Delhi District Court
Mohd. Jahangir vs Mohd. Shakir on 26 February, 2022
Mohd. Jahangir v. Mohd. Shakir & Ors.
IN THE COURT OF HELLY FUR KAUR : CIVIL JUDGE - 08
(CENTRAL), ROOM NO.231, TIS HAZARI COURTS, DELHI
SUIT NO : 99661/16
CNR NO.0002832010
In the matter of :
Mohd. Jahangir
S/o Late Mohd. Swaline
R/o 237, Gali Garhiyaa,
Jama Masjid, Delhi - 110 006 ...PLAINTIFF
VERSUS
1. Mohd. Shakir
2. Mohd. Tariq
3. Mohd. Aalam
All Sons of Mohd. Swaline
4. Mst. Aneesa Begum,
W/o Mohd. Swaleen
5. Mst. Shabnam Jahan
6. Mst. Shakira Begum
Both D/o Mohd. Swaline
All R/o 237, Gali Garhaiyaa,
Matia Mahal, Near Jama Masjid,
Delhi - 110 006
7. Ms. Shehnaz Begum
W/o Sh. Iqbal Hussain
D/o Mohd. Swaleen
R/o 296, Gali Garhiyaa,
Matia Mahal, Jama Masjid,
Delhi - 110 006
CS No.99661/16 Pg 1 of 47
Mohd. Jahangir v. Mohd. Shakir & Ors.
8. Mst. Shagufta Begum
W/o Mohd. Aslam,
R/o 1609, Pahari Bhojla,
Chitli Qabar, Delhi - 110 006 ...DEFENDANTS
Date of institution : 01.03.2012
Date of judgment : 26.02.2022
SUIT UNDER SECTION 6 OF THE SPECIFIC RELIEF ACT
JUDGMENT
1. Vide this judgment, I shall decide a suit under Section 6 of the Specific Relief Act.
BRIEF FACTS OF THE PLAINT:
2. The brief facts of the plaint as alleged by the plaintiff in the plaint which are necessary for the disposal of the present suit are that the plaintiff was in possession of one shop/godown with two shutters on the ground floor and built up portion on the third floor comprising of two rooms, two W.C. bath, kitchen with terrace over the same out of property No.237, Gali Garhaiyya, Matia Mahal, Jama Masjid, Delhi - 110 006 and is the joint owner of the property after the death of his father namely Mohd. Swaline who was the registered owner of the property. That Mohd. Swaline died in Delhi in the year 2000 and after his death the parties to the suit inherited the said suit property as per Muslim Personal Law but CS No.99661/16 Pg 2 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
the property was undivided and not partitioned ever till date and business goods of the plaintiff was in the ground floor shop/godown and one rent receipt was issued by the father to the plaintiff, hence, he has exclusive rights in the property as a tenant also. That for sometime, some differences have cropped up among the parties to the suit and the defendants are having their negative attitude and behaviour towards the plaintiff and his family members the defendants have joined hands and they are indulging in the unlawful activities and wanted to create third party interest in the property as they seem to be jealous with the business progress of the plaintiff. That on 11.12.2010, the defendants threatened and a complaint was lodged in police station Jama Masjid but of no affect due to local MLA hence, on 12.12.2010 the defendants came to the third floor portion of the plaintiff and started throwing the goods of the plaintiff. The defendants No.1 and 2 even manhandled the plaintiff and used filthy language and they openly told the plaintiff that the plaintiff should better leave the suit property along with his goods and belongings and other defendants also sang the same song and local MLA was very close to the defendants specially the defendant No.1 who is the real brother of the plaintiff constrained with circumstances the CS No.99661/16 Pg 3 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
plaintiff filed a civil suit for permanent injunction titled as Mohd. Jahangir v. Mohd. Shakir and others on 14.12.2010, which was fixed in the court of Hon'ble Sh. Abhilash Malhotra CJ Delhi and is now fixed for 13.04.2012. That complainant lives separately and have kept his goods at ground floor of lighting fixtures, ripid machines and other articles of worth 5/6 lakhs of rupees. Besides this, the complainant has made expenses to develop the property making it habitable. That the complainant at the advise of his counsel took photographs of the property showing his possession and filed a suit for permanent injunctions with the prayer to restrain the accused from dispossessing the complainant from this suit property. The said suit was fixed before the court of Sh. Abhilash Malhotra Hon'ble CJ Delhi and summons were served upon the defendants and present accused Mohd. Shakir accused filed written statements stating therein that complainant is in joint possession of ground floor, however, he admitted the joint possession and said matter was fixed for 23.11.2011. That in order to grab the whole property accused entered into a criminal conspiracy with local criminals, broken the locks of the shop/ground floor premises and put his own lock when complainant was out of station on 29.10.2011 and when CS No.99661/16 Pg 4 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
complainant returned, he found that his locks are broken and even handle has been tampered and changed as in breaking the locks, the handle would have broken. The complainant called PCR by calling at 100 at the advise of the respectable persons of the locality. Also, he had sent telegrams to SHO PS Jama Masjid, Jt. Commissioner of Police, Commissioner of Police and Hon'ble Chief Minister of Delhi on 30.10.2011 at 17.31 PM and then a detailed report to DCP Central District, Darya Gang, New Delhi but all to no affect as police officials were under the influence of local MLA and police officials said that he can break the locks as he is the brother and can take away the goods. That constrained with the circumstances the plaintiff filed a complaint case which is pending disposal before the court of Sh. Manish Makkar Hon'ble MM, Delhi. That on 31.10.2011 the DCP recalled the complainant and issued directions to the SHO after seeing all papers and photographs etc. to issue FIR but still SHO did not issue any FIR and all began to appear under the influence of local MLA, all accused persons were laughing on complainant being family members the plaintiff cannot indulge in quarreling activities being himself a family man. That plaintiff during the pendency of suit has been dispossessed forcibly, CS No.99661/16 Pg 5 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
illegally and without any process of law from the ground floor portion of shop with 2 shutters and as per the provisions of Section 6 of Specific Relief Act without any title the defendants are bound to return the possession as it was before the illegal dispossession. The plaintiff is the lawful tenant of ground floor shop with 2 shutters. That the suit filed is well within the time as required for the suit for Specific Relief Act. Hence, the present suit praying decree of possession may kindly be passed in favour of the plaintiff and against the defendants in respect of the shop at ground floor measuring 27.6' x 31' and 11' x 20' (being L Shape) with 2 shutters, in property No.237, Ground Floor, Gali Garhaiyya, Matia Mahal, Jama Masjid, Delhi - 110 006.
