Delhi District Court
Sh. Laxmi Narayan vs Smt. Kala Devi on 10 May, 2018
IN THE COURT OF MS. COLETTE RASHMI KUJUR: JSCC:
ASCJ: GUARDIAN JUDGE (NORTH EAST) KKD COURTS,
DELHI.
Suit No. : 105136/15
In the matter of :
Sh. Laxmi Narayan
S/o Late Sh. Babu Lal
R/o A29, Gali No. 4,
West Karawal Nagar,
Delhi110094. ........Plaintiff
Versus
1.Smt. Kala Devi Widow of Late Sh. Mool Chand R/o H. No. 3147, Lal Darwaza, Sita Ram Bazar, Delhi110006.
2. Sh. Bhulay S/o Late Sh. Lakhi Singh R/o K94, Parihar Gali, Village Karawal Nagar, Delhi110094. ......Defendants Judgment CS No. 105136/15 Laxmi Narain vs. Kala Devi & Ors. Page 1 of 17 pages P Date of institution of the suit : 14.12.2014 Final Arguments Heard on : 04.05.2018 Date of Judgment : 10.05.2018 SUIT FOR PERMANENT INJUNCTION, MANDATORY INJUNCTION AND FOR DECLARATION JUDGMENT :
1. Plaintiff's case :
1.1 The plaintiff has filed the present suit for permanent injunction, mandatory injunction and for declaration against the defendant Kala Devi and Bhuley.
1.2 The brief facts of the case are that the plaintiff and defendant no.1 are brother and elder sister of each other. The plaintiff is an employee of Delhi Jal Board whereas the defendant no.1 is an employee of DESU. It is stated that defendant no.1 has retired from service.
1.3 Further, defendant no.2 is also residing in the same area as that of the plaintiff and that he has developed the colony in the area and sold several plots alongwith his brother Badley.Judgment CS No. 105136/15
Laxmi Narain vs. Kala Devi & Ors. Page 2 of 17 pages P 1.4 The plaintiff had also purchased a plot of 100sq yrd each from the defendant no.2 on 1st Mach 1987 and since then the plaintiff has been in uninterrupted and continuous possession of the suit property alongwith his family members. It is stated that the plaintiff is the sole and absolute owner of the property bearing no. A29, Gali no.4, West Karawal Nagar, Delhi94. It is stated that Defendant no.2 had executed documents like GPA, Agreement to Sell, affidavit and money receipt for Rs. 15,000/. However, the defendant no.2 has now colluded with defendant no.1 and conspired to illegally dispossess the plaintiff from half portion of the suit property.
1.5 It is stated by the plaintiff that he had given the documents to her for safe keeping and to avoid theft of the documents but now the defendant has refused to return the documents to him.
Rather she has agreed to return the documents only on the condition when the plaintiff would allow her to make a room in the plot. It is stated that on 8th Sep, 2010 defendant no.1 with her son and hired persons came to the suit property threatening to take possession of half of the property. A complaint has therefore been made with the DCP office, area police etc. It is further stated that defendant no.1 had approached the plaintiff in the year 1996 and had obtained signatures on 23 blank papers and also his photographs on the pretext of making him a witness on her service record. The plaintiff further states that Judgment CS No. 105136/15 Laxmi Narain vs. Kala Devi & Ors. Page 3 of 17 pages P during the pendency of previous suits the parties developed an understanding and agreed to return the documents and not to claim any share in the property, but since the same was not in writing, this settlement could not materialize.
1.6 It is stated that the plaintiff has got a good prima facie case therefore, the decree for permanent injunction may be passed to restrain the defendants their attorneys, agents, successors, representatives etc. from interfering in the peaceful possession and enjoyment of the suit property. The plaintiff has also sought return of the original title documents of the suit property i.e. A29, Gali no.4, West Karawal nagar, Delhi 94. That a decree of declaration may also be passed declaring the plaintiff as the absolute and rightful owner of the whole of the suit property. The plaintiff has sought that the documents executed for the sale of the half of the portion of the suit property be declared as null and void.
