Delhi District Court
Shri. Mahinder Pratap Bhalla vs Sh. Narendra Pratap Bhalla on 20 February, 2020
IN THE COURT OF CIVIL JUDGE-01, SOUTH EAST DISTRICT,
SAKET COURTS COMPLEX, SAKET, NEW DELHI
Presiding Officer: Ms. Anuradha Prasad, DJS
Suit No.51187/16
In the matter of:-
Shri. Mahinder Pratap Bhalla,
S/o Late Shri. Harcharan Das Bhalla
R/o S-61, Second Floor,
Greater Kailash-I,
New Delhi-110048 ........... Plaintiff
Vs
1. Sh. Narendra Pratap Bhalla,
S/o Late Sh. Harcharan Das Bhalla
R/o S-61, Ground Floor,
Greater Kailash-I, New Delhi-110048
2.(Since Deceased)
3. Sh. Sajan Narain, Advocate
A-143, Neeti Bagh, New Delhi-110049 ......Defendants.
Date of institution of Suit :15.07.2010
Date on which Judgment was reserved :16.01.2020
Date of pronouncement of the Judgment :20.02.2020
JUDGEMENT
1. The Case 1.1. The bone contention in the present case is the house bearing No. S-61, Greater Kailash-I, New Delhi (hereinafter referred to as the 'suit property').
1.2. Plaintiff, defendant no.1 and 2 are the sons of Late Sh.
Harcharan Das Bhalla and Smt. Basant Bhalla. Defendant on.3 is a practicing advocate and also the son in law of defendant no.1.
CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 1/32 1.3. The plaintiff has instituted the present suit seeking the following reliefs:-
"a) a decree of permanent injunction be passed in favour of the plaintiff and against the defendants, their agents, representatives, assigns, etc. thereby restraining them from obstructing /interfering the plaintiff, his family members, visitors, representatives, guests, assigns, etc. in the peaceful ingress and egress of the property bearing No.S-61, Greater Kailash-I, New Delhi from ground floor upto second floor. Further, the plaintiff be allowed to park his car in the suit premises.
b) a decree of mandatory injunction be passed in favour of the plaintiff and against the defendants, their agents, representatives, assigns, etc. thereby directing the defendants to install an electric bell, name plate and a letter box on the main gate of property bearing No.S-61, Greater Kailash-I, New Delhi"
c) Cost of the suit be awarded to the plaintiff.
d) Such other or further relief which this Hon'ble Court may deem just, fit and proper be also granted in favour of the plaintiff"[Sic] 1.4. Defendant no.2 expired during the course of proceedings. Upon an application under Order 22 Rule 4 CPC moved on behalf of plaintiff, it was submitted that the plaintiff does not want to contest the present suit against defendant no.2. The aforesaid application of the plaintiff was allowed vide order dated 04.10.2019 and defendant no.2 was deleted from the array of parties.
2. Plaintiff's case 2.1. Pleaded case of the plaintiff is that the plaintiff is residing with CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 2/32 his wife and daughter at the second floor of the suit property for last several years. Defendant no.1 and 2 are the brothers of the plaintiff and are residing at the suit property on the ground floor and first floor respectively. The plot bearing no.S-61, Greater Kailash-I, New Delhi measuring 500 sq.yards was purchased by the plaintiff's father namely Late Sh. Harcharan Das Bhalla and was his self acquired property. Late Sh. Harcharan Das Bhalla carried out the construction of the said plot from his own funds. Sh. Harcharan Das Bhalla died intestate on 04.08.1980 leaving behind the plaintiff, defendants (from the facts of the case it appears to be defendant no.1 and defendant no.2), Smt. Shyama Pahwa (daughter), Smt. Kamla Ohri (daughter) and his wife Smt. Basant Bhalla as his legal heirs. Smt. Basant Bhalla, mother of the plaintiff also died intestate on 26.01.2007 leaving behind the aforesaid persons as her legal heirs.
2.2. It is averred that defendant no.2 filed a suit for declaration bearing suit no.397/1974 before the Hon'ble High Court of Delhi. In the said suit, the parties had entered into the family settlement and a decree in terms of the family settlement was passed. As per the settlement arrived in the said suit before the Hon'ble High Court of Delhi, defendant no.1, defendant no.2, Sh. Harcharan Das Bhalla and Smt. Basant Bhalla owned 25%, 25%, 20% and 15% undivided interest in the suit property respectively and the plaintiff owned 15% interest in the suit property.
