Delhi District Court
Ravindra Kumar Gupta vs ) Varun Gupta on 3 March, 2021
IN THE COURT OF MS. MEENU KAUSHIK, SENIOR CIVIL
JUDGE CUMRENT CONTROLLER ( NORTHWEST), ROHINI
COURTS, DELHI
C.S No: 60588/16
Ravindra Kumar Gupta
S/o Sh. S.D. Gupta
R/O Flat No.28, Pocket B8,
Sector4, Rohini, Delhi110085
.........Plaintiff
Versus
1.) Varun Gupta
S/o Sh. Ravindra Kumar Gupta
R/o House No. D603, Ground Floor,
Avantika Sector1, Rohini, Delhi110085
2.) Smt. Deepali Aggarwal
W/o Sh. Varun Gupta
R/o Flat No.106, Pocket B6,
Sector4, Rohini, Delhi110085
ALSO AT:
Flat No.121, Vashudha Apartment,
Sector9, Near Japanese Park,
Rohini, Delhi110085
............. Defendants
Date of Institution : 21.08.2015
Date of concluding arguments : 23.02.2021
Date of pronouncing judgment : 03.03.2021
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FINAL J U D G M E N T
1. Present case is a suit for mandatory injunction in favour of the
plaintiff and against the defendants thereby directing the defendants to leave
the flat of the plaintiff with their bag and baggage and hand over the keys to
the plaintiff of the flat bearing No.106, Ground Floor, Pocket B6, Sector4,
Rohini, Delhi110085(hereinafter referred to as the suit property). The
plaintiff has further prayed for a decree of permanent injunction thereby
restraining the defendants from parting with possession, alienating, selling,
from imposing any type of encumbrances and creating third party interest
in the suit property.
As per the case of plaintiff, the defendant no.1 is the married son of
the plaintiff and the defendant no.2 is the wife of the defendant no.1. The
plaintiff is the absolute owner of the suit property consisting of three rooms
set having two entrances. The plaintiff, from his own funds and resources,
had purchased the flat No.106, however, due to love and affection, the name
of the defendant no.1 had been put in the sale deed being the son. However,
the defendant no.1 has executed the gift deed duly registered in favour of
the plaintiff vide gift deed dated 29.08.2014 registered on 15.09.2014.
The plaintiff had permitted the defendant no.1 and 2 after their
marriage to live and reside in his flat No. 28, Pocket B8, Sector4, Rohini,
Delhi along with the plaintiff and his other family members. Since the
defendant no.1 had to go to Dubai in respect of his employment and as such
the defendant no.1 and 2 had departed from Delhi to Dubai on 20.05.2012
and started residing in Dubai. The company in which the defendant no.1
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had been working had shifted from Dubai to Delhi and as such the
defendant no.1 and 2 also had to come back to Delhi and the plaintiff again
allowed them to reside in flat No.28. However, defendant no.2 started
pressurizing the defendant no.1 to live separately from the remaining family
members. The plaintiff, in order to have peace in the family had permitted
the defendants to live and reside in Flat No.106, GF, Pocket B6, Sector4,
Rohini, Delhi. It is further alleged that flat no.28 is situated at third floor
where the plaintiff along with his elder son and daughter in law is residing
whereas flat no.106 is situated at ground floor despite the fact that plaintiff
is a chronic patient of knee joint pain and other health problems. The
plaintiff had persuaded and repeatedly asked the defendants to vacate the
flat no.106, however, defendant no.2 started humiliating the plaintiff and his
wife and even not permitted to enter in flat no.106. The plaintiff even
requested the defendants to let the plaintiff and his wife live in the flat ,
however, the defendant no.2 not only became furious on this proposal but
also conspired with her parental family members and attempted to create the
matrimonial disputes not only with the defendant no.1 but also with the
plaintiff, his wife and his other family members. It is further alleged that on
23.11.2014, when the defendant no.1 came back from his office from
Noida, the defendant no.2 did not allow the defendant no.1 to enter in the
flat as there had been a preplanned conspiracy of the defendant no.2 and
her parental family members in order to grab the flat of the plaintiff and a
complaint in this regard has been lodged on 11.06.2015 in PS Vijay Vihar
vide DD No.44B, however, police officials did not take the appropriate
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action against the defendants. The plaintiff also lodged several other
written complaints vide DD No.21A dated 28.04.2015, DD No.48B dated
19.06.2015 and DD No.39B dated 04.07.2015. The defendant no.2 instead
of vacating the flat of the plaintiff, made the plaintiff as party in a domestic
violence case. The plaintiff has already debarred the defendants from his
movable and immovable properties and a public notice in this regard was
published in a newspaper on 01.04.2015.
A protection order dated 04.12.2014 has been passed in favour of the
defendant no.2 whereby the defendant no.2 shall not be dispossessed
without due process of law from the property of the plaintiff. The plaintiff
got issued a legal notice dated 15.07.2015 wherein the permission of
defendants to live and stay in the flat in question was withdrawn in writing.
The defendant no.1 has already been dispossessed and thrown out by the
defendant no.2 from the flat of the plaintiff, the defendant no.2 is liable to
leave the flat of the plaintiff after withdrawal of the permission. The legal
notice dated 15.07.2015 has been replied by the defendant no.1 vide reply
dated 29.07.2015 and the defendant no.2 also has replied the notice vide
reply dated 05.08.2015. The defendants have no legal right to remain the
property of the plaintiff and required to hand over the keys of the flat of the
plaintiff to the plaintiff.
The plaintiff has got an apprehension in his mind that the defendant
no.2 in collusion with her parental family members may create third party
interest in the property of the plaintiff. Hence, the present suit.
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2. Summons were issued to the defendants in the present suit to which
they put their appearance and filed the written statement. In the written
statement filed by the defendant no.1, preliminary objections have been
taken to the effect that suit of the plaintiff against the answering defendant
is without any cause of action. It is further stated that the plaintiff knows it
very well that the answering defendant has already been dispossessed by the
defendant no.2 from the flat of the plaintiff on 23.11.2014. The plaintiff
also knows that since the date of dispossession, the defendant no.1 has not
been residing in the flat of the plaintiff either along with defendant no.2 or
alone. It is further stated that the defendant no.1, in order to settle the
matrimonial life with the defendant no.2 started taking the side of the
defendant no.2 though the defendant no.2 since the day of her marriage
started pressurizing the defendant no.1 to render the financial help to her
parental family members and the brothers in getting the property purchased
and further one flat should be transferred in the name of the defendant no.2.
