Delhi District Court
Smt. Meenakshi Arora vs Ms. Sunita Rani on 3 February, 2015
IN THE COURT OF SHRI RAJ KUMAR: ADDL. DISTRICT
JUDGE09: TIS HAZARI COURTS : DELHI
Suit No. 717/2014(Old suit no.1060/08)
Unique Case ID No. 02401C424052008
1. Smt. Meenakshi Arora,
W/o Sh. Parmod Kumar,
R/o C7/50, Yamuna Vihar,
Delhi110053
2. Sh. Pramod Kumar,
S/o Late Sh. Charanjeet Arora,
R/o C7/50, Yamuna Vihar,
Delhi 110053 ........... Plaintiffs.
VERSUS
1. Ms. Sunita Rani
W/o Sh. Sunil Kumar,
R/o C199, Sarvodhya Enclave,
First Floor, Near I.I.T. Gate,
New Delhi
2. Sh. Sunil Kumar,
S/o Sh. Tej Bhan,
R/o C199, Sarvodhya Enclave,
First Floor, Near I.I.T. Gate,
New Delhi ......... Defendants.
Suit No. 717/14(Old suit no.1060/08) No. 1/23
Date of institution of the suit : 20.12.2008
Date on which order was reserved : 23.01.2015
Date of decision : 03.02.2015
SUIT FOR REOVERY OF POSSESSION, PARTITION ,
DAMAGES, MESNE PROFITS AND CONSEQUENTIAL RELIEF
OF PERMANENT INJUNCTION
JUDGMENT
The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint are that the plaintiff no. 1 and the defendant no.1 are the joint owners of the shop bearing no. G16, measuring 15' x 10' situated at Bhanot Plaza1, Desh Bandhu Gupta Road, Pahar Ganj, New Delhi (hereinafter called the suit property which is clearly shown in red colour in the site plan). It has been further stated that the plaintiff no.2 and the defendant no.2 were jointly doing business of interior decoration work since 1998. It has been further stated that the differences arose in between the plaintiffs and the defendants as a result of which the shop in question was locked and the goods/articles remained in the said shop. It has been further stated that as per the mutual understanding, the key of the shop was in the possession of the plaintiffs with the understanding that unless and until, the differences were resolved, the shop will remain locked. It has been further stated that in the month of July 2007, the defendants tried to break open the lock of the shop in question and the plaintiffs gave a call at 100 number to the local Suit No. 717/14(Old suit no.1060/08) No. 2/23 police as a result of which, a kalandra U/s 107/150 of the Cr.PC was lodged. It has been further stated that the defendants on 05.12.2008, again tried to break open the locks of the shop in question. The plaintiffs have alleged that on 12.12.2008, the defendants committed the theft in the shop by breaking the locks of the plaintiffs at about 6 pm and took away various articles i.e 500 kg, Aluminium Section wire worth Rs. 85,000/, 2000 kg. Rubber gaskets worth Rs. 2,30,000/, Silicon Sealant 200 Pockets worth Rs. 90,000/, MS Bracket 70 piece worth Rs. 10,500/ and two wooden cabinet worth Rs. 25,000/. It has been further stated that a call at 100 number to the police was given by the friend of the plaintiffs informing about the theft. It has been further stated that on 12.12.2008, the defendants have illegally and unlawfully trespassed into the suit property and since then, the suit property is in unauthorized use and occupation of the defendants. It has been further stated that the defendants are liable to pay the damages/mesne profits to the plaintiffs wef 12.12.2008 @ Rs. 1,000/ per day. It has been further stated that the defendants may sell or transfer the suit property to anyone and hence the present suit.
