Delhi District Court
Sh. Joginder Singh vs Sh. Lal Singh on 4 July, 2014
IN THE COURT OF MS. SALONI SINGH, CIVIL JUDGE - 03, PATIALA
HOUSE COURTS, NEW DELHI DISTRICT,
NEW DELHI
Case no.64/13
Unique Case ID No. 02403C0123632013
Sh. Joginder Singh
S/o, Sh. Lal Singh
R/o, H.No.71,Mohammad Pur
R.K.Puram, New Delhi-110066. ...Plaintiff
Vs.
Sh. Lal Singh
S/o, Sh.Nathu Ram
R/o, H.No.71, Mohammad Pur
R.K.Puram, New Delhi. ...Defendant
Suit for Permanent Injunction
Date of institution : 13.09.2013
Date of Reserving Judgment/Order : 28.05.2014
Date of decision : 04.07.2014
Judgment :-
1.In the present suit, the plaintiff has prayed for a decree of permanent injunction in favour of the plaintiff and against the defendant, restraining the defendant, his associates, agents, servants etc., from dispossessing the plaintiff from the suit property (defined below) and costs of the suits.
2. The brief facts, as given in the plaint, are as follows:-
i. The plaintiff is the son of the defendant. The plaintiff along with his family is residing in a property, bearing no. 71, Mohammad Pur, CS No. 64/13 Sh. Joginder Singh v Sh. Lal Singh 1/16 R.K.Puram, New Delhi (hereinafter referred to as, "the property"). The plaintiff is in possession of a portion of the said property, comprising of one room along with latrine and bathroom on the ground floor, one room on the first floor and one room on the second floor (hereinafter referred to as the "suit property"), as specifically shown in red color in the annexed site plan.
ii. The said property was owned by Late Sh. Nathu Ram, grandfather of the plaintiff, who died intestate in the year 1998. The plaintiff, being the grandson of Late Sh. Nathu Ram, inherited the right, title and interest in the property, by virtue of the provisions of the Hindu Succession Act, 1956 (for short, "Hindu Succession Act"). Litigation pertaining to partition of various properties, including the property (of which the suit property is a part), is still pending in the court of Sh. Ramesh Kumar, Learned ADJ, Delhi, in the case titled, "Devi Singh v. Nando Devi & Ors" and that the defendant has not yet become the owner of the suit property. Even otherwise, on partition of the properties, the plaintiff and the defendant both would be co-owners of the property. The plaintiff is occupying/residing in the suit property as its co-owner and not as a licensee in the suit property, as alleged by the defendant in the notice dated 13.04.2012.
iii. On 01.09.2013, the defendant threatened the plaintiff and his wife to vacate the suit property failing which they would face dire consequences. Thereafter, on 09.09.2013, the defendant and his wife tried to forcibly dispossess the plaintiff from the suit property, CS No. 64/13 Sh. Joginder Singh v Sh. Lal Singh 2/16 however, due to the intervention of some neighbors, the defendant was stopped. If the defendant is not restrained from dispossessing the plaintiff from the suit property, the plaintiff would suffer irreparable loss and injury, which cannot be compensated in monetary terms.
3. Summons of the suit were issued on 16.09.2013. The defendant was served on 30.09.2013 and the written statement was filed on behalf of the defendant on 26.10.2013.
4. The case of the defendant as stated in his written statement is as follows:-
That the house no. 71, Village Mohammad Pur, New Delhi has two portions. Being the son of the defendant, the defendant had allowed the plaintiff to stay in one portion of the said property, comprising of one room at the ground floor and one room at the first floor (above the ground floor), as a licensee. The defendant is residing in the other portion of the property. It is alleged that the plaintiff had forcibly taken possession of one room at the second floor (of the portion of the property in possession of the defendant) by breaking open the lock of the room, in the absence of defendant. Further, it is stated that owing to the misconduct and disrespectful behaviour of the plaintiff and his wife, the defendant has already disowned the plaintiff, through a publication in the newspaper, 'Veer Arjun'.
