Delhi District Court
Jamaluddin vs Mohd. Ismail on 10 November, 2016
IN THE COURT OF SH. PRASHANT SHARMA:
ADMINISTRATIVE CIVIL JUDGECUMARCCUMCCJ:
NORTH EAST DISTRICT: KARKARDOOMA COURTS: DELHI
Suit No. 5377/15
In the matter of :
Jamaluddin
S/o Late Sh. Karimuddin
R/o C22, Old No. C172
Street No. 20, Near Yamuna Vihar
DTC Bus Deport, North Ghonda
Delhi110053 .....Plaintiff
Versus
1.Mohd. Ismail S/o Sh. Jamaluddin R/o C22, Old No. C172 2nd and 3rd floor, Street No. 20 Near Yamuna Vihar, DTC Bus Depot North Ghonda, Delhi 110053
2. Mohd. Nafis S/o Sh. Jamaluddin R/o C22, Old No. C172 2nd and 3rd floor, Street No. 20 Near Yamuna Vihar, DTC Bus Depot North Ghonda, Delhi 110053 ....Defendants Date of Institution : 23.05.2015 Date of Judgment reserved on : 17.10.2016 Date of Pronouncement : 10.11.2016 SUIT FOR MANDATORY AND PERMANENT INJUNCTION AND FOR RECOVERY OF DAMAGES/ MESNE PROFITS J U D G M E N T
1. Plaintiff, namely Jamaluddin had filed present suit for mandatory injunction, permanent injunction and for recovery of damages/ mesne profits against defendants namely Mohd. Ismail and Mohd. Nafis, alleging following facts : CS No. 5377/15 Jamalluddin Vs. Mohd. Ismail & Ors. Page no.1 of 11 "That plaintiff is the owner of property bearing No. C22, Old No. C172, Street No. 20, Near Yamuna Vihar, DTC Bus Depot, North Ghonda, Delhi 110053 (hereinafter referred as suit property), measuring 96 sq. yards, consisting of first, second and third floor with terrace. That initially his wife Smt. Roshan Bee @ Roshan Begum had purchased 46 sq. yards of portion of said suit property from its previous owner, Kamaluddin Son of Sh. Mehar Bux by executing title documents, all dated 11.11.1983 for valuable consideration, which was paid by plaintiff as his wife was not working. Subsequently, son of plaintiff namely Nawabuddin had executed title documents with respect of 50 sq. yards of rest of the suit property in favour of Smt. Roshan Begum. In that manner, Smt. Roshan Begum became owner of total suit property in question, which she transferred in the name of plaintiff by executing necessary documents all dated 07.09.1993. In this fashion, plaintiff became owner of suit property in question after the death of his wife on 16.12.1993. Since, plaintiff was not keeping well, physically, so he executed registered General Power of Attorney and other title documents all dated 17.07.2000 in favour of his five sons namely Wahabuddin, Mohd. Nafis, Mohd. Nadeem, Mohd. Ismail and Mohd. Naim. Later on, his said sons became disobedient and started doing illegal activities in the suit property, which forced plaintiff to cancel documents dated 17.07.2000. Accordingly, plaintiff issued legal notice dated 27.03.2015 to his all sons, whereby, he revoked his GPA executed on 17.07.2000 in favour of his sons. Infact, he CS No. 5377/15 Jamalluddin Vs. Mohd. Ismail & Ors. Page no.2 of 11 executed Deed of Revocation of GPA, Dated 01.04.2015, which was duly registered in the office of SubRegistrar concerned. He claimed that he had permitted defendants to reside in suit property in question and considering their hostile nature, he had severed all his relations with them by giving public notice on 21.03.2015 in newspaper 'Jansatta' and 'Indian Express'. He had asked defendants to vacate the suit property in question but of no avail and therefore, filed the present suit against them, wherein, he prayed for decree of mandatory injunction against defendants, to the effect that defendants be directed to remove themselves from the suit property in question. He also prayed for a decree of permanent injunction against defendants, thereby restraining them from creating any third party interest in the suit property and from causing any damage to the said property. Lastly, he prayed for mesne profits/ damages @ Rs. 500/ per day against defendants payable by them from the date of filing of this suit till its vacation.