2. On the basis of the abovesaid allegations, as contained in the plaint, the plaintiffs have prayed for a preliminary decree of Partition of the shop in question. The plaintiffs have also prayed for a final decree of Partition and a decree for recovery of possession as well. The plaintiffs Suit No. 717/14(Old suit no.1060/08) No. 3/23 have also prayed for the relief of the damages/mesne profits wef 12.12.2008 @ Rs. 1,000/ per day. The plaintiffs have also prayed for a decree of Permanent Injunction restraining the defendants and their agents etc. from selling, transferring, alienating or parting with the possession of the suit property. The plaintiffs have also prayed for the costs of the suit.
3. Written statement has been filed on record by the defendants stating therein that the present suit is without any cause of action and the plaintiffs have concealed the material facts from this Court. It has been further stated that the suit of the plaintiffs is based upon the false and fabricated documents and as such, the plaintiffs are liable to be prosecuted U/s 340 of the Cr.PC. The defendants have taken the stand that the present suit has been filed with a view to grab the money of the defendant no.2 which was misappropriated by the plaintiff no.2 from the firm M/s S.P.M. Projects Pvt. Limited where the plaintiff no.2 is one of the Director having 10% share in the firm. The defendants have further stated that the plaintiff no.2 has diverted and secured business of the firm causing damages and loss more than Rs. 40 lacs by diverting the funds to M/s Sunder Decor, the other firm where he later joined as a partner. It has been further stated that the plaintiffs have filed the present suit with a view to create pressure on the defendants to avoid the payment of the funds, misappropriated by him from the firm M/s S.P. M. Projects Pvt.
Suit No. 717/14(Old suit no.1060/08) No. 4/23 Limited. It has been further stated that the present suit has not been valued properly for the purposes of the Court fees and jurisdiction as the value of the shop in question is more than Rs. 25 lacs and the value of the mesne profits as claimed by the plaintiffs is more than Rs. 4 lakhs. The defendants have denied that the plaintiff no.1 and the defendant no.1 are the joint owners of the shop in question. It has been further stated that the defendant no.2 is the exclusive owner of the suit property which was purchased by the defendant no.2 from his own hard earned money. It has been further stated that the defendant no.2 took the possession of the shop in question on 01.10.2003 from its previous owner along with builder documents who executed all the necessary documents in favour of the defendant no.2. It has been further stated that M/s Infinity International is exclusively under the control of the defendant no.1 and she is doing her business at the property in question since its possession on 01.10.2003. It has been further stated that the defendant no.1 alone has been running the business smoothly from the shop in question and neither the plaintiffs nor anyone else has any concern with the shop in question. It has been further stated that on 04.04.2007, the plaintiff no.2 tried to create scene over the shop and the same was stopped by the police. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiffs be dismissed with costs.
4. Replication has been filed on record by the plaintiffs Suit No. 717/14(Old suit no.1060/08) No. 5/23 reiterating and reaffirming the stand as taken by the plaintiffs in the plaint and denying the contents of the written statement filed by the defendants.
5. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide orders dated 16.11.2010.
1) Whether the present suit has not been valued properly for the purposes of the court fees and jurisdiction? OPD
2) Whether the plaintiff has no right, title or interest in the suit property i.e shop bearing no. G16, measuring 15' x 10' situated at Bhanot Plaza1, Desh Bandhu Gupta Road, Pahar Ganj, New Delhi? OPD
3) Whether the plaintiff is entitled for a decree of partition in respect of the suit property? OPP
4) Whether the plaintiff is entitled for recovery of possession of the suit property? OPP.
5) Whether the plaintiff is entitled for a decree of permanent injunction, as prayed for in the plaint? OPP.
6) Whether the plaintiff is entitled to claim mesne profits from the defendants? If so, at what rate and for which period?OPP.
7) Relief.
Suit No. 717/14(Old suit no.1060/08) No. 6/23 EVIDENCE :
6. The plaintiff no.1 has examined herself as PW1 and in her evidence by way of affidavit, she has reiterated and reaffirmed the stand as taken by the plaintiffs in the plaint. She has filed on record her evidence by way of affidavit as Ex. PW1/A, site plan as Ex.PW1/1, original GPA dated 19.03.2004 as Ex.PW1/2, Agreement to sell dated 19.03.2004 as Ex.PW1/3, Will dated 19.03.2004 as Ex.PW1/4, Receipt dated 19.03.2004 as Ex.PW1/5, Possession Letter as Ex.PW1/6, complaints to the police as mark A and B.
