Delhi District Court
Raj Kumar vs Naval Singh (Now Deceased) on 20 September, 2018
Raj Kumar v. Naval Singh
IN THE COURT OF MAYANK MITTAL: CIVIL JUDGE08 (CENTRAL),
ROOM NO.231, TIS HAZARI COURTS, DELHI
SUIT NO. : 595903/16 (OLD NO. : 270/16)
In the matter of :
Raj Kumar
S/o Late Sh. Ganesh Dass
Prop. M/s Gauri Steel & Raju
Building Materials, A133, Shakur Pur,
Delhi - 110 034
R/o B419, Rishi Nagar, Rani Bagh,
Delhi - 34. ...PLAINTIFF
VERSUS
Naval Singh (Now Deceased)
Through LRs:
1.Shanti W/o Late Naval Singh.
2. Lalit S/o Late Naval Singh.
3. Kiran Kumari W/o Late Suresh, Predeceased son of Late Naval Singh.
4. Sonia D/o Late Suresh, Predeceased son of Late Naval Singh.
CS No. : 595903/16 (old No. : 270/16) Pg 1 of 37
Raj Kumar v. Naval Singh
All R/o A - 133, Shakur Pur,
Delhi - 34.
5. Balbir Singh
S/o Late Sh. Naval Singh
H. No.36, Moti Bagh,
New Delhi - 110 021.
6. Shakuntla
W/o Sh. Pawan Kumar
D/o Late Naval Singh
R/o Village Bakarwala,
P.O. Mundka, Near Primary
School, New Delhi - 110 041.
7. Anita @ Anil
W/o Sh. Satish Kumar
D/o LateNaval Singh
H. No.1510, Sector - 6,
Bahadur Garh, Haryana. ...DEFENDANTS
Date of institution : 03.05.2001
Date of judgment : 20.09.2018
SUIT FOR MANDATORY INJUNCTION AS WELL AS
FOR PERMANENT INJUNCTION
J U D G M E N T
1. Vide this judgment, I shall dispose of the suit filed by the plaintiff for mandatory injunction as well as for permanent injunction.
CS No. : 595903/16 (old No. : 270/16) Pg 2 of 37
Raj Kumar v. Naval Singh
2. The facts necessary to dispose off the present suit as alleged by the plaintiff are that the plaintiff is a tenant in respect of one shop measuring 10x11 (ground floor) at premises No.A133, Shakurpur, Delhi - 110 034, which was let out to him by defendant on 28.07.1981 with some space below the staircase. At the time of letting out the said shop, specifically shown in red colour in the enclosed site plan, a sum of Rs.7,000/ was taken by defendant as security deposit and the rent was fixed at the rate of Rs.300/ per month. The said security deposit was adjusted in the monthly rent i.e. Rs.100/ per month. However, after adjustment of the said security deposit the rent was enhanced by the defendant from Rs.300/ per month to Rs.375/ per month. At present the rate of rent is Rs.525/ per month. The plaintiff regularly paid the rent upto 31 st January, 2000. Thereafter, the defendant refused to accept the rent. However, the application has been moved on for the deposit of the rent under Section 27 of the Delhi Rent Control Act. For the last few months, the defendant has been willing to dispossess the plaintiff from the suit shop and that was primary reason for not accepting the rent directly from the plaintiff with a view to create fictitious ground of eviction of the plaintiff from the suit premises. On 11.04.2001, the defendant tried to dispossess the plaintiff from the suit shop CS No. : 595903/16 (old No. : 270/16) Pg 3 of 37 Raj Kumar v. Naval Singh after breaking open the locks of the shop and removing the articles of the plaintiff from the suit shop. Consequently, an FIR being No.269/2001 under Sections 380/448/34 IPC within the jurisdiction of police station Saraswati Vihar, District North West, was registered by the Duty Officer HC Savitri Devi. The matter was investigated by the police officials and some of the articles of the plaintiff were recovered from the possession of the defendant. The defendant Naval Singh and his son Lalit Kumar were arrested in the said case and remained in custody for few days and thereafter were released on bail. That, however, the plaintiff got his locks repaired of the shop and started sitting in the shop after registration of the aforesaid case and arrest of the defendant and his son. The possession of the said shop was restored to the plaintiff with the help of police officials on the same day i.e. on 11.04.2001 itself. After coming from the custody of the defendant and his son, the situation has become bad to worst as the defendant and his son now have started openly threatening the plaintiff that they would eliminate the plaintiff and would get the possession of the shop forcibly. On 01.05.2001 at about 01:00 PM, when the plaintiff was sitting in the shop the defendant, his son and few other associates of themselves, came to the suit shop and tried to throw out the belongings/articles of the shop forcibly and CS No. : 595903/16 (old No. : 270/16) Pg 4 of 37 Raj Kumar v. Naval Singh unauthorizedly and tried to dispossess the plaintiff from the suit shop. The plaintiff raised alarm due to which the neighbours gathered on the spot and intervened into the matter and with great hectic efforts, the possession of the plaintiff could be saved and the defendant, his son and their associates left the place leaving a threat of coming again in a day or two and also threatened the plaintiff for dire consequences. The defendant, his son and their associates have left threat of forcibly dispossession of the plaintiff from the suit shop. The plaintiff, finding no alternative, approached the local police for help, but the police officials told that it being a civil matter, the plaintiff seek relief from the courts of law. Exactly one day prior to 07.09.2013, i.e. on 06.09.2013, the defendant forcibly dispossessed the plaintiff from the suit property despite there being a legal status quo order passed by the Hon'ble Court against the defendant. In this regard, an FIR bearing No.400 dated 06.09.2013 was lodged at police station Saraswati Vihar, North West, Delhi, against the defendant and his other family members. This clearly shows that the defendant had taken the possession forcibly of the suit property from the plaintiff during the pendency of the suit pending disposal before this Hon'ble Court. From the aforesaid facts and circumstances, it is crystal clear that the defendant was dispossessed from CS No. : 595903/16 (old No. : 270/16) Pg 5 of 37 Raj Kumar v. Naval Singh the suit premises unlawfully and illegally without following the due process of law, during the pendency of the present suit and hence the defendant is liable to be directed to immediately restore back the possession of the suit property to the plaintiff in its original position and condition in which it was in existence at the time of taking forcible possession of the same by the defendant from the plaintiff during the pendency of the present suit.