2.3. It is also averred that Smt. Shyama Pahwa (sister of the plaintiff) and defendant no.2 herein) filed a suit for declaration, partition, permanent injunction and for damages / mesne profits against the plaintiff, defendants and Smt. Kamla Ohri (sister of the CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 3/32 plaintiff) before the Hon'ble Delhi High Court and the same is registered as civil suit no.499 of 2009. Vide order dated 29.04.2009, the Hon'ble High Court of Delhi in the said civil suit passed an order thereby stating that defendants shall maintain status quo in relation to the title of the suit property till the next date.
2.4. It is alleged that defendant no.1 to 3 have been obstructing and not permitting the plaintiff, their family members, their guests, visitors to have free access to the suit property. The family members their guests are not allowed to enter the premises by putting a lock on the main entrance gate of the property. The defendants have been harassing the plaintiff and their family members, their guests, their servants, electrician, plumber, carpenter, postman etc as they are refused entry by the defendants, their agents, representatives and no one is allowed to enter the premises except the plaintiff, his wife and daughter. It is alleged that defendants have fitted CCTV camera on the entrance gate, kitchen window and stairs besides the extra lock and magic eye fixed on the door to the staircase on the ground and first floor. The plaintiff in its plaint has mentioned the specific instance of harassment by the defendant, their agents, representatives on 27.08.2009, 18.09.2009, 11.06.2010 and 23.06.2010. Besides this the various posts/ mails in the name of the plaintiff have been returned by the defendants.
2.5. Defendant no.3 on instructions and on behalf of defendant no.1 and 2 and their family members got issued two legal notices dated 10.11.2009 and 17.11.2009 in favour of the plaintiff, his CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 4/32 wife and daughter calling upon the plaintiff to vacate the suit property. The said notice was duly replied by the plaintiff through their counsel dated 08.12.2009. It is alleged that defendant no.3 had got the notice issued on incorrect facts.
2.6. It is averred that defendants through their illegal acts have restricted the entry and the right to enjoy the property of the plaintiffs and their family members. Now there is only one door bell which is connected with the ground floor and the entrance gate is opened only at the insistence of the residents of the ground floor. The defendants have removed the door bell which was connected to the second floor from the main entrance gate. The only door bell connected at the main entrance gate is the one that goes to ground floor. If the defendants can see they ring the bell of the second floor from inside the drive way and the plaintiff who are residing on the second floor get to know only if the defendants ring their bell.
2.7. It is averred that the plaintiff is also the co-sharer/ co-owners and owns 15% shares in the suit property. The plaintiffs have got legal right to have free ingress and egress to the premises and the visitors, guests, their representatives should be allowed to enter the premises without any obstruction /hindrance. The plaintiff has every right to have free access for the enjoyment of the property. The plaintiffs should also be permitted to park car in the premises. A complaint was also made to the police station at Greater Kailash -1, New Delhi on 11.06.2010 by the wife of the plaintiff for the fact that on 11.06.2010 a mechanic to repair the AC had come to attend the call on behalf of plaintiff when the CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 5/32 daughter of the plaintiff went to open the gate she was obstructed by defendant no.3 and stated that nobody shall be allowed to enter the house. The defendant no.3 also threatened the daughter of the plaintiff and she alongwith the mechanic had to wait outside the house. It was mentioned in the complaint that defendant no.3 has been intimidating the plaintiff and his family members. He does not allow the locks to be opened on the gate. Various complaints made to the police have gone unattended.
2.8. It is alleged that the defendants have got no right or interest to obstruct the plaintiff and their family members, visitors, guests etc from entering the suit property. They have also got no right to interfere in the peaceful enjoyment of the property as the plaintiff is the co-owner and in possession of the suit property. The defendants are not permitting the plaintiff to install an electric bell for the second floor, name plate and a letter box on the main gate which existed earlier and were removed illegally by the defendants.
2.9. With these pleaded facts the plaintiff approached this court for the reliefs as stated above.
3. Upon service of summons of the suit, the defendants contested the present suit of the plaintiff and filed written statement. The defence of defendant no.3 was struck off vide order dated 09.02.2011. The written statement of defendant no.1 and 2 was taken on record after allowing the application for condonation of delay vide order dated 05.09.2014.
CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 6/32
4. Defendant's Case 4.1. The defendant has filed the written statement running into 330 pages wherein most of the facts are repeated and the contents of the documents relied upon has also been reproduced. The relevant facts as stated in the written statement are as under:-
4.2. The defendant has denied all the averments made by the plaintiff in its plaint and has raised the preliminary objection that the present suit is not maintainable by the sole plaintiff as it does not have any locus standi to file the present suit. It is alleged that as on the date of filing of the suit, the plaintiff, his wife and daughter were not residing in the suit property and did not have any lawful possession over the suit property. The defendant no.1 and his wife has been in settled legal possession over the entire suit property including the entire area above the first floor and are entitled to enjoy the peaceful possession of the suit property.
4.3. It is alleged that the plaintiff is not the sole owner of the suit property. Plaintiff's complaint dated 31.03.2004 relating to the suit property contains a specific admission of fact that as on 31.03.2004, it was plaintiff's belief that defendant no.2 is the sole owner. In the complaint dated 31.03.2010 it is plaintiff's belief that defendant no.2 is the sole owner. Hence, plaintiff cannot be permitted to claim lawful possession in relation to the suit property. The plaintiff had confirmed vide letter dated 31.08.2010 signed on 01.09.2010 that he voluntarily executed deed of composition in favour of defendant no.2 and relinquished any claim, right, interest or share in the suit property and the wife of CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 7/32 the plaintiff had destroyed the original and all copies of the deed of composition. Plaintiff did not have any ownership of the suit property prior to 17.07.1979. Prior to November 1979, during the lifetime of plaintiff's father, while acknowledging the fact that plaintiff did not own any share in the suit property, plaintiff had shifted out of the suit property alongwith his wife.
4.4. The prayers in the present suit which are being sought for the benefit of any person other than the sole plaintiff are not maintainable since relief cannot be claimed for persons who are not arrayed as plaintiffs in the present suit. The present suit is not maintainable as there is no cause of action as the plaintiff had settled all the matters covered by the present suit with the defendant. The plaintiff is bound by the contents of the following documents-
The deed of composition dated 12.10.1964 of Sh. Harcharan Das Bhalla (the father of the parties), signed twice by the plaintiff as a witness.
The last and final Will and testament dated 21.06.1965 of Sh. Harcharan Das Bhalla (the father of the parties). Plaintiff's deed of composition admitted vide plaintiff's letter dated 31.08.2010 signed by plaintiff on 01.09.2010 and relied upon vide plaintiff's handwritten and signed statements to IO SI Anish Sharma dated 19.05.2011. Plaintiff's letter to Bharat Bhushan Bhalla (defendant no.2) dated 22.07.1980.
Bharat Bhushan Bhalla's (defendant no.2) relinquishment deed dated 12.01.1985.
Bharat Bhushan Bhalla's (defendant no.2) declaration dated 07.12.1998.
Plaintiff's letter to the SHO dated 31.03.2004 containing confirmation of plaintiff's belief that as on 31.03.2004 Bharat Bhushan Bhalla (defendant no.2) is the sole owner. Bharat Bhushan Bhalla's (defendant no.2) registered relinquishment deed dated 07.06.2005.
CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 8/32 Registered relinquishment deed dated 10.10.2008. Letter to the SHO dated 12.11.2009 signed by the plaintiff. This letter contains handwritten admission by plaintiff that plaintiff's complaint dated 29.08.2009 has been settled by the plaintiff. Complaint dated 12.11.2009 was also settled on 12.11.2009 as admitted vide reply dated 08.12.2009. Plaintiff's signed affidavit dated 12.07.2010. Plaintiff's letter to the defendant dated 31.08.2010 signed by the plaintiff.
Plaintiff's affidavit dated 20.10.2010 signed by plaintiff on 21.10.2010 admitting settlement and plaintiff's undertaking on 13.11.2009.
Letter to this court dated 28.10.2010 signed by plaintiff on 28.10.2010 admitting settlement and plaintiff's affidavit dated 20.10.2010.
Plaintiff's statement on oath dated 28.10.2010 before this Court.
Plaintiff's handwritten and signed statement to IO SI Anish Sharma dated 19.05.2011.
Plaintiff's signature on the attendance sheet for the hearings before Special Executive Magistrate on 14.07.2011.
4.5. The decree dated 17.07.1975 of the Hon'ble High Court of Delhi is a consent decree as it merely recorded the compromise arrived at by the parties. Vide the said decree the Hon'ble High Court of Delhi had not made any determination or declaration of any determination arrived at after conclusion of a trial process. The consent decree dated 17.07.1975 of the Hon'ble High Court of Delhi does not invalidate negate the evidentiary value of, or prevail over, subsequent documents, statements and admissions by the plaintiff.
