at S-153A, Tajpur Pahari, Ramsukh Camp, Badarpur, New Delhi. (hereinafter referred to as the suit property).
1.2. The present suit has been instituted by the plaintiffs for the relief of declaration that the plaintiffs are the owners of the suit property. The plaintiffs have further sought relief of permanent injunction to restrain defendant no.1 and 2 and any person claiming through them from claiming themselves to the owners of the suit property, creating any third party interest, creating any hindrance in raising a wall at portion marked F on the first floor as shown in the site plan, breaking open the common wall on the CS No.52347/16 Gurbinder Singh Anr Vs. Prem Singh Sagar Ors 2 / 19 upper floor of the house and creating any pathway of entering the house of the plaintiff. The plaintiffs have also sought decree of mandatory injunction thereby directing defendant no.1 and 2 to break open the locks on one room put by defendant no.1 after the demise of Sh. Kali Charan, directing defendant no.3 to 9 to pay rent of the portion in their occupation to plaintiffs, directing defendant no.10 to hand over the vacant possession of the room marked D in the site plan to the plaintiffs.
1.3. Plaintiff no.2 is the wife of Plaintiff no.1. Defendant no.1 is the natural father of Plaintiff no.2. Late Sh. Kalicharan is the adoptive father of Plaintiff no. 2 as claimed by the Plaintiffs. Defendant no.2 is the wife of Late Sh. Kalicharan. Defendant no.2 is also the sister of Defendant no.1. Defendant no. 10 is the son of Defendant no.1 and brother of Plaintiff no.2. Defendant no. 3 to 9 are the tenants in the suit property.
2. Plaintiff's case 2.1. Pleaded case of the plaintiff is that plaintiff no.2 was born to defendant no.1 and during her childhood when she was about 6 or 7 months old, was adopted by her uncle Sh. Kalicharan. In all relevant documents like school certificate, caste certificate, school character certificate, PAN card, Ration card, plaintiff no.2 has been shown as the daughter of Sh. Kalicharan. Plaintiff no. 2 has been living with her adoptive father all through her life and served him till his demise. Sh. Kali Charan passed away on 02.12.2013.
2.2. Shri Kalicharan was the owner of the suit property consisting of a structured house on the ground floor and first floor, which was in occupation of Late Sh. Kali Charan, his wife (defendant no.2) and several tenants. The suit property was self acquired property of CS No.52347/16 Gurbinder Singh Anr Vs. Prem Singh Sagar Ors 3 / 19 Late Sh. Kali Charan.
2.3. Sh. Kali Charan during his lifetime out of natural love and affection for plaintiff no.1 and plaintiff no.2 transferred the suit property in favour of the plaintiffs vide documents of transfer i.e., GPA, Agreement to Sell and Purchase, Possession letter, receipt, affidavit and will and indemnity bond, special power of attorney all dated 20.06.2013.
2.4. By virtue of the aforesaid documents plaintiffs became the sole and absolute owner of the suit property and also became entitled to recover rent of the aforesaid property. During the lifetime of Sh. Kali Charan, defendant no.2 never received rent from defendant no.3 to 9. However, after the demise of Sh. Kalicharan, defendant no.2 has been calling upon defendant no.3 to 9 to pay rent, which she is not entitled to recover as the suit property has been duly transferred in the name of the plaintiffs. The plaintiffs are in possession of two rooms on the ground floor and another room on the ground floor has been forcibly locked by defendant no.1 and 2 after the demise of Shri Kalicharan on 02.12.2013 in which room defendant no.1 and 2 have no right, title or interest. The store room in the third floor is in possession of the plaintiff. Defendant no.10 was allowed by the plaintiffs to stay in the room out of natural love and affection and has been staying there from the last about 3 years as a licensee. Despite requests and a legal notice being sent, defendant no.10 failed to hand over the vacant possession of the room to the plaintiff. The open space on the first floor in the suit property is misused by defendant no.1 for going to his terrace. Also, defendant no.1 is not allowing the plaintiffs to raise wall in the portion of the plaintiffs.
