Smt. Savitri Devi vs Sh. Sonu Pal on 11 August, 2023

[Cites 6, Cited by 0]

Delhi District Court

Smt. Savitri Devi vs Sh. Sonu Pal on 11 August, 2023

     IN THE COURT OF CIVIL JUDGE-02, SHAHDARA
      DISTRICT, KARKARDOOMA COURTS, DELHI

Presided by : Aman Kumar Sharma, DJS.

Civil Suit No: 1004/20

Smt. Savitri Devi
W/o Late Sh. Inderpal
R/o D-1/540, Gali no. 13,
Ashok Nagar, Shahdara,
Delhi-110093

                                           ... Plaintiff
                                  Versus
1. Sh. Sonu Pal
S/o Late Sh. Inder Pal

2. Smt. Vandana
W/o Sh. Sonu Pal

Both 1 & 2 R/o H. no. D-1/540,
Ground & Second Floor,
Gali no. 13, Ashok Nagar,
Shahdara, Delhi-110093

3. Sh. Manju Pal
S/o Late Sh. Inder Pal

4. Smt. Baby
W/o Sh. Manju Pal

Both 3 & 4 R/o H. no. D-1/540,
Third Floor, Gali no. 13,
Ashok Nagar, Shahdara,
Delhi-110093
                                           ... Defendants

      SUIT FOR DECLARATION, MANDATORY AND
      PERMANENT INJUNCTION

Civil Suit No.1004/20
Savitri Devi Vs Sonu Pal & Ors.
Page No.1 of 23
                             DATE OF INSTITUTION : 20.11.2020
                       DATE OF FINAL ARGUMENTS : 04.08.2023
                                DATE OF DECISION : 11.08.2023

                                  JUDGMENT

1. The plaintiff has filed the present suit against the defendants for seeking reliefs of declaration, mandatory and permanent injunction. The exact prayer made in the plaint of the present suit, is reproduced below:-

"(a) Pass a decree of mandatory injunction thereby directing the defendants no. 1 & 2 to remove their belongings and handover the peaceful, vacant and physical possession of ground floor and second floor portion of the property bearing Khasra no. 554, bearing property no. D-1/540, Plot no. 434/7-B/1, Village Saboli, in the abadi of street no. 13, Ashok Nagar, Illaqa Shahdara, Delhi-110093 (more specifically shown in red colour in the suite plan attached herewith) and directing the defendants no. 3 & 4 to remove their belongings and handover the peaceful, vacant and physical possession of third floor portion of the property bearing Khasra no. 554, bearing property no. D-1/540, plot no. 434/7-B/1, Village Saboli, in the abadi of street no. 13, Ashok Nagar, Illaqa Shahdara, Delhi-110093 (more specifically shown in Green Colour in the site plan attached herewith), to the plaintiff,

(b) Pass a decree of permanent injunction in favour of the plaintiff and against the defendants, their legal heirs, survivors, successor, representatives, assigns, servants, Civil Suit No.1004/20 Savitri Devi Vs Sonu Pal & Ors.

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relatives, family members etc., from selling, alienating or creating any third party interest in the suit property i.e. ground floor, second floor and third floor portion of the property bearing Khasra no. 554, bearing property no. D- 1/540, plot no. 434/7-B/1, Village Saboli, in the abadi of street no. 13, Ashok Nagar, Illaqa Shahdara, Delhi- 110093 (more specifically shown in red colour (Ground & Second Floor) & Green Colour (Third Floor) in the site plan attached herewith;

(c) Pass a decree of declaration in favour of the plaintiff and against the defendants, thereby declaring the following documents as null and void and already cancelled by the plaintiff from the concerned Authority:-

i. Regd. Will dated 17.06.2020 vide Registration no. 387 in Book no. 3, Vol. no. 249 on pages 128 to 130 by SR- IVA, in favour of Sh. Sanjay Kumar, Sh. Sonu Pal (Defendant no. 1) and Sh. Manju Pal (defendant no. 3), which was got subsequently cancelled vide cancellation of Will Dated on 05.10.2020, vide Regn. No. 893 in Book no. 4, Vol. no. 985 on pages 187 to 189 with SR-IVA ii. One partition deed (as per the own allegations of the defendants made in reply to the legal notice, though neither the details nor copy thereof has been supplied to the plaintiff)

(d) Pass a decree of declaration in favour of the plaintiff and against the defendants, further declaring the public notice in daily newpaper Veer Arjun and The Sikh Times, on 21.02.2020 as a valid and enforceable document in the eyes of law;

(e) Cost of the suit may also be allowed in favour of the plaintiff and against the defendants;

Civil Suit No.1004/20

Savitri Devi Vs Sonu Pal & Ors.