3. LR No.2 of Sh. Lalit Kumar, deceased defendant of Naval Singh has contested the suit of the plaintiff and had filed his written statement to the amended plaint filed by the plaintiff. It is stated in the written statement that the amended plaint/suit filed by the plaintiff is not maintainable and deserves dismissal as recently there has arisen no cause of action against the deceased defendant, who has already died long back on 14.08.2016 and the present suit has been filed against a dead person. It is further submitted that the plaintiff had already vacated the suit shop in question long long back in the second week of December, 1999 after receiving payment from the deceased defendant Late Sh. Nawal Singh and now in order to extort more money, the plaintiff has filed the present suit. It is submitted that the plaintiff was involved in a case under Section 302 of the IPC at Dehradun, Uttarakhand (at that time U.P) and as he was in dire need CS No. : 595903/16 (old No. : 270/16) Pg 6 of 37 Raj Kumar v. Naval Singh of money for contesting the said case, hence he took Rs.40,000/ from the deceased defendant Late Sh. Nawal Singh and vacated the shop in question. It is submitted that now the plaintiff has again become dishonest and wants to extort more money from the legal heirs of the deceased defendant by making false claims of his possession/tenancy in the shop in question and this shows the bad and malafide intentions of the plaintiff. The present suit filed by the plaintiff is not maintainable and deserves dismissal as the plaintiff has never been in possession of the suit property since second week of December, 1999 and under these circumstances, the suit for mandatory, permanent injunction or of any other nature is not maintainable. It is further submitted that on 08.05.2011 the Hon'ble Court was pleased to appoint a Local Commissioner to inspect the site and see as to which of the parties was in possession of the suit property. It is further submitted that the plaintiff could not open the shutter of the shop in question and it was the deceased defendant Late Sh. Nawal Singh who opened the said shutter and Late Sh. Nawal Singh was found in possession of the shop in question. The present suit filed by the plaintiff is not maintainable and deserves dismissal as the plaintiff has not come to the court with clean hands. It is submitted that on the day of Local Commissioner's inspection of CS No. : 595903/16 (old No. : 270/16) Pg 7 of 37 Raj Kumar v. Naval Singh the suit property, four boys came to the shop at around 11:30 PM. The wife of the deceased defendant Late Sh. Nawal Singh was sitting there. The said boys threatened the wife of Late Sh. Nawal Singh and claimed that the shop in question belonged to the plaintiff and they will now break the gates and shutter of the shop in question by illegally breaking the locks and throwing the household articles of the Late Sh. Nawal Singh from the said property and will dispossess them before the inspection could be carried out. They threatened her of her life and asked her to go inside. They break the locks of the shutter of the suit property and intended to throw away the goods of the deceased defendant present inside the shop in question but they were unable to fulfill their criminal activity as there were iron lock patties welded on the sides of the shutter. However, they put a board in front of the shop. The plaintiff using his influence managed the report of the Local Commissioner in his favour and the deceased defendant Late Sh. Nawal Singh had filed his objections to the said report. Since the vacation of the suit shop in second week of December, 1999, the deceased defendant Late Sh. Nawal Singh had been using the shop in question and after his death, his son Lalit Kumar has been using the shop in question as there exists another door/gate in the suit shop under the lock and key of the CS No. : 595903/16 (old No. : 270/16) Pg 8 of 37 Raj Kumar v. Naval Singh deceased defendant, which opens inside the house. The suit for permanent injunction is a suit in personam and this legal remedy ends when the defendant party dies. It is further submitted that the present suit has been filed against a dead person and suit against a dead person is not maintainable. It is further submitted that the defendant Late Sh. Nawal singh had already died on 14.08.2016 and still he has been arrayed as a party in this suit and the name of the legal heirs of the deceased defendant have not been mentioned anywhere in the suit. So this suit is not legally maintainable and deserves dismissal. The plaintiff has not come to the Hon'ble Court with clean hand and hence the suit deserves to be dismissed. It is submitted that the tenancy of the plaintiff ended when he took Rs.40,000/ from the deceased defendant Late Sh. Nawal Singh and voluntarily vacated the suit property in the year 1999. Hence, no right lies here with the plaintiff to look for a legal remedy and this suit shows the malafide and malicious intentions of the plaintiff to extract more money from Sh. Lalit Kumar. When the plaintiff realized that the case is going to be decided against him then only he moved an application under Order 6 Rule 17 of CPC and that too after an unreasonable and unexplainable delay. It is submitted that Sh. Lalit Kumar filed his affidavit of his evidence on CS No. : 595903/16 (old No. : 270/16) Pg 9 of 37 Raj Kumar v. Naval Singh 04.06.2013 in the Hon'ble Court along with certain photographs showing his exclusive possession over the shop in question whereas, on 06.09.2013 the plaintiff lodged a false FIR No.400.2013 at P.S. Shalimar Bagh, Delhi that Sh. Lalit Kumar has taken possession of the shop in question on 06.09.2013 despite the fact that the photographs of June, 2013 show the possession of Sh. Lalit Kumar prior to 06.09.2013. It is submitted that earlier also the plaintiff had lodged similar false FIR on 11.04.2001 vide FIR No.269/2001 that Sh. Lalit Kumar and his father had forcibly occupied the shop in question. It is submitted that though the plaintiff had vacated the shop in question in the year 1999 but still for the sake of arguments it is submitted that when the deceased defendant Late Sh. Nawal Singh had taken forcible possession of the shop in question on 11.04.2001 (as per claim of the plaintiff in FIR No.269/2001 lodged at PS Shalimar Bagh, Delhi) then how the possession of the shop in question was repossessed by Sh. Lalit Kumar on 06.09.2013, is beyond the imagination. It is submitted that to malifidely cover up that gap, the plaintiff has also procured some forged and fabricated alleged rent receipts from the sister in law of Sh. Lalit Kumar to show his alleged possession over the shop in question, which have no value in the eyes of law as it is Sh. Lalit Kumar, who is in exclusive CS No. : 595903/16 (old No. : 270/16) Pg 10 of 37 Raj Kumar v. Naval Singh possession of the shop in question and any other person, including the sister in law of Sh. Lalit Kumar has no right, title or interest in the same. It is submitted that the other documents like deposit receipts of some money with some departments like MCD etc. are also falsely procured by the plaintiff to lay a claim upon the shop in question without having the possession of the shop in question after the year 1999.