CS No.52347/16 Gurbinder Singh Anr Vs. Prem Singh Sagar Ors 4 / 19 2.5. It is alleged by the plaintiff that defendant no.1 and 2 are creating nuisance in the suit property, threatening to dispossess the plaintiffs, defendant no.3 to 9 are stopped from paying rent to the plaintiffs and is instead being paid to defendant no.2, thereby interfering in the rights of plaintiff no.2 to recover rent and defendant no.1 and 2 are trying to sell the suit property in the strength of some forged and fabricated document.
3. Upon service of summons of the suit, the defendant no.1,2 and 10 contested the present suit of the plaintiff and filed the written statement. Defendant no.3 to 9 did not joint the proceedings and was proceeded ex-parte vide order dated 22.02.2014.
4. Defendant's Case 4.1. The defence emerging from the written statement is that the land measuring about 180 sq. yds. was given by the gram sabha to Shri Raja Ram father of defendant no.1 and 2 who raised construction of the building on the said plot of land and used to reside with his family therein. Since defendant no.2 was issue less lady and was residing in village Bhikan pur, Uttar Pradesh alongwith her husband Sh. Kalicharan and they were not having any source of income, the father of defendant no.1 and 2 brought the defendant no.2 and Sh. Kalicharan in Delhi and allowed them to use a portion of the said property and they started living therein. Sh. Kalicharan was a Raj Mistiri (Mason) and was not having any sufficient income to carry on their day to today household expenses. Since defendant no.2 was suffering loneliness, the defendant no.1 gave his daughter i.e., plaintiff no.2 to defendant no.2 and defendant no.2 brought her up. During the lifetime of Sh. Raja Ram, he gave the said property to CS No.52347/16 Gurbinder Singh Anr Vs. Prem Singh Sagar Ors 5 / 19 defendant no.1 and 2 in equal shares orally as the other two daughters of Shri Raja ram were married and they were living in the matrimonial house and were well settled. After the death of Sh. Raja Ram, defendant no.1 and 2 orally divided the said property in two portions having equal land of about 90 sq. yds i.e., portions A and B. Portion A was given to defendant no.2 and rent of portion A of the house from the tenants used to be collected by defendant no.2 or Sh. Kalicharan on her behalf and after the death of Sh. Kalicharan, the rent is being collected by defendant no.1 who has given him the general power of attorney dated 29.01.2014 to collect the rent and deal with the said tenants. The rent was never paid to the plaintiffs. The defendant no.2 being the owner of half share of the property i.e., the portion A of the said property has also executed a registered will dated 10th January 2014 in favour of defendant no.1.
4.2. Sh. kalicharan was never the owner of the said property and was living in the suit property as the husband of defendant no.2 and brother in law of defendant no.1. He did not had any right to transfer the said property to the plaintiffs and the alleged documents are forged and fabricated documents. Had Sh.Kalicharan been the owner he must have executed the gift deed and not the alleged documents. Even in the alleged documents, the chain of the ownership of the said proeperty has not been mentioned.
4.3. After the marriage the plaintiff no.2, she is residing in her matrimonial house alongwith plaintiff no.1 in sector 8 Faridabad and plaintiffs have given their wrong address on the title of plaint with malafide designs. Defendant no.10 is the son of the defendant no.1 and he is in possession of he said property since CS No.52347/16 Gurbinder Singh Anr Vs. Prem Singh Sagar Ors 6 / 19 its very beginning as a family member of defendant no.1.
4.4. With these pleaded facts, the written statement formally prayed that the suit ought to be dismissed.
5. Reply to the written statement 5.1. Replication was filed on behalf of plaintiff to the written statement of the defendant no.1,2 and 10 wherein plaintiff has denied all the averments made by the defendant in their written statement and has reiterated the statement of facts as mentioned in the plaint. The same is not repeated herein for the sake of brevity.