2. Defendants' Case :
2.1 Upon service the defendants appeared and filed a joint written statement. It was objected by the defendants that the present suit is not maintainable being barred under order II Rule 2 CPC as the plaintiff has filed a similar suit earlier and the present suit also relates to the same reliefs. Secondly, the documents sought for cancellation is Judgment CS No. 105136/15 Laxmi Narain vs. Kala Devi & Ors. Page 4 of 17 pages P beyond the pecuniary jurisdiction of this court. It was also objected that the suit is bad for misjoinder of parties as Bhuley is not a necessary party. Further Kala Devi is stated to have already disposed of her share of 50 sq yrd to Satpal. It is stated that the plaintiff has already disposed of 50 sq yrds to defendant no. 1 by virtue of GPA and all the original title deeds and is now refusing to rely on the documents. It is stated that the defendant is a senior citizen and has deaf and dumb children yet gave a consideration amount for the property. It is stated that the plaintiff has suppressed a material fact of withdrawal of the previous suit filed by him, with regard to ownership of Radha and with regard to the undertaking before the SHO and with regard to the construction of the property.
2.2 In his replication, the plaintiff has reiterated and reaffirmed his averments in the plaint and has denied the allegations made in the written statement.
3. Upon the completion of pleadings the following issues were framed:
(i) Whether the plaintiff is entitled for decree of permanent injunction as prayed for ? OPP
(ii) Whether the plaintiff is entitled for decree of mandatory injunction as prayed for? OPP Judgment CS No. 105136/15 Laxmi Narain vs. Kala Devi & Ors. Page 5 of 17 pages P
(iii) Whether the plaintiff is entitled for declaration as prayed for? OPP
(iv) Whether the suit is barred under Order II Rule 2 CPC?
OPD
(v) Relief.
4. For proving his case the plaintiff has examined 7 witnesses in all including himself.
5. Plaintiff's Evidence :
5.1 The plaintiff was examined as PW1. His evidence by way of affidavit is Ex PW1/A. He has relied upon site plan which is Ex.PW1/1, four photographs are marked as MarkA, MarkB, MarkC and MarkD (Ex.PW1/2A to Ex.PW1/2D are now deexhibited from the affidavit of evidence as they are not accompanied with the negatives), police complaint dated 09.09.2010 is Ex.PW1/3 (OSR), copy of police complaint dated 09.02.2014 is marked as MarkE (Ex.PW1/4 is now deexhibited from the affidavit of evidence as PW has not filed the original), copy of birth certificate of son of deponent namely Ricky is marked as MarkF (Ex.PW1/5 is now deexhibited from the affidavit of evidence as PW has not filed the original), copy of birth certificate of son of deponent namely Jagdish is Ex.PW1/6 (OSR), copy of electricity bill dated 06.10.2010 is marked as MarkG (Ex.PW1/7 is now deexhibited from the affidavit of evidence as PW Judgment CS No. 105136/15 Laxmi Narain vs. Kala Devi & Ors. Page 6 of 17 pages P has not filed the original), copy of ration card is Ex.PW1/8 (OSR), copy of voter ICard of deponent is marked as MarkH (Ex.PW1/9 is now deexhibited from the affidavit of evidence as PW has not filed the original), copy of receipt from Balaji Finance Company is marked as MarkI (Ex.PW1/10 is now deexhibited from the affidavit of evidence as PW has not filed the original), copy of I Card of the deponent issued by Delhi Jal Board is Ex.PW1/11 (OSR), copy of passbook is marked as MarkJ (Ex.PW1/12 is now deexhibited from the affidavit of evidence as PW has not filed the original), copy of caste certificate of Rickky is Ex.PW1/13 (OSR), copy of caste certificate of Manish is Ex.PW1/14 (OSR), certified copies of civil suit No. 432/10 titled as Laxmi Narayan Vs. Kala Devi & Ors. is Ex.PW1/15 (Colly.) (Ex.PW15I is now deexhibited from the affidavit of evidence as these documents are exhibited as Ex.PW1/15 collectively), certified copies of civil suit No. 329/10 titled as Kala Devi Vs. Laxmi Narayan is Ex.PW1/16 (Colly.) (Ex.PW1/16O is now deexhibited from the affidavit of evidence as these documents are exhibited as Ex.PW1/16 collectively), copy of GPA in favour of the deponent dated 26.07.1996 is now marked as MarkK, copy of agreement to sell dated 26.07.1996 is now marked as MarkL and copy of will deed dated 26.07.1996 is now marked as MarkM (Mark A to MarkC as referred in para 16 of affidavit is now deexhibited / Judgment CS No. 105136/15 Laxmi Narain vs. Kala Devi & Ors. Page 7 of 17 pages P demarked from the affidavit of evidence as these are already Marked in the examination in chief).