The defendant no.1 has already been dispossessed by the defendant no.2
illegally and forcibly from the flat in question and till date no reentry or re
union could be possible. It is the defendant no.2 who has captured the flat
of the plaintiff. The defendant no.1 under the instigation and the pressure
of defendant no.2 and in order to continue the matrimonial life with the
defendant no.2 advanced more than Rs.11 lakhs to the brother of the
defendant no.2 in getting the property purchased in Delhi and for that
purpose defendant no.1 transferred the money from his NRI account to the
account of defendant no.2 and thereafter the defendant no.2 transferred the
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same to the account of her brother. The defendant no.1 admitted and
supported the case of the plaintiff and stated that the prayers as made in the
plaint have become infructuous against him.
The defendant No.2 has also filed the written statement wherein
preliminary objections have been taken to the effect that plaintiff has not
approached the Court with clean hands and have suppressed the material
facts and present suit is outcome of connivance and conspiracy between
plaintiff and defendant no.1. The suit has not been valued properly for the
purpose of court fee and jurisdiction. There is no cause of action in favour
of the plaintiff to file the present suit. The alleged gift deed dated
29.08.2014 registered on 15.09.2014 is illegal and tainted with fraud and
further is against public policy in as much as the same was executed by
defendant no.1 in favour of plaintiff so as to defeat the legal rights of the
defendant no.2. The suit property was purchased benami in the name of
plaintiff who was not absolute owner of the same and never claimed its
ownership. The property was purchased with the funds of defendant no.1
and defendant no.2 and as per arrangement, the defendant no.2 reimbursed
the amount of sale price to defendant no.1 who received the same from time
to time and hence the defendant no.2 is coowner of the suit property. Flat
No.106 was belonging to defendants and plaintiff and his wife including
other family members were harassing defendants by all possible means and
hence they were not permitted to enter flat No.106. The plaintiff has been
in the habit of filing false police reports to harass defendant no.2.
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3. The plaintiff filed the replication to the written statement filed on
behalf of the defendant no.2 in which he reaffirmed and reiterated the facts
of the plaint.
4. On the basis of pleadings the following issues were framed on
22.07.2016:
1. Whether the suit has not been valued properly for purposes of court fee
and jurisdiction? OPD2
2. Whether plaintiff has concealed material facts and present suit is without
any cause of action? OPD2
3. Whether defendant no.2 is the coowner in the suit property and the gift
deed dated 29.08.2014 has been fraudulently executed by defendant no.1 in
favour of plaintiff? OPD2
4. Whether plaintiff is entitled for decree of mandatory injunction as
prayed for? OPP
5. Whether plaintiff is entitled for decree of permanent injunction as
prayed for ? OPP
6. Relief
5. Plaintiff to prove his case has examined himself as PW1. He
tendered his affidavit of evidence Ex. PW1/A. In his affidavit, the plaintiff
reiterated the contents of the plaint. He also relied upon various documents
i.e site plan Ex. PW1/1, Sale deed Ex. PW1/2, Gift deed Ex. PW1/3,
Complaint dated 11.06.2015 Ex. PW1/4, Complaint dated 28.04.2015 Ex.
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PW1/5, Complaint dated 19.06.2015 Ex. PW1/6, Complaint dated
04.07.2015 Ex. PW1/7, complaint to Commission of Senior Citizen Ex.
PW1/7A, public notice in newspapers Ex. PW1/8 and Ex. PW1/8A, Copy
of notice dated 15.07.2015 Ex. PW1/9, postal receipts Ex. PW1/10, Ex.
PW1/11 and Ex. PW1/12, reply of defendant no.1 Ex. PW1/13, envelope
Ex. PW1/13A, reply of defendant no.2 Ex. PW1/14, envelope Ex. PW
1/14A and medical record of plaintiff Mark A.
PW1 was duly cross examined on behalf of the defendant no.1.
During cross examination, he admitted that defendant no.1 is residing
somewhere in Avantika and not in the suit property. He further admitted
that defendant no.1 had/has never threatened him, pressurized him or sue
against him, for taking possession or ownership in his favour for the
property in question. He further deposed that on 23.11.2014, defendant no.2
dispossessed the defendant no.1 from the suit property. PW1 admitted that
he has mentioned in clause title page of his plaint that address of defendant
no.1 is of D603, Avantika.
PW1 was also cross examined on behalf of the defendant no.2.
During cross examination, PW1 deposed that he is an income tax assessee
for the last 15 years. He did not remember whether as on 02.08.2004 when
the property in question was purchased he was income tax assesseee or not.
He had informed income tax department that he was the owner of property
in question. Again said he had not informed income tax department
regarding the same but he had given information in writing to his
department that he was the owner of property in question. He was serving
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in Doordarshan & AIR for about 38 years and he retired on 31.10.2011. He
did not remember the exact date but he had applied for a loan for
purchasing the property in question for which previous sanction of the
department was required. He had applied for loan of about 7.5 lacs in the
year 2004 and availed the entire loan of Rs. 7.5 lac. No agreement for
purchase of property was entered into prior to his application for loan. He
has not brought any such sanction. He had incorporated the name of his son
in the sale deed as coowner. No shares of himself and his son were got
ascertained in the suit property. He did not remember if he told the
department that his son was coowner in the property.
PW1 was further cross examined wherein he deposed that he did not
remember whether he made any police report regarding the subject matter
of the present suit. There are five cases pending between himself and
defendant No.2 and he is not aware as to how many cases are pending
between his son and defendant No.2. He is not aware whether defendant
No.2 has filed any suit for cancellation of the gift deed. He did not
remember whether himself and his son are contesting the said suit filed by
defendant No.2. He is not aware whether any complaint U/S 125 CrPC has
been filed by defendant No.2 against defendant No.1. He is not aware
whether his son has filed any divorce petition against defendant No.2. The
maintenance charges are payable in respect of the suit property to the
DDA. Again said, the charges are payable to the association. The
association has not issued any notice in writing to him. He has brought the
latest house tax receipt, the copy of the same is Ex. PW 1/DX1. He has
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brought the documents pertaining to repayment of loan which are Ex. PW
1/DX2 (colly). PW1 admitted that one complaint before crime against
woman cell has been pending against him and his son and he used to attend
the proceeding. His son also separately attended the said proceedings. He
did not remember whether he had filed any reply to the suit filed for
cancellation of gift deed. He did not know if his son has filed reply to the
said suit. He is not aware as to the scribe of the writing at point A to A1 on
Ex. PW 1/DX3.