5. Further, in the written statement, it is not disputed that property belonged to the father of the defendant, that is, Late Sh. Nathu Ram, and that the defendant had contributed in the construction of it. The plea taken by the CS No. 64/13 Sh. Joginder Singh v Sh. Lal Singh 3/16 defendant is that property of a male Hindu dying intestate devolves according to Section 8 of the Hindu Succession Act and, therefore, the plaintiff is not entitled to any share in the property of his grandfather. It is denied that the plaintiff has any right, title or interest in the property. Further, it is stated that the suit for partition, as referred to in the plaint, was filed by Sh. Dhani Singh, brother of the defendant, which has been decided by Dr. Archana Sinha, Learned ADJ, Central, Delhi, on 30.04.2014. Further, that the plaintiff was not a party to the said suit. It is alleged that the plaintiff has concocted a false story to grab the suit property, in which he is a mere licensee.
6. Replication was filed on behalf of the plaintiff on 16.12.2013 denying the allegations/averments made by the defendant in his written statement.
7. On completion of the pleadings, this Court framed the following issues:-
1. Whether the plaintiff is entitled to a permanent injunction restraining the defendant from dispossessing the plaintiff from the suit property as shown in red colour in the site plan attached to the plaint ? OPP.
2. Whether the present suit is not maintainable? OPD.
3. Whether the present suit has been filed by the plaintiff without any locus standi? OPD.
4. Whether the plaintiff has concealed facts on account of which he is not entitled to the equitable relief as sought for ? OPD.
5. Whether the suit has been filed without any cause of action?
OPD.
CS No. 64/13 Sh. Joginder Singh v Sh. Lal Singh 4/16
6. Whether the suit is bad for non-joinder of necessary parties? OPD.
Relief.
6. Both the parties were given an opportunity to lead their evidence.
The plaintiff proceeded to lead evidence and examined himself and PW-2 as witnesses.
7. In order to substantiate his case, the plaintiff stepped into the witness box and tendered his evidence by way of an affidavit, Exhibit PW-1/A. In addition, the plaintiff relied upon and placed on record the following documents:-
- A copy of the election identity card (OSR) of the plaintiff dated 03.05.1995, mentioning the address of the plaintiff as 71, Mohammad Pur, New Delhi, Exhibit PW-1/1;
- A copy of the ration card (OSR) of the plaintiff dated 25.10.2004, mentioning the address of the plaintiff as 71, Mohammad Pur Gaon, Post Office R.K. Puram, New Delhi, Exhibit PW-1/2;
- The demand note for a new electricity connection, as applied by the plaintiff, dated 05.09.2013, mentioning the address of the plaintiff as 71 G/F, L/S, Village MohammadPur, New Delhi-110066, Exhibit PW-1/3;
- A cash receipt dated 05.09.2013, for a sum of Rs. 3000/-
(Rupees Three Thousand Only), in the name of the plaintiff, issued by BSES Rajdhani Power Ltd, Exhibit PW-1/4;
CS No. 64/13 Sh. Joginder Singh v Sh. Lal Singh 5/16
- A cash receipt dated 05.09.2013, for a sum of Rs. 600/- (Rupees Six Hundred Only), in the name of the plaintiff, Exhibit PW-1/5;
- A copy of the legal notice dated 13.04.2012, sent by the defendant to the plaintiff, Exhibit PW-1/6;
- A copy of the reply dated 3.05.2012 to the said legal notice,
Exhibit PW-1/7; and
- A site plan, Exhibit PW-1/8.
8. In his affidavit, PW-1 deposed on the same lines as stated in the plaint. The plaintiff also examined PW-2, Mr. Raj Kumar, his neighbour, to prove the possession of the plaintiff of the suit property and occurrence of the incident on 09.09.2013, where the deponent found that the defendant and his wife were adamant to dispossess the plaintiff from the suit property. PW-2 tendered his evidence by way of affidavit, Exhibit PW-2/A. No other witness was examined by the plaintiff. The Learned Counsel for the plaintiff closed plaintiff's evidence by way of a separate statement.
9. In defence, the defendant stepped into the witness box and tendered his evidence by way of affidavit, Exhibit DW-1/A and deposed on the same lines as stated in the written statement. No other witness was examined by the defendant. The Learned Counsel for the defendant closed defendant's evidence by way of a separate statement.