5.2 The witness was cross examined by the defendant counsel during which it is stated that he had purchased the suit property from Sh. Bhuley Singh on 01.06.1987 for a total sale consideration of Rs.15,000/. He denied the suggestion that Bhuley Singh had sold the suit property to Kala Devi and that Kala Devi has sold it to Satpal. He denied the suggestion that he had handed over the original documents to defendant no.1 as he had sold 50 sq yrd to the defendant no.1. the plaintiff denied knowledge of the fact that Radha Parihar is the owner of the 50 sq yrd.
5.3 PW2, Jal Singh , LDC, Election Commission of India, Biharipur Village, Near Police Training Centre, Navjeevan Vihar, Delhi110094 was summoned with record of electoral roll of 2017 of North East, Delhi after going through which it is stated that he cannot produce the old record to show when the plaintiff is voter of the area or whether he is a voter since 1987. The witness was discharged without being cross examined.
5.4 PW3 Vijay Kumar, KPO, BSES Yamuna Power Ltd., Bhagirathi Grid, Gokalpuri Division, Karawal Nagar, Delhi was summoned with the record of electricity connection of the plaintiff Judgment CS No. 105136/15 Laxmi Narain vs. Kala Devi & Ors. Page 8 of 17 pages P which was applied on 11.06.2008. According to his record the bill Mark G belongs to the present connection. The witness was also discharged with being cross examined.
5.5 PW4 Dinesh Kashyap tendered his evidence by way of affidavit which is Ex PW4/A. On being cross examined the witness states that he does not know the facts of the case. According to him the plaintiff is known to him for the last 2021 years. He did not know Kala Devi but had seen her visiting the house. He did not know whether the plaintiff had sold 50 sq yrd to Smt. Kala Devi. He also did not know whether the plaintiff has given the original documents to the defendant no.1 alongwith the transfer deed in respect of 50 sq yrd.
5.6 PW5 Anil Kumar, Inspector, Circle 70, Food and supplies Department, Yamuna Vihar, Delhi. According to him there is no ration card of the family of the plaintiff exists in respect of the property in question.
5.7 PW6 Sunil Manchanda, JA, Record Room (Civil), Karkardooma Courts, Delhi. He has brought the summoned record of CS no.432/2010 titled as Laxmi Narain Vs. Kala Devi. The witness was discharged without being cross examined.
Judgment CS No. 105136/15Laxmi Narain vs. Kala Devi & Ors. Page 9 of 17 pages P 5.8 Sh. Vineet Kumar Yadav, Clerk, Sub RegistrarI, North Zone, Shahdara, EDMC, Delhi PW6 could not produce the summoned record as the same was not available in his zone. The witness was discharged without being cross examined.
5.9 PW7 Shailendra Kumar Saraswat, sub registrar, Birth and death, City SP Zone, old Hindu college, cashmere gate, Delhi brought original birth record of Laxmi Narain where a correction had been made and Munna Lal was corrected to Laxmi Narayan.
5.10 Thereafter PE was closed and the matter was fixed for DE.
6. Defendants' Evidence:
6.1 The defendant only examined one witness Bhule Singh as DW1. His affidavit is Ex DW1/A. According to this witness he had sold the plot to the plaintiff on 01.06.1987 for a sum of Rs. 15,000/.