7. The plaintiff no.2 has examined himself as PW2 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the plaintiffs in the plaint.
8. The defendant no. 2 Sh. Sunil Kumar has examined himself as DW1 and in his evidence by way of affidavit Ex. DW1/A on record, he has reiterated and reaffirmed the stand as taken by the defendants in the written statement. This witness has filed on record the Agreement to Sell dated 04.02.2004 as Ex.PW1/A and the Possession Letter dated 01.10.2004 as Ex. PW1/C, the payment details/preceed as mark X.
9. The defendant no.1 i.e the wife of the defendant no.2 has examined herself as DW1(wrongly numbered as DW1) and in her evidence by way of affidavit, she has reiterated and reaffirmed the stand as taken by the defendants in the written statement.
Suit No. 717/14(Old suit no.1060/08) No. 7/23
10. The detailed testimonies of these witnesses shall be discussed in the later part of this judgment.
11. I have carefully gone through the entire material available on record and heard the rival submissions of Ld. counsels for both the parties.
12. My issuewise finding on the abovesaid issues is as under:
Issue No.1 :
13. The onus to prove this issue has been placed upon the defendants. The defendants, in their written statement, have taken an objection that the suit shop is having the value of Rs. 25 lacs and as such, the present suit has not been valued properly for the purposes of the Court Fees and jurisdiction.
14. The plaintiffs have filed the present suit for Partition, Possession, Mesne Profits and Permanent Injunction and have valued the present suit at Rs. 9 lakhs for the share of the plaintiff no.1 in the present suit property. Both the defendants, who have examined themselves as DW1 in their cross examination have not denied the execution of the documents Ex.PW1/2 to Ex.PW1/6. The said documents are Registered GPA, Agreement to Sell, Registered Will, Affidavit, Receipt and Possession Letter, all dated 19.03.2004. As per the receipt for consideration, the suit property was purchased for an amount of Rs. 8.55 lacs. DW1 Sh. Sunil Kumar, in his crossexamination states that he Suit No. 717/14(Old suit no.1060/08) No. 8/23 purchased the suit property for a total sum of Rs. 8.55 lacs. Smt. Sunita Rani, the wife of Sh. Sunil Kumar, also categorically admits in her cross examination that the suit property was purchased for an amount of Rs. 8.55 lacs. As such, I am of the opinion that the defendants have failed to establish on record as to how the present suit has not been valued properly for the purposes of court fees and jurisdiction. Accordingly, issue no.1 is decided against the defendants and in favour of the plaintiffs.
Issues no.2 to 6 :
15. All these issues are taken up together as the same are connected interse and overlap each other. Issue no.2 relates to the objections of the defendants as contained in their written statement and as such, the onus to prove this issue has been placed upon the defendants.
Issues no. 3 to 6 relate to the prayer clause of the present suit and as such, the onus to prove the said issues has been placed upon the plaintiffs.
16. The factual controversy has already been narrated herein above. During the course of the final arguments, Ld. Counsel for the plaintiffs has argued that the plaintiffs have been able to prove their case. Whereas, on the other hand, Ld. Counsel for the defendants has vehemently argued that the property in question exclusively belongs to the defendant no.2. It has been further argued that on the basis of the GPA and the documents which have been relied upon by the plaintiffs, the ownership cannot be conferred. It has been further argued that the Suit No. 717/14(Old suit no.1060/08) No. 9/23 seller of the property in question has not been examined by the plaintiffs. It has been further argued that the property in question is under the exclusive possession of the defendant no.2. It has been further argued that the plaintiffs have utterly failed to prove their case.