WRITTEN STATEMENT OF DEFENDANTS:
3. The defendants filed their written statement and have controverted the averments of the plaint while submitting in preliminary objections that the suit of the plaintiff is without any cause of action. That as per section 6 of the Specific Relief Act no order under this section shall be passed after the expiry of six months from the date of dispossession and in the present case the plaintiff admittedly has filed the present suit after the six months from the date of alleged dispossession. As such the suit is liable CS No.99661/16 Pg 6 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
to be dismissed. The previous suit was filed by the plaintiff i.e. suit bearing No.180 of 2010 and the answering defendants filed the written statement in the month of February, 2011 stating therein that the plaintiff is not in exclusive possession of the property and he was permitted by the defendant No. 3 to put his some goods in portion of the suit property but the plaintiff did not file any replication for several months and filed the replication in the moth of November, 2011. In the replication also he did not disclose when he was dispossessed from the suit property, however, in the present petition, he has disclosed false and fabricated date of dispossession. In fact the plaintiff was never in possession of the suit property as such the question of dispossessing him from the same does not arise at all, moreover, if his alleged possession is admitted for the sake of arguments, even then the suit is barred by limitation under section 6 of Specific Relief Act. That the plaintiff has committed the offence of forgery as he has relied upon a document i.e. a no objection certificate purported to be issued by the defendant No. 4 and in fact no such no objection certificate was ever issued by the defendant No. 4 in favour of the plaintiff. The signature of the defendant No. 4 has been forged on the said no objection certificate. It is pertinent to mention here CS No.99661/16 Pg 7 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
that the said forged no objection certificate has been used by the plaintiff before the different authorities i.e. before the Sales Tax/VAT Department and this fact has come within the knowledge of the answering defendants through the present suit. That the plaintiff has annexed the document i.e. the no objection certificate claiming therein that the ground floor of property bearing No.237, Garhaiya Street, Jama Masjid, Delhi 110006 has been let out to him on a monthly rent of Rs.2,000/ to run his business and on the other hand he is claiming to be in possession of the suit property being a joint owner thereof as such the plea of the plaintiff is contradictory itself and the suit of the plaintiff is liable to be dismissed. That the plaintiff admittedly filed the suit for permanent injunction vide suit No.180 of 2010, however, in the said suit, he did not claim that he was in possession of the said property as a tenant. It is submitted that the plaintiff was never in exclusive possession of the suit property. It is further submitted that the defendant No. 4 being the coowner of the half of the portion of undivided property was in actual peaceful and physical possession of the entire ground floor exclusively and she let out the same to the defendant No. 3. It is submitted that the ground floor of the property is divided in two portions and both the portions are godowns/ CS No.99661/16 Pg 8 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
shops/ offices. In one of the godowns, the defendants No. 1 and 3 are in exclusive possession. The defendant No. 3 is doing his business from the said portion under the name and style of M/s. Ascon Lite. It is mentioned that the other portion was also in possession of the defendant No. 3, however, the defendant No. 3 allowed the plaintiff to use the same for putting his goods, however, the plaintiff turned dishonest and started claiming to be in exclusive possession of the said portion of the ground floor comprising godown. It is further pertinent to mention here that the said portion having three entrances and on two entrances there are two shutters and on the third one there is a wooden door. The defendants No.1, 2 and 3 are in possession of the said godown also and the goods of the defendants No.1 and 3 are lying inside the said godown. It would be worthwhile to mention here that the defendant No. 1 is also using the said godown as an office and he has been using the office from the front entrance where the shutters are affixed. It is further submitted that the plaintiff and the defendants No.1, 2 and 3 are the real brothers. The defendant No.3 is deaf and dumb person and he is being looked after by the defendants No.1 and 2 and other family members. Although he has been conducting his business under the name and style of M/s. Ascon CS No.99661/16 Pg 9 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
Lite from the ground floor. The defendant No.4 who is the coowner of the property let out the entire ground floor to defendant No.3. The defendant No.3 who is conducting the business with the help of the defendants No.1 and 2 permitted the plaintiff to use the one portion of the ground floor by allowing him to keep the goods in the said portion. However, the plaintiff taking the advantage of the physical condition of the defendant No.3 has turned dishonest and started claiming the exclusive right in the ground floor of the said property. The plaintiff went to such an extent that he even abused the defendant No.3 and his mother i.e. defendant No.4. The plaintiff has been pressurizing all the defendants so that they may meet the illegal demands of the plaintiff. The plaintiff wants to grab the property by hook and crook and he has been using the illegal tactics by way of filing false and frivolous cases and complaints against the defendants. Defendant No.4 was the co owner of the property alongwith her husband namely Swaleen who died in the year 2000. The defendant No. 4 is the exclusive owner of half of the undivided property by virtue of the sale deed whereas half of the undivided property was in the name of Mohd. Swaleen i.e. the husband of the defendant No. 4 and the father of the plaintiff and all the CS No.99661/16 Pg 10 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
defendants except the defendant No.4. After the death of Mohd. Swaleen, the plaintiff as well as all the defendants became the co owners of the half of the undivided property by virtue of inheritance. It is further pertinent to mention here that the defendant No.4 executed a sale deed in favor of the defendant No.1 qua to the half of undivided property as such the defendant No.1 now has become the exclusive owner of half of the undivided property apart from that he is also having the share as stated hereinabove after the death of his father in the remaining half of the undivided property. The plaintiff was never in possession although he was allowed to put his goods and thereafter he himself took away all his goods from the suit property and then filed false and frivolous complaints against the answering defendants. The plaintiff has not disclosed whether he was in possession as a tenant or as a co owner although the document which he has annexed with the plaint discloses that he was the tenant at the ground floor as he has annexed a forged and fabricated no objection certificate purported to be issued by the defendant No.4. Plaintiff was never inducted as a tenant nor any rent receipt was ever issued by the defendant No.4. It is also worthwhile to mention here that the plaintiff has committed the offence of forgery by CS No.99661/16 Pg 11 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
way of forging the signatures of defendant No.4. The defendant No.4 has already lodged a complaint to the police against the plaintiff for the commission of the offence of cheating and forgery.