4.6. After the consent decree dated 17.07.1975, during the lifetime of Sh. Harcharan Das Bhalla, plaintiff had executed a valid and binding deed of composition in favour of defendant no.2 whereby CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 9/32 plaintiff had relinquished in favour of defendant no.2 any and all of his claims, rights ,interests and share relating to the suit property. The plaintiff did not have any ownership of the suit property after plaintiff executed deed of composition. Plaintiff referred to his composition deed in plaintiff's letter dated 19.05.2011 and plaintiff's affidavit dated 20.10.2010. Vide settlement letter dated 31.08.2010 plaintiff has admitted and informed defendants that he voluntarily executed deed of composition in favour of Bharat Bhushan Bhalla and relinquished any claim, rights or interest relating to the suit property and destroyed the original and all copies of deed of composition. After plaintiff's deed of composition relinquishing in favour of defendant no.2, plaintiff has never been a owner, co-owner or co-sharer in the suit property.
4.7. Plaintiff had signed twice as a witness on Sh. Harcharan Das Bhalla's deed of composition dated 12.10.1964 vide which Sh. Harcharan Das Bhalla relinquished all his rights and title of the suit property in favour of defendant no.1 and 2 who became the absolute owners thereof subject to the rights of Smt. Basant Bhalla, their mother, to enjoy the life estate in the suit property. Sh. Harcharan Das Bhalla, had issued and executed legally valid, binding will and testament dated 21.06.1965 which is his last and final will and testament wherein it is stated that the plaintiff, Smt. Kamla Ohri and Smt. Shyama Pahwa would have no share or claim in the suit property. On 12.01.1995, the mother of the parties herein, Smt. Basant Bhalla relinquished vide a registered relinquishment deed in favour of defendant no.2 all her rights, interests, claims and share relating to the suit property.
CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 10/32 Smt. Basant Bhalla died on 26.01.2010.
4.8. On 07.06.2005 defendant no.2 relinquished vide a registered relinquishment deed in favour of defendant no.1 with regard to all of his claims, rights, interests and share relating to the suit property. From 07.06.2005 onwards defendant no.1 is the sole owner of the suit property since defendant no.1 was the sole beneficiary under defendant no.2's registered relinquishment deed dated 07.06.2005 which has not been challenged by the plaintiff.
4.9. The plaintiff confirmed vide plaintiff's affidavit dated 20.10.2010 signed on 21.10.2010, wherein it is stated that the plaintiffs have no claim, title, share, right, interest, license or easement whatsoever in the suit property. On 21.10.2010, plaintiff signed two pages of plaintiff's affidavit dated 20.10.2020. Plaintiff had confirmed his signature on page 2 of the filed affidavit signed by the plaintiff on 21.10.2020 vide plaintiff's statement dated 28.10.2010 signed by plaintiff on 28.10.2010 before this court. The signature on the said affidavit of the plaintiff is similar to the signature of the plaintiff on the attendance sheet for the hearing before Special Executive Magistrate on 14.07.2011. The said affidavit was attested by the Oath Commissioner on 21.10.2010. Plaintiff confirmed settlement and the terms and conditions contained in plaintiff's affidavit signed on 21.10.2010 vide letter dated 28.10.2010 signed by defendant no.3 on behalf of defendant no.1 and defendant no.2 and counter-signed by plaintiff on 28.10.2010 within Saket Courts Complex.
CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 11/32 4.10. Plaintiff has confirmed on 01.09.2010, 21.10.2010 and 28.10.2010 that each and every matter specifically included in the plaint has already been finally settled by the plaintiff. The plaintiff has admitted in writing in plaintiff's signed letter dated 31.08.2010 and plaintiff's signed affidavit dated 20.10.2010 that plaintiff his wife and his daughter have no claim, title, share, right, interest, easement or license whatsoever in the suit property. The plaintiff had confirmed vide letter dated 31.08.2010 signed on 01.09.2010 that he voluntarily executed deed of composition in favour of defendant no.2 and relinquished any claim, right, interest or share in the suit property and the wife of the plaintiff had destroyed the original and all copies of the deed of composition.