2. Defendants filed their Written Statement in common in which they challenged the case of plaintiff. They took the preliminary objection that the plaintiff is not the owner of the suit property in question as he had already the said property to his five sons by executing title documents dated 17.07.2000. So, they were coowners of suit property in question and were not licencees as claimed by plaintiff. They also claimed that without getting agreement to sell dated 18.07.2000 cancelled, which plaintiff had executed in favour of them, relief sought by plaintiff was not proper. As per them, suit was barred U/Sec. 41 (I) and (H) of the Specific Relief Act. Further, suit was not properly valued for CS No. 5377/15 Jamalluddin Vs. Mohd. Ismail & Ors. Page no.3 of 11 the purpose of Court Fee and jurisdiction and on that account also, they prayed for dismissal of the suit. So far as, revocation of GPA is concerned, they asserted that they never received any communication with regard to it from plaintiff and as such, revocation deed dated 09.04.2015 was not a legal document. They also explained that suit property in question fell in unauthorized colony and all the documents executed in their favour gave them legal right of ownership over said suit property. On merits, they refuted the version of plaintiff, by reasserting aforesaid claims, and prayed for dismissal of suit.
3. Plaintiff filed replication to the Written Statement of defendants and reiterated the facts as mentioned in the plaint, which are not repeated here for the sake of brevity.
4. After completion of pleadings, following issues were settled by this Court :
i) Whether plaintiff is entitled to the decree of permanent injunction as prayed ? OPP
ii) Whether plaintiff is entitled to the decree of mandatory injunction as prayed ? OPP
iii) Whether the defendants are the lincensess of the plaintiff in the suit property ? OPD
iv) Relief.
5. Plaintiff examined three witnesses to prove his case. He examined himself as PW1 and tendered in evidence his affidavit Ex.P1 in which he reiterated the facts as mentioned in the plaint by relying upon the documents viz. Copy of GPA Dated 10.11.1983 Mark A; Agreement for Sale Dated 10.11.1983 Mark B; Receipt Dated 10.11.1983 Mark C; Copy of GPA, Agreement to Gift and Registered Will all dated 10.08.1993 Mark D, MarkE CS No. 5377/15 Jamalluddin Vs. Mohd. Ismail & Ors. Page no.4 of 11 and Mark - F respectively. Copy of GPA dated 16.07.1983 Mark G, Agreement Dated 16.07.1983 Mark H; Receipt Dated 15.07.1983 Mark I. Copy of GPA Dated 07.09.1993 Mark J; Agreement to Sell dated 07.09.1993 Mark K, Receipt dated 07.09.1993 Mark L; Will Dated 07.09.1993 Mark M, Copy of GPA Dated 17.07.2000 Mark N; Copy of Legal Notice Dated 27.03.2015, 2 nd page of the said Legal Notice is MarkO; Copy of postal receipts Mark P; Copy of Deed of Revocation of GPA Dated 06.04.2015 Mark Q; Copy of public notice dated 21.03.2015 Mark R; Copy of legal notice dated 11.02.2015 Mark S; Copy of legal notice dated 11.02.2015 Mark T. Documents viz. Returned envelopes Ex.PW1/22, Ex.PW1/23 and Ex.PW1/24 respectively, Notice U/o 12 Rule 8 CPC Dated 30.07.2015 Ex.PW1/26 and Two postal receipts Ex.PW1/27 and Ex.PW1/28 respectively. He also examined his sons Mohd. Nadim as PW2 and Mohd. Naeem as PW3 who tendered in evidence their affidavits Ex.PW2/A and Ex.PW3/A respectively, in which, they deposed that the plaintiff is the owner of suit property in question and that he had not executed any document other than GPA Dated 17.07.2000 which was later on revoked vide Deed dated 06.04.2015, registered on 09.04.2015. After examining them, plaintiff closed his evidence and matter was fixed for defendant's evidence. Defendants examined themselves as DW1 and DW2. They tendered in evidence their affidavits in their examinationinchief Ex.DW2/A and Ex.DW2/A in which they reiterated the facts as mentioned in their Written Statements which are not repeated here for the sake of brevity. Subsequently, at request of defendants, their evidence was closed and matter was fixed for judgement after final arguments were heard.
Issue No. 1, 2 & 4.
6. Issue No. 1, 2 & 4 were interconnected as they were related to reliefs sought by plaintiff. So, they did not require separate adjudication and therefore, are decided by me by common appreciation of evidence in my subsequent paragraphs.