4. Plaintiff filed replication to the amended written statement of the defendants denying the case of the defendants; reiterating and reaffirming the case as set up by the plaintiff in the plaint.
5. From the pleadings of the parties, vide order dated 29.10.2002, following issues were framed for trial:
1. Whether plaintiff is entitled for the relief of permanent injunction regarding suit property against defendant? OPP
2. Whether suit of the plaintiff is not maintainable in the present for? OPD
3. Relief.
6. Vide order dated 07.06.2017, following additional issues were framed:
1. Whether plaintiff was in possession of CS No. : 595903/16 (old No. : 270/16) Pg 11 of 37 Raj Kumar v. Naval Singh the property in dispute earlier to 06.09.2013? OPP
2. Whether plaintiff was illegally dispossessed from the property in dispute? OPP
3. Whether plaintiff is entitled for the relief of mandatory injunction? OPP
7. For the sake of convenience, all the issues were reproduced hereunder:
1. Whether the plaintiff is entitled for the relief of permanent injunction regarding suit property against the defendant? OPP
2. Whether suit of the plaintiff is not maintainable in the present for? OPD
3. Whether plaintiff was in possession of the property in dispute earlier to 06.09.2013? OPP
4. Whether the plaintiff was illegally dispossessed from the property in dispute? OPP
5. Whether plaintiff is entitled for the relief of mandatory injunction, as prayed for? OPP
6. Relief.
8. In order to prove his case, plaintiff examined himself as PW1 who tendered CS No. : 595903/16 (old No. : 270/16) Pg 12 of 37 Raj Kumar v. Naval Singh his evidence by way of affidavit Ex.P1A. He relied upon the following documents:
1. Ex.PW1/1 to Ex.PW1/1 (Colly.) photographs of the suit property.
2. Ex.PW1/2 copy of newspaper Punjab Kesari dated 16.04.2001.
3. Ex.PW1/3 copy of newspaper Times of India dated 12.04.2001.
4. Ex.PW1/4 copy of challan for deposit of rent.
5. Ex.PW1/5 copy of challan for deposit of rent.
6. Ex.PW1/6 and Ex.PW1/7 copy of form 'C' for deposit of rent.
7. Ex.PW1/8 copy of order for the deposit of rent.
8. Ex.PW1/9 report of Local Commissioner.
9. Ex.PW1/10 and Ex.PW1/11 registration letter of shop.
10. Ex.PW1/12 copy of FIR No.269/01 P.S. Saraswati Vihar u/s 380/448/34 IPC.
11. Ex.PW1/13 court orders for release of articles.
12. Ex.PW1/14 receipt for purchase of new locks.
13. Ex.PW1/15 receipt for purchase of new counter.
14. Ex.PW1/16 and Ex.PW1/17 rent receipts.
15. Ex.PW1/18 and Ex.PW1/19 copy of sale tax letter.
16. Ex.PW1/20 copy of police complaint.
CS No. : 595903/16 (old No. : 270/16) Pg 13 of 37 Raj Kumar v. Naval Singh
17. Ex.PW1/21 rent agreement.
18. Ex.PW1/22 and Ex.PW1/23 police challan.
19. Ex.PW1/24 to Ex.PW1/25 summons to accused.
9. On 20.12.2017, the plaintiff was again examined himself as PW1 by way of additional affidavit (in continuation of earlier affidavit) Ex.PW1/B. He relied upon the following documents:
1. Ex.PW1/26 is an FIR dated 06.09.2013 bearing No.400 (objected to the mode of proof as this document is a photocopy)
2. Ex.PW1/27 (OSR) photocopy affidavit dated 06.11.2007 of Sh. Raj Kumar.
3. Ex.PW1/28 (OSR) photocopy of affidavit dated 26.08.2007 of Sh. Raj Kumar.
4. Ex.PW1/29 (OSR) photocopy of receipt dated 28.06.2008.
5. Ex.PW1/30 is deexhibited and is now marked as MarkA which is photocopy of demand draft dated 26.03.2008.
6. Ex.PW1/31 is deexhibited and is now marked as MarkB which is photocopy of affidavit of Sh. Raj Kumar dated 27.03.2008.
7. Ex.PW1/32 (OSR) photocopy of receipt dated 27.03.2008 in the name of Sh. Raj Kumar.
CS No. : 595903/16 (old No. : 270/16) Pg 14 of 37
Raj Kumar v. Naval Singh
8. Ex.PW1/33 is deexhibited and is now marked as MarkC which is photocopy of registration form.
9. Ex.PW1/34 is deexhibited and is now marked as MarkD which is photocopy of demand draft dated 27.03.2008 addressed to MCD commissioner.