6. Issues 6.1. Upon completion of pleadings, the following issues were identified, vide order dated 11.07.2016, by the Ld. Predecessor Court:-
(i) Whether the plaintiff is entitled to relief of declaration as prayed for in prayer clause (i) of plaint ? OPP
(ii) Whether the plaintiff is entitled to relief of permanent injunction as prayed for in prayer clause (ii) of plaint ? OPP
(iii) Whether the plaintiff is entitled to relief of permanent injunction as prayed for in prayer clause (iii) of plaint ? OPP
(iv) Whether the plaintiff is entitled to relief of mandatory injunction as prayed for in prayer clause (iv) of plaint ? OPP
(v) Whether the plaintiff is entitled to relief of declaration as prayed for in prayer clause (v) of plaint ? OPP
(vi) Whether the plaintiff is entitled to relief of permanent injunction as prayed for in prayer clause (vi) of plaint ? OPP
(vii) Whether the plaintiff is entitled to relief of mandatory injunction as prayed for in prayer clause (i) of plaint ? OPP
(viii) Whether suit of the plaintiff is bad for mis joinder of necessary parties ? OPD CS No.52347/16 Gurbinder Singh Anr Vs. Prem Singh Sagar Ors 7 / 19
(ix) Whether the plaintiff has not valued the suit properly for the purpose of jurisdiction and Court fee ? OPD
(x) Whether suit of the plaintiff has not been properly verified ? OPD
(xi) Relief.
7. Plaintiff's Evidence 7.1. To prove its case, plaintiff examined Smt. Sukanya as PW-1 who tendered her evidence by way of affidavit Ex.PW1/A wherein she reiterated the facts as mentioned in the plaint and relied upon the following documents: -
i) Copy of school certificate (10th class CBSE 1994) Ex.W1/B (OSR)
ii) Copy of Central Board of Secondary Education, 1991 Ex.PW1/C (OSR)
iii) Copy of caste certificate Mark A
iv) Copy of Govt School Character certificate dated 01.06.1994 Ex.PW1/E (OSR)
v) Copy of provisional Certificate Mark B
vi) Copy of ration card Ex.PW1/F1 (OSR)
vii) Copy of the house tax receipt in the name of Sh. Kalicharan Ex.PW1/G (OSR)
viii) Copy of Election I Card in the name of Sh. Sangamitra @ Sukanya Ex.PW1/G1 (OSR)
ix) Site plan Ex.PW1/H
x) Copy of General Power Attorney dated 20.06.2013 Ex.PW1/J
xi) Copy of affidavit dated 20.06.2013 Ex.PW1/K
xii) Copy of special power of attorney dated 20.06.2013 Ex.PW1/L
xiii) Copy of agreement to sell and purchase dated 20.06.2013 Ex.PW1/M
xiv) Copy of possession letter dated 20.06.2013 Ex.PW1/N
xv) Copy of legal money receipt dated 20.06.2013 Ex.PW1/O xvi) Copy of affidavit dated 20.06.2013 Ex.PW1/P xvii) Copy of Will dated 20.06.2013 Ex.PW1/Q. 7.2. Sh. Gurbinder Singh examined himself as PW2 and tendered his evidence by way of affidavit Ex.DW2/A wherein he reiterated the contents as mentioned in the plaint.