During further cross examination, PW1 admitted that sale deed in
respect of the suit property was executed and registered on 02.08.2004 and
05.08.2004 in his favour and in favour of his son. No shares were
demarcated in the said sale deed. There was no mention in the sale deed as
to what amount will be paid by PW1 and what amount will be paid by his
son towards sale consideration. He had not informed the MCD that he and
his son have purchased the suit property. He is not aware whether his son
had informed the MCD about the same. He is not aware whether the suit
property has been mutated in his name and in the name of his son. He
could not say if the property is mutated in joint names of himself and his
son in the MCD records. No partition was effected between him and his
son qua the suit property. PW1 admitted that as on 02.08.2004, his son was
serving and had source of income. The sale consideration of the suit
property was Rs. 6 lacs. An agreement to sell was also executed qua the suit
property. That agreement to sell was also in two names i.e. himself and his
son. Again said, the agreement to sell was executed only in his name but it
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was not a registered document. It was destroyed after execution of the sale
deed. He had informed HDFC Bank while taking the loan that the property
is to be purchased in two names. The bank had sanctioned the loan of Rs.
8.5 lacs. PW1 produced loan sanctioned documents collectively Ex.PW
1/DX. The defendant No.2 resided with them in the suit property for 1 or 2
days and for remaining days she lived with her parents. PW1 admitted that
defendant No.1 and 2 had come back to India in 2013 but he cannot say if
the date was 10.10.2013. He owned property No. 28/B8, Sector4, Rohini
Delhi. The defendants resided with him for some days in property No.
28/B8, Sector4, Rohini, Delhi as they were planning to shift to Noida. He
further admitted that defendants never shifted to Noida. He is not aware
whether defendant No.2 joined any job in Dubai or she was drawing salary
of Rs. 80,000/ per month and Rs.12,000/ as incentive. He used to have
talk with his son and defendant No.2 when both were at Dubai. He is not
aware whether defendant No.2 used to give her entire salary to her husband.
PW1 denied the suggestion that the gift deed dated 29.08.2014 was
executed by defendant No1.in his favour due to collusion and conspiracy
between him and his son or to defeat the legal rights of defendant No.2.
PW1 admitted that protection order dated 04.12.2014 was not
challenged by him and his son and the same is still in force. PW1 further
deposed that he is having knee problem since the last 10 years as well as
heart problem since the last 20 years. He was operated in Shimla regarding
knee problem. Again said, it was hospital in Janak Puri. The said operation
was successful and now also he is feeling that problem. He is taking
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medicines for BP and he was not admitted in any hospital for heart problem.
His wife is also having problem of BP and allergy and she is also taking
medicines. At present his son is residing in Avantika since he was turned
out by his wife but he has not gone there and he did not know the exact
date. He is not aware if house at Avantika is on rent or owned by his son.
PW1 denied the suggestion that defendant No. 1 is residing with him and
other family members in property bearing No. 28/B8, Sector4, Rohini
Delhi.
He is not aware that as on 01.04.2015 where his son was residing.
The defendant No.1 was not residing with him on 01.04.2015. He is not
aware whether defendant No.1 was residing with defendant No.2 as on
01.04.2015. He is not aware about the meaning of word 'Pharkhati'. He has
disowned the defendant No.1 and 2 by giving publication in Newspaper.
He denied the suggestion that the said publication regarding disowning
defendants was a result of collusion and conspiracy between him and his
son or that his son is continuously residing with him.
PW1 is not aware whether his son has filed any suit against defendant
No.2 for claiming back possession of the suit property. He is not aware
about the value of the suit property. He had not obtained any valuation
report regarding the suit property. The suit property consists of two
bedrooms, one bathroom toilet, drawing room and lobby and same is built
on a plot of about 6070 sq. meters. PW1 admitted that defendant no.2
never extended any threat to create any third party interest qua the suit
property in his presence. He denied the suggestion that defendant No.1 is in
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collusion with him and the written statement so filed in the suit is as a result
of the said collusion
No other witness was examined by the plaintiff and plaintiff's
evidence was closed.
6. Sh. Varun Gupta, defendant no.1 examined himself as DW1 and
tendered his evidence by way of affidavit Ex. DW1/A.
DW1 was cross examined by Ld. Counsel for the plaintiff wherein he
deposed that in the year, 2004, he had been working with M/S Sahara
Media at Noida, UP. The salary was about Rs. 10,000/ per month
including his all expenses. The flat No. 106, Pocket B6, Sector4, Rohini,
Delhi, was released from the finance in the year, 2011 as the plaintiff after
being retired from his services made the full and final payment to the
financer. He admitted that there had been no contribution of money in
purchasing the suit property and his name in the documents of purchase was
put by his father due to love and affection. DW1 executed the gift deed in
favour of plaintiff with his own sweet Will in sound mind without any
duress and pressure from any corner whatsoever. He has also not received
any consideration in executing the gift deed in favour of his father. He
shifted in the suit property in the month of November, 2013. He has been
dispossessed by the defendant No.2 from the suit property on 23.11.2014
and he shifted on rent and still he has been residing in the rented premises.
DW1 was also cross examined on behalf of the defendant no.2
wherein he deposed that he had worked in the channel known as NepalI for
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less than one year, but he did remember as to from which date he was
employed and he used to earn Rs.10,000/ to Rs.11,000/ per month. At
that time, he used to reside at Flat no.28, Pkt B8, Sec4, Rohini, Delhi.
Later on he joined Sahara Samay news channel from 2004 to 2009. He
used to earn Rs.11,000/ in the beginning and in year 2009 his take home
salary was around Rs.22,000/ p.m. Thereafter he got employed as an
Editor in Dubai in Ten Sports channel where he was earning around AED
10,500/ p.m At that time one AED was equivalent to Rs.13/ to Rs.14/.
