Delhi District Court
Shiv Karuppiah vs Naresh Gupta on 20 March, 2024
IN THE COURT OF MS. RICHA GUSAIN SOLANKI,
ADDL. DISTRICT JUDGE-02, SOUTH-WEST DISTRICT,
DWARKA COURTS, NEW DELHI
CS DJ ADJ No. 516206/2016
CNR No. DLSW010019262015
IN THE MATTER OF:
Shiv Karuppiah
s/o Sh. Shiv Jothi
R/o C-89, JJ Colony,
Sector-7, Dwarka, New Delhi ........Plaintiff
Versus
Naresh Gupta
s/o Sh. Kali Charan
R/o B-11, Bindapur, Pocket-3,
DDA Flats, New Delhi-59..... ..........Defendant
Date of institution 23.07.2015
Date of reserving judgment 20.02.2024
Date of pronouncement of judgment 20.03.2024
JUDGMENT
This is a suit for recovery of possession under Section 6 of the Specific Relief Act and for permanent and mandatory injunction. The brief facts as stated in the plaint are:− 1 It is stated that the plaintiff had purchased property bearing number C-89, measuring 22.5 yd.² built up to 5 floors situated at JJ Colony, Sector-7, Dwarka, New Delhi (hereinafter referred to as "the suit property") from its previous owner, Smt. Neeta Jain on 14.01.2004. Smt. Neeta Jain had purchased the suit property from the original allottee Sh. Ram Vilas on 22.08.2003. It is stated that the plaintiff and the defendant were known to each CS No. 516206/2016 Shiv Karuppiah vs Naresh Gupta. Page no. 1/16 other, and in the year 2014 the plaintiff was in need of some money and hence, he borrowed ₹6 lakhs in cash from the defendant against which he handed over the property documents of the suit property to the defendant as mortgage. It is stated that the defendant also obtained the signatures of the plaintiff on blank papers, stamp papers, etc. It is stated that the defendant had assured the plaintiff that he would return the property documents as soon as the plaintiff returned the loan amount. 2 It is stated that in June 2015, the plaintiff repaid the loan to the defendant but the defendant did not issue any receipt against the same. It is stated that on 01.07.2015, the plaintiff demanded the property documents from the defendant but he flatly refused to the same. It is stated that on the same day, the plaintiff went on a pilgrimage and on 07.07.2015, when he returned to the suit property, he found that the defendant had put another lock on his lock and some people had unlawfully entered into the suit property. It is stated that due to the intervention of the local public, the defendant could not take possession of the third floor of the suit property from the plaintiff. It is stated that the plaintiff filed several complaints to the police authorities on 09.07.2015, but no action was taken on the same.
3 It is stated that on 27.07.2015, the defendant and his associates gave beatings to the plaintiff but they could not take possession of the third floor of the suit property. It is stated that on the same day, the police took preventive action against the defendant under Section 107/151 CrPC.
4 It is stated that during the pendency of the suit on 06.09.2015, the defendant came to the suit property and gave beatings to the plaintiff after which the plaintiff had to flee to CS No. 516206/2016 Shiv Karuppiah vs Naresh Gupta. Page no. 2/16 save his life. It is stated that the plaintiff made a call to the police and he was medically examined at Deen Dayal Upadhyay Hospital. It is stated that the plaintiff again gave complaints to the police but no action was taken against the defendant. 5 Hence, the present suit was filed seeking possession of the suit property under Section 6 of the Specific Relief Act, seeking permanent injunction restraining the defendant from creating any third-party interest over the suit property and for mandatory injunction directing the defendant to hand over all the documents of the suit property to the plaintiff.
6 At this stage, it may be noted that the above-mentioned facts are from the amended plaint, which the plaintiff was allowed to file. The initially filed plaint contained all the above averments except the incident dated 06.09.2015. The prayer clause was also the same with the exception that earlier the plaintiff was also praying that the defendant be restrained from forcefully dispossessing him from the third floor of the suit property.