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(f) Any other relief, which this Hon'ble Court may deem fit and proper in favour of the plaintiff and against the defendant may also be passed in the interest of justice."

2. In order to justify the grant of the aforesaid reliefs/prayer, it is inter-alia pleaded in the plaint of the present suit that the plaintiff is the absolute owner of the property bearing no. D-1/540, Plot no. 434/7-B/1, situated at Village Saboli, Ashok Nagar, Illaqa Shahdara, Delhi-110093, ad-measuring 55 sq. yards out of Khasra No. 554 (henceforth suit property) having purchased the same from one, Sh. Shiv Dayal Chopra vide GPA, Agreement to Sell, Receipt and registered Will all dated 11.10.1991; that the plaintiff has constructed the suit property up to three floors out of which the ground & the second floor in the suit property as shown in red colour in the site plan was given to the defendant no. 1 and 2 to reside therein as a licensee of the plaintiff while the third floor in the suit property as shown in green colour in the site plan was given to the defendant no. 3 & 4, to reside as a licensee of the plaintiff; that one flour mill is being run by the defendant no. 1 at the ground floor in the suit property; that one registered Will dated 17.06.2020 which was got executed by the plaintiff in favour of the defendant no. 1, 3 and Sh. Sanjay Kumar has been cancelled by the plaintiff vide execution of a registered cancellation deed dated 05.10.2020; that on account of the unruly behaviour of the defendants, the plaintiff has debarred and disowned the defendant no. 1 and 2 from inheriting the properties of the plaintiff vide publication in Civil Suit No.1004/20 Savitri Devi Vs Sonu Pal & Ors.

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newspaper dated 21.02.2020; that the plaintiff has terminated the licence of the defendants by serving of a legal notice dated 20.10.2020; that the defendants have made attempts to sell the suit property as they had called some prospective buyers to the suit property in order to sell the same; that despite termination of the licence of the defendants qua their occupation of the suit property by serving them a legal notice to quit dated 20.10.2020, the defendants have not vacated the same; that aggrieved by the actions of the defendants, the plaintiff has filed the present suit for declaration, mandatory and permanent injunction against the defendants.

3. The defendants have contested the present suit by filing a joint written statement. In order to defend the present suit, the defendants have inter-alia pleaded in their written statement that the defendants have been diligently taking care of the plaintiff and in order to cure the illness of the plaintiff, the defendants had expended an amount of Rs.10,00,000/- towards the medical treatment of the plaintiff; that the plaintiff being satisfied with the behaviour of the defendants had executed a family partition deed duly registered before the Sub-Registrar, Nand Nagri, Delhi in favour of the defendant no. 1, 3 and Sh. Sanjay; that by way of the aforesaid registered partition deed, the defendant no. 1 and 3 has been occupying the second and third floor, respectively in the suit property as owners and not as a licensee; that one flour mill was started on the ground floor in the suit property during the life time of the father of the defendant no. 1 and 3, late Sh. Inderpal Civil Suit No.1004/20 Savitri Devi Vs Sonu Pal & Ors.

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and the defendants have also invested their labour into the aforesaid business; that out of the income derived from the aforesaid flour mill business, some vehicles were purchased in the name of the elder brother of the defendant no. 1 & 3, Sh. Sanjay and both the defendants no. 1 and 3 used to ply the said vehicles; that the defendant no. 1 and 3 have contributed to the expenses of the family on regular basis; that consequent to the execution of the registered partition deed dated 20.07.2020 in favour of the defendant no. 1, 3 and Sh. Sanjay, the defendants have been residing at their respective portions in the suit property as owners and are not liable to be evicted as such.

4. In the replication qua the written statement of the defendants, the plaintiff has made the necessary denials and reiterated and reaffirmed the contents of the plaint.