CS No.52347/16 Gurbinder Singh Anr Vs. Prem Singh Sagar Ors 8 / 19
8. Defendant's Evidence 8.1. To rebut the case of the plaintiff, defendant Prem Singh examined himself as DW1 and tendered his evidence by way of affidavit Ex.DW1/A wherein he reiterated the facts as mentioned in the plaint and relied upon the following documents: -
i) Copy of GPA Ex.DW1/1 (OSR)
ii) Will Ex.DW1/2 (OSR)
iii) Photocopies of Election I card, Voter List and other documents address of Kalicharan and Bhagwan Devi Mark D1 (colly).
iv) Copy of FIR no.60/2014 already exhibited as Ex.PW1/DA during the cross examined of PW-1
9. Submissions on behalf of plaintiff 9.1. It was argued on behalf of plaintiff that Sh.Kalicharan was the owner of the suit property and it was by virtue of the ownership of Sh. Kalicharan that the suit property was transferred to the plaintiffs by the documents of transfer dated 20.06.2013. The defendants have not placed on record any such documents showing that they are the owners of the suit property. On the basis of better title, the suit property belongs to the plaintiffs. Ld counsel for Plaintiffs further prayed that defendant no.3 to 9 be directed to pay the rent to the plaintiffs as defendant no.1 has been collecting rent from the suit property.
10. Submissions on behalf of defendant 10.1. It was argued on behalf of defendant that the plaintiffs did not show the chain of ownership documents of Sh. Kalicharan. The initial burden was upon the plaintiffs to prove their case and they have failed to do so. The Plaintiffs have clearly failed to prove as to how the title of the suit property has passed on to the plaintiffs from Sh. Kalicharan.
11. Heard the arguments advanced by the Ld. Counsel for plaintiff CS No.52347/16 Gurbinder Singh Anr Vs. Prem Singh Sagar Ors 9 / 19 and the defendant. This court has carefully perused the evidence on record in light of the pleadings of the parties and considered the submissions of the Ld. counsel for parties.
12. Appreciation and findings The issues are adjudicated as under:-
12.1 Issue no.(i): -
Whether the plaintiff is entitled to relief of declaration as prayed for in prayer clause (i) of plaint ? OPP.
12.1.1.By way of prayer clause (i), the Plaintiffs seeks relief of declaration to the effect that the Plaintiffs are the owners of the suit property.
12.1.2.The Plaintiffs are claiming to be owners of the suit property and therefore seeks a declaration of their status as owner over the same as defendant no.1 and 2 are purportedly attempting to sell the suit property, threatening to dispossess the plaintiff, creating nuisance in the suit property and defendant no.3 to 9 are stopped by defendant no.1 and 2 from paying rent to plaintiffs.
The claim of the plaintiff to be declared as the owner of the suit property rested on the premise that Sh. Kalicharan was the owner of the suit property, the same being self acquired property of Sh. Kalicharan.
12.1.3.The relationship of the parties is quite peculiar in the facts and circumstances of the case. The plaintiff no.2 claims herself to be adopted daughter of Sh. Kalicharan. However the relief of declaration as owner to the suit property is not claimed by way of inheritance, rather the same is claimed by way of alleged documents of transfer i.e., GPA, Agreement to Sell and Purchase, Possession letter, receipt, affidavit, will, indemnity CS No.52347/16 Gurbinder Singh Anr Vs. Prem Singh Sagar Ors 10 / 19 bond and special power of attorney all dated 20.06.2013, stating that the suit property has been transferred in the name of plaintiffs out of natural love and affection by Sh. Kalicharan.
12.1.4. It is an admitted position even by the defendants that since defendant no. 2 was issueless and therefore plaintiff no.2 was given to defendant no. 2 for her upbringing. For the sake of arguments even if it is assumed that plaintiff no.2 is the adopted daughter of Sh. Kalicharan, then the entire property of Sh. Kalicharan would have devolved upon plaintiff no.2, there being no siblings. Had Sh. Kalicharan wanted to transfer his self acquired property to plaintiffs, then under normal circumstances, documents such as will or gift deed could have been executed.
12.1.5.It is an admitted position that defendant no. 2 is the wife of Sh.
Kalicharan. It is inconceivable as to why Sh. Kalicharan would not have created any provision for maintenance of her wife during her lifetime and then transfer the property in the name of the plaintiffs. No circumstances have been pleaded by the plaintiff showing that despite she being the adopted daughter, as per her own case, why would the Plaintiffs pay consideration for the property which would have naturally devolved upon her.