4. In reply on merits, it is submitted that that the contents of para No. 1 of the plaint are admitted except the fact that the plaintiff is in possession of one shop/godown with two shutters on the ground floor. It is denied that the plaintiff is in possession of one shop/godown with two shutters on the ground floor. It is submitted that the ground floor of he property is divided in two portions and both the portions are godowns/ shops/offices. In one of the godowns, the defendants No.1 and 3 are in exclusive possession. The defendant No.3 is doing his business from the said portion under the name and style of M/s. Ascon Lite. It is further mentioned that the other portion was also in possession of the defendant No.3, however, the defendant No.3 allowed the plaintiff to use the same for putting his goods, however, the plaintiff turned dishonest and started claiming to be in exclusive possession of the said portion of the ground floor comprising godown. It is further submitted that the plaintiff and the defendants No.1, 2 and 3 are the real brothers. The defendant No.3 is deaf and dumb person and he is being looked after by the defendants No.1 and 2 and CS No.99661/16 Pg 12 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
other family members. Although, he has been conducting his business under the name and style of M/s. Ascon Lite from the ground floor. The defendant No.4 who is the coowner of the property let out the entire ground floor to defendant No.3. The defendant No.3 who is conducting the business with the help of the defendants No.1 and 2 permitted the plaintiff to use the one portion of the ground floor by allowing him to keep the goods in the said portion. However, the plaintiff taking the advantage of the physical condition of the defendant No.3 has turned dishonest and started claiming the exclusive right in the ground floor of the said property. The plaintiff went to such an extent that he even abused the defendant No.3 and his mother i.e. defendant No.4. The plaintiff has been pressurizing all the defendants so that they may meet the illegal demands of the plaintiff. The plaintiff wants to grab the property by hook and crook and he has been using the illegal tactics by way of filing false and frivolous cases and complaints against the defendants. That the contents of para No.2 of the plaint have been denied except the fact the Shri Mohd. Swalin died in Delhi in the year 2000 and after his death the parties to the suit inherited the said suit property as per Muslim Personal Law but the property was undivided and not partitioned ever till date, CS No.99661/16 Pg 13 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
however, it is denied that the business goods of the plaintiff was in the ground floor shop/ godown and one rent receipt was issued by the father to the plaintiff hence he has exclusive rights in the property as a tenant also. It is submitted that the plaintiff has forged no objection certificate and the father of the plaintiff never issued any rent receipt in favour of the plaintiff. The plaintiff has not filed any such rent receipt alongwith the plaint. It is further submitted that in the replication, filed by the plaintiff in the suit bearing No. 180 of 2010, the plaintiff therein stated that the rent receipt was issued by the mother of the plaintiff i.e. defendant No. 4. It is further submitted that in para No. 3 of reply to preliminary objections, the plaintiff has stated that "...It is submitted that mother has given a receipt of rent exclusively to the plaintiff during the life time of father for ground floor portion..." However, in the present para the plaintiff is claiming that one rent receipt was issued by the father to the plaintiff. It is further submitted that no such rent receipt was ever issued by the late father of the plaintiff nor it was ever issued by the mother i.e. the defendant No. 4 in the present suit. It is further submitted that the plaintiff has not filed the said rent receipt before the Hon'ble Court. It is also submitted that when the previous suit i.e. suit No.180 of 2010 was filed by the plaintiff even CS No.99661/16 Pg 14 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
did not disclose that he was in alleged possession of the suit property as a tenant rather there was not even a whisper of his tenancy qua to the suit premises. The contents of para No. 3 of the plaint have been denied. It is submitted that the plaintiff has turned dishonest and has been creating hindrance in the peaceful enjoyment of the property by the defendants and has been harassing on one or the other pretext the defendant No. 3 who is deaf and dumb and also trying to dispossess him from the ground floor from where he is conducting his business with the help of defendants No. 1 and 2. In fact the entire family has emotional attachment with the defendant No. 3 since he is by birth deaf and dumb. However, the plaintiff has some cruel attitude towards the defendant No. 3 and he has been harassing him on one or the other pretext and now by way of filing his false and frivolous suit he is trying to grab the entire ground floor although the ground floor has been let out to defendant No. 3 by the defendant No. 4. The contents of para No.4 of the plaint are denied except the fact that the plaintiff filed a civil suit for permanent injunction titled as Mohd. Jahangir V. Mohd. Shakir & Ors. on 14.12.2010, which was fixed in the court of Sh. Abhilash Malhotra, Civil Judge, Delhi and is now fixed for 13.04.2012. The contents of para No.5 CS No.99661/16 Pg 15 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
of the plaint are denied except the fact that the plaintiff lived separately. In reply to this para, it is submitted that there is no complainant in the proceeded para. The plaintiff is claiming himself as the plaintiff and now in this para he has become the complainant. In fact the plaintiff himself is not aware about the nature of the proceedings and his status whether he is plaintiff or complainant. It also appears that the paragraphs of the complaint have been inserted in the present plaint as it is which clearly show that the plaintiff does not have any case or any cause of action for filing the present suit. The contents of para No.6 of the plaint are denied except the fact that some photographs of the property were filed along with the suit for permanent injunction with the prayer to restrain the plaintiff from dispossessing the plaintiff from the suit property and the suit was fixed before the court of Sh. Abhilash Malhotra, Civil Judge, Delhi and the summons were served upon the defendants and the written statement was filed by the defendants. The fact that the complaint/ plaintiff at the advise of his counsel took photographs of the property is not within the knowledge of the plaintiff, however, it is submitted that the plaintiff in order to make a false claim took the photographs of some properties. It is submitted that the answering CS No.99661/16 Pg 16 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
defendants never admitted that the plaintiff was in joint possession of the property. The defendants only stated in their written statement that the defendant No.3 allowed the plaintiff to use the same for putting his goods, however, the plaintiff turned dishonest and started claiming the exclusive possession of the said portion of ground floor comprising godown. The plaintiff was only allowed to put his goods in the said portion by the defendant No.3 and the plaintiff only put some junk items and later on he took away those articles from the said portion. The contents of para No.7 of the plaint are denied. In fact in order to falsely implicate and also to create a false claim, he has filed a false complaint case before the court on the basis of false, forged and fabricated documents. He has filed a no objection certificate which was never issued by the defendant No.4 as such the plaintiff himself is liable to be prosecuted and punished for the commission of the offence under Section 420/467/468/471 of IPC. The contents of paras No.8 and 9 of the plaint are denied. The contents of para No.10 of the plaint are denied. It is submitted that in the previous suit i.e. suit No.180 of 2010, the plaintiff did not disclose that he was in possession of the suit property as a tenant and claimed himself as a tenant in the replication CS No.99661/16 Pg 17 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
which he filed. It is further submitted that the plaintiff in the present suit is claiming that the rent receipt was issued by the father whereas in the previous suit in the plaint, he did not claim himself to be the tenant of the suit premises, however, in the replication, he claimed that one rent receipt was issued by the mother i.e. the defendant No.4 in the present suit. The contents of para No.11 of the plaint are denied. It is submitted that the plaintiff filed the previous suit claiming himself in possession of the suit property on 13.12.2010, whereas the defendants filed their written statement in the month of February, 2011 in which the possession of the plaintiff was denied only it was admitted that the plaintiff permitted by the defendant No.3 to put his some goods in the portion of the suit property. The plaintiff did not file any replication of the written statement which was filed in the month of February, 2011, and he filed the replication in the month of November, 2011. It is further submitted that the plaintiff did not file the present suit after receiving the copy of the written statement and he opted to file the same after one year as such the suit is barred by limitation. The contents of para no.12 of the plaint are denied. The plaintiff was never the tenant in the suit property. The contents of para No.13 of the plaint are legal and need no CS No.99661/16 Pg 18 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
reply and the contents of para No.14 of the plaint are denied. Hence, it is prayed that the suit of the plaintiff may kindly be dismissed with exemplary cost.