17. The plaintiffs have relied upon the documents Ex.PW1/2 to Ex.PW1/6 i.e the Registered GPA, Agreement to Sell, Registered Will, Affidavit, Receipt and Possession Letter all dated 19.03.2004. The plaintiffs have taken the stand that the property in question, is jointly owned by the defendant no.1 and plaintiff no.1 by virtue of the abovesaid documents. Whereas, on the other hand, the defendant no.2 has placed on record the Agreement to Sell dated 04.02.2004 Ex.DW1/A on record and the Possession Letter dated 01.10.2003 Ex.PW1/C on record. Except the abovesaid two documents, no documents have been placed on record by the defendants at all to show that the property in question was purchased by the defendant no.2. Both the abovesaid documents are unregistered documents. The question is as to whether the plaintiffs have been able to prove their case or as to whether the defendant no.2 has been able to prove the case of the defendants to the effect that the property in question was exclusively purchased by the defendant no.2 by virtue of the Ex.DW1/A and Ex.DW1/C on record.
18. In the crossexamination, Sh. Sunil Kumar i.e the defendant no.1 has admitted it to be correct that the Agreement to Sell executed on Suit No. 717/14(Old suit no.1060/08) No. 10/23 19.03.2004 was duly executed by Sh. Kamal Kumar Sharma in favour of Smt. Sunita Rani and Ms. Meenkashi Arora and the same bears the signatures of Sh. Kamal Kumar Sharma as a seller, the signatures of Smt. Sunita Rani and Ms. Meenkashi Arora as a purchaser and his signatures as well in the capacity of a witness. By way of volunteer, DW1 ie. Sh. Sunil Kumar states that his signatures were obtained under pressure and with the promise that the payment will be made. DW1 further states that he has not given any complaint to any Police Station or any authority regarding the abovesaid threat. DW1 admits that the GPA Ex.PW1/2 is correct and was registered in the office of SubRegistrar(V) Mehrauli. DW1 further admits his photographs and signatures on the abovesaid GPA. DW1 further admits that the payment details mentioned in the document mark X is correct. DW1 admits it to be correct that mark X is the photocopy of middle page of Ex.PW1/3. DW1 admits it to be correct that the payment shown at Sr. no. 4 and 7 in Ex.PW1/3 is made from the account of father in law of Smt. Meenakshi Arora. DW1 further states that the cutting and overwriting on Ex.DW1/A at point A, B, C, D and E encircled in red are in his handwriting.
19. Ms. Sunita Rani w/o Sh. Sunil Kumar, who has also been examined as DW1, in her cross examination, admits that the Registered GPA dated 19.03.2004 in her favour and in favour of Smt. Meenakshi Arora bears her signatures. The said witness admits the GPA dated Suit No. 717/14(Old suit no.1060/08) No. 11/23 19.03.2004. The said witness further states in the cross examination that the notarized Agreement to Sell dated 19.03.2004 also bears her signatures at point A. DW1 further states that she knows Ms. Meenakshi Arora. DW1 further states that she was present at the time of the registration of the GPA in the office of SubRegistrar. DW1 further states that she does not know as to in whose name, the property in question stands as on date according to the documents on record.
20. PW1, in the cross examination states that her husband was working in partnership with the defendant no.2 even before her marriage. PW1 further states that the police complaints were made when the defendants attempted to break open the lock and removed the articles but she does not know if the police took any action or not on the said complaint. PW1 admits it to be correct that the complaint filed by them regarding the theft committed by the defendants have been dismissed. PW1 further states that she had visited the premises in dispute. PW1 further states that for the first time, she visited the premises in dispute in 2002 but she does not remember the date and thereafter, only once, she visited the premises in dispute. PW1 further states that she does not know any firm by the name of M/s Infinity International. PW1 further states that she does not know any company by the name of M/s. S.P. M. Projects Pvt. Limited and only her husband knows from where the stamp papers were purchased and on which date.