He worked there in Dubai from the period 2009 to 2013. He returned to
India from Dubai on 10.10.2013 after the company where he was working
shifted to Noida, India. He joined the company at Noida after his return to
Delhi. At present he did not have any document showing his employment
with above said company at Noida. In Dubai he was maintaining Standard
Chartered Bank account and the other was RAK Bank account. His salary
used to be credited in the Standard Chartered Bank. His employer was not
giving any cash incentive to him during his employment at Dubai. The
defendant no.2 was also employed in Dubai for some time. According to
DW1, the defendant no.2 was employed for twothree months. The
defendant no.2 used to earn salary, but DW1 had no idea as to how much
salary she was earning. DW1 denied the suggestion that the defendant no.2
used to transfer major part of her salary to his RAK Bank account.
During further cross examination, DW1 deposed that he would not
earn any other salary or incentive from any other source whatsoever
because of his job. He used to transfer about Rs.50,000/ to Rs.1,00,000/
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every one or two months to his NRE account in India and the said account
was maintained by him and by his brother. He denied the suggestion that
his father/plaintiff used to operate this account. He did not remember if he
used to transfer amounts from his NRE account to the account of his father.
He was having another account in Delhi during his stay in Dubai and said
accounts were at ICICI Bank, Karol Bagh and Syndicate Bank, Sec5,
Rohini, Delhi. DW1 admitted that he sometimes transferred the amounts
from his NRE account to ICICI Bank account. He did not remember about
the number of transactions and amount from his NRE account to ICICI
Bank account. He never transferred any amount from NRE account to
Synidicate Bank account. He used to transfer money from ICICI Bank
account to his father's account for his personal work occasionally. He could
not say if the document Mark 'A' pertains to his RAK Bank account situated
at Dubai as the document does not bear the complete account number and
the stamp of the bank. He deposed that he cannot bring his account
statement of RAK Bank as he had already closed his that bank account
before returning to India. He did not remember if he used to receive bank
statement of his RAK Bank on his email account.
DW1 further deposed that the gift deed relating to the suit property
was executed in the year August, 2014, but he did not remember the exact
date. The stamp papers were not purchased by him regarding gift deed nor
he remembered the value of such stamp papers. The stamp papers were
purchased by his father. He did not know as to when the said stamp papers
were purchased by his father nor he know as to from where said stamp
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papers were purchased. The sale deed in 2004 regarding the suit property
was executed jointly in his name and in the name of his father. DW1
admitted that the said property was purchased by funds of his father and
through loan from HDFC Bank. He did not know as to how much funds his
father had invested and how much amount of loan was taken from HDFC
Bank, the branch of which he did not know. DW1 admitted that he was co
applicant for the loan for buying the suit property as the bank always give
loan for buying property at least to two persons. He did not know if there
was a condition from the bank that for buying the suit property the loan
which was availed, the sale deed was to be executed in the name of at least
two persons. DW1 after seeing the letter dated 28.07.2004 from HDFC
Bank Ex. PW1/DX, which is in the name of the plaintiff and the defendant
no.1, stated that he does not remember if he has ever seen that document.
He did not know the EMI of the said loan which was paid by his father to
the bank. He has no idea as to for how much tenure the said loan was from
HDFC Bank. He has no idea as to how much amount of loan was disbursed
to his father, whether it was 5 lacs, 10 lacs, 15 lacs or 20 lacs. He did not
remember as to what share he was holding in the suit property at the time of
sale deed of 2004 with regard to suit property. He did not remember as to
what was the area of the suit property when the same was purchased in his
name and in the name of his father. He did not have the knowledge of
approximate area of the suit property. He even could not tell that the area
of suit property was 100 sq yds, 200 sq yds or more. He did not remember
if the sale deed of the suit property in 2004 was for Rs.5 lacs, Rs.10 lacs,
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Rs.15 lacs, Rs.20 lacs, Rs.30 lacs or Rs.50 lacs or even more. DW1 further
deposed that he was not aware about the contents of the gift deed. He also
cannot tell as to how much share he had in the property which he
transferred in the name of his father. He deposed that whatever share he
had in the suit property at the time of purchase, he transferred his 100%
share to his father by way of gift deed. He did not have knowledge that the
gift deed was executed after the defendant no.2 had filed a police complaint
on 07.08.2014 pertaining to receiving threats on phone and to transfer the
suit property in the name of plaintiff. DW1 admitted that he was residing
with the defendant no.2 at the suit property at the time of execution of the
gift deed. He had conveyed the idea of execution of gift deed to the
defendant no.2 somewhere in August, 2014. He did not remember the exact
date. He has mentioned his residence as Flat No.28, Pkt B8, Sec4, Rohini,
Delhi, in the gift deed while he was residing in the suit property at that time
as all his documents are of Flat No.28. He has not got any of his documents
changed till now though he has been residing at different rental premises
since December, 2014. During the period, 23.11.2014 to December, 2014,
he stayed at the house of his friends and not at any rental premises. He
further admitted that he along with defendant no.2 was residing in the suit
property on the date of gift deed.
To the question what made his father debarred him by publication of
notice on 01.04.2015 after he had executed the gift deed in favour of his
father in August, 2014, DW1 stated that on 05.09.2014, defendant no.2 had
filed DV case against him and his father of which he was not aware and
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then on 10.09.2014, upon the asking of defendant no.2, he went to operate
the bank locker which is in joint name of himself and his mother wherein
his jewellery, jewellery of his mother and jewellery of defendant no.2 was
kept, defendant no.2 forcefully made him to give all the jewellery kept in
the locker to her which later was not returned by defendant no.2 despite
asking for the same repeatedly as defendant no.2 had taken the jewellery of
his mother kept in the locker, his father/plaintiff made opinion against him
that he is in collusion with defendant no.2 and thus he debarred DW1 from
the property on 01.04.2015.
DW1 further deposed that he received the summons of the DV case
through phone call of police officer on 30.11.2014 as he had no permanent
address at that time. He had no permanent address at that time as he was
residing here and there and sometimes at his friend's residence. He was
summoned to appear in the DV case at Rohini Courts on 04.12.2014. Only
sometimes he went and meet his niece and nephew i.e son and daughter of
his brother on their birthdays and on no other occasions. DW1 was
confronted with the photocopy of newspaper Jansatta in Hindi and Indian
Express in English, both dated 01.04.2015, Ex. defendant no.1 W1/D2/2, to
which he admitted his writing between point A to A'. DW1 volunteered
that after debarring him, his father gave him the photocopy of the
newspaper and he told him the date on which he debarred him by way of
publication and hence he noted down the date on the same, however, his
lawyer who was present with him in the court premises asked him to have
original copy of the newspaper from his father so upon taking the original
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copy of newspaper from his father, he returned the photocopy of the
newspaper to his father.