REPLICATION:
5. Plaintiff filed replication to the written statement of the defendants while denying all the contents of the written statement and the contents of plaint have been reaffirmed and reiterated.
ISSUES:
6. From the pleadings of the parties, following issues were framed for trial vide order dated 16.10.2012 by the ld. Predecessor:
1. Whether the suit is not maintainable in its present form? OPD.
2. Whether the plaintiff is guilty of suppression and concealment of material facts and has not approached the court with clean hands? OPD.
3. Whether the document "no objection certificate" purported to be issued by defendant No.4 is a forged and fabricated document? OPD.
4. Whether the suit of plaintiff is without any cause of action? OPD.
5. Whether the plaintiff was in possession of CS No.99661/16 Pg 19 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
the suit property before filing of the suit and hand been dispossessed by the defendant within a period of six months immediately prior to the filing of the suit? OPP.
6. Whether the suit has been valued properly for the purposes of court fees and jurisdiction? OPP.
7. Whether the plaintiff is entitled for decree of possession? OPP.
8. Relief.
7. Issue No.6 was decided as a preliminary issue in favour of the plaintiff vide order dated 16.10.2012.
PLAINTIFF'S EVIDENCE:
8. In order to prove his case, plaintiff examined following witnesses:
● PW1 is plaintiff himself whose examination in chief is by way of affidavit Ex.PW1/Z. PW1 relied upon following documents:
1. Ex.PW1/1 Copy of NOC issued by Mohd. Swaline in favour of plaintiff and signature of the father is on point A.
2. Ex.PW1/2 Copy of affidavit of the plaintiff to sale tax department.
3. Ex.PW1/3 (Colly.) copy of the custom challans.
4. Ex.PW1/4 copy of itla pesh bandi dated 11.12.2010.
5. Ex.PW1/5 copy of sale tax certificate of the plaintiff Firm Mohan Light CS No.99661/16 Pg 20 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
Industries.
6. Ex.PW1/6 (colly.) copy of photographs of the suit property.
7. Ex.PW1/7 CD of photographs having shown possession of the suit property.
8. Ex.PW1/8 and Ex.PW1/8A (colly.) Copy of complaint dated 31.10.2011.
9. Ex.PW1/9 copy of receipt of telegram dated 31.10.2011 to commissioner of police.
10. Ex.PW1/10 Copy of ITR return.
11. Ex.PW1/11 original postal receipts dated 18.08.2012.
12. Ex.PW1/12 original acknowledgement card.
13. Ex.PW1/13 copy of FIR.
14. Ex.PW1/14 copy of two gate pass of container depot.
15. Ex.PW1/15 (colly.) copy of bank statement 12 pages.
16. Ex.PW1/16 copy of order dated 15.09.2012.
17. Ex.PW1/17 copy of order dated 19.09.2012.
18. Ex.PW1/18 original site plan of the suit property. Other documents as mentioned in the affidavit were deexhibited. ● PW2 HC Mushtaq Khan from PS Jama Masjid was a summoned CS No.99661/16 Pg 21 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
witness who brought the following record:
1. Daily Dairy Register (Roznamcha) copy of Itla Peshbandhi was recorded vide DD No.3 dated 11.12.2010 given by the defendant Mohd. Jahangir against his brother and other family members. Same was already exhibited Ex.PW1/4.
2. Original FIR register containing FIR No.55/12 u/s 451, 380 and 506 of IPC. Same was already exhibited Ex.PW1/13.
● PW3 Sh. Subhash Sharma, Inspector Sales Tax Department was again a summoned witness who brought the following record:
1. Original registration sales tax certificate vide registration No.LC/15/281508/1204 registered in the name of M/s. Crystal Lights at 1941/8, FloorI, Chandni Chowk, Delhi - 110 006. Copy of the same was already Ex.PW3/A.
2. As per MarkPW3/B which is dealer profile maintained by the department, the address of M/s. Crystal Lights is mentioned as A237, Ground Floor, Gali Garaihaiya, Delhi - 110 006.
● PW4 HC Pintu Dhaka, from DCP Office, Daryaganj was also a summoned witness who brought the record i.e. Police complaint dated 18.08.2012 given by the plaintiff Mohd. Jahangir vide diary No.37811 CS No.99661/16 Pg 22 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
dated 22.08.2012 from the office of Additional Commissioner of Police the then DCP, Central District, Daryaganj, Delhi, which is correct as per the report. Copy of same was Ex.PW4/A (OSR) (Colly.) running into 12 pages along with copy of registered AD and copy of report of SDM Daryaganj and copy of FIR bearing No.55/12 registered from PS Jama Masjid against Mohd. Shakir.