10. Arguments were advanced by the Learned Counsel for both the parties. Learned Counsel for the plaintiff argued that the suit property belonged CS No. 64/13 Sh. Joginder Singh v Sh. Lal Singh 6/16 to the plaintiff's grandfather and being a grandson, he has a right in the suit property during the life time of his father. Learned Counsel submitted that the plaintiff has proved his possession of the suit property with the aid of the exhibited documents. Attention of this Court was drawn to the statement of PW-2 ,wherein PW-2 has stated that through the wall of his house he had heard the plaintiff and the defendant quarreling with each other and that the defendant had threatened to dispossess the plaintiff from the suit property. It was also argued that defendant had concealed the fact that a partition suit in respect of the suit property is still pending. Learned Counsel for the plaintiff referred to the cross-examination of the defendant, during which, he has admitted that the partition suit has been decided, however, the partition has not been done. Learned Counsel for the plaintiff vehemently argued that the fact that the partition had not been effected is not mentioned in the written statement of the defendant, though the same is admitted by the defendant.
11. Learned Counsel for the defendant rejected all arguments raised on behalf of the plaintiff. He argued that a grandson has no interest in the property of his grandfather and that the defendant had inherited the property by virtue of Section 8 of the Hindu Succession Act. The contention raised by the plaintiff that the incident, when the defendant had threatened to dispossess the plaintiff had been proved by PW-2, was rebutted by the Learned Counsel for the defendant, on the ground that PW-2 had not witnessed the incident in person, in fact, what the witness deposed was that from what he had been hearing, the defendant had threatened to dispossess the plaintiff, therefore, statement of PW-2 CS No. 64/13 Sh. Joginder Singh v Sh. Lal Singh 7/16 cannot be relied upon. Learned Counsel for the defendant further argued and re-emphasized that the partition suit had been decided by the Court of Learned Dr. Archana Sinha, Learned ADJ, Central Delhi, and this fact has not been concealed by the defendant. Further, it was argued that the plaintiff had approached this Court with unclean hands and is not entitled to any equitable relief as the plaintiff himself had broken the lock, put in one of the rooms of the suit property, which was in possession of the defendant, in his absence, and put his own lock. Learned Counsel for the defendant submitted that it was only when the plaintiff put his lock in the said room in the absence of the defendant that the defendant requested the plaintiff to leave the premises. Further, Learned Counsel for the defendant raised certain objections on maintainability of the suit. He argued that the plaintiff had not made other persons, who were party to the partition suit, as defendants in the present suit and, therefore, the suit is bad for non-joinder of necessary parties. Further, it was also argued that the defendant did not have the intention to forcibly dispossess the plaintiff from the suit property, therefore, the plaintiff has no cause of action against the defendant. In this context, Learned Counsel for the defendant also referred to the notice that the defendant got published in the newspaper disowning the plaintiff and his wife. Lastly, it is contended that it is admitted that the defendant had allowed the plaintiff to stay in the suit property as a licensee and that the electricity and water bills were also being paid by the defendant.
12. The submissions made on behalf of the both the parties have been considered and the record of the case has been thoroughly perused. The CS No. 64/13 Sh. Joginder Singh v Sh. Lal Singh 8/16 issue-wise findings of this Court are as follows:-
Issue No. 1:-
1. Whether the plaintiff is entitled to a permanent injunction restraining the defendant from dispossessing the plaintiff from the suit property as shown in red colour in the site plan attached to the plaint? OPP.
13. The law on injunctions is covered by Part III Chapter VII of the Specific Relief Act, 1963 (for short, "Specific Relief Act") and the relief of perpetual or permanent injunctions is dealt in Chapter VIII of the said Act. Section 38 (3) of the Specific Relief Act reads as, "When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of property, the court may grant a perpetual injunction in the following cases:-
(a) ...
(b) ...
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) ..."
14. In the present suit, the plaintiff is seeking the relief of injunction against the defendant restraining him, his associates etc., from dispossessing the plaintiff from the suit property. It is averred that the plaintiff is presently residing in the suit property. In proof thereof, the plaintiff has placed on record and proved his election identity card dated 03.05.1995, Exhibit PW-1/1, his ration card dated 25.10.2004, CS No. 64/13 Sh. Joginder Singh v Sh. Lal Singh 9/16 Exhibit PW-1/2, the demand note and cash receipts dated 05.09.2013, in respect of a newly installed electricity meter/connection in the suit property, Exhibit PW-1/3, Exhibit PW-1/4 and Exhibit PW-1/5 respectively. It is not disputed that the plaintiff is in actual and physical possession of the suit property.