During further cross examination, DW1 deposed that while in Dubai,
he was maintaining two emails account, one official and other for personal
use, however, presently he did not remember either of the two emails
accounts due to lapse of time. As per his knowledge he did not use to
receive his any statement of account from the RAK Bank on email. He did
not use to receive any of his bank statement on any of his email account,
especially of RAK Bank. He could not say whether he was holding account
at RAK Bank with the No. AE810400000034312916100 as he did not have
any document regarding the same. DW1 admitted that he was holding
account at RAK Bank, Marina Branch, Dubai and that he was working as
Editor in Taj Television Ltd., Production Deptt. (Ten Sports). He was
holding account at RAK Bank since prior to his marriage and he closed that
account when he returned to India in the year 2013. DW1 was confronted
with document, Mark 'AB'(colly, 18 pages) to which he stated that he
cannot say if the said documents pertaining to his bank account as complete
bank account number is not mentioned in the same. He was also confronted
with document Mark 'AB1'(colly, 10 pages) to which he stated that he
cannot say whether he received bank statement on his email from the RAK
Bank. DW1 was shown certified copies of some bills to which he admitted
that the same are filed in the Court of Ms. Dhanshree Deka, Ld.
MM(Mahila Court) in case No.3955/2017, pertaining to FIR No.969/2015.
The same are Ex. defendant no.1 W1/D2/3 (colly, 10 pages). DW1 was
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also shown the copy of FIRs bearing No.181/2015, u/s 506 IPC & 66A IT
Act, 2000, FIR No.0969/2015, u/s 498A/406/34 IPC, FIR No.0074/2016,
u/s 507/509 IPC and FIR No. 0753/2016, u/s 354(B)/511/323/509/34 IPC
and complaint bearing DD No.113B dated 07.08.2014, to which he stated
that he has knowledge regarding FIR No.0969/2015 and FIR No.0753/2016,
which are Ex. defendant no.1 W1/D2/4(Colly). As per his knowledge he
went to Sub Registrar Office only once for the purpose of registration of gift
deed. Again said, he did not remember correctly, however, he might have
gone to Sub Registrar office, Rohini, for the purpose of registration of the
sale deed of the suit property. He did not remember in which District he
went in the office of Sub Registrar for the purpose of registration of sale
deed or gift deed of the suit property. DW1 further deposed that presently
he is residing as tenant at D603, 3 rd Floor, Sec1, Rohini, Delhi for
approximately last three years and name of landlord is Rajesh Thakur.
There is rent agreement between the landlord and him for aforesaid property
and he pays electricity charges also as per demand of his landlord i.e.
approximately Rs.500/ to Rs.700/.
To the question asked by Ld. Counsel for the defendant no.2 that
what prompted DW1 to allegedly execute the gift deed in favour of his
father in the year 2014, DW1 replied that as his father along with his mother
wanted to shift in the suit property since his father was suffering from knee
problem and his wife was not ready to permit them to shift in the suit
property and he had to shift to Noida because of his job, he decided to
execute the gift deed of his share in the suit property in favour of his father.
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When he told his wife that all the payments of the suit property are made by
his father, she did not deny regarding execution of gift deed in favour of his
father. DW1 admitted that he never shifted to Noida after execution of gift
deed. After execution of gift deed he was dispossessed by his wife from the
suit property and she also filed various cases against him and because of
this he could not shift to Noida. DW1 denied the suggestion that the gift
deed was executed so as to deprive the defendant with any right in the suit
property which she could ask later on. He admitted that deterioration of
matrimonial relations between him and defendant no.2 started over the issue
of non return of amount of Rs.11.0 lakhs approximately by the defendant
no.2. He deposed that he had given that money to defendant no.2 as she
required that to support her brother and parents as it was told by her that her
father was suspended at that time.
7. DW2 Smt. Deepali Aggarwal, defendant no.2 also examined herself
in defendant evidence who tendered her evidence by way of affidavit Ex.
DW2/1A and relied upon documents i.e. Appointment letter cum salary
certificate dated 05.06.2013 Ex. DW2/1/1 (OSR), Bank statement of ICICI
Bank Ex. DW2/1/2 (OSR), Copy of bank statement of Rak Bank, Dubai
mark 'A'.
DW2 was duly cross examined by Ld. Counsel for the plaintiff
wherein she deposed that there were no relations either financial or of any
kind between herself and the family of defendant no. 1 prior to her marriage
with the defendant no.1. Prior to her marriage her family used to reside at
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H. No. 60, defendant no.12, Sec. 8, Rohini, Delhi85 which was a rental
property. At the time of meeting for the marriage her parents were told by
the parents of defendant no.1 that if they have a property then only the
marriage alliance will take place, to which the parents of the defendant no.2
told them that they have a plot at Sec. 28, Rohini. She was not aware as to
in whose name the said plot exists but probably it must be in the name of
her parents. She was also not aware as to when the said property was
purchased by her parents but it was purchased before her marriage. She is
aware that the above said flat no. 106 was purchased in the year 2004 as
told to her by her husband. She was never told about completion of
payment of loan. She never asked defendant no.1 about the tenure of the
above loan. She came to know for the first time that defendant no.1 is co
owner of the property of flat no. 106 when her in laws had visited her house
for matrimonial alliance prior to her marriage. Again said her husband told
her about his coowner ship in the said flat after their marriage. She was
told about the said fact by defendant no.1 soon after the marriage that when
they all were sitting together. DW2 further deposed that at the time of her
marriage ritual(before marriage) i.e. at the time of her "godbharai", all the
money gifts which she had received were taken by her fatherinlaw and
motherinlaw by saying that they have to make payment of the above loan.
