Delhi District Court
New Delhi vs Sh. Chander Pal on 2 January, 2012
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IN THE COURT OF SH. GOPAL SINGH CHAUHAN, CIVIL JUDGE
(WEST)2, DELHI
SUIT NO. 246/06
Unique Case ID No. 02401C0124212002
Smt. Poonam
W/o Late Sh. Krishan Kumar
R/o A623/B, Gali No. 17,
Mahavir Enclave, PartII
New Delhi.
..........................PLAINTIFF
VERSUS
1. Sh. Chander Pal
S/o Not Known.
R/o A623/A, Gali No. 16,
Mahavir Enclave, PartII
New Delhi.
2. Smt. Om Wati
W/o Sh. Chander Pal
R/o A623/A, Gali No. 16,
Mahavir Enclave, PartII
New Delhi.
........................DEFENDANTS
Suit filed on - 31.10.2002
Judgment reserved on - 26.11.2011
Date of decision - 02.01.2012
Suit No. 246/06 Page 1/9
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SUIT FOR POSSESSION AND PERMANENT INJUNCTION
JUDGMENT: By this judgment I shall dispose off the suit for possession and permanent injunction filed against the defendants.
1. The brief facts of the case as per amended plaint are that the plaintiff is the owner of the property bearing plot no. 41, measuring 100 sq. yds. out of Khasra No. 7/2, situated in Village estate of Village Mirzapur, Delhi, previously known as A23, Gali No. 16, PartII, Mahavir Enclave, New Delhi. The said property was sold by Smt. Sushila, W/o Sh. Dharam Pal, R/o Village & P.O. Chhatera, Distt. Sonepat (Haryana) to (1) Sh. Suraj Prakash and (2) Sh. Krishan Kumar, both sons of Sh. Heera Lal. Sh. Suraj Prakash is the "Jyeth" of the plaintiff and Sh. Krishan Kumar @ Krishan Lal was her husband. By virtue of certain documents namely GPA, Will (Regd.), Agreement to Sell, Affidavit etc. all dt. 14.06.1991, Sh. Suraj Prakash and Sh. Krishan Kumar @ Krishan Lal became joint owners of the said property. After taking possession of the property, the brothers made two parts of the plot and Sh. Krishan Kumar with his family started residing in west portion towards Gali No. 17 and Sh. Suraj Prakash started residing in the east portion towards Gali No. 16. The east portion was known as A and west portion was known as B. On 23.5.1995, both the brothers sold the east side portion measuring 50 sq. yds. to the plaintiff vide documents viz. GPA (Regd.), Will (Regd.), agreement to sell and receipt, all dt. 22.5.1995. Defendant no. 1 developed friendly relations with Sh. Suraj Prakash who allowed him to reside in the east portion of the suit property as permissive user about 3½ years ago. Defendant no.2 is the wife of defendant no.1. Sh. Suraj Prakash persuaded Suit No. 246/06 Page 2/9 3 and convinced the plaintiff to allowed the defendant no. 1 to reside in the property. The defendant no. 1 took the Jyeth of the plaintiff in complete confidence and later on changed his intentions. In 1995 or prior to it, the number of the plot was 41A, which was changed to A23 and now the said plot is given no. as A623. In fact, the colony being unapproved colony, the number of plots have been changed as per the society or M.C.D./ D.D.A. authorities. The suit property is now known as A623/A, Gali No. 16, PartII, Mahavir Enclave, New Delhi. For the last few months, Sh. Suraj Prakash is not staying in the suit property and finding the chance, defendant no. 1 started raising constructions in the suit property about which the plaintiff came to know only on 28.10.2002. The plaintiff objected to the raising of construction, however, the defendant no. 1 did not stop construction and threatened the plaintiff with dire consequences, if she raised any objection in construction work. The defendant no. 1 also told the plaintiff that after construction he would sell off the property. The defendant no. 1 has been residing in the suit property only as permissive user and he has got no title, right or interest in the same. Neither the defendant no. 1 nor the defendant no. 2 are buyer of the suit property. The documents filed by the defendant no. 1 dt. 23.6.1994 are sham, false and fabricated documents. The said documents are liable to be declared null and void. The defendants are unauthorized occupants of the suit property. It is has been prayed that a decree of recovery of possession in r/o of suit property, decree of permanent injunction restraining the defendants from alienating, parting with possession or creating third party interest in r/o of suit property and decree of declaration declaring documents dt. 23.06.1994 null and void, be passed in favour of the plaintiff and against the defendants. Suit No. 246/06 Page 3/9
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2. The Written Statement was filed on behalf of the defendants. Therein, it is submitted that the suit does not disclose any cause of action. The defendants no. 1 and 2 are residing in property no. A623, Gali No. 16, Mahavir Enclave, PartII, New Delhi in their own right, as the defendants have purchased the same from Sh. Hari Bahadur on 6.6.1994. The back side of the property of the defendants is occupied by the plaintiff. The plaintiff has no right, title or interest whatsoever in the property of the defendants. This Court has no jurisdiction to try and entertain the present matter as the value of the suit property is more than Rs. 2 lakhs. It is also submitted that defendants even do not know Suraj Prakash. In fact, Suraj Prakash has never been residing in the suit property. The defendants are in the exclusive possession of suit property since June 1994, the date when it was purchased. The defendants had started the repair works in the first week of October, 2002 as the wedding of defendants' son was ahead. The plaintiff has no right to raise any objection in the construction work being carried out by the defendants. All other averments made in the plaint are denied.