5. On the basis of the aforesaid pleadings of the parties, the following issues were framed by a Ld. Predecessor Judge, on 26.05.2022:-

"1. Whether the plaintiff is entitled to the decree of mandatory injunction, as prayed for? OPP

2. Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for? OPP

3. Whether the plaintiff is entitled to the decree of declaration, as prayed in prayer clause 'c' and 'd'? OPP

4. Relief."

Civil Suit No.1004/20

Savitri Devi Vs Sonu Pal & Ors.

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6. During trial of the present suit, one witness viz. PW1 Sh. Savitri Devi and PW2, Sh. Sanjay @ Sanjay Pal were examined in support of the case of the plaintiff and seven witnesses viz. DW1, Sh. Surender Pal, DW2, Smt. Urmila, DW3, Sh. Kiran Pal, DW4, Sh. Sonu Pal, DW5, Ms. Vandana, DW6, Ms. Baby and DW7, Sh. Manju Pal were examined in support of the case of the defendants. The testimonies of the said witnesses are not being discussed at this stage of this judgment, for the sake of brevity.

7. I had heard Sh. Manoj Kumar Panchal, Ld. Advocate for the plaintiff on 11.07.2023 and Sh. Kumar Dharmendra, Ld. Advocate for the defendants on 04.08.2023. The issue wise findings, in this case, are as follows:-

ISSUE NO.1 Whether the plaintiff is entitled to the decree of mandatory injunction as prayed for? OPP

8. In respect of this issue, the case of the plaintiff is that the plaintiff being the owner of the suit property had permitted the defendant no. 1 & 2 to reside as a licensee at the ground and the second floor in the suit property as shown in red colour in the site plan and similarly, the defendant no. 3 & 4 were also permitted by the plaintiff to reside as a licensee at the third floor in the suit property as shown in green colour in the site plan. On Civil Suit No.1004/20 Savitri Devi Vs Sonu Pal & Ors.

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account of the unruly behaviour of the defendants, the plaintiff has terminated the licence of the defendants to reside at the suit property by serving of a legal notice dated 20.10.2020 and as such the defendants are liable to be evicted from the suit property upon the termination of their licence. Per contra, the case of the defendants qua this issue is that the plaintiff having been satisfied with the good behaviour of the defendants had executed a family partition deed dated 20.07.2020 duly registered before the Sub- Registrar, Nand Nagri, Delhi in favour of Sh. Sanjay and the defendant no. 1 and 3. After the execution of the registered partition deed dated 20.07.2020 by the plaintiff in favour of the defendant no. 1 and 3, the defendants are residing at the portion occupied by them in the suit property as co-owners and cannot be evicted as such on the ground of being mere licensees.

9. In order to prove their respective cases qua this issue, two witnesses viz. PW1, Smt. Savitri Devi and PW2, Sh. Sanjay @ Sanjay Pal were examined in support of the case of the plaintiff and seven witnesses viz. DW1, Sh. Surender Pal, DW2, Smt. Urmila, DW3, Sh. Kiran Pal, DW4, Sh. Sonu Pal, DW5, Ms. Vandana, DW6, Ms. Baby and DW7, Sh. Manju Pal were examined in support of the case of the defendants.

10. During examination in chief, PW1, Smt. Savitri Devi has deposed in line with the plaint of this suit and tendered in evidence documents viz., Aadhar card, Ex.PW1/1 (OSR), GPA, Agreement to Sell, receipt all dated 11.10.1991 and registered Civil Suit No.1004/20 Savitri Devi Vs Sonu Pal & Ors.

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Will dated 11.10.1991, Ex.PW1/2 (Colly)(OSR), site plan, Ex.PW1/3, copy of Family Will dated 17.06.2020, Mark PW1/4, cancellation of Will deed dated 05.10.2020, Ex.PW1/5(OSR), publication notice in the newspaper 'Veer Arjun' dated 21.02.2020, Ex.PW1/6(OSR), publication notice in the newspaper 'The Sikh Times' dated 21.02.2020, Ex.PW1/7(OSR), legal notice dated 20.10.2020, Ex.PW1/8 and copy of reply dated 26.10.2020, Mark A. During cross examination, PW1, Smt. Savitri Devi Singh has inter-alia deposed that she had been residing with Smt. Prabha Devi, her daughter-in-law at the portion constructed at the back of the flour mill and after a while, she shifted to the first floor in the suit property. The electricity consumption charges qua the electricity meter installed at the flour mill is paid by the defendant no. 2.