She had transferred Rs. 1,50,000/ in the bank account of defendant no.1 as
he asked that he had to make payment for the above loan. All the salary
which she had earned in Dubai was taken by defendant no.1 on the pretext
of clearing the above said loan. DW2 denied the suggestion that the said
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payment of Rs. 1,50,000/ was in lieu of banquet hall payment at the time of
marriage. DW2 further deposed that she used to earn salary of AED
4,000/(Dubai currency) along with incentives at the time of her
employment in Dubai for five months. Out of this she used to earn AED
2000/ in cash and balance AED 2000/ through UAE exchange which
could be later exchanged in cash by depositing slip in UAE exchange. She
deposed that she was shown the bank statement of RAK bank, Dubai by
defendant no.1 showing that her salary of AED 4,000/ has been deposited
in his account as cash. She never tried to see any documents pertaining to
the loan with respect to the suit property i.e. flat no. 106. She never
requested defendant no.1 to have her name entered as coowner in the above
said property. She was told by defendant no.1 that all the payments with
regard to the said property was made by defendant no.1 and the said
property was purchased in the name of his father i.e. plaintiff. Her husband
under undue influence of his father was made to transfer his share in the
said property through gift deed to my fatherinlaw i.e. plaintiff and she has
already filed a suit for declaration seeking cancellation of the said gift deed
which is pending before the Hon'ble Court of Sh. Sanjay Jindal, ADJ,
Rohini Court. DW2 alongwith her husband entered in the suit property i.e.
flat 106 in firstsecond week of November, 2013. She alongwith defendant
no.1 had brought certain goods with them from Dubai. When they shifted
to Flat no. 106 they took away all the goods lying at Flat no. 28. Rest of the
goods were received through ship later on which were directly taken to flat
no. 106. They had gone to Mauritius for honeymoon. They returned within
Ravindra Kumar Gupta Vs. Varun Gupta & Ors. Page 23 of 36
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67 days. The defendant no.1 went to Dubai after four days when they
returned to India from Mauritius. She went to Dubai on 20.05.2012. She
stayed at her parental house for 56 days before she left for Dubai on
20.05.2012. She stayed at her in laws house for about a week before she
left for Dubai on 20.05.2012. In the second week of November 2013, she
was told that she cannot reside at flat no. 28. She was beaten by plaintiff
and his wife and the keys of flat no. 106 were thrown on her and she was
asked to shift at that flat.
DW2 was further cross examined by Ld. Counsel for the plaintiff
wherein she deposed that she has filed one complaint before CAW Cell in
which plaintiff is one of the accused. She did not remember if she has
mentioned in her CAW Cell complaint that she gave Rs.1.50 lakhs to her
husband and his family for purchase of furniture.
Certified copy of complaint filed before CAW Cell, Ex. D2 W1/P2,
was shown to the DW2 and after going through the document Ex. D2
W1/P2, she stated that she cannot say if the details of payment mentioned at
point A are the details for purchase of furniture. She admitted that the
payment of Rs.1.50 lakhs which is mentioned in her CAW Cell complaint
was given by her to the defendant no.1. She came to know about the
execution of the gift deed from defendant no.1 in favour of plaintiff
regarding his share in the suit property after filing of this case. She received
legal notice from the plaintiff for vacating the suit property before filing of
this case, however, she cannot say if the fact of execution of gift deed was
mentioned in the same or not. She gave her written objections to the Sub
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Registrar regarding execution of gift deed by defendant no.1. She has not
filed the copy of those written objections filed by her before Sub Registrar,
in the present case. She has not given any written notice to defendant no.1
or to the plaintiff regarding execution of gift deed. She has filed the suit for
cancellation of gift deed after filing of this case by the plaintiff. She
admitted that initially the suit for cancellation of gift deed was filed in this
court, however, same was withdrawan for want of pecuniary jurisdiction.
DW2 denied the suggestions given by Ld. Counsel for the plaintiff.
DW2 was also cross examined by Ld. Counsel for the defendant
no.1 wherein she deposed that at the time of marriage, she was maintaining
two bank accounts i.e. ICICI Bank, Connaught Place and PNB, Sector7,
Rohini. She went to Dubai on 20.05.2012 and even at that time, she was
maintaining the above said two accounts. She was not maintaining any
other bank account in Dubai. She returned from Dubai on 10.10.2013. She
transferred the money from her ICICI Bank account into the account of her
brother at the time of purchase of one flat in Vasuda Apptt., in the joint
name of mother and brother. She transferred the amount from her ICICI
Bank which was transferred into her bank account by her husband which
was received by him from the friend of her father namely Sh. Sanjay Gupta.
She did not have knowledge if her brother has shown the said amount
which was transferred into his account for purchase of flat as a gift received
by him from her in his income tax return. She further deposed that the same
was in which FIR No.181/2015 was registered, was in the name of Varun
Gupta, defendant no.1 and same was used by her and occasionally her
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husband. Defendant no.1 was maintaining one laptop while he was in
Dubai. The defendant no.1 resided with her in Flat No.106, Pkt B6,
Sector4, Rohini, Delhi110085, till 22.11.2014 and not 23.11.2014. She
further deposed that yesterday, she had shown certain bank statements from
RAK Bank account of defendant no.1 as the same were lying at home i.e.
Flat No.106. On 22.11.2014, police had called her and Varun in the PS
regarding her complaint for receiving threatening calls and vulgar
messages. From the PS, she returned directly to her house i.e. Flat No.106,
however, Varun returned to house very late, after 34 hours, and thereafter
his father and brother also came and then Varun tried to take away all the
original documents of her as well as his which were kept in one folder. In
the meantime, police arrived and upon her asking police got her documents
back from Varun and handed over to her. Thereafter, during cleaning of the
house, she found some documents of Varun which she filed in this case.
DW2 admitted that on 10.09.2014, she went to Syndicate Bank along with
defendant no.1. She was taken to Syndicate Bank on the pretext by her
husband that he had some work in the market. She was asked to wait
outside the bank by her husband. She is not aware if he had operated locker
himself in her absence. She admitted that document Ex. D2 W1/DX1 is the
certified copy of rejoinder filed on behalf of the defendant no.2 herein in
case u/s 125 Cr.P.C. Initially when the Crl. W.P. No.1577 of 2018 was
filed before the Hon'ble High Court, her husband and her parents in law
were not party. Document Ex. D2 W1/DX2 was shown to the witness to
which witness stated that the same is not related to the incident occurred
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with her on 04/05.02.2019.
No other witness was examined by the defendants and defendant's
evidence was closed. Thereafter final arguments were heard.