12.1.6. PW2 in his cross examination has deposed that an amount of Rs.4,50,000/- was paid to Sh. Kalicharan for purchase of the suit property. The said fact was improved version of plaintiff no.2 as no averment to that effect is mentioned in the plaint. The plaint only stated that out of natural love and affection, the property was transferred to the plaintiffs by Sh. Kalicharan. The said deposition by PW2 was afterthought to cover up the shortcomings in the case of plaintiff.
CS No.52347/16 Gurbinder Singh Anr Vs. Prem Singh Sagar Ors 11 / 19 12.1.7.It is the claim of plaintiff that Sh. Kalicharan was the owner of the suit property, the same being his self acquired property. The transferor in such circumstances had to show that he had the legal capacity as well as ownership to transfer the property. However, no pleadings to that effect has been made by the plaintiff to ascertain as to when and how did Sh. Kalicharan became the owner of the suit property. The plaintiffs did not file the previous chain of documents showing the manner in which the suit property had come under the ownership of Sh. Kalicharan. Lack of chain of documents thus indicated the shortcoming in the title of Sh. Kalicharan over the suit property. In these circumstances it was incumbent upon the plaintiffs to show that Sh. Kalicharan had the right, title and interest in the suit property from whom they are deriving their ownership. The said lacuna could have been cured during the course of trial, however, the ownership documents of Sh. Kalicharan was neither filed with the plaint nor tendered in evidence by way of affidavit of PW1 or PW2. No other witness was summoned on behalf of the plaintiffs to prove the ownership of the suit property of Sh. Kalicharan.
12.1.8.In these circumstances, the purported transfer of the suit property was thus doubtful. Having no ownership rights in the suit property, Sh. Kalicharan could not have transferred any right, title or interest in favour of the plaintiffs.
12.1.9.The relief sought by the plaintiffs to be declared as owners is on the basis of GPA sales. It is a settled proposition of law that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of `GPA sales' or `SA/GPA/will CS No.52347/16 Gurbinder Singh Anr Vs. Prem Singh Sagar Ors 12 / 19 transfers' do not convey title and do not amount to transfer, nor can they be recognized as valid mode of transfer of immovable property. Such transactions cannot be treated as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. (A reference may be made to the case of Suraj Lamp & Industries (P) Ltd. Vs. State of Haryana (2012) 1 SCC 656). The documents of transfer i.e., GPA, Agreement to Sell and Purchase, Possession letter, receipt, affidavit, will, indemnity bond and special power of attorney all dated 20.06.2013 as reied upon by the plaintiffs cannot pass title in favour of plaintiffs. Resultantly, the transfer by Sh. Kalicharan in favour of the plaintiffs through the aforesaid documents was without the effect of conveyance of title since a person cannot transfer a title, when he himself does not have. Accordingly, the plaintiffs cannot derive any ownership right through the operation of the aforesaid documents dated 20.06.2013.
12.1.10. In view of the foregoing reasons, no relief of declaration on the basis of the documents of transfer i.e., GPA, Agreement to Sell and Purchase, Possession letter, receipt, affidavit, will, indemnity bond and special power of attorney all dated 20.06.2013 can be granted to the plaintiffs. This issue is decided against the plaintiff and in favour of defendant.
12.2. Issue no. (ii):-
Whether the plaintiff is entitled to relief of permanent injunction as prayed for in prayer clause (ii) of plaint ? OPP 12.2.1.By way of prayer clause (ii), the plaintiffs seeks relief of permanent injunction restraining defendant no.1 and 2 or any person claiming through them from claiming themselves to be CS No.52347/16 Gurbinder Singh Anr Vs. Prem Singh Sagar Ors 13 / 19 the owner of the suit property, creating any third party interest and also restraining defendant no. 1 and 2 from receiving any rent from defendant no. 3 to 9.