11. During examination in chief, PW2, Sh. Sanjay @ Sanjay Pal Singh has deposed in line with the plaint of this suit and tendered in evidence by way of affidavit, PW2/A. During cross examination, PW2, Sh. Sanjay @ Sanjay Pal Singh has inter-alia deposed that he along his brothers, the defendant no. 1 and 2 have been residing independently of each other's help since the death of their father. The suit property was purchased by the plaintiff out of her own funds. The sale proceeds of a property situated at Gulab Vatika was utilized for purchasing the suit property.

Civil Suit No.1004/20

Savitri Devi Vs Sonu Pal & Ors.

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12. During examination in chief, DW1, Sh. Surender Pal has deposed in line with the written statement and tendered in evidence by way of affidavit, Ex.DW1/A. During cross examination, DW1, Sh. Surender Pal has inter-alia deposed that the suit property was purchased in the name of the plaintiff and the same had been divided between Sh. Sanjay, defendant no. 1 and defendant no. 3 as per a family settlement. The suit property was purchased in the name of the plaintiff after having sold the ancestral properties.

13. During examination in chief, DW2, Smt. Urmila has deposed in line with the written statement and tendered in evidence by way of affidavit, Ex.DW2/B. During cross examination, DW2, Smt. Urmila has inter-alia deposed that the suit property has been divided equally between Sh. Sanjay, defendant no.1 and 3 by way of a family settlement.

14. During examination in chief, DW3, Sh. Kiran Pal has deposed in line with the written statement and tendered in evidence by way of affidavit, Ex.DW3/A. During cross examination, DW3, Sh. Kiran Pal has inter-alia deposed that the suit property was purchased in the name of the plaintiff.

15. During examination in chief, DW4, Sonu Pal has deposed in line with the written statement and tendered in evidence documents viz. copy of Bill of "M/s Sonu Atta Chakki", Mark 'A'; copy of order dated 24.09.2012, Mark 'B'; copy of Civil Suit No.1004/20 Savitri Devi Vs Sonu Pal & Ors.

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certificate of verifications, Mark 'C'; copy of electricity bill & meter installation report, Ex.DW4/4(Colly); copy of Aadhaar card of Sh. Surender Pal, Mark 'D'; copy of Aadhaar card of Sh. Rajpal Singh, Mark 'E'; copy of Aadhaar card of Sh. Krishan Pal Singh, Mark 'F'; copy of Aadhaar card of Sh. Om Prakash Ruhella, Mark 'G'; affidavit of Sh. Manju Pal Rohilla, Ex.DW4/10; copy of Aadhaar card Sh. Manju Pal Rohilla, Ex.DW4/11; affidavit of Sh. Sonu Pal, Ex.DW4/12; copy of Aadhaar card of Sh. Sonu Pal, Ex.DW4/13; copy of complaint, Ex.DW4/14(Colly); copy of DTDC receipts, Ex.DW4/15(Colly) and photographs, Ex.DW4/16. During cross examination, DW4, Sonu Pal has inter-alia deposed that the suit property was purchased by his father in the name of the plaintiff after having sold the ancestral properties in the ancestral village namely, Sakrod, district Baghpath, U.P.. He has further deposed that he is not aware of any partition of the suit property having taken place. He along with the Sh. Sanjay and defendant no. 3 had spent an amount of Rs.10,00,000/- towards the medical expenses of the plaintiff. He resides at the second floor of the suit property. The suit property had been constructed out of the funds expended by him jointly with the defendant no. 3. He along with the defendant no. 3 has been providing monthly maintenance to the plaintiff at the rate of Rs. 1,000/- each per month.

16. During examination in chief, DW5, Ms. Vandana has deposed in line with the written statement and tendered in evidence by way of affidavit, Ex.DW5/A. During cross Civil Suit No.1004/20 Savitri Devi Vs Sonu Pal & Ors.