CS No. 5377/15 Jamalluddin Vs. Mohd. Ismail & Ors. Page no.5 of 11
7. Plaintiff in this case had sought equitable reliefs and therefore, he should have shown equity while moving the Court. In his plaint, he had stated that he is the owner of suit property in question admeasuring 96 sq. yards. In the same breath, he stated that he had sold the portion measuring 76 sq. yards on the ground floor and had sold out 20 sq. yards consisting of ground and upper floors in the suit property in para '2' of his plaint. I failed to understand as to on what basis he had filed the present suit as he had sold the whole of suit property in question (i.e. 76 + 20 sq. yards). Plaintiff did not clear the said doubt during trial, much to his own disadvantage. Related to the said doubt, I failed to understand as to what was the portion of property in question in which plaintiff was residing as he had sold certain portions of suit property in question as mentioned above. Further, he had claimed in his plaint that he had allowed/ permitted defendants to use certain portions in suit property in question for their residence and for commercial purposes but did not mention as to exactly on which date, he had allowed defendants to do so, which was a material lacuna in his case as he had claimed that the defendants were licencees in suit property in question. Further, plaintiff did not mention as to on what basis he had apprehension that defendants will handover the possession of suit premises to some third person and may cause damage to the said property. He did not mention any instance or reason, based on which, he had said apprehensions and therefore, I find that his apprehensions were simply based on his whims which have no legal sanctity. Apart from that, plaintiff did not mention the exact date when cause of action had first arose in his favour for suing defendants as that date would have indicated that this suit was filed within the limitation period. Further, the plaint was not properly verified as the date of verification, at point 'A' as highlighted by me in the verification portion of the plaint, was not mentioned. In the absence of proper verification, plaint of the plaintiff lost its legal sanctity. So, the plaint was not only vague rather it lacked material particulars. Case of plaintiff, at the very outset, faultered on that account.
CS No. 5377/15 Jamalluddin Vs. Mohd. Ismail & Ors. Page no.6 of 11
8. Moving to the evidence part, I find that plaintiff had relied upon the GPA Dated 10.11.1983 - Mark A, Agreement to Sell Dated 10.11.1983 and Receipt Dated 10.11.1983, Mark C, which were the documents executed by Sh. Kamaluddin in favour of his wife Smt. Roshan Begum. He did not place on record originals of said documents. He also did not examine any of the executants of the said documents, which he should have examined as per the mandate of Section 68 of the Indian Evidence Act, 1872. So, as such, those documents were not proved by plaintiff. Those documents were relied upon by plaintiff, in order to prove part of suit property in question was purchased by his wife from Sh. Kamaludddin. Once, those documents were not proved by him, I find that plaintiff did not acquire any title from the said documents. On the basis of same reasoning, I find that GPA, Agreement to Gift and Will all dated 10.08.1993, marked as MarkD, MarkE and MarkF, respectively, executed by Nawabuddin son of plaintiff in favour of Smt. Roshan Begum with respect to 50 sq. yards of suit property in question, were not proved by plaintiff. Similarly, GPA, Agreement and Receipt all dated 16.07.1983 marked as MarkG, MarkH and MarkI, were not proved as law. Further, GPA, Agreement to Sell and Receipt, all Dated 07.09.1993, Mark as MarkJ, MarkK and MarkL, were not proved as per law, based on aforementioned reasoning. So, plaintiff, did not place on record any legally admissible document, which could have given him right, title or interest over suit property in question. So, in the absence of his title over suit property in question, plaintiff has no right to claim any of the reliefs as claimed by him in the plaint.
9. Apart from aforesaid aspects, I find that plaintiff had testified in his crossexamination that no money transaction had taken place and no site plan was prepared when his wife had purchased the suit property. If that is so, then, I failed to understand as to why plaintiff had termed the transaction of suit property as sale transaction, being done by him through his wife. I further did CS No. 5377/15 Jamalluddin Vs. Mohd. Ismail & Ors. Page no.7 of 11 not understand as to why site plan was not prepared as it was necessary for the identification of the suit property in question. Further, he had testified that he had sold 20 sq. yards of the said suit property to somebody whom he did not remember which is a strange fact as a person selling his property, ordinarily remembers the fact as to who is the purchaser of the said property. Further, he admitted that all his five sons are residing in the suit property as coowners which completely dismantled his case, which was based on sole ownership over suit property in question. He also admitted that he had been given permission to live in suit property in question by defendants which created doubt over his claim of sole ownership over suit property in question. All in all, plaintiff did not stuck to his version and succumbed to the crossexamination of defendants. No credibility can be assigned to his testimony in the wake of aforesaid appreciation. His testimony is discarded in totality.
10. PW2 Mohd. Nadeem and PW3 Mohd. Naeem were the sons of plaintiff. In their crossexamination, they admitted that plaintiff had transferred a suit property in their name through GPA which indicated that as such, plaintiff could not have claimed himself to be the sole owner of suit property in question. In fact, PW3 Mohd. Naeem had testified that his father has temporarily transferred the suit property in question in the name of his sons, which was an improved version as plaintiff never claimed so in the plaint. Apart from that, I did not understand as to what this witness meant, when he deposed that his father had temporarily transferred the suit property. Both the said witnesses testified that they had no clue as to whether defendants had received the notice of revocation or revocation deed in question. They did not remove the doubts, which were created in the testimony of plaintiff as mentioned above. Thus, their testimonies did not help the cause of plaintiff and therefore, were discarded by me.