That he came to know in the year 1996 that 50 sq yrd out of the 100sq yrd was sold by the plaintiff to defendant no.1. It is stated in cross examination that the defendant no. 1 had been demanding some money which the plaintiff was unable to pay therefore he sold half of the plot to the defendant no. 1.
Judgment CS No. 105136/15Laxmi Narain vs. Kala Devi & Ors. Page 10 of 17 pages P 6.2 Thereafter DE was closed and the matter was fixed for final arguments.
7. Final Argument :
7.1 During the final arguments, the counsel for the plaintiff has argued that vide order dated 08.05.2014 both Satpal and Radha Parihar were impleaded as defendants. But the memo of parties is not on record. Factually the suit property was purchased by the plaintiff in the year 1987 from Bhule and is still in possession of the same.
One room has been built up on the property. Site plan is Ex.PW1/1. The photographs of the property and the site plan are not disputed by the defendants.
7.2 It is argued that an objection under Order II Rule 2 CPC was raised by the defendant, however, the same is not applicable as whole of the claim is included in the suit. The counsel for plaintiff has pointed out that the defendant states that 'Kabza' of the suit property has been taken but not explained as to who gave the possession, there is no possession letter either. DW1 has admitted the sale of the property but Kala Devi hereself has not appreared to depose to this effect.
7.3 The defendant submits that neither Kala Devi nor Bhule have any concern with the property as they have already sold the Judgment CS No. 105136/15 Laxmi Narain vs. Kala Devi & Ors. Page 11 of 17 pages P property. Further, the suit is bad for misjoinder of parties as the proposed defendants Satpal and Radha Parihar were never brought on record by furnishing an amended memo of parties. No Court fee has been paid for declaration of title. The defendant Kala Devi has already sold the property to Satpal and Satpal has further sold it to Radha parihar. However, they are not parties to the suit. The amendment was not carried out by the plaintiff in compliance of Court order. It is further argued that in the previous suit the plaintiff had sought return of documents and is now seeking cancellation of documents. This suit is therefore, also barred under Order II Rule 2 CPC.
7.4 The counsel has argued that the complaint was made to SHO on 28.04.2008 where the plaintiff has stated that the part of the suit property i.e. 50 sq. Yards was given to Kalawati whereas in the suit the plaintiff has alleged that defendant Kala Devi has taken portion of the suit property fraudulently. At the time of compromise Ex.PW1/7, even Radha Parihar was present and the plaintiff was well aware of the possession by Radha Parihar. Since the year 2013 the plaintiff did not come to the Court and in 2015 filed a case for permission to construct. The plaintiff can actually file only for injunction as res judicata comes into play.
Judgment CS No. 105136/15Laxmi Narain vs. Kala Devi & Ors. Page 12 of 17 pages P Issuewise Findings :
8. Issue no. (i) : Whether the plaintiff is entitled for decree of permanent injunction as prayed for ? OPP 8.1 The onus was upon the plaintiff to prove that he is entitled to permanent injunction to restrain the defendants, their attorneys, agents, successors, representatives etc. from interfering in the peaceful possession and enjoyment of the whole suit property i.e. A29, Gali No. 4, West Karawal Nagar, Delhi110094, comprising of 100 sq. yards, Khasra no. 17/18.
8.2 As per the plaintiff he is in possession of the suit property since its purchase in the year 1987. However, he is not in possession of the original documents. This avermnet is also admitted by DW1 who states that he sold the property to the plaintiff in the year 1987. However, DW1 further states that part of the property was sold to Kala Devi. Her documents were executed on 26.06.1996 for Rs.18,000/. Even as per PW3 electricity connection Ex.PW3/1 belongs to the plaintiff. Going by this statement, it is clear that plaintiff is in possession of only 50 sq. yards. The defendant has not appeared in the court to depose but only examined DW1. However, it is for the plaintiff to prove his case but the evidence produced is quite unsatisfactory. From the evidence adduced, it is clear that the Judgment CS No. 105136/15 Laxmi Narain vs. Kala Devi & Ors. Page 13 of 17 pages P plaintiff is neither in possession of 50 sq. yards out of 100 sq. yards nor has the original papers relating to it. Therefore, the palintiff is held to be not entitled to permanent injunction.