4.11. Defendant no.1 has been paying various expenses relating to the suit property including property tax/house tax, maintenance, electricity, water, telephone and all other necessary and incidental expenses. MCD issued letter dated 29.04.2010 in response to an RTI application wherein MCD had confirmed on the basis of inspection that assessment was carried out in the name of Sh. Harcharan Das Bhalla prior to 1976. In the year 1976, the assessment was in the name of Sh. Harcharan Das Bhalla, defendant no.1 and defendant no.2. Thereafter, the assessment is in the name of defendant no.1. MCD never included plaintiff as an assessee in any of the assessment periods.
4.12. Vide legal notice dated 10.11.2009, defendant no.1 terminated plaintiff's licences. The plaintiff, his wife and his daughter were CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 12/32 specifically instructed not to enter the suit property. On 21.10.2010 and on 28.10.2010, the plaintiff had accepted the contents of the legal notice dated 10.11.2009 and 17.11.2009. After termination by defendant no.1 of plaintiff's licenses on 10.11.2009, plaintiff is not a licensee in relation to the suit property or any portion thereof. As licensee plaintiff had only a right to use the suit property but no lawful possession of the suit property. The plaintiff is a trespasser with respect to the suit property. In the period during the filling of the suit, the plaintiff gained ingress into, egress out of, and / or access into the suit property, under threat of contempt of court by filing complaints by using undue influence to exert pressure upon defendants and their families and by filing and pursuing the present suit. The plaintiff do not have any lawful possession or any right of ingress, egress or access to the suit property.
4.13. With these pleaded facts, the written statement prayed for dismissal of the suit of the plaintiff.
5. Issues 5.1. Upon completion of pleadings, the following issues were identified, vide order dated 25.02.2016, by the Ld. Predecessor Court:-
(i) Whether the plaintiff is entitled to relief of permanent injunction as prayed for in prayer clause (a) of plaint ? OPP
(ii) Whether the plaintiff is entitled to relief of mandatory injunction as prayed for in prayer clause (b) of plaint ? OPP
(iii) Whether the plaintiff has no locus standi to file the present suit ? OPD
(iv) Whether the defendant no.3 has committed perjury by filing false and fabricated affidavit dated 20.10.2010 before the Court, if so to what it's effect ? OPP CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 13/32
(v) Relief.
6. Plaintiff's Evidence 6.1. To prove its case plaintiff examined himself as PW1 and tendered his evidence by way of affidavit Ex.PW1/A and relied upon the following documents: -
(i) The certified copy of the decree dated 17.07.1975 Ex.PW1/1.
(ii) Copy of reply dated 08.12.2019 Ex.PW1/2.
(iii) Copy of police complaint dated 11.06.2010 Mark A. 6.2. Sh. S.N.P Punj was examined as PW2 who tendered his evidence by way of affidavit Ex.PW2/A. PW2 deposed that he is one of the close friends of plaintiff and has gone through the certified copy of the affidavit dated 20.10.2020 and letter dated 28.10.2010. He further deposed that he did not intervene in any settlement between the plaintiff and the defendants and /or organized any affidavit recording any settlement between the parties as alleged by the defendants. The contents of the alleged affidavit so far as they relate to the organizing of any settlement or making any affidavit recording the settlement between the parties is false and incorrect. PW2 further relied upon the following document:-
(i) Affidavit filed in M. No.5058/16 Ex.PW2/B. 6.3. Smt. Swarna Kanta Bhalla was examined as PW3 who tendered her evidence by way of affidavit Ex.PW3/A. PW3 deposed that she is the wife of the plaintiff and duly conversant with the facts of the present case. She deposed in terms of the facts as alleged in the plaint. PW3 further relied upon the following document:-
(i) Copy of police complaint dated 11.06.2010 to SHO, GK-1, New Delhi Ex.PW3/1.
6.4. Ms. Karuna Bhalla was examined as PW4 who tendered her CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 14/32 evidence by way of affidavit Ex.PW4/A. PW4 deposed that she is the daughter of plaintiff and duly conversant with the facts of the present case. She is residing with her parents in the suit property. PW4 further deposed in terms of the facts as alleged in the plaint.
6.5. Sh. Anisul Haq, Advocate, Oath Commissioner was examined as PW5. He deposed that Ex.PW-1/X-5, which is affidavit dated 20.10.2010, has been attested by him. He further deposed that he was serving as an oath commissioner since September, 2010 for about two years and did not have a permanent office. After about 7 years, the Register is not traceable on which he has obtained the signatures of the deponent on Ex.PW-1/X-5. The affidavit was attested on 21.10.2010 and the same was executed before him. It was in the year 2016, when he learnt that the said register is not traceable. He did not file any complaint for the missing register. He again said that the said register is not missing, it is simply not traceable.