7 Thus, it would appear that earlier the plaintiff was seeking the relief of possession of other floors of the suit property, except the third floor. This is further fortified by the site plan Ex PW1/7 which shows all the floors, except the third floor in red colour. 8 The defendant filed a written statement stating that the plaintiff had sold him the suit property on 09.05.2014 for ₹6 lakhs, and he had also handed over the peaceful and vacant possession of the suit property to him at that time. It is stated that the defendant inducted tenants in the ground floor, first floor, second floor and fourth floor of the suit property whereas the physical possession of the third floor was kept to himself. It is CS No. 516206/2016 Shiv Karuppiah vs Naresh Gupta. Page no. 3/16 stated that the plaintiff also took a loan of ₹3 lakhs from the defendant against agreement/promissory note dated 26.06.2014. It is stated that when the defendant started demanding his money, the plaintiff filed a false suit against him. It is stated that on 25.07.2015, the plaintiff and his associates tried to forcefully dispossess the defendant from the third floor of the suit property, but due to the timely intervention of the tenants, they could not do so. It is stated that on 27.07.2015 the plaintiff again attempted to take possession of the suit property and made it look like the defendant was throwing out his articles after which the police filed a false and frivolous kalandra against the defendant. It is further stated that no such incident took place on 06.09.2015 as alleged by the plaintiff because the defendant was in possession of the suit property since 09.05.2014.
9 The plaintiff filed a replication wherein he denied the contents of the written statement and reiterated the contents of the plaint.
10 Vide order dated 29.07.2019, nine issues were framed by Ld. Predecessor Court:
"(1)Whether the plaintiff is the owner of an immovable property admeasuring 22.50 sq.yds with built up five floors, bearing No.C89, JJ Colony, Sector7, Dwarka, New Delhi - 110075? ... OPP (2)Whether the plaintiff took an amount of ₹6,00,000/ (Rupees Six Lakhs only) in cash from the defendant and in lieu of the same handed over/ deposited the property documents of the property admeasuring 22.50 sq.yds with built up five floors, bearing No.C89, JJ Colony, Sector7, Dwarka, New Delhi - 110075? ... OPP CS No. 516206/2016 Shiv Karuppiah vs Naresh Gupta. Page no. 4/16 (3)Whether the plaintiff returned the amount of ₹6,00,000/ (Rupees Six lakhs only) to the defendant? ... OPP (4)Whether the defendant purchased the suit property from the plaintiff for an amount of ₹6,00,000/ (Rupees Six Lakhs only) in cash ?... OPD (5) Whether plaintiff has undervalued the suit property and not affixed requisite court fee on the plaint? ...OPD (6)Whether the plaintiff is entitled for decree of possession of immovable property admeasuring 22.50 sq.yds with built up five floors, bearing No.C 89, JJ Colony, Sector7, Dwarka, New Delhi - 110075, against the defendant? ... OPP (7) Whether the plaintiff is entitled for decree of permanent injunction restraining the defendant and or his employees, his relatives, agents, nominee etc from creating third party interest, transferring alienation of immovable property admeasuring 22.50 sq.yds with built up five floors, bearing No.C 89, JJ Colony, Sector7, Dwarka, New Delhi - 110075? ... OPP (8) Whether the plaintiff is entitled for decree of mandatory injunction against the defendant, directing the defendant to hand over all the documents with regard to immovable property admeasuring 22.50 sq.yds with built up five floors, bearing No.C89, JJ Colony, Sector7, Dwarka, New Delhi - 110075 to the plaintiff? ... OPP (9) Relief, if any."