3. Replication was filed on behalf of plaintiff wherein averments made in the WS has been denied and those made in the plaint were reaffirmed.
4. Although issues were earlier framed on 13.8.2003 but later on vide order dt. 17.9.2004, an application of plaintiff u/o 6 Rule 17 CPC for making certain amendments was allowed and the issues were again reframed in the matter on 5.4.2005. From the pleadings of the parties the following issues were framed on 5.4.2005: Suit No. 246/06 Page 4/9 5 (1) Whether the plaintiff is entitled to decree for possession as prayed?
OPP.
(2) Whether the plaintiff is entitled to the equitable relief of permanent injunction as prayed? OPP (3) Whether this Court has no pecuniary jurisdiction to try and entertain the present suit in view of the preliminary objection no. 2 of the WS and the suit has not been properly valued by the plaintiff? OPD.
(4) Relief.
5. In order to prove her case the plaintiff got examined herself as PW1. Certain documents were also exhibited by her. Ex. PW1/A is the GPA dt. 23.5.1995, Ex. PW1/B is GPA purported to have been executed by Smt. Sushila in favour of Sh. Suraj Prakash and Sh. Krishan Kumar. Ex. PW1/C is the Will dt. 14.6.1991 executed by Smt. Sushila. Ex. PW1/D is the agreement to sell of the same date. Ex. PW1/E is the affidavit of Smt. Sushila. Ex. PW1/F is the receipt issued by Smt. Sushila. Ex. PW1/G is the "Deed of Will" dt. 22.5.1995 executed by Sh. Suraj Prakash in favour of plaintiff. Ex. PW1/H is the "Deed of Will" of the same date executed by Sh. Krishan Kumar in favour of the plaintiff. Ex. PW1/I is the receipt issued by Sh. Suraj Prakash and Sh. Krishan Kumar. Ex. PW1/J is the agreement to sell dt. 23.5.1995 executed in favour of the plaintiff. Ex. PW1/K is the copy of complaint dt. 27.9.2004 to the SHO, P.S. Dabri, New Delhi. Ex. PW1/L is the site plan.
On the other hand in defence the defendants got examined three DWs namely Sh. Chander Pal, defendant no.1 as DW1, Sh. Ganesh Dutt Sharma as DW2 and Sh. Chhajju Ram as DW3. Certain documents were also exhibited. Suit No. 246/06 Page 5/9
6 Ext. DW1/1 (OSR) is the GPA in favour of defendant no.2. Ext. DW1/2 (OSR) is the agreement to sell. Ext. DW1/3 (OSR) is the affidavit. Ext. DW1/4 (OSR) is the receipt. Ext. DW1/5 (OSR) is the Will.
6. The arguments have been heard and the record has been carefully perused. Now, I shall give my issuewise findings which are as under :
7. ISSUE NO.3 Whether this Court has no pecuniary jurisdiction to try and entertain the present suit in view of the preliminary objection no. 2 of the WS and the suit has not been properly valued by the plaintiff? OPD.