15. In a simplicitor suit for permanent injunction, against threat of dispossession or interference, generally the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and the defendant threatened to dispossess him or tried to interfere or disturb such lawful possession. In the present case, the defendant alleges that the plaintiff took forcible possession of the room on the second floor in the portion of the property in possession of the defendant in the defendant's absence. The said contention of the defendant is denied by the plaintiff in his replication, however, during his cross-examination, the plaintiff (PW-1) has admitted that in his father's absence he had put a lock in the room on the second floor of the main portion. (The main portion being referred to in his cross- examination as the portion of the property stated to be in possession of the defendant.) Further, the plaintiff has admitted that his father's belongings are still lying in the second floor of the said portion. To avoid confusion, it is pertinent to note that this room on the second floor, being referred to by the parties, is the same room as shown in the site plan, Exhibit PW-1/8, which is not disputed by the defendant. From the above, it is clear that the lock in the room on the second floor in the main portion of the property is that of the plaintiff and the defendant's belongings are still lying there. This may go on to show or CS No. 64/13 Sh. Joginder Singh v Sh. Lal Singh 10/16 an inference may be drawn that even though the possession of the said room is that of the plaintiff, it cannot be said that the possession thereof is permissive in nature. Further, the possession of the plaintiff in the remaining part of the suit property (other than the said room on the second floor) is not disputed by the defendant, to the extent that the possession of the same had been given by the defendant to the plaintiff only as a licensee. However, it is alleged by the defendant that the licence had been terminated by him, vide the legal notice dated 13.04.2012, and that the defendant had disowned the plaintiff and severed all ties with him and his wife around March, 2007 by way of a publication in the newspaper, 'Veer Arjun'. The defendant challenges the possession of the plaintiff in the suit property on the ground that the plaintiff has no legal right/title in the suit property. It is alleged that the property, which was owned by Late Sh. Nathu Ram, devolved on all the legal heirs of Late Sh. Nathu Ram, who died intestate in the year 1998. It is the case of the defendant that it is him who inherited the property by virtue of Section 8 of the Hindu Succession Act and not the plaintiff. Further, the defendant has relied upon and proved the decree dated 30.04.2011, passed in the partition suit, titled, Devi Singh v. Nando Devi & Ors., Exhibit DW-1/1, filed by the legal heirs of Late Sh. Nathu Ram, in respect of two properties, including the property in question in the present suit. As per the decree dated 30.04.2011, Exhibit Exhibit DW-1/1, the suit has been stated to be decreed as per the consent/agreement vide Ex. C-1. It is ordered therein that "...the subject matter has been amicably settled between both the parties and the suit property has been partitioned allocating their shares in the property as per the terms and conditions mentioned in the settlement CS No. 64/13 Sh. Joginder Singh v Sh. Lal Singh 11/16 document Ex. C-1..." The plaintiff alleges that since the said partition suit between the legal heirs of Late Sh. Nathu Ram is still pending adjudication, the defendant has not become the owner of the property and even otherwise, after partition, some portion would come to the share of the plaintiff. Merely because the decree has not yet been executed, it cannot be said that the suit is pending adjudication. Further, it is not the case of the plaintiff is that he was a party to the said partition suit or that the said decree has been challenged by him or any other person. Thus, the contention of the plaintiff that the partition suit is still pending is without any merit. From the above, it can be stated that it is not in dispute that a suit for partition of the property between the legal heirs of Late Sh. Nathu Ram was instituted and that the same has been decided and that the defendant, being a party to the said partition suit, has been able to establish his title/right/interest in the property. Also, it is pertinent to mention here that it is not the case of the plaintiff that the defendant has no interest at all in the property/suit property. The contention of the plaintiff is that the defendant is not the sole owner of the property and that the plaintiff is also a co-owner. The plaintiff alleges that being born during the lifetime of his grandfather, he had acquired a right in the property by virtue of Section 20 of the Hindu Succession Act and, thus, he is entitled to possession of the suit property. This contention of the plaintiff can at best be raised and decided in a separate suit challenging the decree/judgment passed in the said partition suit in respect of the property or a comprehensive suit for declaration and consequential relief of injunction and not in the present simplicitor suit for injunction. Even otherwise, the settled principle of law is that where the grandfather of the plaintiff dies after coming into CS No. 64/13 Sh. Joginder Singh v Sh. Lal Singh 12/16 force of the Hindu Succession Act, the property inherited by the father of the plaintiff from the grandfather of the plaintiff, would be held by the father of the plaintiff as his personal/individual property and the plaintiff will not have any right or share therein, so held in Commissioner of Wealth Tax, Kanpur v. Chander Sen , (1986) 3 SCC 567 .