10. Ex.PW1/35 (OSR) (Colly.) photocopy of rent receipts which are 17 in number.
10. No witness has been examined as PW2.
11. Plaintiff has also examined PW3 Sh. Ashok Singhal. He relied on the document already exhibited as Ex.PW1/14 in the examinationinchief of PW1.
12. Plaintiff has also examined PW4 Sh. Rajiv. He relied on the following documents:
1. Ex.PW4/1 to Ex.PW4/7 photographs of disputed premises.
2. Ex.PW4/8 bill of photographs.
3. Ex.PW4/9 negatives of photographs.
13. Plaintiff has also examined summoned witness PW5 HC Savitri, No.277 N.W.P.S. Parahant Vihar, Delhi. He had brought the original FIR and copy of the FIR is Ex.PW5/A (OSR).
CS No. : 595903/16 (old No. : 270/16) Pg 15 of 37
Raj Kumar v. Naval Singh
14. Plaintiff has also examined PW6 Sh. Ajay Jasra, Advocate. He had filed his report dated 14.05.2001 which was Ex.PW6/1 (total three pages) which bears his signatures at every page and his signatures on the last page is at point X. The rough report is Ex.PW6/2 (total twelve pages) which also bears his signatures at each and every page and at last page his signatures is at point Y.
15. Plaintiff has also examined summoned witness PW7 Sh. Azad Singh, HC, No.166/NW, PS Subhash Palace (earlier PS Saraswati Vihar). He had brought the original FIR No.269/01 registered in PS Saraswati Vihar, the photocopy of the same is exhibited as Ex.PW7/1 (total four pages) (OSR).
16. In rebuttal evidence, plaintiff has also examined PW8 Sh. Deepak Jain, who tendered his evidence by way of affidavit Ex.PW8/A. He relied upon the following documents:
1. Ex.PW8/1 his report dated 13.05.2018.
2. Ex.PW8/2 (Colly.) twenty one photographs.
17. On the other hand, defendant has also examined DW1 Sh. Lalit Kumar, who tendered his evidence by way of affidavit Ex.DW1/A. His affidavit is true and correct.
CS No. : 595903/16 (old No. : 270/16) Pg 16 of 37
Raj Kumar v. Naval Singh
18. I have heard the arguments and perused the record. Issue wise findings as follow: ISSUES NO.3 & 4 Whether plaintiff was in possession of the property in dispute earlier to 06.09.2013? OPP Whether the plaintiff was illegally dispossessed from the property in dispute? OPP
19. The burden of proving these issues was on the plaintiff. In order to discharge this burden, the plaintiff has examined himself as PW1. PW1 had reaffirmed and reiterated all the contents of his plaint/amended plaint. In his crossexamination, PW1 had stated that he has purchased cement from Sidhha Cement Pvt. Ltd. on 24.12.1994. PW1 had stated that he has not filed any proof that he had been running his business of Gauri Steel and Raju Building Material in the suit premises after December, 1999. PW1 volunteered that he has papers with him regarding the transaction after December, 1999. PW1 had admitted it to be correct that the case under Section 302 IPC was registered at Dehradhun in November, 1999. PW1 had denied the suggestion that he was arrested by police. PW1 had stated that he does not know the exact date on which he had surrendered but it CS No. : 595903/16 (old No. : 270/16) Pg 17 of 37 Raj Kumar v. Naval Singh was in November, 1999. PW1 had stated that he remained in judicial custody for about 2425 days. PW1 had stated that he had deposited the rent under Section 27 with Ld. ARC from 01.10.2000 to 30.04.2001. PW1 had stated that he had also deposited the rent thereafter but he had not brought any proof of the same. PW1 had stated that he does not remember since what time he had not deposited the rent in the court. PW1 had stated that he had also deposited the rent thereafter but he had not brought any proof of the same. PW1 had stated that he does not remember since what time he had not deposited the rent in court. PW1 had stated that he does not recollect the last time when he had deposited the rent in the name of the court or the date of hearing. PW1 had stated that defendant had got open the lock of his suit shop on 11.04.2001. PW1 had stated that two welding machines, tools for welding, drill machine, padestial fan, ceiling fan, 78 hammers, rickshaw, chair, counter etc. were missing from his shop. PW1 had stated that goods were recovered from his godown No.A182, Shakurpur from its staircase outside his godown. PW1 had stated that the aforesaid godown is in his name. It is admitted it to be correct by PW1 that all the three sites except the front side of his godown are covered with the property of others. PW1 had stated that the front side CS No. : 595903/16 (old No. : 270/16) Pg 18 of 37 Raj Kumar v. Naval Singh wall is approximately 6 feet in the height and there is also an iron gate which is 6 feet in height. PW1 had stated that goods were recovered from inside the gate by the police. PW1 had stated that welding set and drill machine are of 25, 50 kg of weight. PW1 had denied the suggestion that the above machines are more than 200 kg of weight. PW1 had stated that the measurement of the counter 5.5x3 feet approximately. PW1 had stated that counter was also found lying in his godown thrown over the gate. PW1 volunteered that it was found in front of godown in stairs inside the gate. PW1 had stated that when the Local Commissioner had gone at the spot then he opened the lock and he opened the shutter, however, the shutter was welded with shutter patti. PW1 had stated that before opening the shutter, the welding was broken and then only the shutter could be opened. PW1 had stated that defendant has not filed a suit for possession of the premises against him. PW1 had stated that some of the articles which were lying in his shop on 11.04.2001 were only recovered, rest of the articles were not recovered. PW1 volunteered that after vacating the suit premises, he had wrongly mentioned the fact in his affidavit that he had got repaired the locks. PW1 further volunteered that he had purchased new locks. PW1 had stated that he can bring the witness that he was CS No. : 595903/16 (old No. : 270/16) Pg 19 of 37 Raj Kumar v. Naval Singh threatened on 01.05.2001 by the defendant. PW1 had stated that one of such person was Sh. Budh Parkash. PW1 had stated that Budh Parkash resides at 56 streets distance. PW1 had stated that the house of Budh Parkash might be 500 meter away from the site in question. PW1 had stated that during the period of 11.04.2001, he had been running his shop and was working at the shop regularly. PW1 had stated that one day prior to the above date (11.04.2001), he remained present at the shop whole day and he had closed the shop in the evening by putting locks in it. PW1 had stated that on the next date i.e. 11.04.2001 when he had come in the morning to open the shop, he found that his locks were broken. PW1 had stated that on 11.04.2001 when he went to the shop he found Sh. Lalit and defendant sitting outside the shop and shutter was lying closed. PW1 had further stated that defendant did not allow to open the shop. PW1 had stated that police did not recover the goods at his instance. PW1 had stated that he does not have even a single document which shows that possession was restored back to him by the police. PW1 had admitted it to be correct that Smt. Kiran Kumari wife of Late Suresh has not appeared before this court till date. PW1 had stated that he does not know whether Smt. Kiran had filed any complaint against him regarding the document CS No. : 595903/16 (old No. : 270/16) Pg 20 of 37 Raj Kumar v. Naval Singh Ex.PW1/35 (Colly.). PW1 had admitted it to be correct that Sh. Lalit Kumar has filed his evidence by way of affidavit on 04.06.2013 before this court.