12.2.2.Vide prayer clause (i) of the plaint, the plaintiffs had already prayed for decree of declaration to the effect that the plaintiffs are the owners of the suit property, therefore, the relief of permanent injunction restraining the defendant no.1 and 2 from claiming themselves to be the owners of the suit property was not required. In view of the findings at issue no.(i), it is clear that the plaintiffs have no right, title or interest in the suit property, hence no relief of injunction can be granted to the plaintiffs to restrain defendant no. 1 and 2 from creating any third party interest or from receiving any rent from defendant no. 3 to 9.
This issue is decided against the plaintiff and in favour of the defendant.
12.3. Issue no. (iii):-
Whether the plaintiff is entitled to relief of permanent injunction as prayed for in prayer clause (iii) of plaint ? OPP 12.3.1.By way of prayer clause (iii), the plaintiffs seeks relief of permanent injunction restraining defendant no.1 and 2 or any person claiming through them from breaking open the common wall on the upper floor of the house and creating any pathway of entering the house of the plaintiff.
12.3.2.In view of the findings at issue no.(i), it remains not proved that the common wall on the upper floor of the house belongs to the plaintiff. Accordingly, this issue is decided against the plaintiff and in favour of the defendant.
12.4. Issue no. (iv):-
CS No.52347/16 Gurbinder Singh Anr Vs. Prem Singh Sagar Ors 14 / 19 Whether the plaintiff is entitled to relief of mandatory injunction as prayed for in prayer clause (iv) of plaint ? OPP 12.4.1.By way of prayer clause (iv), the plaintiffs seeks relief of mandatory injunction in favour of the plaintiffs and against defendant no.1 and 3 to break open the locks on one room put by defendant no.1 after the demise of Sh. Kalicharan.
12.4.2.The right, title or interest of the plaintiffs in the said room has not been proved in view of the findings at issue no. (i). Accordingly, this issue is decided against the plaintiffs and in favour of defendant.
12.5. Issue no. (v):-
Whether the plaintiff is entitled to relief of declaration as prayed for in prayer clause (v) of plaint ? OPP 12.5.1.By way of prayer clause (v), the plaintiffs seeks relief of mandatory injunction in favour of the plaintiffs and against defendant no. 3 to 9 directing the defendant no.3 to 9 to pay rent of the portions in their occupation to plaintiff no.1 and 2 12.5.2. The basis of claim of rent by the plaintiffs rested on the fact that Sh. Kalicharan had transferred the suit property vide documents of transfer i.e., GPA, Agreement to Sell and Purchase, Possession letter, receipt, affidavit, will, indemnity bond and special power of attorney all dated 20.06.2013 in favour of the plaintiffs. Since it has already been adjudicated vide issue no.(i) that the plaintiffs cannot be declared as owners by the operation of aforesaid documents of the suit property, accordingly this issue is decided against the plaintiffs and in favour of the defendants.
CS No.52347/16 Gurbinder Singh Anr Vs. Prem Singh Sagar Ors 15 / 19 12.6. Issue no. (vi):-
Whether the plaintiff is entitled to relief of permanent injunction as prayed for in prayer clause (vi) of plaint ? OPP 12.6.1.By way of prayer clause (vi), the plaintiffs seeks relief of permanent injunction restraining defendant no.1 from creating any hindrance to the plaintiffs from raising a wall at portion marked F on the First Floor as shown in the site plan.
12.6.2.In view of the findings at issue no. (i), right of the plaintiff to raise wall at portion marked F on the first floor as shown in the site plan has not been established. Hence, this issue is decided against the plaintiff and in favour of the defendants 12.7. Issue no. (vii):-
Whether the plaintiff is entitled to relief of mandatory injunction as prayed for in prayer clause (i) of plaint ? OPP 12.7.1.By way of prayer clause (viii), the plaintiffs seeks relief of mandatory injunction against defendant no.10 directing the said defendant to vacate and handover the vacant possession of the room marked D in the site plan.