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examination, DW5, Ms. Vandana has inter-alia deposed that she had been residing at the suit property from the date of her marriage in the year 2003. She has further deposed that the ownership of the suit property has come to vest in the defendant no. 1, defendant no. 3 and Sh. Sanjay by way of a registered Will dated 17.06.2020, Mark PW1/4.

17. During examination in chief, DW6, Ms. Baby has deposed in line with the written statement and tendered in evidence by way of affidavit, Ex.DW6/A. During cross examination, DW6, Ms. Baby has inter-alia deposed that she had been residing at the suit property from the date of her marriage in the year 1998. The suit property had been purchased by her father-in-law in the name of the plaintiff. She has further deposed that the ownership of the suit property has come to vest in the defendant no. 1, defendant no. 3 and Sh. Sanjay by way of a registered Will dated 17.06.2020, Mark PW1/4. He along with the defendant no. 3 has been providing monthly maintenance to the plaintiff at the rate of Rs. 1,000/- each per month.

18. During examination in chief, DW7, Sh. Manju Pal has deposed in line with the written statement and tendered in evidence by way of affidavit, Ex.DW7/A. During cross examination, DW7, Sh. Manju Pal has inter-alia deposed that the suit property was purchased in the name of the plaintiff by his father and the entire sale consideration in respect of the suit property was paid by his father.

Civil Suit No.1004/20

Savitri Devi Vs Sonu Pal & Ors.

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19. The present suit for mandatory injunction has been filed by the plaintiff against her two sons and daughter-in-law's. Both the defendant no. 1 and 3 are stated to be residing along with their families at the second and third floor of the suit property as permissive users of the plaintiff. The plaintiff has asserted ownership over the suit property having purchased the same by virtue of GPA, Agreement to sell, Receipt and registered Will all dated 11.10.1991, Ex.PW1/2 (Colly). The ownership of the plaintiff over the suit property has not been disputed by the defendant no. 1 and 3 in their cross-examination. DW4, Sh. Sonu Pal has admitted in his cross-examination that the suit property was purchased in the name of the plaintiff by his father after having sold certain ancestral properties in the village namely, Sakrod, Baghpath, Uttar Pradesh. DW7, Sh. Manju Pal has also admitted during his cross-examination that the suit property was purchased in the name of the plaintiff by his father, who is stated to have paid the entire sale consideration. The defendant no. 2 and 4 are the daughter-in-law of the plaintiff who have admitted to have residing at the suit property from the date of their marriage with the defendant no. 1 and 3, respectively. Therefore, the title of the plaintiff qua the suit property is not disputed.

20. The defendants having admitted the title of the plaintiff qua the suit property, much emphasis has been cast upon one Partition deed dated 20.07.2020 duly registered before the Sub- Registrar, Nand Nagri, Delhi executed by the plaintiff in favour Civil Suit No.1004/20 Savitri Devi Vs Sonu Pal & Ors.

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of her three sons, Sh. Sanjay, the defendant no. 1 and defendant no. 3. After the execution of the partition deed, the defendant no. 1 and 3 have been occupying the second and third floor, respectively in the suit property as owners and not as permissive users of the plaintiff. DW4, Sh. Sonu Pal during his cross examination has denied having knowledge of any partition of the suit property being taken place by execution of a registered partition deed dated 20.07.2020. Further, during his cross- examination he has admitted to have not placed on record any registered partition deed dated 20.07.2020. DW7, Sh. Manju Pal has stated in his cross-examination that one registered partition deed dated 20.07.2020 was executed by the plaintiff in his favour along with Sh. Sanjay and the Defendant no. 1, however, he has not placed on record the copy of the aforesaid partition deed. The defendant no. 1 and 3 have both individually deposed in para 4 of their respective affidavits, Ex.DW-4/A and Ex.DW-7/A that a partition deed dated 20.07.2020 duly registered before the Sub- Registrar, Nand Nagri, Delhi was executed in their favour and Sh. Sanjay by the plaintiff. No such document has been tendered in evidence by the defendants, therefore, the case of the defendants that a partition of the suit had taken place by virtue of a registered partition deed dated 20.05.2020 stands unproved.

21. Emphasis has been cast upon one no objection certificate dated 02.07.2020 allegedly executed by the plaintiff in favour of the defendant no. 1, 3 and Sh. Sanjay to state that the plaintiff had divided the suit property between her sons and on Civil Suit No.1004/20 Savitri Devi Vs Sonu Pal & Ors.