● PW5 Sh. Janardhan Prasad, Record Clerk from MTNL was also a summoned witness who brought the original summoned record i.e. order No.56026010399 in respect of MTNL land line connection bearing No.23252239 which was applied for installation on 17.02.1992 at the address 237, Gali Garaiya, Matiya Mahal, Jama Masjid, in the name of Mohd. Jahangir S/o Late Mohd. Swaleen. Certified copy of the same was exhibited as Ex.PW5/1 (OSR) (colly; running into five pages). ● PW6 Sh. Niwas Sharma, KPO Card Punching Operator from BSES Kamla Market, New Delhi was again a summoned witness who brought the summoned record i.e. the duplicate electricity bill and electricity bill (Industrial) in respect of CA No.1120046865 in the name of Mohd. Jahangir having billing address S.No.237 G/F, Gali Garhaiya, Matia Mahal, Jama Masjid, Delhi - 110 006, bill dated 20.12.2010, 18.04.2011, CS No.99661/16 Pg 23 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
18.05.2011, 20.06.2011, 17.08.2011, 15.05.2012, 1805.2012 and 20.12.2010 bearing CR No.10043450. PW6 also brought the consumer details in respect of consumer namely, Mohd. Jahangir. Certified copy of the same was exhibited as Ex.PW6/A (colly. Pages 1 to 11). ● PW7 Sh. Ravinder Kumar Kukreja, LDC from Trade and Tax Office was also a summoned witness who brought the summoned record i.e. certified copy of dealer profile of M/s. Moon Light Industries at 237, Gali Garahia, Matia Mahal, Jama Masjid, Delhi - 110 006. Same was exhibited as Ex.PW7/1. Certified copy of certificate of registration of M/s. Crystal Lights at shop No.1941/8, 1 st floor, Fountain Chowk, Chandani Chowk, Delhi - 110 006 was exhibited as Ex.PW7/2 (OSR) (Colly. Running into two pages), photocopy of registration certificate of M/s. Ascon Light at 237B, Garahia Street, Matia Mahal, Jama Masjid, Delhi - 110 006 was exhibited as Ex.PW7/3 (OSR).
● PW8 Sh. Ravinder Paul, Junior Hindi Translator from the office of Additional Director General of Foreign Trade was also a summoned witness who deposed that the the complete record of IEC File 0507053371 is not traceable. PW8 brought a letter dated 19.05.2016 issued by Foreign Trade Development Officer along with computer CS No.99661/16 Pg 24 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
generated record of M/s. Aisha Impex at 237, Gali Garahia, Matia Mahal, Jama Masjid, Delhi. Same was exhibited as Ex.PW8/1 (colly. Running into 6 pages).
● PW9 Sh. Yogender, LDC from the department of Commerce and Industry Department, was also a summoned witness who brought the certified copy of the summoned record i.e. document which is already Ex.PW1/5. The certified copy was taken on record and for the identification purpose same was marked Mark P9 (colly.). The document Mark P9 is a computer generated record which is correct as per my office records.
● PW10 Sh. Satpal Singh, Bailiff from the office of SDM - Kotwali, Daryaganj, Delhi was also a summoned witness who brought the summoned record in original with respect to sealing order under Section 145 Cr.P.C. on dated 19.09.2012 along with site plan (OSR). Photocopy of the same is already Ex.PW4/A. At the time of passing of order dated 19.09.2012 the portion which has been sealed by our office that consists a shop, godown with two shutters on ground floor of property No.237, Gali Garahia, Jama Masjid, Delhi and in this respect site plan is also attached along with this order which is part of Ex.PW4/A. CS No.99661/16 Pg 25 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
● PW11 Sh. Subhash Sharma, VAT Inspector from Trade and Taxes Department, ITO was also a summoned witness who brought the summoned record i.e. dealer profile of M/s Ascon Lite proprietor of Aalam Khan at 237 B, Garaihaiya Street, Matia Mahal - 110 006 vide TIN No.07720349955 and M/s Crystal Lights at A237, Ground Floor, Gali Garaihaiya, Delhi - 110 006. Copies of same are Ex.PW12/A (Colly. running into 4 pages) and Ex.PW12/B (Colly. running into 2 pages).
● PW12 Constable Sunil Kumar, Belt No.2329/C PS Jama Masjid was also a summoned witness who brought the summoned record i.e. daily diary register No.3A dated 11.12.2010 given by Mohd. Jahangir. Copy of the same was exhibited as Ex.PW13/A. ● PW13 Constable Anuj, Belt No.1842/C DCP Office was again a summoned witness who deposed that he could not brought the summoned record as the summoned record has already been destroyed vide order dated 08.09.2014 of the DCP, Cental District vide S.O No.64/07 & PPR 11.31. Copy of same was marked as MarkA. ● PW14 Sh. Subhash Sharma, Inspector from the Department of Trade and Taxes, ITO, New Delhi was also a summoned witness who brought CS No.99661/16 Pg 26 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
the summoned record in respect of M/s Crystal Lights, A237, Ground Floor, Gali Garaihaiya - 110 006 (VAT record, ITR record, sale tax return since 2005 to 2010). Certified copy of the same was exhibited as Ex.PW14/1 (Colly. running into 108 pages).
● PW15 Sh. Balkishan Chauhan, Draftsman, Chamber No.57, Typist Block, Civil Side, Tis Hazari was also a summoned who deposed that he prepared the site plan after visiting the property. Same was already exhibited as Ex.PW1/18. At the time of inspection, he personally visited the ground floor to third floor and on the ground floor two iron shutter with one wooden door was in the possession of defendant and on the ground floor of the adjacent of the same godown there was also one iron shutter godown which was in the possession of other person. ● PW16 Sh. Deepak Jain, Handwriting and Finger Print Expert was a summoned witness whose report dated 10.04.2017 was exhibited as Ex.PW16/A (running into 6 pages). The enlarged photographs which were 6 in number and are pasted on two juxtaposed chart papers and were collectively Ex.PW16/B and the documents excluding passport were MarkA (Colly. running into 5 pages).
● PW18 Sh. Prashant, S/o Sh. Govind Prasad, employee of M/s. Geeta CS No.99661/16 Pg 27 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
Studio was also a summoned witness who deposed that he developed the photographs already exhibited as Ex.PW1/6 (Colly. 7 photographs with one CD which is already exhibited as Ex.PW1/7) by the mobile phone make Apple given by Jawad.
● PW19 was Sh. Jawad whose examinationinchief is by way of affidavit Ex.PW19/A. PW19 relied upon following documents.
1. Ex.PW19/1 CD of photographs of suit property.
2. Ex.PW19/2 (colly.) original photographs of the suit property. DEFENDANT'S EVIDENCE:
9. On the other hand, defendants examined defendant No.1 Mohd. Shakir as DW1 whose examination in chief is by way of affidavit Ex.DW1/A. DW1 relied upon following documents:
1. Ex.DW1/1 certified copy of order dated 15.09.2012 passed by Ld. SDM Sh. Vinod Kumar.
2. Ex.DW1/2 certified copy of order dated 19.09.2012 passed by Ld. SDM Sh. Vinod Kumar.
3. Ex.DW1/3 (colly. Running into 11 pages) certified copy of order dated 06.10.2012 passed by Ms. Kaveri Baweja, Ld. ASJ in criminal revision No.739/2012 titled as Mohd. Shakir & Anr. v. State & Anr.
CS No.99661/16 Pg 28 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
4. Ex.DW1/4 (colly. Running into 6 pages) copy of status report dated 13.01.2012 filed before Ld. MM in criminal complaint case titled as Mohd. Jahangir v. Mohd. Shakir.