20. PW3 is Sh. Ashok Singhal. In his examinationinchief, he has stated that he has sold two locks to the plaintiff vide receipt No.574 dated 11.04.2001. In his crossexamination, PW3 had stated that he does not know where the locks were to be placed by the plaintiff.
21. PW4 Sh. Rajeev, who is photographer, who had stated in his examination inchief that he had taken the seven photographs of the disputed premises Ex.PW4/1 to Ex.PW4/7. In his crossexamination, PW4 had stated that he had not brought the cash memo which can show the entry prior and after payment receipt Ex.PW4/8. PW3 had stated that he can not say whether he can bring it or not. PW4 had stated that it might not be traceable because one year time had expired. PW4 had stated that there were number of people including plaintiff and defendant and many other persons to whom he does not know. PW4 had stated that the shop was already lying opened when he reached there and there were table and chair etc. PW4 had stated that he can not say to whom the articles belong.
22. PW6 Sh. Ajay Jasra was the Local Commissioner, who was appointed to verify the possession of suit property and to file his report. PW6 had stated CS No. : 595903/16 (old No. : 270/16) Pg 21 of 37 Raj Kumar v. Naval Singh in his crossexamination that he reached the spot at about 04:00 PM. PW6 had stated that he does not remember the colour of the shutter as it is a very old matter. PW6 had stated that the lock of shutter was opened by the keys which was in the possession of the plaintiff, however, the locks of the shutter was welded and same was removed by the defendant. PW6 had denied the suggestion that locks of the shutter were opened by the keys of defendant. PW6 had further denied the suggestion that there was lock of the defendant on the shop shutter alongwith locks of plaintiff. PW6 had stated that at the site he had taken the statement of Sh. Narender Mahajan as no one else present there to gave statement. PW6 had stated that he had not recorded the names of the person who were present there apart from plaintiff, defendant and counsel for plaintiff as there number was large. PW6 had stated that the scope of commission was limited hence he did not see any document either of plaintiff or defendant.
23. PW8 Sh. Deepak Jain is handwriting expert and fingerprint expert. PW8 had examined whether the disputed signature MarkQ1 and Q2 had been written by Sh. Naval Singh. PW8 had opined in positive. PW8 had admitted it to be correct that signature MarkA11 to A19 appended on the rent receipts of various dates were not part of the court record when he CS No. : 595903/16 (old No. : 270/16) Pg 22 of 37 Raj Kumar v. Naval Singh examined and took the photographs from the court record. PW8 had stated that he was told by the plaintiff that apart from the rent receipts appended in the court file there is bulk of rent receipts issued by Sh. Naval Singh in his possession and MarkA11 to A19 are part of those rent receipts. PW8 had admitted it to be correct that there is overwriting of retouching in the formation of the letter 'NA' in signature Q2. PW8 had admitted it to be correct that there is no gap in between the horizontal stroke and vertical stroke in formation of letter 'NA' in the signature Q2. PW8 had denied the suggestion that upper headline in signature Q1 and Q2 is almost straight. PW8 had further denied the suggestion that there is difference in the formation of upper headline as made in signature Q1 and Q2 in comparison to signature A1 to A6. PW8 had admitted it to be correct that the part showing word 'Singh' in signature Q1 and Q2 are different from signature A1 to A6. PW8 had admitted it to be correct that the science of handwriting comparison is a progressive science. PW8 had further admitted it to be correct that science of fingerprint examination is an exact science subject to condition like clarity of fingerprint.