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the basis of the aforesaid settlement, the portion of the suit property comprising of the second floor and third floor were given to the defendant no. 1 and 3, respectively. On the basis of the aforesaid no objection certificate, the defendant no. 1 and 3 had affirmed on their respective affidavits, Ex.DW4/10 and Ex.DW4/12, respectively, thereby acknowledging the aforesaid settlement. The plaintiff in her replication has denied executing any no objection certificate on 02.07.2020 in favour of Sh. Sanjay, Defendant no. 1 and 3. The no objection certificate dated 02.07.2020 placed on record is a photocopy and further, the plaintiff having denied the same in her replication, even then, the document i.e. the no-objection certificate dated 02.07.2020 was not put to the plaintiff during her cross-examination. The affidavits of the defendant no. 1 and 3, Ex.DW4/10 and Ex.DW4/12, respectively in the absence of the proof of the no- objection certificate dated 02.07.2020 are mere self-serving statements of the witnesses DW4 and DW7 and does not lead any credence to the case of the defendants.

22. The defendant no. 1 and 3 have further claimed that they both have expended considerable amount of money towards the construction of the suit property in order to support their claim of ownership over the suit property. The defence of the defendants that they have ownership rights in the suit property because the defendant no.1 and 3 had also contributed to the purchase and subsequent maintenance of the suit property, is untenable in law, on account of the law laid down in "Satish Kumar Gupta v Civil Suit No.1004/20 Savitri Devi Vs Sonu Pal & Ors.

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Shanti Swaroop Gupta", reported in 2018 SCC OnLine Del 9651 and "Virender Kumar & Anr. v Jaswant Rai & Anr.", reported in 2011 SCC OnLine Del 1258. In Virender Kumar & Anr. (Supra), it has been observed by the Hon'ble High Court of Delhi that since a child lives in the house of his parents, as a permissive user, any construction of part of the property done by the child does not confer any right upon the child to continue to reside at the property, without the consent of the parents.

23. The defendants have admitted that the plaintiff is the owner of the suit property. The defendants having not been able to prove the partition of the suit property by the plaintiff in their favour, accordingly, there can be no dispute that the only authorization of the defendants to occupy the suit property was in their capacity as son and daughter-in-law of the plaintiff. The plaintiff has terminated the license of the defendants to reside at the suit property by way of legal notice to quit dated 20.10.2020, Ex.PW1/8 and the reply of the defendants dated 20.10.2020 has been marked as Mark A. The receipt of the legal notice to quit dated 20.10.2020, Ex.PW1/8 has been duly admitted by the defendants in para 10 of their written statement, accordingly, the permissive possession of the defendants qua their occupation of the suit property has been duly terminated by the plaintiff.

24. The plaintiff having established her better title over the suit property in contrast to the defendants who are her son's and daughter-in-law's and subsequent termination of their license qua Civil Suit No.1004/20 Savitri Devi Vs Sonu Pal & Ors.

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their occupation of the suit property legal notice to quit dated 20.10.2020, Ex.PW1/8 is entitled to the relief of mandatory injunction directing the defendants to vacate and handover the peaceful and vacant possession of the suit property to the plaintiff. In this regard, reference is craved to the judgment of the Hon'ble High Court of Delhi in "Sachin and Anr. v Jhabbu Lal and Anr.", reported in AIR 2017 Delhi 1, wherein it has been held that in a suit for mandatory injunction etc. filed by a parent against the child, a Court is only required to examine whether, the parent has superior rights qua the suit property.

25. Ld. Advocate for the defendants has placed reliance on the judgments of the Hon'ble Supreme Court in the case titled "Maturi Pullaiah v Maturi Narasimham", reported in 1966 AIR(SC) 1836 and "Kale & Ors. v. Deputy Director of Consolidation & Ors.", reported in 1976 (3) SCC 119 to emphasize on the binding effect of a family settlement arrived between the parties. This court while deciding the present issue has held that the defendants have not been able to prove the existence of a registered partition deed dated 20.07.2020 as set out by them in their written statement nor the no objection certificate dated 02.07.2020 placed on record has been proved by leading primary evidence and further, the plaintiff having denied the same in her replication, even then, the document i.e. the no- objection certificate dated 02.07.2020 was not put the plaintiff during her cross-examination. Henceforth, the aforesaid judgments do not help the case of the defendants as no such Civil Suit No.1004/20 Savitri Devi Vs Sonu Pal & Ors.