CS No. 516206/2016 Shiv Karuppiah vs Naresh Gupta. Page no. 5/16 11 In order to prove his case, the plaintiff entered the witness box as PW1. He tendered his affidavit Ex PW-1/A in evidence which reiterates the facts mentioned in the amended plaint. He relied on the following documents:
S. No. Document Marked as
1. Payment receipt of electricity bill Ex PW1/1
2. Complaint dated 08.07.2015 Ex PW1/2
3. Courier receipts of the complaint Ex PW1/3
(colly)
4. Complaint dated 09.09.2015 Ex PW1/5
5. Photographs to show the possession of the Ex PW1/6
plaintiff (colly)
6. Site plans of the suit property Ex PW1/7 and
Ex PW1/7-1
7. Certified copy of the kallandras Ex PW1/8
8. Newspaper dated 16.07.2015 Ex PW1/9
9. Copy of the chain of documents in favour of the Mark A plaintiff and his disability certificate 12 The defendant entered the witness box as DW1 and tendered his affidavit Ex DW1/A, which is on the lines of his written statement. He relied on the following documents:
S. No. Document Marked as
1. Chain of documents in favour of the defendant Ex PW1/DX2
(colly)
2. Electricity bills Mark A to
Mark C
3. Photographs to show the possession of the Ex DW1/2 to defendant Ex DW1/4
4. Copies of rent receipts of the tenants of the Ex DW1/5 defendant (colly) (OSR)
5. Certified copy of the kallandras Ex PW1/8
6. Agreement/Promissory note dated 26.06.2014 Ex PW1/DX1 13 I have heard both sides and perused the record.
CS No. 516206/2016 Shiv Karuppiah vs Naresh Gupta. Page no. 6/16 14 My issue-wise findings are as under:
14.1 "(1)Whether the plaintiff is the owner of an immovable property admeasuring 22.50 sq.yds with built up five floors, bearing No.C89, JJ Colony, Sector7, Dwarka, New Delhi -
110075? ... OPP (4)Whether the defendant purchased the suit property from the plaintiff for an amount of ₹6,00,000/ (Rupees Six Lakhs only) in cash ?... OPD"
14.1.1 As noted above, this is a suit for possession under Section 6 of the Specific Relief Act:
"Section 6 Suit by person dispossessed of immovable property.--
(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. (2) ..."
14.1.2 Thus, the remedy under Section 6 of the Act is a summary remedy against dispossession otherwise than in due process of law, where the only question to be adjudicated is of such dispossession, without adjudicating any question of title. 14.1.3 This Court cannot give any finding as regards the ownership of the suit property in the present suit. Reliance is placed on the judgment in the case of Sanjay Kumar Pandey & Ors. v. Gulbahar Sheikh And Others, (2004) 4 SCC 664 wherein the Hon'ble Supreme Court held that Section 6 of Specific Relief Act, 1963 is a provision to give immediate succour to the person who has been incorrectly dispossessed from the property which was under his possession. The Court observed as under:
"A proceeding under Section 6 of the Specific Relief Act, 1963 is intended to be a summary proceeding the object of which is to afford an immediate remedy to an CS No. 516206/2016 Shiv Karuppiah vs Naresh Gupta. Page no. 7/16 aggrieved party to reclaim possession of which he may have been unjustly denied by an illegal act of dispossession. Questions of title or better rights of possession does not arise for adjudication in a suit under Section 6 where the only issue required to be decided is as to whether the Plaintiff was in possession at any time six months prior to the date of filing of the suit. The legislative concern underlying Section 6 of the SR Act is to provide a quick remedy in cases of illegal dispossession so as to discourage litigants from seeking remedies outside the arena of law. The same is evident from the provisions of Section 6(3) which bars the remedy of an appeal or even a review against a decree passed in such a suit."
14.1.4 Accordingly, issues no. (1) and (4) are treated as deleted and not decided.
14.2 "(5) Whether plaintiff has undervalued the suit property and not affixed requisite court fee on the plaint? ... OPD"
14.2.1 The onus of proving this issue was on the defendant. The plaintiff has sought three reliefs in this suit: permanent injunction, mandatory injunction and possession under Section 6 of the Specific Relief Act.
14.2.2 The plaintiff has valued the relief of injunctions at ₹150 each on which court fees of ₹15 each have been paid, as per Section 7(iv) of the Court Fees Act.