Issue no. (i) is decided against the plaintiff.
9. Issue no. (ii) : Whether the plaintiff is entitled for decree of mandatory injunction as prayed for? OPP 9.1 The plaintiff has sought the return of the documents i.e. original title documents of the suit property from defendant no. 1. However, he was unable to rebut the fact stated by Kala Devi that 50 sq. yards was sold to defendant no. 1 and that she has further sold it to Satpal and handed over the original documents to him. Although the parties were sougth to be impleaded. No amended memo of parties was filed nor any amendment to the prayer made. Clearly, the evidence led to prove this issue is also insufficient.
Issue no. (ii) is decided against the plaintiff.
10. Issue no. (iii): Whether the plaintiff is entitled for declaration as prayed for? OPP 10.1 In the absence of the original documents no such finding to declare the plaintiff as absolute owner of whole suit property can be Judgment CS No. 105136/15 Laxmi Narain vs. Kala Devi & Ors. Page 14 of 17 pages P given. Only an assumption to his ownership & possession to 50 sq. yards can be made on the basis of the statement of DW1.
Considering so, issue no. (iii) is decided against the plaintiff.
11. Issue no. (iv): Whether the suit is barred under Order II Rule 2 CPC? OPD 11.1 The defendants have argued that the pliantiff in his previous suit had sought only return of the documents while now he is seeking cancellation. Therefore, the suit is barred under provision of Order II Rule 2 CPC. The plaintiff has however, maintained that the whole of the claim has been sought therefore, the provision is not applicable.
11.2 Order II Rule 2 CPC stipulated that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but a plaintif may relinquish any portionof his claim in order to bring the suit within the jurisdiction of any Court.
11.3 In K. Palaniappa Geunder vs. Valiammal AIR 1988 Mad 156 three tests were laid down where plea of bar of the suit under Order II Rule 2 CPC has been taken, they are : Judgment CS No. 105136/15 Laxmi Narain vs. Kala Devi & Ors. Page 15 of 17 pages P
(a) Whether the cause of action in the previous suit and the subsequent suit is identical ?
(b) Whether the relief claimed in the subsequent suit could have been given in the prvious suit on the basis of the pleadings in the plaint ?
(c) Whether the plaintiff omitted to sue for a particular relief on the cause of action which has been disclosed in the previous suit ?
11.4 Since the plea under Order II Rule 2 CPC is a technical bar, it has to be established satisfactorily. It is for this reason that the plea can be established only if defendant files in evidence the pleadings of the former suit. The onus was upon the defendant to prove the present issue. It is unclear from the pleadings and the evidence whether the former suit was for the return of the original documents of the suit property executed in his favour only or it was filed also for the return of claim of ownership including papers dated 26.06.1996 executed in favour of the defendant. Only if the entire chain of documents were sought to be returned could the plaintiff have sought cancellation of documents executed in favour of the defendant. In the absence of such a prayer, it cannot be assumed that the entire claim was not included in the former suit.
11.5 Issue no. (iv) is decided against the defendant.
Judgment CS No. 105136/15Laxmi Narain vs. Kala Devi & Ors. Page 16 of 17 pages P
12. Relief :
12.1 Suit of the plaintiff is dismissed.
13. No order as to cost.
14. Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Digitally signedCOLETTE by COLETTE RASHMI KUJUR RASHMI Date: KUJUR 2018.05.10 16:53:02 +0530 Announced in the open court (Colette Rashmi Kujur) th on this 10 day of May, 2018 JSCC/ASCJ/G.Judge (NE) KKD Courts, Delhi. Judgment CS No. 105136/15 Laxmi Narain vs. Kala Devi & Ors. Page 17 of 17 pages P