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family settlement as stated to have been arrived between the parties has been proved by the defendants. It is also pertinent to observe that the Ld. Advocate for the defendants had filed the aforesaid judgments on 09.08.2023 after the present case had been reserved for judgment and along with the judgments, one document i.e. a partition deed dated 08.06.2020 has been filed purportedly executed by the plaintiff in favour of Sh. Sanjay, defendant no. 1 and defendant no. 3. The written statement of the defendants is bereft of any pleading with respect to the existence of the partition deed dated 08.06.2020 nor the same has been tendered in evidence by the defendants, henceforth liable to be discarded.

26. In view of the aforesaid findings, the issue no. 1 is decided in favour of the plaintiff and against the defendant. It is held that the defendants occupied the suit property as permissive user of the plaintiff and on account of termination of their user rights qua the suit property, by way of service of legal notice dated 20.10.2020, Ex.PW1/8, and alternatively, by service of summons for settlement of issues of this suit upon the defendants, the plaintiff is entitled to recover from the defendant, the possession of the suit property.

ISSUE NO.2 Whether the plaintiff is entitled to a decree for permanent injunction as prayed for? OPP Civil Suit No.1004/20 Savitri Devi Vs Sonu Pal & Ors.

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27. In respect of this issue, the case of the plaintiff is that the defendants have made attempts to sell the suit property as they had called some prospective buyers to the suit property on 17.10.2020 in order to sell the same. Per contra, the case of the defendants is the plaintiff having been satisfied with the good behaviour of the defendants had executed a family partition deed dated 20.07.2020 duly registered before the Sub-Registrar, Nand Nagri, Delhi in favour of Sh. Sanjay and the defendant no. 1 and

3. After the execution of the registered partition deed dated 20.07.2020 by the plaintiff in favour of the defendant no. 1 and 3, the defendants are residing at the portion occupied by them in the suit property as co-owners and cannot be evicted as such on the ground of being mere licensees.

28. While deciding issue no. 1, the case of the defendants that they are occupying the suit property as owners on the basis of a registered partition deed dated 20.07.2020 executed by the plaintiff in favour of the defendant no. 1 and 3 has been refuted. The case of the plaintiff qua the prayer of permanent injunction against the defendants restraining them from creating any third party interest in the suit property has remained unrebutted, accordingly, the plaintiff is held entitled to the relief of permanent injunction against the defendants, thereby, retraining the defendants from selling, alienating or creating any third party interest in the suit property.

Civil Suit No.1004/20

Savitri Devi Vs Sonu Pal & Ors.

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29. In view of the aforesaid findings, the issue no. 2 is decided in favour of the plaintiff and against the defendants.

ISSUE NO.3 Whether the plaintiff is entitled to the decree of declaration, as prayed in prayer clause 'c' and 'd' as prayed for? OPP

30. In respect of this issue, the case of the plaintiff is that the plaintiff has cancelled the registered Will dated 17.06.2020, Mark PW1/4 executed by her in favour of Sh. Sanjay, defendant no.1 and 3 vide execution of a registered Cancellation of Will deed dated 05.10.2020, Ex.PW1/5 (OSR) and on account of such cancellation, a declaration in favour of the plaintiff and against the defendants be made declaring the registered Will dated 17.06.2020 as null and void. Further vide prayer clause (c)(ii), the plaintiff has sought declaration of the registered partition deed dated 20.07.2020 relied upon by the defendants in their written statement as null and void. The plaintiff has further stated to have debarred the defendants from inheriting her movable and immovable properties by way of publication in the newspaper 'Veer Arjun' dated 21.02.2020, Ex.PW1/6(OSR) and a declaration has been sought by the plaintiff and against the defendants to the effect declaring the aforesaid publication as valid and enforceable in law. Per contra, the case of the defendants is the plaintiff having been satisfied with the good behaviour of the defendants had executed a family partition deed dated 20.07.2020 duly registered before the Sub-Registrar, Nand Civil Suit No.1004/20 Savitri Devi Vs Sonu Pal & Ors.