8. I have heard Ld. Counsels for both the parties and have carefully
gone through the material on record. My findings on issues are as under:
ISSUE No1:
Whether the suit has not been valued properly for purposes of court fee and
jurisdiction? OPD2
Onus to prove the present issue is upon the defendant no.2. As per
defendant no.2, plaintiff has not valued the present suit properly and has not
filed the requisite court fees. As per the defendant no.2, plaintiff is seeking
the possession of the suit property and hence, he should value the present
suit as per the value of the suit property. Defendant no.2 has claimed herself
to be coowner of the suit property however, she has been failed to adduce
any documentary proof towards her ownership in the suit property. As per
the facts of the present case, Plaintiff in the present case is the owner of the
suit property and the defendant no.2 started residing in the suit property
being wife of son of the plaintiff. Considering the fact that defendant no.2
was residing in the suit property only being wife of son of plaintiff and the
fact that plaintiff is the owner of the suit property, Plaintiff need not to
value the suit on the basis of value of the suit property and to pay the court
fees on the market value of the suit property. Hence, present issue is
decided in favour of the plaintiff and against the defendant no.2.
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ISSUE No.2
Whether plaintiff has concealed material facts and present suit is without
any cause of action? OPD2
Onus to prove this issue is upon the defendant no.2. As per the
Plaintiff, the suit property is required by him and his wife to reside as the
same is ground floor property and plaintiff and his wife are suffering from
various old age problems. Plaintiff has not placed on record any satisfactory
medical document to show that suit property being situated at ground floor
is urgently required by them. Further, as per the plaintiff, he is suffering
from knee problem and heart problems since past 10 & 20 years
respectively. If such was the situation, then it is not understandable as to
why plaintiff and his wife were not residing in the suit property, which is
stated to be at ground floor, prior to marriage of the defendants and when
the defendants were in Dubai. It is admitted fact that defendants started
residing in the suit property after coming back from Dubai i.e. in the year
2013 while the suit property was purchased in the year 2004. Plaintiff has
no where mentioned that as to what medical urgency arrived with him or
with his wife after shifting of defendants in the suit property that they felt
urgent requirement for shifting to the suit property because of medical
reasons. Above discussed facts leads to conclude that plaintiff has not
disclosed the material facts and has tried to conceal the relevant facts from
the court and has filed this suit on the basis of false pretext. Further, as
alleged by the plaintiff himself, the defendant no.1 has been dispossessed
by the defendant no.2 on 23.11.2014 from the suit property i.e. prior to
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filing of the present suit then it is not understandable as to why plaintiff has
filed the present case against defendant no.1 also. All the allegations are
made by the plaintiff are against the defendant no.2 only. Not even single
allegation is made by the plaintiff against defendant no.1. The plaintiff has
even debarred defendant no.1 and defendant no.2 from his properties on
01.04.2015, while the admitted fact is that defendant no.1 executed gift
deed of his share in the suit property in favour of plaintiff on
29.08.2014(registered on 15.09.2014). Here it is not understandable that the
suit property which was alleged to be purchased in the year 2004 in the joint
name of plaintiff and defendant no.1 then why there came any need for
executing the gift deed in favour of plaintiff by the defendant no.1 after 10
years of purchase of the property. In addition to this, it is found strange that
if the relations between the plaintiff and defendant no.1 were so cordial that
his name was added in the suit property at the time of purchase only out of
love and affection and defendant no.1 also just without any specific reason
gifted his share in the suit property in favour of the plaintiff at the time
when defendants were residing the suit property then why defendant no.1
was debarred from the properties by the plaintiff. To further surprise, on the
one hand defendant no.1 is saying that he gifted his share in the suit
property to plaintiff without any specific reason on 29.08.2014, on the other
hand plaintiff debarred both the defendants from his property on 01.04.2015
and thereafter he filed this case for mandatory injunction against the
defendants to leave the suit property. As per the plaintiff, defendant no.1
was dispossessed from the suit property on 23.11.2014 by defendant no.2.
Ravindra Kumar Gupta Vs. Varun Gupta & Ors. Page 29 of 36
C.S No. 60588/16
No police complaint in this regard is stated to be filed by defendant no.1.
Considering the fact that defendant no.1 first gifted his share in the suit
property in favour of plaintiff on 29.08.2014, the fact the defendant no.1 is
out of the suit property since 23.11.2014, the fact that since 23.11.2014
defendant no.1 is stated to have residing in rented accommodation and not
with the plaintiff and the fact that on 01.04.2015 plaintiff debarred both the
defendants from his properties and then filed this case leads to conclude that
plaintiff and defendant no.1 in collusion with each other set up the plot to
remove the defendant no.2 from the suit property. It is admitted fact that
protection order in favour of the defendant no.2 and against the defendant
no.1 and the plaintiff to not to dispossess the defendant no.2 from the suit
property without following the due process of law has already been passed
under Protection of Women from Domestic Violence Act,2005 prior to
filing of this case on 04.12.2014. Considering all the above facts together it
is concluded that plaintiff has tried to conceal the material facts and has
tried to present the facts with twist. The plaintiff has cleverly drafted the
plaint stating that suit property is urgently required as he is suffering from
knee problems and he as well his wife are also suffering from various old
age ailments without placing any such medical document on record and not
disclosing the fact as to why they did not shift to the suit property any time
prior to 2013 since 2004 when defendants started residing in the suit
property.
As per ITC v. Debts Recovery Appellate Tribunal AIR 1998 SC 634,
clever drafting creating illusions are not permitted in law and the suit is
Ravindra Kumar Gupta Vs. Varun Gupta & Ors. Page 30 of 36
C.S No. 60588/16
liable to be rejection under Order VII Rule 11. Cause of action in the
present case is not clear and it can be concluded in the light of above
discussed facts that alleged cause of action is afterthought as result of
protection order in favour of defendant no.2. Hence, present issue is decided
in favour of the defendant no.2 and against the plaintiff.
ISSUE No.3
Whether defendant no.2 is the coowner in the suit property and the gift
deed dated 29.08.2014 has been fraudulently executed by defendant no.1 in
favour of plaintiff? OPD2
The onus to prove this issue is upon the defendant no.2. As per the
defendant no.2 she had transferred Rs. 1,50,000/ in the bank account of
defendant no.1 as he asked that he had to make payment for the loan of the
suit property. She has further deposed that all the salary which was approx.
4,000/ Dubai currency per month, which she had earned for five months in
Dubai was taken by defendant no.1 on the pretext of clearing the above said
loan. In her cross examination she stated that she never tried to see any
documents pertaining to the loan with respect to the suit property i.e. flat
no. 106 and never requested defendant no.1 to have her name entered as co
owner in the above said property. She has further deposed that her husband
under undue influence of his father was made to transfer his share in the
said property through gift deed to plaintiff. The suit for declaration of the
said gift deed as null and void is stated to be pending in the court of Ld.