5. Ex.DW1/5 (colly. Running into 19 pages) copy of final report dated 21.09.2013 filed by SI Mahesh Kumar in case FIR No.55/2012 with PS Jama Masjid.
● DW2 Sh. Bhushan Kumar, Ahlmad from the court of Sh. Fahauddin, Ld. MM01, Central, Tis Hazari Courts, Delhi was a summoned witness who brought the summoned record i.e. case title Mohd. Jahangir v. Mohd. Shair in case FIR No.55/12, PS Jama Masjid CIS No.526328/16. Copies of statement given by Anisha Begum, Dilshad Mahboosh Khan, Abdul Nafis, Mohd. Ijjaj, Manjoor Ahmad, Mohd. Ayub, Amjad Ali and Mohd Javed were marked as MarkD (colly.) running into 1 to 20 pages (Objected to as the summoned record also contains photocopies only and same are not relevant in the present matter as per barred by law).
10. I have heard the arguments and perused the record. Ld. Counsel for plaintiff has relied upon following judgments:
● Monika Tyagi & Ors. v. Subhash Tyagi @ Moolraj Tyagi & Ors. of Hon'ble High Court of Delhi decided on 17.12.2021.
CS No.99661/16 Pg 29 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
● Aarti v. Aruna Gautam in civil appeal No.10184 of 2014 decided on
11.11.2014.
● J. Rajendran Pillai v. B. Bhasi of Kerala High Court decided on 25.01.2022.
● Baij Nath v. Bhola Nath & Anr. in RCA No.21/2014 decoded pm 12.01.2016.
● Dhani Ram @ Kale & Anr. v. Mohd. Faisal & Anr. in RFA No.982/2016 decided on 13.08.2018.
11. Issuewise findings as follows:
ISSUE NO.1 Whether the suit is not maintainable in its present form? OPD
12. As evident, onus of this issue was upon the defendant, however surprisingly, no specific averment has been made as to non maintainability of the suit in the present form, much less the evidence of it. Though there are averments on the merits and the point of limitation, however not the form of the suit. It may be mentioned that separate issues have been framed for the limitation as well as other aspects averred by the defendant. Accordingly, the defendant has failed to discharge the onus of this issue.
13. Hence, this issue is decided against the defendants and in favour of the CS No.99661/16 Pg 30 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
plaintiff.
ISSUE NO.5 Whether the plaintiff was in possession of the suit property before filing of the suit and has been dispossessed by the defendant within a period of six months immediately prior to the filing of the suit? OPP.
14. At the outset, it is pertinent to note that as per the plaint, the plaintiff and the defendants are the joint owners of the property bearing No.237, Galia Garhaiyya Matia Mahal, Jama Masjid, Delhi 110006 of which suit property (shop at ground floor measuring 27.6' X 31' and 11' X 20' (being L shape) with two shutters and one wooden door) is a part, after the death of their father Mohd. Swaline who was the registered owner of the property. Further that the properties have been stated to be undivided and not partitioned. However, apart from this, it is also averred that the plaintiff was issued a rent receipt by his father in respect of the suit property and he was in possession of the same as a tenant.
15. Having said that, it is equally important to consider that the defendants have admitted in their written statement that after the death of Mohd. Swaleen, the plaintiff as well as the defendants became the coowners of the half of the undivided property by virtue of inheritance. Though it is mentioned that defendant no.4 (mother) was the coowner of the property having half share along with the father and she transferred the CS No.99661/16 Pg 31 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
same to defendant no.1, however, still admission as to inheritance of share by the plaintiff and defendants in the rest half stands intact. More so, it may also be noted that no document regarding transfer to defendant no.1 has come on record and that there is no elaboration as to any particular portion of property coming into the share of defendant no.4 or subsequently to defendant no.1 specifically. It is also the contention of defendants that defendant No.4 had let out the ground floor to defendant No.3 but no evidence has been brought on record with regard to it.
16. What naturally flows from the above observation is that there is no dispute that plaintiff as well as defendants are jointowners of at least half of the property and neither of the halves are defined in terms of specific portions the property by any family settlement or otherwise. Therefore, it would not be wrong at all to say that all the parties are in fact deemed joint possession of the half share that they inherited upon the death of their father. In fact as per the settled law, the joint owners are entitled to and have interest in every inch of the property until partition. To fortify the same, I must advert to one of the plethora of judgments on this point. The principles relating to the interse rights and CS No.99661/16 Pg 32 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
liabilities of co sharers were reiterated in Jai Singh & Ors v. Gurmej Singh 20.01.2009, Civil Appeal No.321/2009 as follows:
(l) A coowner has an interest in the whole property and also in every parcel of it. (2) Possession of joint property by one co owner is in the eye of law, possession of all even if all but one are actually out of possession.
(3) A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all.
(4) The above rule admits of an exception when there is ouster of a coowner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a coowner must not only be exclusive but also hostile to the knowledge of the other as, when a coowner openly asserts his own title and denies, that of the other.
(5) Passage of time does not extinguish the right of the coowner who has been out of possession of the joint property except in the event of ouster or abandonment.
(6) Every coowner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other coowners.
(7) Where a coowner is in possession of separate parcels under an arrangement consented by the other coowners, it is not open to any body to disturb the CS No.99661/16 Pg 33 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
arrangement without the consent of others except by filing a suit for partition.
17. In one of the above clauses, it has been categorically held that possession of all the coowners is presumed unless two conditions co exist i.e., exclusive possession of one of the coowners and assertion by him as to title hostile to the knowledge of others. In the written statement, it is the claim of the defendants that defendant No.3 through defendants No.1 and 2 permitted the plaintiff to keep his goods in the suit property however he later on turned dishonest and started claiming exclusive rights in the ground floor. Firstly, the defendants are misconceived that they had any individual right vested in them to permit the plaintiff to possess the plaintiff any portion of the property since they all had joint rights which were not determined. More particularly because, no document has been brought on record that the suit property was sold by defendant no.4 to defendant no.1. Secondly, such averment does not amount to any assertion of title hostile to other coowners and needless to state that the defendants were not in exclusive possession of the suit property as well. Thus, the ouster cannot be presumed. It may also be recalled here that none of the parties has contended partition of the property. Considering the above proposition of law and the facts CS No.99661/16 Pg 34 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
involved, the plaintiff is deemed to be in possession of the suit property.