24. In order to rebut the case and evidence brought by the plaintiff, defendant had examined Sh. Lalit Kumar as DW1. In his affidavit of examinationin CS No. : 595903/16 (old No. : 270/16) Pg 23 of 37 Raj Kumar v. Naval Singh chief, DW1 had reaffirmed and reiterated all the contents of written statement. In his crossexamination, DW1 had stated that he can identify the signature of his father. DW1 had further stated that the documents already exhibited as Ex.PW1/16 and Ex.PW1/17 were not signed by his father. DW1 had stated that no writing was executed at that time when the possession was taken by his father after giving Rs.40,000/ to the plaintiff. DW1 had stated that in 1999, he used to do the business of welding in the name and style of Lalit Steel Works from the same address as 133, Shakurpur Colony, Delhi - 34. DW1 had stated that he does not have any document of any nature to show that his father or he himself ever had Rs.40,000/ in cash available with them in 1999. DW1 had stated that he can identify the signature of his sister in law Smt. Kiran. DW1 had stated that after the death of Sh. Naval Singh, no partition had taken place among three sons i.e. his eldest brother, Sh. Balbir Singh, his second brother Sh. Suresh, himself and his sisters. DW1 had stated that receipt already exhibited as Ex.PW1/33 (Colly.) was not signed by his sister in law. DW1 had denied the suggestion that his father and he himself had forcibly dispossessed the plaintiff in 2001. DW1 had admitted it to be correct that an FIR was registered against him and his father for dispossessing the CS No. : 595903/16 (old No. : 270/16) Pg 24 of 37 Raj Kumar v. Naval Singh plaintiff from the suit shop. DW1 had admitted it to be correct that a criminal case qua the said FIR is pending in Rohini court. DW1 had admitted it to be correct that a Local Commissioner was appointed in the present matter who went to the spot. DW1 had further admitted it to be correct that his father was also present at that time of inspection of the suit property by the Local Commissioner. DW1 had stated that signature at point B on the rough report of the Local Commissioner which is Ex.DW1/10 are not of his father. DW1 had admitted it to be correct that Local Commissioner had inspected the complete suit shop. DW1 had stated that he did not prepare any rough report at the site and just went back after inspecting the suit premises. DW1 had stated that he does not remember whether at the time of visit of Local Commissioner, boards of plaintiff were fixed at the suit shop. DW1 had stated that only table and chair were lying in the suit shop and both belongs to the defendant. DW1 had stated that they had told this to the Local Commissioner. DW1 had stated that he does not know whether the Local Commissioner noted their submissions in his rough report. DW1 volunteered that no rough report was prepared by him at the time of site inspection. DW1 had stated that he know Sh. Narender Mahajan who has the business of Cable TV. DW1 had stated that his shop CS No. : 595903/16 (old No. : 270/16) Pg 25 of 37 Raj Kumar v. Naval Singh is in Srinagar and could be at a distance similar to the distance between the court No.241 and Tis Hazari Metro Station. DW1 had admitted it to be correct that shop of Sh. Narender Mahajan is visible in photograph Ex.PW 4/1 to Ex.PW4/3 with the board of Mahajan TV Repair and his shop is visible with the board of Lalit in the abovementioned photograph. DW1 had admitted it to be correct that suit shop is between the shop of Mahajan TV Repair and his own shop. DW1 volunteered that between Mahajan TV Repair and suit shop is a staircase. DW1 had stated that he does not have any other objection except the rough report was not prepared at the site with regard to the report of the Local Commissioner. DW1 had stated that at the time of visit of Local Commissioner, they all were present at the site i.e. he himself, his father and some spectators were also present at the time of inspection of suit premises. DW1 had stated that they had participated in the proceedings of Local Commissioner. DW1 had stated that they had removed all the welding done by them of the shutter at the request of LC.
25. It is on the basis of abovesaid pleadings and evidence discussed substantially above, the counsel for both the parties have advanced their final arguments and counsel for plaintiff has also filed written submissions. Consideration of all pleadings, evidence and arguments makes it clear that CS No. : 595903/16 (old No. : 270/16) Pg 26 of 37 Raj Kumar v. Naval Singh there is no denial of the fact that to begin with the plaintiff was the tenant of Late Sh. Naval Singh and it is the claim of defendant that plaintiff was in need of money because of a criminal proceeding against him due to which plaintiff had taken Rs.40,000/ from Late Naval Singh and vacated the suit property on his free will in December, 1999. The claim of the plaintiff is that plaintiff has never surrendered the tenancy in December, 1999 and defendant Late Naval Singh alongwith his son Sh. Lalit Kumar had tried to dispossess the plaintiff on 11.04.2001 when defendant had broke open the locks of suit property. It is further claim of plaintiff that in pursuance of incident dated 11.04.2001 an FIR No.269/2001 was registered against defendant and his son Sh. Lalit Kumar and during investigation goods of plaintiff were recovered and police has also restored the possession of plaintiff on the date of incident itself i.e. 11.04.2001. However, plaintiff has not filed any document for the purposes of showing the proceedings undertaken by police by way of which the possession of plaintiff was restored to the plaintiff on 11.04.2001. It is pertinent to mention that plaintiff has exhibited and proved a document Ex.PW1/20 which is a letter written to SHO PS Saraswati Vihar by plaintiff himself. This document in itself is important keeping in view that by way of this letter, the plaintiff had written CS No. : 595903/16 (old No. : 270/16) Pg 27 of 37 Raj Kumar v. Naval Singh about the proceedings of 11.04.2001 to the SHO PS Saraswati Vihar. The closeness to the date of incident i.e. 11.04.2001 makes this letter important and reliable. Perusal of this letter reveals that plaintiff had written to the SHO in the third line that on 11.04.2001, defendant and his son Sh. Lalit Kumar had broken the locks of plaintiff's shop forcibly and regarding which a report had been registered with FIR No.269/01. It is further stated in the said letter that after the date of incident i.e. 11.04.2001, the ladies in the family of Sh. Naval Singh and Sh. Lalit Kumar is threatening the plaintiff that if the plaintiff goes to open his shop, they will torn their clothes and will get the plaintiff implicated in some false cases. It is further mentioned in this letter that defendant and his sons had put their bed in front of the shutter of the shop in question which is resulting in inconvenience to the plaintiff in opening the shop. It is pertinent to point out that in letter Ex.PW1/20, plaintiff had not written a single word to SHO PS Saraswati Vihar that after registration of FIR on 11.04.2001, the possession of the suit property was restored to the plaintiff with the help of the police. To the same effect is the language of FIR Ex.PW1/26 got registered at the instance of plaintiff in pursuance of alleged incident dated 06.09.2013. In that FIR Ex.PW1/26, it has been reported by the plaintiff to the SHO PS Saraswati Vihar that an CS No. : 595903/16 (old No. : 270/16) Pg 28 of 37 Raj Kumar v. Naval Singh FIR No.269/01 under Section 448/380/411/34 IPC had been registered against Sh. Naval Singh and his son Sh. Lalit and regarding which trial is going on in Rohini court. It is further mentioned in the contents of FIR which has been recorded at the instance of plaintiff that in the civil suit in respect of the incident dated 11.04.2001 the Local Commissioner had filed a report dated 08.05.2001 who had shown the possession of plaintiff over the suit property. In this FIR also, not a single word has been mentioned that in pursuance of registration of FIR No.269/01, the possession of suit property had been restored to the plaintiff. Plaintiff had not himself brought any witness or proved any document showing that in pursuance of registration of FIR No.269/01 dated 11.04.2001, the possession of suit property has been restored to the plaintiff.