Suit No. 717/14(Old suit no.1060/08) No. 12/23
21. PW2, as well, in his crossexamination, has stuck to the point that the property in question is a joint property of the plaintiff no.1 and the defendant no.1. PW2 admits that he and the defendant no.2 were the partners in the business of M/s S.P. M. Projects which is a Private Limited Company. PW2 further states that he was Director in M/s S.P. M. Projects Pvt. Limited with the share of 10%.
22. From the perusal of the record of the case, it is revealed that PW2 was not cross examined in full after the warning given by the Ld. Predecessor of this Court to the said witness and PE was closed by the statement of the Ld. Counsel for the plaintiffs on 28.02.2013.
23. Ld. Counsel for the defendants has argued that on the basis of Ex.PW1/2 to Ex.PW1/6, the rights of the ownership with regard to the immovable property cannot be conferred.
24. It has to be seen that the Hon'ble High Court of Delhi in the authority cited as 193 (2012) Delhi Law Times 168 titled as Hardip Kaur Vs. Kailash & Anr., has held as under :
"(i) Contract Act, 1872Section 202, Termination of agency Power of Attorney coupled with interest is irrevocable and cannot be revoked/terminated even upon death of principalPurchaser may not be classical owner as would be an owner under registered sale deed but surely he would have better rights/entitlement of possession than the Suit No. 717/14(Old suit no.1060/08) No. 13/23 person who is in actual physical possession."
(ii)..........
(iii)........
(iv) Contract Act, 1872Section 202 Transfer of Property Act, 1882Sections 53A, 54Evidence Act, 1872 Section 165Suit for possession and mesne profit relating to suit propertyMisuse of process of law by raising false claimUnder agreement to sell plaintiff agreed to sell first, second and terrace floors of suit property to defendant no.1 for total consideration of Rs. 4,50,000/ Plaintiff received entire sale consideration and handed over vacant and peaceful possession to defendant no.1 and executed agreement to sell, receipt, affidavit, Will, indemnity bond and irrevocable General Power of AttorneyPlaintiff has no interest left in property and cannot claim possession or mense profits in respect of suit property - POA has been conferred not for the benefit of plaintiff but for the benefit of agent representing purchaser and not as representing principal and it is irrevocableThis agency was only with a view to serve the purpose of purchaserTrue nature of transaction between parties is agreement to transfer suit property by plaintiff to defendant no.1No clause in any of Suit No. 717/14(Old suit no.1060/08) No. 14/23 the documents that plaintiff can claim back possession of suit property in any situationAll the conditions of irrevocability are satisfiedDefendants are protected by Section 53A, Transfer of Property ActMere fact that defendants did not file counter claim or suit for specific performance cannot lead to conclusion that they have given up all their rights in suit propertyFalse claims and defences are really serious problems with real estate litigation, predominantly because of ever escalating prices of real estateNo infirmity in wellreasoned impugned judgment Plaintiff has misused process of law by raising false claim Plaintiff is not entitled to any reliefCosts of Rs. 2 lacs imposed on plaintiff.
25. The Hon'ble High Court of Delhi in the authority cited as 188(2012) DLT 538 titled as Ramesh Chand Vs. Suresh Chand and Anr. has also held as under :
"3. A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Supreme Court however reiterated that rights which are created pursuant to Section 53 A of the Transfer of the Property Act, 1882 dealing with the doctrine of part performance (para 12), an Suit No. 717/14(Old suit no.1060/08) No. 15/23 irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per section 202 of the Contract Act, 1872 (para 13) and devolution of interest pursuant to a Will(para 14). therefore, no doubt a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53 A of the Transfer of the Property Act, 1882, Section 202 of the Contract Act, 1872/ There also takes place devolution of interest after the death of the testator in terms of a Will."