18. However, I must pause here to reflect that the present suit was filed under Section 6 of Specific Relief Act, 1963. Therefore as a general rule, the plaintiff suing under the said provision is required to prove settled lawful possession and dispossession by the defendants. Ergo, the settled possession as on the date of dispossession and the factum of dispossession are essential in such suits. In so far as factum of possession is concerned, the same stands satisfied. It may also be mentioned that the possession under Section 6 of Specific Relief Act need not necessarily be purely physical possession. I draw strength for the same from judgment of Hon'ble Patna High Court in Kumar Kalyan Prasad And Anr. vs Kulanand Vaidik & Ors. AIR 1985 Pat. 374 wherein it was held:
On principle I am not inclined to construe the word "dispossessed" in Section 6 in any hypertechnical sense and to push it into the procrustean bed of actual physical possession only. Indeed the intent of the Legislature in Section 6 to provide early and expeditious relief against the violation of possessor right, irrespective of title, would be equally, if not more, relevant where symbolical possession delivered by due process of law is sought to be set at CS No.99661/16 Pg 35 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
naught forthwith. On a larger and liberal construction, therefore, it seems wholly unnecessary to limit or constrict the ordinary and plain meaning of the word "dispossessed", which is obviously wide enough to include both actual physical possession and equally a symbolical possession of immovable property which is well recognized in the eye of law.
19. However, it is worth noting that the rules underneath Section 6 of Specific Relief Act,1963 are not exactly the same in suit by a co owner/joint owner. In Abdul Kalam vs Smt. Khatoon Begum decided on 26.09.2011; RSA No.69/2011, it was held by Hon'ble Delhi High Court while deciding second appeal:
Section 6 of the Specific Relief Act comes into play when a person in possessory title is dispossessed by another person who does not have ownership title of the property. When therefore, such a suit is filed by a person in possessory title against a third person, who dispossessed the earlier person in possessory title, and the later person does not have ownership/title to the property then, such suits are entertained under Section 6 of the Specific Relief Act, 1963. In suits claiming possession on the basis of title, and in the present case possession is claimed on the basis of co ownership/ cotenancy in the property, it is not possible to accept the argument as advanced by the learned counsel for the CS No.99661/16 Pg 36 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
appellant.
20. In the facts of the above referred case, one of the coowners/ cotenants had filed a suit for permanent injunction expressing apprehension about dispossession from the terrace of the property and during the pendency of the suit, on account of LC report which stated that goods of the defendant were lying at the terrace, the plaintiff converted the suit to one under section 6 of Specific Relief Act. Taking the same into account, it is also inevitable to note the following extract from the judgment:
Pleadings before the Mufossil Courts/ District Courts are sometimes not well drafted and the courts therefore have adopted a policy of looking to the substance of the plaint instead of only the heading thereof. A reading of the amended plaint shows that there are averments of co ownership/cotenancy in the property and therefore, really the suit was a suit for possession based on title. In fact it is the admitted case that both parties are co owners of the tenancy rights.
21. It is right stage to deal with the plea of the plaintiff in the plaint that he is the coowner as well as the tenant in the suit property. In light of the above reproduced law, I have perused and read the plaint closely.
Though the plaintiff claims himself to be the tenant of his father in the CS No.99661/16 Pg 37 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
suit property but two aspects come to his rescue in attracting the law propounded in the above said judgment as applicable on coowners. First, even if he is taken to be a tenant of his father during the lifetime of his father, this would not affect his inheritance rights accrued after the death of father in absence of any will etc. Secondly, even the defendants have admitted the inheritance in favour of plaintiff. Thus, in effect, the suit cannot be adjudicated strictly in terms of Section 6 of Specific Relief Act merely because plaint is headed with the said provision.
22. Consequently, determination on the aspect of dispossession loses its relevance in the peculiar circumstances of the case. In fact, it is quite an irony that as per the settled law, since the joint possession of the co owner is presumed, the burden is rather upon the defendant to prove ouster. Here, to the contrary, it is the plea of the defendants that the plaintiff had himself left the suit property by taking away the goods. Further, as already noted, there are no other averments in the written statement which indicate ouster. In so far as the evidence brought by defendant by way of DW1 by way of copy of statement of defendant No.4 contained in Ex.DW1/5 (Colly.), suggesting that plaintiff had taken his share and separated from the family and shifted to other property, CS No.99661/16 Pg 38 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
the same is beyond the pleadings. Rather in complete contrast, the written statement suggests that the property was undivided. Therefore, plaintiff is entitled to the joint possession as it is.
23. Nevertheless, on the other hand, the plaintiff has alleged categorical dispossession by changing of locks and has brought on record the complaint dated 30.10.2011 - Ex.PW1/8 and Ex.PW1/8A (colly.) and a copy of telegram to the Commissioner Ex.PW1/10 which show that the plaintiff had filed a complaint against dispossession done substantially by defendant no.1 on 29.10.2011. Though defendants have denied the same in the written statement, however, notably, the defendant did not raise any question during crossexamination on these complaints therefore they can be relied upon. Here, one more aspect may be dealt with. It was the argument of Ld. Counsel for the defendant that the plaintiff did not mention about date of dispossession in the replication in the other suit for injunction between same parties and for same property despite the replication being filed after the alleged date of dispossession and before institution of this suit. However, the plaintiff has not been confronted with the said replication nor copy of the same has been brought on record of this suit. In fact, plaintiff was not even questioned CS No.99661/16 Pg 39 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
on this aspect. In addendum, it is pertinent to consider that it is the plea of the defendants that plaintiff took away his goods from the suit property, however neither anything has been averred nor anything brought on record regarding approximate timing of the same, leave aside specific details.
24. Even otherwise, irrespective of factum of dispossession, the situation shall be the same in view of the law discussed above. It bears repetition to say that such suits involving pleadings on joint ownership, cannot strictly be adjudicated on terms of Section 6 of Specific Relief Act, 1963. The plaintiff cannot in fact be put to detriment by such action of dispossession defendant no.1, if so, since it is not at all the claim of the defendants that plaintiff has been ousted. It would be total and unjust oblivion on the part of the court if court is swayed by the length of evidence led by parties on factum of physical possession and dispossession in view of the facts and circumstances involved. Thus, dispossession of such kind would rather entitle the plaintiff to be put to the original state and be entitled to joint possession.
25. Though in view of the law discussed above and its application on present facts, the finding on aspect of dispossession within 6 months CS No.99661/16 Pg 40 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
before date of suit is not required. However, it may still be mentioned that even after expiry of 6 months, a suit for possession on the basis of prior possession is maintainable under Article 64 of schedule appended to Limitation Act, 1963, within 12 years from date of dispossession (Nair Service Society Ltd. v. Rev. Father K.C. Alexander & Ors. 1968 AIR 1165).