12.7.2.In view of the findings at issue no. (i), the plaintiffs have not been able to prove that the plaintiffs are the owners of the room marked D in the site plan, hence no injunction in this regard can be granted to the plaintiffs. This issue is decided against the plaintiffs and in favour of the defendants.
12.8. Issue no. (viii):-
Whether suit of the plaintiff is bad for mis joinder of necessary parties ? OPD CS No.52347/16 Gurbinder Singh Anr Vs. Prem Singh Sagar Ors 16 / 19 12.8.1.The Onus to prove this issue was upon the defendant. The defendant in the preliminary submissions of the written statement has stated that the defendant no.3 to 9 are not necessary parties to the suit in any manner.
12.8.2.A necessary party is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. In the facts of the present case, plaintiff has sought relief of mandatory injunction in prayer clause (v) of the plaint thereby directing defendant no.3 to 9 to pay rent of the possession in their occupation to plaintiff no.1 and 2. Therefore defendant 3 to 9 are the necessary parties to the present case.
12.8.3. Defendant has neither led any evidence nor pleaded any facts to show that when relief is sought against defendant no.3 to 9, then how the suit of plaintiff is bad for mis-joinder of necessary parties. Hence, this issue is decided against the defendant and in favour of the plaintiff.
12.9. Issue no. (ix):-
Whether the plaintiff has not valued the suit properly for the purpose of jurisdiction and Court fee ? OPD 12.9.1.The onus to prove this issue was upon the defendant. Only a bald averment has been made at para no.4 of the preliminary submissions of the written statement that the suit is not properly valued for the purpose of court fee and jurisdiction and requisite court fee has not been filed. There are no supporting averments to it.
12.9.2.At paragraph no.13 of the plaint, the suit is valued for the CS No.52347/16 Gurbinder Singh Anr Vs. Prem Singh Sagar Ors 17 / 19 purpose of declaration at Rs.200/- on which court fee of Rs.20 has been affixed and for the purpose of injunction the suit is valued at Rs.130/- each on which court fee of Rs.78 has been affixed. This court does not find any infirmity in such a valuation and appropriate court fee has been affixed.
12.9.3. Moreover, no evidence was led on behalf of defendant in support of their said claims. It was not specified by defendants in evidence as to how this suit was not properly valued for the purpose of decision of this case. As such, they failed to discharge the onus to prove the said issue. Accordingly this issue is decided against the defendants and in favour of the plaintiff.
12.10. Issue no. (x):-
Whether suit of the plaintiff has not been properly verified ? OPD.
12.10.1. The onus to prove this issue was upon the defendant. It is the claim of the defendant that every person verifying the suit, must file affidavit in support thereof. In the facts of the present case, plaintiff no.1 has filed the affidavit and plaintiff no.2 has not filed her affidavit supporting the plaint or amended plaint. As per the mandate of Order VI Rule 15 (4) the person verifying the pleading shall also furnish on affidavit in support of his pleadings. Record reveals that there is no affidavit of plaintiff no.1 supporting the plaint. Accordingly, this issue is decided in favour of the defendant and against the plaintiff.
13. Relief
13.1. In view of the aforesaid appreciation and finding, no relief can be granted to the plaintiff as the plaintiff has failed to prove its case.
CS No.52347/16 Gurbinder Singh Anr Vs. Prem Singh Sagar Ors 18 / 19 Accordingly, the suit stands dismissed.
14. No order as to costs.
15. Decree sheet be prepared accordingly.
16. File be consigned to record room after due compliance.
Digitally signed by ANURADHA ANURADHA PRASAD
PRASAD Date: 2019.09.11
18:34:05 +0530
Pronounced in the open Court (Anuradha Prasad)
on this 11.09.2019 Civil Judge, South East,
Saket Court, New Delhi.
11.09.2019
CS No.52347/16 Gurbinder Singh Anr Vs. Prem Singh Sagar Ors 19 / 19