"8. Great stress was laid on behalf of the appellant to the fact that the respondent No. 1/ plaintiff had failed to prove the Will Ex. PW1/5 in accordance with law inasmuch as no attesting witnesses were examined. Reliance is placed on behalf of the appellant on the judgment of the Supreme Court in the case of Kahibai & Anr. v. Parwatibai & Ors., 1995 IV AD S.C. (C) 41 to argued that the Will has to be proved in terms of the provisions of Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872 by calling of the attesting witnesses and if the same is not done merely because there is an exhibit mark given to the Will, Suit No. 717/14(Old suit no.1060/08) No. 16/23 the same cannot be said to be proved.
In my opinion, the judgment of the Supreme Court in the case of Kashibai & Anr. (supra), and various other judgments which deal with the issue of requirement of a Will having to be proved by summoning of an attesting witness, are judgments given in those cases where there are inter se disputes between the legal heirs of a deceased testator and the validity of the Will is questioned in those circumstances. Observations in the said judgments cannot have application to be facts of those cases where the disputes with regard to Will are not classical disputes between the legal heirs of the deceased testator and the Will is an instrument which really furthered an intent to transfer the rights in an immovable property by the testator to the beneficiary. I may note that in the present case, there is absolutely no cross examination at all on behalf of the appellant when the registered Will was proved and exhibited in the statement of the respondent No. 1/ plaintiff as PW1. Once there is no crossexamination, in the cases such as the present, which are different than the classical disputes inter se the legal heirs of a deceased testator, I would feel that the Will should be held to be a proved document inasmuch as Suit No. 717/14(Old suit no.1060/08) No. 17/23 the object of the Will in cases such as the present was really to transfer rights in an immovable property after the death of the testator. Further, I may note that the observations with respect to Will having to be very strictly proved by calling the attesting witness are in probate cases where the judgment is a judgment in rem whereas in the present case the judgment on the basis of ownership rights devolving upon the respondent No. 1/ plaintiff under a Will will not be a judgment in rem but only a judgment interse the parties. Also another aspect to be borne in mind is that besides the two sons of the deceased Sh. Kundan Lal, who were the plaintiff and defendant no.1 in the suit, the other legal heirs of the deceased Sh. Kundan Lal were very much in knowledge of the present litigation but they never chose to add themselves as parties. Whereas the other son i.e the brother of the parties to the present suit, Sh. Ram Swaroop deposed in favour of respondent no.1/plaintiff as PW2, the only daughter of the deceased Sh. Kundan Lal namely Smt. Krishna deposed in favour of the appellant/defendant no.1 as DW2. Therefore, all the interested parties, who would claim any benefit in the suit property, were aware of the subject litigation.
Suit No. 717/14(Old suit no.1060/08) No. 18/23 "12. In view of the aforesaid facts and the validity of the documents, being the power of attorney and the Will dated 16.05.1996, the respondent no.1/plaintiff would though not be the classical owner of the suit property as would an owner be under a duly registered sale deed, but surely he would have better rights/entitlement of possession of the suit property than the appellant/defendant no.1. In fact, I would go to the extent saying that by virtue of para 14 of judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd.(supra) taken with the fact that Sh. Kundan Lal has already died, the respondent no. 1/plaintiff becomes an owner of the property by virtue of the registered Will dated 16.05.1996. A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement right to the possession of the property than qua the person who is in actual physical possession thereof. The facts of the present case show that the respondent no.1/plaintiff has undoubtedly better entitlement/title/rights in the suit property so as to claim possession from the appellant/defendant no.1/brother. I have already held above that the appellant/defendant no.1 Suit No. 717/14(Old suit no.1060/08) No. 19/23 miserably failed to prove there there was any partition as alleged of the year 197 whereby the suit property allegedly fell to the share of the appellant/defendant no.1. In fact, the second reason for holding the appellant to be unsuccessful in establishing his plea of partition is that the appellant failed to lead any evidence as to the other two properties being the property no. 290, Ambedkar Basti, Delhi and the second property being the property adjoining the property no. 290, Ambedkar Basti, Delhi as having belonged to the father Sh. Kundan Lal."