16. The issue of title of the plaintiff cannot be decided in the present suit. Firstly, neither has any issue being framed regarding the title nor have the third persons, having an interest in the property, been made a party in the present suit, in the absence of whom the title over the property cannot be decided.
17. After considering all the circumstances, this Court is of the view that the plaintiff has not been able to show or establish a prima facie right/title/interest in the suit property so as protect his possession. It cannot be said that the plaintiff was in lawful possession of the suit property as on the date of the suit. Further, any finding as to whether the defendant tried to interfere or dispossess the plaintiff from the suit property or not is of little consequence when the plaintiff has failed to show his right to possess the suit property. Therefore, the first issue is decided in the negative.
Issue No. 2:-
Whether the present suit is not maintainable? OPD.
18. The burden of proving this issue is on the defendant. The contention of CS No. 64/13 Sh. Joginder Singh v Sh. Lal Singh 13/16 the defendant is that the suit is not maintainable and is liable to be dismissed. In light of this Court's finding's as to issue no.1, it is stated that the present suit is not maintainable. Therefore, this issue is decided in the affirmative.
Issue No. 3:-
Whether the present suit has been filed by the plaintiff without locus standi? OPD.
19. The burden of proving this issue is on the defendant. It is alleged that the plaintiff has no locus standi to file the instant suit on the ground that the plaintiff has no legal right in the suit property. In light of the findings of this Court as to issue no.1, it is stated that the plaintiff has no locus standi to file the present suit. Therefore, this issue is decided in the affirmative.
Issue No. 4:-
Whether the plaintiff has concealed facts on account of which he is not entitled to the equitable relief as sought for ? OPD.
20. The burden of proving this issue is on the defendant. It is alleged that the plaintiff has concealed true facts and that the suit is barred by his own act and deeds and that he is not entitled to any equitable relief from the Court. The defendant has discharged the burden and has shown that the plaintiff had put his lock in one of the rooms of the suit property, which was in possession of the defendant, and that this fact has not been disclosed in the plaint. In light of the findings of this Court CS No. 64/13 Sh. Joginder Singh v Sh. Lal Singh 14/16 as to issue no.1, it is stated that the plaintiff is not entitled to any equitable relief as sought for. Therefore, this issue is decided in the affirmative.
Issue No. 5:-
Whether the suit has been filed without any cause of action? OPD.
21. The burden of proving this issue is on the defendant. The contention of the defendant is that the suit has been filed without any cause of action. This Court has already arrived at a finding that the plaintiff has failed to establish or show a prima facie right/title or interest in the suit property and that the plaintiff is not entitled to the relief of permanent injunction. In view thereof, this issue is decided in the affirmative.
Issue No. 6:-
Whether the the suit is bad for non-joinder of necessary parties? OPD.
22. The burden of proving this issue is on the defendant. The contention of the defendant is that the suit is bad for non-joinder of parties. In light of the findings of this Court as to issue no. 1, it is stated that the suit is bad for non-joinder of parties. Thus, this issue is also decided in the affirmative.
23. Having given a finding on all the issues framed by this Court, this Court is of the view that the plaintiff is not entitled to the relief claimed.
CS No. 64/13 Sh. Joginder Singh v Sh. Lal Singh 15/16
24. Accordingly, the suit is dismissed. Decree sheeet be prepared. File be consigned to record room after due compliance.
Pronounced in Open Court
today July 04, 2014 (SALONI SINGH)
Civil Judge-03/PHC/NEW DELHI
04.07.2014
CS No. 64/13 Sh. Joginder Singh v Sh. Lal Singh 16/16