14.2.3 The relief of possession has been valued at half of the value of the suit property, that is, ₹15,23,610 (₹3,04,772 + ₹12,18,888) on which ad valorem court fees has been paid, as per Article 2 of the First Schedule to the Court Fees Act. 14.2.4 The defendant has not led any evidence or explained how the valuation given by the plaintiff is bad. 14.2.5 Issue no.(5) is accordingly answered in favour of CS No. 516206/2016 Shiv Karuppiah vs Naresh Gupta. Page no. 8/16 the plaintiff and against the defendant.
14.3 "(6)Whether the plaintiff is entitled for decree of possession of immovable property admeasuring 22.50 sq.yds with built up five floors, bearing No.C 89, JJ Colony, Sector7, Dwarka, New Delhi - 110075, against the defendant? ... OPP"
14.3.1 The onus of proving this issue was on the plaintiff. As observed earlier, in a suit under Section 6 of the Specific Relief Act, the plaintiff need only prove that he was in possession at any time six months before the date of filing of the suit and that he was dispossessed forcibly or otherwise than with due process of law. Thus three essential elements emerge:
a) The plaintiff was earlier in possession
b) He was dispossessed anytime during the period of six months before filing the suit
c) Such dispossession was without his consent and without due process of law 14.3.2 The plaint and the amended plaint are not clear as to when the plaintiff was dispossessed and from which floor of the suit property he was dispossessed by the defendant. However, a comparison of the initial plaint and amended plaint as well as the two site plans Ex PW1/7 and Ex PW1/7-1 would reveal that the plaintiff was initially claiming that he was dispossessed by the defendant from all the floors in the suit property, except the third floor, and on 06.09.2015, during the pendency of the present suit, he was forcibly dispossessed from the third floor also.
14.3.3 There is no denial by the defendant that earlier that the plaintiff was in possession of the suit property, since the defendant admits his previous ownership.
CS No. 516206/2016 Shiv Karuppiah vs Naresh Gupta. Page no. 9/16 14.3.4 However, the plaintiff has prevaricated from stating in his plaint as to when he was dispossessed from the suit property (all the floors, except the third floor.) 14.3.5 At this stage, it would be apt to refer to the cross- examination of the plaintiff wherein he admitted that he had given the suit property to the defendant "on friendly terms in lieu of interest." He has further admitted in his cross-examination that he gave the possession of all the floors, except the third floor of the suit property to the defendant.
14.3.6 Once, the plaintiff admits that he voluntarily handed over possession of the suit property (except the third floor), no case under Section 6 of the Specific Relief Act is made out qua these floors.
14.3.7 Reliance is placed on the judgment in the case of Sukhjeet Singh vs Sirajunnisa, AIR 2001 MP 59 in which the plaintiff was a tenant and he was requested by his landlord- defendant to handover the possession of the part of premises for his marriage ceremony with an assurance that he would deliver back the possession after the ceremony was over. However, the defendant did not hand over the possession back to the plaintiff and the plaintiff filed a suit for possession as per Section 6 of the Act. Disagreeing with the plaintiff, Hon'ble Mr. Justice Dipak Mishra (as his lordship then was) observed:
"...The Court is not required to delve into the illegality of transaction. The Court has to see whether there was consent at the time of handing over of possession. Mr. Rajeev Shrivastava, learned counsel for the non- applicant, has impressed upon this Court that there was misrepresentation to the tenant that the premises in question would be handed over after marriage ceremony was over and hence, the consent obtained under these circumstances would not amount to real consent. Though of first flush this contention looks CS No. 516206/2016 Shiv Karuppiah vs Naresh Gupta. Page no. 10/16 attractive, on a close scrutiny I am of the view that it has no legs to stand upon. At the time of delivery of possession there was ad idem between the parties and the possession was delivered by the tenant/plaintiff. The possession was given out of total volition. There was no application of force of any kind in the most remote sense. If the plaintiff was deceived later on, that will be a matter of regular suit but it cannot come within the ambit and sweep of Section 6 of the Act."