26. Before parting with the issue in hand, it is important to note that the evidence brought by the plaintiff ostensibly creates some doubt over the number of the suit property. The whole plaint refers to property No.237, Galia Garhaiyya Matia Mahal, Jama Masjid, Delhi - 110 006, and no specific number has been given to the ground floor portion from where the plaintiff alleges to have been dispossessed. Even the site plan (Ex.PW1/18) does not mention any specific and distinct number for the ground floor portion marked in Red color. To the contrary, during the evidence, in some documents brought in by the witnesses of the plaintiff, the property number sought to be repossessed has been shown as 237 and in some as A237 and in others as 237A. To be specific, by calling, PW11, plaintiff has attempted to show that the other portion of the ground floor occupied by the defendant no.3 carrying on business in the name of M/s Ascon Lite is registered at 237B, Garhaiyya Matia Mahal, CS No.99661/16 Pg 41 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
Jama Masjid, Delhi - 110 006, and M/s Crystal Lights of the plaintiff is registered at A237 of the property, in the records of Income Tax department for the purposes of VAT. However, it cannot be ignored that the plaint and the written statement are very clear and unambiguous as to the description of the property at the ground floor including the suit property. Moreover, both the parties are ad idem on the identification of the suit property i.e., the godown at the ground floor of property No.237, Galia Garhaiyya Matia Mahal, Jama Masjid, Delhi 110 006, with two shutters and one wooden door. Therefore, the suit property being identifiable, the number of the property as shown in certain tax documents would not adversely affect the suit of the plaintiff. It may also be borne in mind that defendants have not questioned the authenticity of the site plan since even PW15, the draftsman was not asked any question on accuracy of the site plan.
27. Hence, this issue is decided in favour of plaintiff and against the defendant.
ISSUE NO.4 Whether the suit of the plaintiff is without any cause of action? OPD.
28. In view of the findings under issue no. 5, this issue has become redundant. Even otherwise, cause of action is cause of action is a CS No.99661/16 Pg 42 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. (Church of Christ Charitable Trust & Educational Charitable Society v. Ponniamman Educational Trust (2012) 8 SCC 706). In the present set of facts, when the plaintiff is admittedly the joint owner of the suit property and had been prima facie dispossessed from the same, it cannot be said that plaintiff had no right to relief against the defendants. It may also be mentioned that the relevance to check whether there is cause of action or not is rather at the initial stages of the suit when the court does not have any evidence since the cause of action is basically ascertained from the plaint and documents. When the whole record gets adjudicated, then the decision generally is arrived at on merits and evidence.
29. Hence, the issue is decided against the defendants and in favour of the plaintiffs.
ISSUE NO.3 Whether the document "no objection certificate" purported to be issued by defendant no.4 is forged and fabricated document? OPD.
30. The present issue is based upon the contention of the defendant in the written statement that the No objection Certificate allegedly issued in favour of the plaintiff bears forged signatures of defendant No.4. At the CS No.99661/16 Pg 43 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
outset, it may be mentioned that nowhere in the plaint, plaintiff has relied upon any No objection Certificate issued by defendant No.4. Though such a document is on record, however it was never brought in evidence as such. Yet, the plaintiff examined PW16, a handwriting expert to prove the similarity of signatures of father on Mark A and a document containing undisputed signatures of the father. Alongwith this, the plaintiff also got compared the signatures of the mother i.e., defendant no.4 on a No Objection Certificate which is annexed with the report of the expert, with the signatures on an undisputed document. However, interestingly, the document was never relied upon by the plaintiff in the present suit, therefore, the relevancy of the present issue is doubtful. Even otherwise, the expert witness also stood the test of cross examination and that the onus of this issue was upon the defendants and no evidence was led by the defendants on this document at all.
31. Hence, the issue is decided against the defendants and in favour of the plaintiff.
ISSUE NO.2 Whether the plaintiff is guilty of suppression and concealment of material facts and has not approached the court with clean hands?
32. With regard to this issue, two aspects are notable. Firstly, present is a CS No.99661/16 Pg 44 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
suit for possession and not any equitable and discretionary relief. Therefore, the maxims of equity are not strictly applicable herein. Secondly, a suit seeking equitable relief can be dismissed on the basis of suppression of 'material facts' only. For this purpose, I shall advert to ruling of Hon'ble Supreme Court of India in Arunima Baruah v. Union Bank of India & Ors. (2007) 6 SCC 120 wherein it was held:
It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question.
CS No.99661/16 Pg 45 of 47 Mohd. Jahangir v. Mohd. Shakir & Ors.
33. Having said that, I shall note that substantially it is the claim of the defendants that defendant no.4 had transferred half of the property bearing No.237, Gali Garhaiyya Matia Mahal, Jama Masjid, Delhi 110006 to defendant no.1. Further that defendant No.3 through defendant No.1 and 2 had permitted the plaintiff to use the suit property.
Further that it was the plaintiff himself who had left the suit property by taking away his goods. Ostensibly, these facts have been alleged to have been concealed. It may be mentioned that the said facts do not seem to be material in view of the admissions of the defendant that the suit property is a part of undivided and joint property. Further as already noted under issue no.5, defendants have neither brought anything to show the exclusive portion that the defendant no.4 was entitled as an owner nor any other evidence with respect to plaintiff taking away his goods from the suit property himself. In fact, not even details of the timing of such instance have been mentioned in the written statement. Thus, it does not transpire that plaintiff has concealed any material fact which entails dismissal of the suit.
34. Hence, this issue is decided against the defendants and in favour of the plaintiff.
CS No.99661/16 Pg 46 of 47
Mohd. Jahangir v. Mohd. Shakir & Ors.
ISSUE NO.7
Whether the plaintiff is entitled for decree of possession? OPP.
35. In view of the findings given under issue No.5, plaintiff is held entitled to joint possession.
36. Hence, this issue is decided in favour of the plaintiff and against the defendants.
RELIEF
37. In view of the observations made hereinabove, the suit of the plaintiff is decreed and plaintiff is held entitled to joint possession along with defendants (whosoever are so entitled). Needless to say, this shall not amount to depriving the defendants from any rights in the suit property as joint owners.
38. No order as to costs.
39. Decree sheet be prepared accordingly.
Digitally
signed by
HELLY HELLY FUR
KAUR
40. File be consigned to Record Room. FUR Date:
KAUR 2022.02.26
16:55:23
+0530
Announced in the open court (HELLY FUR KAUR)
on 26.02.2022 Civil Judge - 08 (Central)/Delhi
CS No.99661/16 Pg 47 of 47