ADJ. From the testimony of the defendant no.2, it is no where proved that
she is the coowner of the suit property. Further, as the suit regarding the
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gift deed executed by the defendant no.1 in favour of plaintiff is stated to be
pending in the court of Ld. ADJ, this court under judicial propriety do not
deem it appropriate to give any observation regarding the fact that if the
gift deed on 29.08.2014 has been fraudulently executed by defendant no.1
in favour of plaintiff or not. Hence, this issue qua the status of defendant
no.2 as coowner of the suit property is decided in favour of plaintiff and
against the defendant no.2.
ISSUE No.4
Whether plaintiff is entitled for decree of mandatory injunction as prayed
for? OPP
Onus to prove this issue is upon the plaintiff. The plaintiff has sought
mandatory injunction thereby directing the defendants to leave the suit
property and handing over the keys of the suit property to the plaintiff.
There is protection order in favour of the defendant no.2 under Protection of
Women for Domestic Violence Act and the plaintiff has been failed to show
any urgent medical situation which arrived only after shifting of defendants
in the suit property. It is admitted fact that at the time of marriage and when
both the defendants started residing in the suit property defendant no.1 was
coowner of the suit property. As per the defendant no.2, the suit property is
her shared household. As per sec 2(s) of PWDV Act:
Sec. 2(s) "shared household" means a household where the person
aggrieved lives or at any stage has lived in a domestic relationship either
singly or along with the respondent and includes such a household whether
owned or tenanted by either of them in respect of which either the
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C.S No. 60588/16
aggrieved person or the respondent or both jointly or singly have any right,
title or interest or equity and includes such a household which may belong
to the joint family of which the respondent is a member, irrespective of
whether the respondent is a member, irrespective of whether the respondent
or the aggrieved person has any right, title or interest in shared
household."
Facts of the present case cover the suit property under the definition
of shared household under PWDV Act. As per sec. 17 of PWDV Act: "(1) notwithstanding anything contained in any other law for the time being in force, every woman in domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
(2) the aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law."
In the present case also even if it is taken that neither defendant no.1 nor defendant no.2 has any right in the suit property, the same holds the status of shared household for defendant no.2. There is protection order in favour of defendant no.2 for not evicting her from the suit property except following the due process of law. In order to evict the defendant no.2 from the suit property, the present case is filed by the plaintiff under the guise of following the due process of law. The question here to be considered is that whether by filing the present suit for eviction of defendant no.2 can be said that plaintiff has followed the due process of law or not. Plaintiff in the Ravindra Kumar Gupta Vs. Varun Gupta & Ors. Page 33 of 36 C.S No. 60588/16 present case is dependent upon defendant no.1 and thus she has right to seek residence from defendant no.1. No alternate accommodation or payment of rent is stated to have even offered by the defendant no.1 to defendant no.2. For the sake of assumption, if it is believed that need for accommodation for ground floor of the plaintiff is genuine then any alternate accommodation or any portion in the suit property is supposed to be offered by the plaintiff for the defendant no.2 so that for the time being till effectively getting residence rights from the defendant no.1, she could reside there. The present suit is filed straight way for eviction of the defendants specifically the defendant no.2. Filing of the case for eviction only without offering any alternate accommodation or payment for rent either by plaintiff or defendant no.1 cannot be said to have filed following due process of law. Further, as the defendant no.2 has contended that the present suit is filed in collusion of plaintiff and defendant no.1, defendant no.2 has every right to resist the claim of plaintiff. Sec. 19 of PWDV Act directs to secure same level of accommodation for the aggrieved person which has not been secured for defendant no.2 her either by the plaintiff or defendant no.1.
Here reliance is placed upon Satish Chander v. Sneha Ahuja decided by Hon'ble Supreme Court of India on 15.10.2020 and Navneet Arora v. Surender Kaur and others decided by Hon'ble High Court of Delhi on 10.09.2014.
Considering the above discussed facts, present issue is decided in favour of defendant no.2 and against the plaintiff. Thus, plaintiff is not held Ravindra Kumar Gupta Vs. Varun Gupta & Ors. Page 34 of 36 C.S No. 60588/16 entitled for mandatory injunction.
ISSUE No.5 Whether plaintiff is entitled for decree of permanent injunction as prayed for? OPP The plaintiff has sought decree for permanent injunction thereby restraining the defendants from parting with the possession, alienating, selling, from imposing any type encumbrances and creating any third party interest in the suit property. Issue no.2 in the present case has already been decided against the plaintiff. As per admitted facts, Defendant no.1 has already transferred his share in the suit property in favour of plaintiff even prior to filing of the present suit and he has also not been residing in the suit property since prior to filing of the suit. Hence, this way no cause of action arise for the plaintiff to file suit for permanent injunction against the defendant no.1. As far as the issue of permanent injunction against defendant no.2 is concerned, it is admitted by plaintiff himself that defendant no.2 never extended any threat to create any third party interest qua the suit property in his presence. No single incident is proved by the plaintiff from which it can be inferred that plaintiff was interested to part with the possession of the suit property to alienate, sell or create any third party interest in the suit property. Further, issue no.3 has been decided against the defendant no.2 and it is held that she has been failed to adduce any evidence to show that she is the owner of the suit property and thus no question arises for creating of third party interest in suit property by defendant no.2. Further, issue no.2 has also been decided against the Ravindra Kumar Gupta Vs. Varun Gupta & Ors. Page 35 of 36 C.S No. 60588/16 plaintiff. Accordingly, no cause of action for permanent injunction against defendant no.2 arise. Thus, this issue is decided against the plaintiff.
Relief
9. As issue no. 2, 4 and 5 are decided against the plaintiff, plaintiff is not held entitled for any relief under the present suit.
10. As a result the present suit is dismissed with no order as to costs.
11. Decree sheet be prepared accordingly.
12. File be consigned to Record Room.
Digitally signed by Announced through audio/video conference MEENU MEENU KAUSHIK KAUSHIK Date:
2021.03.04 On 03.03.2021 09:49:48 +0530 (Meenu Kaushik) Senior Civil Judge/ Rent Controller North West District Rohini Courts, Delhi 03.03.2021 Ravindra Kumar Gupta Vs. Varun Gupta & Ors. Page 36 of 36 C.S No. 60588/16