(emphasis supplied) 14.3.8 In the present suit also, the plaintiff admits having handed over possession of all the floors, except the third floor, on his own accord and therefore, he cannot seek their possession under Section 6 of the Specific Relief Act.
14.3.9 As regards the third floor, the plaintiff claims that he was in possession till 06.09.2015, when he was beaten up and thrown out of the property. In order to substantiate his claim, he has relied on electricity bill payment receipt Ex PW1/1 but the same does not reflect who has paid the same. It would appear that the payments were by way of cheques but the plaintiff did not lead evidence to show that he had issued those cheques. 14.3.10 Moreover, the receipt acknowledges payment of three different electricity meters: one installed on the first floor of the suit property, another on second floor and the last bill does not mention the floor. However, the plaintiff has admitted during his cross-examination that all the floors, except the third floor were occupied by tenants. In these circumstances, why would the plaintiff pay the bills instead of the tenants? 14.3.11 The next set of documents relied upon by him are the photographs Ex PW1/6 wherein he is seen holding the newspaper Ex PW1/9 dated 16.07.2015. No negatives or certificate under Section 65B Evidence Act has been furnished for these photographs and they are thus, inadmissible being CS No. 516206/2016 Shiv Karuppiah vs Naresh Gupta. Page no. 11/16 secondary evidence. In any case, in all these photographs the plaintiff is seen standing outside the suit property with the door behind him bolted. These photographs therefore, cannot show his possession of the third floor of the suit property. 14.3.12 The last document relied upon by the plaintiff are the kallandras Ex PW1/8 (colly) which can only show that the plaintiff and the defendant were fighting over the suit property. The observations of the police officer that the neighbours told him that the defendant was throwing the belongings of the plaintiff is at best hearsay. The plaintiff did not examine any person who helped him ward off the defendant, as claimed by him.
14.3.13 Further, the plaintiff has admitted that in the year 2014, he shifted to Tamil Nadu and returned to Delhi in the year 2015. He further admitted that he resided at another property at Durga Park in Delhi in the year 2015 and then again left for Tamil Nadu in the year 2016. However, in his plaint, the plaintiff did not mention that he was in fact residing elsewhere or that he was using the third floor only for storage. Rather his police complaints mention that he was residing in the third floor, which is admittedly incorrect.
14.3.14 The plaintiff claims that he was forcibly dispossessed on 06.09.2015 after he was mercilessly beaten and he had to be taken to DDU Hospital where his MLC was prepared. However, no record of any police call, police complaint dated 06.09.2015 or MLC is filed by the plaintiff. 14.3.15 On the other hand, the defendant has relied on the possession letter Ex PW1/DX1 which is signed by the plaintiff and notes that the possession of the entire property had been CS No. 516206/2016 Shiv Karuppiah vs Naresh Gupta. Page no. 12/16 handed over to the defendant by the plaintiff. 14.3.16 A civil case is decided on the principle of preponderance of probabilities, and in the present case, they do not tilt in favour of the plaintiff. The plaintiff has not been show that he was in possession of the third floor of the suit property when the suit was filed or that he was forcibly dispossessed on 06.09.2015.
14.3.17 Resultantly, issue no.(6) is decided against the plaintiff and in favour of the defendant.
14.4 "(7) Whether the plaintiff is entitled for decree of permanent injunction restraining the defendant and or his employees, his relatives, agents, nominee etc from creating third party interest, transferring alienation of immovable property admeasuring 22.50 sq.yds with built up five floors, bearing No.C 89, JJ Colony, Sector7, Dwarka, New Delhi - 110075? ... OPP"
14.4.1 In view of the findings on issue no. (6), since the plaintiff could not prove that he is entitled to possession of the suit property, no injunction can be granted to him in this suit. 14.4.2 Issue no.(7) is also decided against the plaintiff and in favour of the defendant.