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Nagri, Delhi in favour of Sh. Sanjay and the defendant no. 1 and

31. The relief of declaration in favour of the plaintiff and against the defendants declaring the registered Will dated 17.06.2020 as null and void on account of the plaintiff having duly cancelled the same by executing a registered Cancellation of Will deed dated 05.10.2020, Ex.PW1/5 (OSR) cannot be granted as a Will only come into operation after the death of a testator and the plaintiff whilst she is alive is at liberty to deal with her assets the way she pleases. Further, the relief of declaration in favour of the plaintiff and against the defendants declaring the registered partition deed dated 20.07.2020 relied upon by the defendants in their written statement as null and void cannot be granted as no such document has been filed by the defendants along with their written statement, therefore, its validity cannot be adjudicated in favour of either of the parties.

32. The plaintiff has further sought a declaration against the defendants to the effect declaring the publication in the newspaper 'Veer Arjun' dated 21.02.2020, Ex.PW1/6(OSR) debarring the defendants from her moveable and immoveable properties as valid and enforceable in law. The unchallenged Civil Suit No.1004/20 Savitri Devi Vs Sonu Pal & Ors.

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testimony of the plaintiff, PW1 Smt. Savitri Devi supported by Ex.PW1/6(OSR) do not prove that the plaintiff is entitled to the relief of declaration, as prayed for (a) because as per Section 34 of the Specific Relief Act, 1963, this Court can grant the relief of declaration only qua the right, title or interest of the plaintiffs and not qua the right, title or interest of the defendants and (b) because the appropriate remedy for the plaintiffs to debar the defendants from inheriting any of their self-acquired properties, is to make a Will qua their self-acquired properties. In my view, if this Court grants the relief of declaration, sought by the plaintiffs, then it would be impinging upon the right of the plaintiffs to make a Will in favour of the defendants, in the future. Also, in my view, if this Court, grants the relief of declaration, sought by the plaintiffs, then it would be impinging upon the statutory right of the defendants to inherit the self- acquired properties of the plaintiffs, as per the Hindu Succession Act, 1956, in case any of the plaintiffs, dies intestate. Accordingly, the issue no. 3 is decided in favour of the defendants and against the plaintiff.

RELIEF

33. As a net result of the aforesaid findings, this suit is partly decreed in favour of the plaintiff and against the defendants. It is held that the plaintiff is entitled to recover from the defendant no.1 and 2, possession of ground and second floor of the property bearing no. D-1/540, Plot no. 434/7-B/1, situated Civil Suit No.1004/20 Savitri Devi Vs Sonu Pal & Ors.

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at Village Saboli, Ashok Nagar, Illaqa Shahdara, Delhi-110093, ad-measuring 55 sq. yards out of Khasra No. 554 as shown in red colour in the site plan and the possession of third floor of the property bearing no. D-1/540, Plot no. 434/7-B/1, situated at Village Saboli, Ashok Nagar, Illaqa Shahdara, Delhi-110093, ad- measuring 55 sq. yards out of Khasra No. 554 as shown in green colour in the site plan from the defendant no. 3 and 4. The defendants are directed to handover the physical, peaceful and vacant possession of the portions occupied by them in the suit property to the plaintiff within a period of one month from the date of the judgment. The defendants are also restrained by way of permanent injunction from selling, alienating or creating any third party interest in the property bearing no. D-1/540, Plot no. 434/7-B/1, situated at Village Saboli, Ashok Nagar, Illaqa Shahdara, Delhi-110093, ad-measuring 55 sq. yards out of Khasra No. 554. With these findings, the present suit filed by the plaintiff against the defendants stands disposed of.

34. The parties to this suit shall bear their own costs.

35. After preparation of the decree sheet by the Reader, the file shall be consigned to the record room.

 Announced in open Court                (Aman Kumar Sharma)
 today on 11th August, 2023             CJ-02/Shahdara District
                                       Karkardooma Courts/Delhi



Civil Suit No.1004/20
Savitri Devi Vs Sonu Pal & Ors.
Page No.23 of 23

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Delhi District Court

Smt. Savitri Devi vs Sh. Sonu Pal on 11 August, 2023