This issue is based on the objection taken by the defendants in their WS. In preliminary objection no.2 of WS it is submitted that this Court has no pecuniary jurisdiction to try and entertain the present suit as the value of the suit property is more than Rs.2lakhs. In para 14 of the plaint for the relief of possession, the suit property has been valued at Rs.1Lack. No evidence has been led on behalf of the defendants to prove the fact that value of suit property is more than Rs.1Lack. Also nothing material came in the cross examination of PW1 in support of the case of the defendants.
In view of above, the present issue is decided in in favour of the plaintiff and against the defendants.
8. ISSUE NO.1 & 2 Whether the plaintiff is entitled to decree for possession as prayed? OPP.
Suit No. 246/06 Page 6/9
7 Whether the plaintiff is entitled to the equitable relief of permanent injunction as prayed? OPP The case of the plaintiff is that she is the owner of the suit property by virtue of documents exhibited from PW1/A to PW1/K. It is claimed that earlier the property was purchased by plaintiff's husband and her Jyeth from one Smt. Sushila and later on after dividing the plot the suit property was transferred in favour of the plaintiff by both brothers by virtue of certain documents which are exhibited as Ext. PW1/G to PW1/J. On the other hand, the case of the defendants is that they are the owner of the suit property after the same has been purchased from its erstwhile owner Sh. Hari Bahadur and the plaintiff has got no right and title in the suit property. It has been denied by the defendants that Smt. Sushila, to whom as per plaintiff the suit property earlier belonged, was ever owner of the suit property.
The present suit is filed mainly for recovery of possession on the basis of title. As per the claim of plaintiff the suit property was purchased by her husband and Jyeth from erstwhile owner Smt. Sushila by virtue of documents Ext. PW1/B to PW1/F which are GPA, Will, Agreement to Sell, Affidavit and Receipt purported to have been executed by Smt. Sushila on 14/06/1991. It is observed that the documents relied upon by the plaintiff in support of her contention that she is the owner of the suit property are not properly registered and in view of the provisions of Section17 of Indian Registration Act 1908 the same could not have created any valid title in favour of the plaintiff in respect of the suit property.
It is argued by counsel for defendants that in the plaint it has been mentioned that defendant no. 1 is in possession of suit property for the last about Suit No. 246/06 Page 7/9 8 3 ½ years and during her crossexamination which was conducted on 05/05/08 Plaintiff/PW1 has stated that defendant had started living in the suit property about 45years prior to 1995, it shows that story put forth by plaintiff is not true. He has also argued that Ex. PW1/B is false and fabricated document as residence of persons in whose favor the said document was executed were shown to be residents of the suit property i.e. subject matter of the said document. Counsel for defendants has also submitted that the site plan Ex. PW1/L does not tally with document Ex. PW1/A. He has also pointed out that in the cross examination of PW1, it came that plaintiff's Jyeth Sh. Suraj Prakash never resided in the suit property and this fact is in contravention of the version given in the plaint.
On the other hand, counsel for plaintiff has argued that the documents exhibited and relied upon by the defendants do not create a valid title in favour of the defendants as the same are undated and unregistered.
It is settled proposition of law that plaintiff has to prove his or her case on his own and any lacuna in the case of the defendants cannot be made a ground for relaxing the onus of proving the case which relies upon the plaintiff. In the present matter, the plaintiff seeks recovery of possession of the suit property on basis of title. It is found that the documents relied upon by the plaintiff in support of her claim of ownership over the suit property are not properly registered and the same could not have created any title in favour of the plaintiff. Moreover, there are certain contradictions in the case of the plaintiff as in the plaint it is submitted that earlier the Jyeth of the plaintiff namely Sh. Suraj Prakash had been residing in the suit property whereas during her crossexamination PW1 had denied this fact. Similarly, in plaint it is mentioned that the defendant was residing in the suit property for the last about three and half years prior to filing Suit No. 246/06 Page 8/9 9 of the suit on 31/10/02 whereas during her crossexamination on 05/05/08 PW1h had deposed that the defendant started living in the suit property about 45years prior to 1995.
In view of above, both the issues are decided in favour of the defendants and against the plaintiff.
9. ISSUE NO.4 RELIEF In view of the findings given on issues no.1 to 3, pleadings of the parties, evidence led by the parties and the material available on record, it is found that the plaintiff has failed to prove her case on the scale of preponderance of probabilities. Accordingly, the suit of the plaintiff is hereby dismissed.
Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
(GOPAL SINGH CHAUHAN) Civil Judge (West)2, Delhi Announced in the open court on 02.01.2012.
Suit No. 246/06 Page 9/9