26. Apart from the document Ex.PW1/20 and Ex.PW1/26, it is also pertinent to mention that plaintiff has stated in his crossexamination that after the alleged incident of 11.04.2001, the number of goods alleged to have been stolen by the defendant from his shop on 11.04.2001, were recovered from his own godown No.A182, Shakurpur from its staircase outside his godown. The plaintiff had himself admitted that said godown is covered from the property of others from three sides and fourth side has wall of six CS No. : 595903/16 (old No. : 270/16) Pg 29 of 37 Raj Kumar v. Naval Singh feet and also a iron gate which is also of six feet in height. Plaintiff had stated in his crossexamination that goods were recovered from inside the gate by the police. Plaintiff has himself stated that welding set, drill machine are of 25 and 15 Kg weight respectively and a counter of 5.5X3 feet approximately in size was also lying in his godown thrown over the gate. The fact that counter of 5.5X3 feet measurement was found inside the godown of plaintiff and plaintiff has nowhere stated in his crossexamination that the said counter was in a broken condition or the welding set and drill machine of 25 kg and 15 kg weight was found in broken condition, which gives only a single inference that said goods have been placed in a proper way inside the said godown. There can not be imagined any possibility of throwing these goods from above the wall or gate of six feet height and there being found in intact conditions. The fact that goods were found from the godown of the plaintiff himself and also the fact that goods were found in intact condition as plaintiff has nowhere stated either in his pleadings or in evidence that goods were in broken or in destroyed condition, gives the inference that defendant or his son has not stolen and thrown those goods into the godowns of plaintiff.
27. On 08.05.2001 Local Commissioner visited the suit property in pursuance CS No. : 595903/16 (old No. : 270/16) Pg 30 of 37 Raj Kumar v. Naval Singh of order of this court regarding the inspection of suit property and verification of possession. The rough report filed by Local Commissioner which had been exhibited as Ex.DW1/10 and the report of Local Commissioner filed by the Local Commissioner is exhibited as Ex.PW6/1 make it clear that both plaintiff and defendant had signed the rough report at first page, however, at the end of rough report of Local Commissioner only plaintiff had signed. It is stated by the Local Commissioner that defendant had refused to put his signature at the conclusion of report. As per this report, the locks of the suit shop was opened by the keys provided by the plaintiff, however, despite opening the locks, the shutter could not be opened as shutter was welded with lock patti by the defendant and on being asked from the defendant to remove the lock patti, the defendant had removed the lock patti and after which the shutter was opened. The Local Commissioner has concluded his report with observation that as the keys of the locks placed on the said shutter was with the plaintiff, the plaintiff was in the possession of the suit property on 08.05.2001. In this regard, it is pertinent to mention that defendant had filed objections to this report of Local Commissioner, whereby it has been objected that Local Commissioner had exceeded the scope of commission and had reported CS No. : 595903/16 (old No. : 270/16) Pg 31 of 37 Raj Kumar v. Naval Singh the statement of one Sh. Narender Mahajan, though, Local Commissioner was not authorized to record that statement. It has also been objected on behalf of defendant that Local Commissioner has refused to record the statement of Smt. Shanti Devi wife of defendant about the fact that four boys came to the spot and had given threat of killing to Smt. Shanti Devi and broken open the locks of shutter and put their own locks and also put the board outside the shop. The defendant had mentioned the fact of visit of four boys on the day of inspection and alleged fact of threats given by them to Smt. Shanti Devi and breaking open the locks of suit shop and placing their own locks as well as the placing of their board outside the suit shop in his amended written statement as well as affidavit of examinationinchief, however, defendant had not been crossexamined by the counsel for plaintiff on the aspect of incident of visit of four boys on the date of inspection of suit premises by the Local Commissioner. Not even a suggestion to negate the said incident had been given by the counsel for plaintiff to Sh. Lalit Kumar DW1 from which a inference can be drawn that said incident had been admitted on behalf of plaintiff. This admission is to be considered alongwith the fact that plaintiff had mentioned in his original plaint, amended plaint as well as in the affidavit of examinationinchief that CS No. : 595903/16 (old No. : 270/16) Pg 32 of 37 Raj Kumar v. Naval Singh after the alleged incident of 11.04.2001, the plaintiff got his locks repaired, however, in his crossexamination dated 02.11.2004, the plaintiff had stated that he had wrongly mentioned in his affidavit that he had repaired the locks and it is correct that he had purchased the new locks. A witness PW3 has also been examined to prove the purchase of lock. When these facts are considered together, a inference can be drawn that plaintiff purchased new locks and got placed them on the shutter through four boys on the date of visit of LC.