26. From the cross examination of DWs, it is apparently clear that Ex.PW1/2 to Ex.PW1/6 have been categorically admitted by both the defendants. Out of the said documents, the GPA Ex.PW1/2 and Will Ex.PW1/4 are the registered documents whereas the defendants have placed on record Ex.DW1/A and Ex.DW1/C which are the unregistered documents. Further more, in the document Ex.DW1/C, there is a cutting and overwriting over the date. As such, I am of the opinion that the documents placed on record by the plaintiffs carry out more weight as compared to the documents placed on record by the defendants. None of the documents placed on record by the defendants is a registered document. In the light of the ratio of the above stated authorities, to my mind, the plaintiffs have been able to prove on record that their case Suit No. 717/14(Old suit no.1060/08) No. 20/23 stands on a better footing as compared to the case of the defendants.
27. It has to be seen that for the first time in the cross examination, DW1 Sh. Sunil Kumar states that her signatures were obtained on the documents placed on record by the plaintiffs under pressure and with the promise that the payment will be made. The defendants, in their written statement, are conspicuously silent on the abovesaid documents of the plaintiffs. The defendants, in their written statement, have categorically stated that the suit property was exclusively purchased by the defendant no.2 and the defendants have not uttered even a single word to the effect that the signatures of Sh. Sunil Kumar were obtained on the said documents under pressure. As such, I am of the opinion that the version of the defendants cannot be relied upon at all.
28. In the light of the above said discussion, I have no hesitation to hold that the defendants have utterly failed to prove on record that the plaintiffs do not have any right, title or interest in the suit property. Accordingly, issue no.2 is decided against the defendants and in favour of the plaintiffs. I am of the opinion that the plaintiffs are entitled for a decree of Partition to the extent of half share. Issue no.3 is accordingly decided. So far as the decree of mesne profits is concerned, to my mind, the plaintiffs have failed to prove on record that the defendants illegally trespassed into the suit property. The plaintiff no.1, in the cross examination has categorically admitted that the complaint lodged by the Suit No. 717/14(Old suit no.1060/08) No. 21/23 plaintiffs against the defendants stand already dismissed. As such, to my mind, the plaintiffs have not been able to prove issue no.6 in their favour. Accordingly, issue no.6 is decided against the plaintiffs. So far as the relief of Permanent Injunction is concerned, to my mind, the plaintiffs have been able to prove the same and accordingly, I hereby decide issue no.5 in favour of the plaintiffs and against the defendants. Issue no.4 pertains to the Recovery of the Possession. Since the preliminary decree of Partition is hereby passed, I am of the opinion that this issue does not require to be adjudicated at this stage. Issue no.4 stands decided accordingly.
Relief :
29. In the light of my findings on the foregoing issues, I hereby decree the suit of the plaintiffs and pass a preliminary decree of Partition in respect of the property in question bearing shop no. G16, measuring 15' x 10' situated at Bhanot Plaza1, Desh Bandhu Gupta Road, Pahar Ganj, New Delhi as shown in red colour in the site plan holding that the plaintiff no. 1 and the defendant no.1 are entitled to half share each in the said shop. A decree of Permanent Injunction is also passed in favour of the plaintiffs and against the defendants restraining the defendants and their agents etc. from selling, transferring, alienating or parting with the possession of the suit property as shown in red colour annexed with the Suit No. 717/14(Old suit no.1060/08) No. 22/23 plaint to any third person. Rest of the prayers of the plaintiffs are hereby declined. Costs of the suit are also awarded in favour of the plaintiffs.
Decree sheet be prepared accordingly Announced in the open court (RAJ KUMAR) on this 03rd day of February 2015. ADJ09 (Central) Tis Hazari Courts, Delhi.
Suit No. 717/14(Old suit no.1060/08) No. 23/23