14.5 "(2)Whether the plaintiff took an amount of ₹6,00,000/ (Rupees Six Lakhs only) in cash from the defendant and in lieu of the same handed over/ deposited the property documents of the property admeasuring 22.50 sq.yds with built up five floors, bearing No.C89, JJ Colony, Sector7, Dwarka, New Delhi - 110075? ... OPP (3)Whether the plaintiff returned the amount of ₹6,00,000/ -
CS No. 516206/2016 Shiv Karuppiah vs Naresh Gupta. Page no. 13/16 (Rupees Six lakhs only) to the defendant? ... OPP (8) Whether the plaintiff is entitled for decree of mandatory injunction against the defendant, directing the defendant to hand over all the documents with regard to immovable property admeasuring 22.50 sq.yds with built up five floors, bearing No.C- 89, JJ Colony, Sector7, Dwarka, New Delhi - 110075 to the plaintiff? ... OPP"
14.5.1 These issues are connected and are being taken up together. The onus of proving these issues was on the plaintiff. 14.5.2 It is the case of the plaintiff that he had taken a loan of ₹6 lakhs from the defendant against which he mortgaged the documents of the suit property. It is his case that he returned this money in June 2015 but the defendant refused to return the property documents. On the other hand, the defendant has denied these averments and taken a stand that the plaintiff had sold the suit property to him and hence, the property documents were given to him.
14.5.3 Admittedly, there is no documentary evidence of the extension of the loan or its repayment. The plaintiff has admitted during his cross-examination that there was no witness of the extension of the loan and explained that there was one witness of the repayment, who has since passed away. Therefore, apart from the self-serving statement of the plaintiff, there is no other evidence of the loan or its repayment. The plaintiff has not even mentioned an approximate date when the loan was given or repaid, except mentioning the years 2014 and 2015. 14.5.4 Per contra, the defendant claims that because the plaintiff had executed a chain of documents Ex PW1/DX1 in his favour, he is not liable to return the property documents. The CS No. 516206/2016 Shiv Karuppiah vs Naresh Gupta. Page no. 14/16 plaintiff has not denied that this chain of documents bear his signatures but he has explained that he was made to sign several blank papers and stamp papers by the defendant when he took the loan.
14.5.5 It is to be noted that these documents are notarised. Authentication by a notary public is a solemn act performed by the notary public whose duty is to ensure that the executant is the person before him and is identified to his satisfaction. Once a document is authenticated by a notary public, it will be presumed that the document was duly executed and was in order. Onus would thus lie on the opposite party to prove to the contrary.
The plaintiff has not tendered any explanation as to how these documents were notarised in his absence, as he alleges. 14.5.6 Rather, the plaintiff has admitted his signatures on Ex PW1/DX3 also, which is a bayana receipt form preceding the documents Ex PW1/DX1. He did not explain why he signed this printed form if he never intended to sell his property to the defendant.
14.5.7 It is also pertinent to note that despite being aware of the execution of these documents (at least after the written statement was filed), the plaintiff never sought cancellation of these documents, which relief has become time-barred now. 14.5.8 Therefore, the plaintiff could not prove that he had taken any loan from the defendant against the property papers or that he having returned it, is entitled to their return. 14.5.9 Issues no.(2), (3) and (8) are decided against the plaintiff and in favour of the defendant.
14.6 "(9) Relief, if any."
CS No. 516206/2016 Shiv Karuppiah vs Naresh Gupta. Page no. 15/16 The suit of the plaintiff is dismissed. Since the plaintiff is differently abled, parties to bear their own costs. Decree sheet be prepared accordingly.
15 File be consigned to record room after due compliance.
Digitally signed by RICHA
RICHA GUSAIN GUSAIN SOLANKI
SOLANKI Date: 2024.03.20 17:21:00
+0530
Announced in open Court today (Richa Gusain Solanki)
on 20th March, 2024 ADJ-02/South-West District
Dwarka Courts: New Delhi
CS No. 516206/2016 Shiv Karuppiah vs Naresh Gupta. Page no. 16/16