28. It is also pertinent to mention that Sh. Narender Mahajan had come out of number of persons to give a statement before the Local Commissioner regarding the possession of plaintiff over the suit property, however, no steps have been taken on behalf of plaintiff to get Sh. Narender Mahajan examined as a witness before this court nor any explanation was given as to why Sh. Narender Mahajan was not called as a witness for the purposes of proving the continuous possession of the suit property by the plaintiff. Apart from it, it has been the claim of plaintiff that plaintiff is continuing possession of said suit shop and running his business from the alleged suit shop, however, no proof of either possession of suit shop after 2001 has been filed by the plaintiff nor any proof of carrying on business from the said CS No. : 595903/16 (old No. : 270/16) Pg 33 of 37 Raj Kumar v. Naval Singh suit shop has been filed by the plaintiff. The plaintiff has not even bothered to examine Smt. Kiran Kumari who is wife of Late Sh. Suresh (daughter in law of Sh. Naval Singh and sister in law of Sh. Lalit Kumar) to whom the plaintiff has allegedly paying the rent of the suit shop against rent receipt from 05.09.2006 onwards till 31.03.2008 for the purposes of proving that plaintiff was in possession of suit shop at the relevant period of which the rent receipts had been filed on behalf of plaintiff allegedly executed by Smt. Kiran Kumari.
29. For the purposes of proving his possession over the suit property after December, 1999, the plaintiff had placed on record the rent receipts allegedly issued by Late Sh. Naval Singh in favour of plaintiff dated 07.12.1999 and 07.01.2000 and both rent receipts had been put to the DW 1 during crossexamination who had refused to recognize the signature of Late Sh. Naval Singh on the rent receipts. In his rebuttal evidence, the plaintiff had examined handwriting expert who had compared the signatures of Sh. Naval Singh on the rent receipts as well as signatures of Sh. Naval Singh on the pleadings as well as vakalatnama filed on behalf of Sh. Naval Singh. Though, the handwriting expert had opined that signature Mark Q1 and Q2 are of the same person and these signatures are same as CS No. : 595903/16 (old No. : 270/16) Pg 34 of 37 Raj Kumar v. Naval Singh signatures on the rent receipts, however, from seeing from naked eye it becomes clear that though signature Mark Q1 and Q2 are same, however, these signatures are not same as signatures MarkA1 to A10. These signatures i.e. MarkQ1 and Q2 are not even similar to signature MarkA11 to A19. The third letter in the first name in signature Q1 and Q2 are totally different from the third letter in signature marked A1 to A10. The way in which surname of the defendant is written in signature marked Q1 and Q2 is also totally different from the way in which surname of the defendant is written in signature marked A1 to A10. In signature marked Q1 and Q2, the letters are attached with the upper horizontal line, however, in signature marked A1 to A10, the letters are at some distance from upper horizontal line similarly signature Q1 and Q2 do not match at all with signature A11 to A19. The difference in the signature MarkQ1 and Q2 from signature A1 to A19 is that much glaring that no specific and special education or training is required to differentiate these signatures. As signature of Sh. Naval Singh on the pleadings, vakalatnama as well as receipts filed on behalf of plaintiff alongwith report Ex.PW8 do not match with the alleged signature of Sh. Naval Singh on rent receipt dated 07.12.1999 and 07.01.2000, it can not be said that those rent receipts dated 07.12.1999 and 07.01.2000 had been CS No. : 595903/16 (old No. : 270/16) Pg 35 of 37 Raj Kumar v. Naval Singh issued by Late Sh. Naval Singh to plaintiff on receiving of rent of the suit property.
30. In view of the abovesaid discussion, it can not be said that plaintiff was in possession of suit property at any time after December, 1999. The plaintiff has not been further able to prove any alleged restoration of possession of the suit property by police to the plaintiff on 11.04.2001. Consequently, it can not be said that plaintiff was in possession of suit property on 06.09.2013. Accordingly, it can not be said that plaintiff had been dispossessed from the suit property illegally on 06.09.2013.
31. These issues are decided against the plaintiff. ISSUES NO.1 & 5
Whether the plaintiff is entitled for the relief of permanent injunction regarding suit property against the defendant? OPP Whether plaintiff is entitled for the relief of mandatory injunction, as prayed for? OPP
32. The burden of proving these issues was on the plaintiff. In pursuance of finding of this court with respect to issues No.3 and 4 as plaintiff was not in possession of suit property at any time after December, 1999, these issues are decided against the plaintiff.
CS No. : 595903/16 (old No. : 270/16) Pg 36 of 37
Raj Kumar v. Naval Singh
ISSUE NO.2
Whether suit of the plaintiff is not maintainable in the present for? OPD
33. The burden of proving these issues was on the defendant. On the basis of evidence and arguments of the parties, it becomes clear that plaintiff was not in possession of suit property after December, 1999. Accordingly, it has been proved that there was no cause of action for filing the suit for possession or permanent and mandatory injunction. Issue is decided in favour of defendant.
RELIEF
34. In view of the discussion on the issues hereinabove, the suit of the plaintiff is dismissed. Plaintiff is burdened with cost of Rs.15,000/ to be paid by the plaintiff to the defendant.
Decree sheet be prepared accordingly.
File be consigned to Record Room. Digitally signed
by MAYANK
MITTAL
MAYANK Date:
MITTAL 2018.09.22
17:16:45
+0530
Announced in the open court (MAYANK MITTAL)
on 20.09.2018 Civil Judge - 08 (Central)/Delhi
CS No. : 595903/16 (old No. : 270/16) Pg 37 of 37