CS No. 5377/15 Jamalluddin Vs. Mohd. Ismail & Ors. Page no.8 of 11
11. Based on aforesaid appreciation, I find that plaintiff did not prove himself to be the owner of suit property in question. He did not prove the chain of documents pertaining to title over the suit property, based on which, he had rested his claims. Hence, in the absence of his title over suit property in question, plaintiff is not entitled to any relief of injunction (permanent or mandatory as prayed for) and is also not entitled for damages from defendants. So, he is not entitled for any of the reliefs, sought by him in the plaint. All the aforesaid issues are decided against plaintiff.
Issue No. 3.
12. Claim of defendants was that they had permitted the plaintiff to remain in suit property as licencee. So, the aforesaid issue had typographical error, which is that instead of 'defendants are' it should have been 'plaintiff is'. Considering the fact that defendants have led evidence by examining themselves in support of their aforesaid claim, I am appreciating the evidence of defendants from the perspective of their aforesaid claim only by treating aforesaid mistake in settlement of issues, being a typographical mistake only. Further, said exercise, in the given facts and circumstances, does not seem to prejudice rights of any litigating parties in question.
13. Defendants in their evidence had examined themselves. They relied upon agreement to sell, affidavit, receipt and possession letter, all dated 17.07.2000 marked as MarkA, MarkB, MarkC and MarkD, which were executed by plaintiff in their favour. They also placed on record the reply dated 07.03.2015 issued by them Ex.DW1/1 in response to the notice of plaintiff dated 23.02.2015. On the face of it, defendants did not file originals of documents dated 17.07.2000 and as such, failed to prove those documents. Apart from that, once I have already concluded that plaintiff had not proved his ownership over the documents relied by him, so as such, plaintiff had not right CS No. 5377/15 Jamalluddin Vs. Mohd. Ismail & Ors. Page no.9 of 11 to execute the documents dated 17.07.2000 as mentioned above. So, when plaintiff himself had not got any right, title or interest over suit property in question, he could not have passed any such right to his sons. Based on aforesaid appreciation, I find that defendants did not get any ownership rights over suit property in question. So, they could not have inducted plaintiff as licencee in suit property in question.
14. Apart from that, DW1 admitted in his crossexamination that though his father had sold the suit property in question to his sons but documents dated 17.07.2000 nowhere mention the details for which, said property was purchased. He, rather admitted that he had not filed any document showing his ownership over suit property in question. So, defendant no. 1 Mohd. Ismail went contrary in his testimony to the stand taken by him in his Written Statement regarding his ownership over suit property in question. Based on said reasoning, similarly, I find that defendant no. 2 Mohd. Nafees, did not stand the acid test of crossexamination, as he also deposed on the same lines as deposition was made by DW1. So, both the defendants did not prove that they had ownership right over the suit property in question. Aforesaid issue is decided against defendants.
15. Before coming to the conclusion, I must mention that after considering the testimonies, I find that this was a collusive suit filed by plaintiff and defendants in order to get order regarding ownership over suit property in question. Their endeavour was that by any means, this Court may pass order declaring either of them to be the owner of suit property in question. The reason why I observed so is that, plaintiff in his crossexamination admitted the case of defendants that all the sons of plaintiff were residing in the suit property as co owners. He also admitted that he was given permission to reside in the suit property by defendants. Further, defendants did not raise any objection with CS No. 5377/15 Jamalluddin Vs. Mohd. Ismail & Ors. Page no.10 of 11 regard to the mode of proof of proving the documents relied by plaintiff. The only inference which can be drawn is that plaintiff supported the case of defendants and defendants supported the case of plaintiff in their evidence. Had it been a bonafide litigation, plaintiff would not have accepted the basic defence of defendants and defendants on their part would have raised the issue that the documents relied by plaintiff were photocopies and not originals. This appreciation is done by me as defendants in their Written Statement while challenging the case of plaintiff on merits, had stated in para '2' of reply on merits that suit property falls in unauthorized colony. That claim of defendants indicated that since Government Agencies cannot recognise lawful ownership claim of plaintiff or defendants, so, in order to bypass that shortcoming, parties in question tried to take said right, with the help of this Court. Said effort needs to be discarded and in fact, is discarded by me.
16. Based on aforesaid appreciation, present suit stands dismissed. No order as to costs is made. DecreeSheet be prepared accordingly.
17. File be consigned to Record Room after necessary compliance.
[PRASHANT SHARMA]
Announced in the open court ARC/ACJ/CCJ
on 10.11.2016 NorthEast Distt, KKD, Delhi
CS No. 5377/15 Jamalluddin Vs. Mohd. Ismail & Ors. Page no.11 of 11