6.6. Ct. Satish, PS Greater Kailash, Part-1 was examined as PW6.
He did not bring the summoned record as vide order No.3551- 3631/HAR/SED dated 17.04.2015, the records of all the complaints prior to 31.12.2012 have been destroyed. He brought the copy of the order, bearing the stamp of the Police Station. He had himself made the copy from the original which is marked as Mark A. 6.7. Sh. Jagdish Chand Joshi, Sr. Judicial Assistant from Hon'ble High Court of Delhi was examined as PW7. He brought the summoned record i.e., decree dated 17.07.1975. He deposed that the certified copy has been compared with the original CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 15/32 record. The same was exhibited as PW-7/A 6.8. Sh. Dharmender Kumar, JA, Honble Delhi High Court, New Delhi was examined as PW8. He brought the summoned record i.e., original record of civil suit bearing no.CS(OS), 499 of 2009 titled 'Shyama Pahwa Vs. Narendra Pratap Bhalla & Ors.'. The certified copy of amended plaint was exhibited as Ex.PW8/1(OSR). He further deposed that Civil Suit no.CS(OS) 499 of 2009 has been disposed of vide judgment dated 13.03.2018 and certified copy of the same was exhibited as Ex.PW-8/2 (OSR).
7. Defendant's Evidence 7.1. To rebut the case of the plaintiff, defendant no.1 examined himself as DW-1 and tendered evidence by way of affidavit and relied upon the following documents: -
(i) A copy of letter dated 29.04.2010 issued by the Public Information Officer, MCD Mark DX2.
(ii) A copy of property tax Mark DW1/2
(iii)Copy of two MTNL Bills dated 09.07.2004 and 09.05.2004 Ex.DW1/3 (OSR) (colly)
(iv)Composition deed dated 20.10.2010 already exhibited as Ex.PW1/X7.
(v)Letter dated 31.08.2010 already exhibited Ex.PW1/X6.
(vi)Affidavit dated 20.10.2010 already exhibited Ex.PW1/X5
(vii)Letter dated 28.10.2010 already exhibited Ex.PW2/D1
(viii) Certified copy of Composition deed dated 12.10.1964 Ex.DW1/9
(ix) Certified copy of Will and Testament dated 21.06.1965 Ex.DW1/10.
(x)Certified copy of Relinquishment deed dated 12.01.1995 filed today Ex.DW1/11
(xi)Certified copy of Relinquishment deed dated 07.06.2005 Ex.DW1/12
(xii) Copy of Relinquishment deed dated 10.10.2008 Mark DW1/3
(xiii)The copy of letter dated 12.11.2009 already exhibited as Ex.PW1/LC1 CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 16/32
(xiv)The letter dated 08.12.2009 already exhibited as Ex.PW1/2 7.2. It is relevant to mention here that DW-1 was examined in chief and was partly cross examined. However, record reveals that vide order dated 17.01.2019, it was observed by the Ld. Predecessor court that the witness DW-1 being aged above 90 years old is unable to appear in the court and depose. When asked, if his evidence can be recorded with the assistance of local commissioner, the defendant no.3 present in the court stated on his behalf that he would not be in a position to even depose given his age. Accordingly, the witness was dropped in view of the submissions of defendant no.3 for remaining defendants. It was further recorded in the ordersheet dated 17.01.2019 by the Ld. Predecessor Court that as the witness has not been cross-examined further, his evidence, thus far would not be read for the purposes of final adjudication.
7.3. Sh. Jasbir Singh, LDC, Record Keeper from the office of Assessor & Collector Department, SDMC, South Zone, RK Puram was examined as DW-2. He deposed that he has been authorized by Deputy A & C, South-Zone, R.K Puram and had brought the record pertaining to the suit property. DW2 exhibited the letter which is reply dated 29.04.2010 to the application under RTI Act as Ex.DW2/1A and accompanying noting as Ex.DW2/1.
7.4. Ms.Sadhana Saxena, Chief Accounts Officer, MTNL, Nehru Place, New Delhi was examined as DW-3. She exhibited the summoned record i.e., History of Telephone no.26464495 which is Ex.DW3/A (colly). She further deposed that commercial file record of telephone no. 26464495 is not traceable in her office.
CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 17/32 7.5. Sh. Dharmender Kumar, Judicial Assistant, Original Branch, Hon'ble High Court of Delhi was examined as DW-4. He exhibited the original record of civil suit bearing No.CS (OS) No.499 of 2009 titled 'Shyama Pahwa Vs. Narendra Pratap Bhalla & Ors' Ex.PW4/1, deed of composition executed by Sh. Harcharan Das Bhalla dated 12.10.1964 Ex.DW1/9, Will dated 21.06.1965 of Sh. Harcharan Das Bhalla Ex.DW1/10, Relinquishment Deed dated 07.06.2005 executed by defendant no.2 in favour of defendant no.1 Ex.DW1/12 and relinquishment Deed dated 12.01.1995 executed by Late Smt. Basant Bhalla in favour of defendant no.2 Ex.DW1/11.
7.6. Sh. Vipin Kumar, JJA, Criminal Branch-1, Hon'ble High Court of Delhi was examined as DW-5. DW5 had brought the summoned record i.e. criminal revision no.162/19 titled Mahinder Pratap Bhalla Vs. State & Ors alongwith CC NO.107/1A titled Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla, certified copy of order dated 04.08.2016 of Ms. Sheetal Chaudhary Pradhan, MM-10, SED/Saket Courts, certified copy of statement dated 26.03.2013 of complainant Sh. Mahender Partap Bhalla (plaintiff herein) in CC No.80/01, pre-charge evidence dated 12.02.2016 of complainant Sh. Mohinder Pratap Bhalla (plaintiff herein) in CC No.107/1A/14 recorded by Ms. Sheetal Chaudhary Pradhan, MM-10, SED/Saket Courts and pre-charge evidence dated 12.02.2016 of Smt Swarn Kanta Bhalla in CC No.107/1A/14 recorded by Ms. Sheetal Chaudhary Pradhan, MM-10, SED/Saket Courts.
7.7. Sh. Krishan Pal S/o Sh. Ram Maher Singh, Head Constable, Special Executive Magistrate Court, PS Amar Colony, New Delhi was examined as DW-6. He exhibited attendance sheet in the CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 18/32 court of Special Executive Magistrate Court, PS Amar Colony, New Delhi Ex.DW6/1, certified copy of letter dated 19.05.2011 from Sh. Mahinder Pratap Bhalla to SHO PS Greater Kailash-1, New Delhi Ex.PW1/X4, statement of Sh. Mahinder Pratap Bhalla dated "12/10" filed in CS (OS) No.499/2009 before Hon'ble High Court of Delhi Mark DW6/A and certified copy of cross- examination of Smt. Swaran Kanta Bhalla dated 11.04.2012 before the court of Special Executive Magistrate Court, PS Amar Colony, New Delhi Ex.DW6/2.
8. Submissions on behalf of plaintiff 8.1. The Ld. Counsel for the plaintiff argued in terms of the case made out in the plaint and evidence led on behalf of plaintiff and prayed that the suit be decreed in favour of the plaintiff and against the defendant.
9. Submissions on behalf of defendant 9.1. Ld counsel for defendant argued in terms of the written submissions filed on behalf of defendant which has been carefully perused by this court. The counsel for defendant has relied upon the following case laws:-
Poonam Ram Vs. Moti Ram, Supreme Court, reported in 2019 (2) Scale 207, dated 29.01.2019 Meghraj Vs. Luxmi Dutt, High Court of Punjab & Haryana, dated 04.09.2018 Kimti Lal Vs. Shashi Pal, Punjab and Haryana High Court, dated 26.03.2009 Banwari Lal Charitable Trust Vs. UOI, Delhi High Court, reported in MANU/DE/2575/2009, dated 18.09.2009 Soumik Sil Vs. Subhas Chandra Sil, Supreme Court, reported in (2015) 5 SCC 732, dated 25.03.2014 Board of Trustees of Port of Kandla Vs. Hargovind Jasraj & Anr., Supreme Court, reported in [2013] 1 S.C.R. 589, dated 09.01.2013 CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 19/32 M/s Imageads and Communications ... Vs. 2 Mittal Chambers Owners Premises, Bombay High Court, reported in MANU/MH/0706/2011 Mamta Gupta Vs. Sunil Jindal, Delhi High Court, dated 08.02.2010 Nikka Singh Vs. Sajjan Singh, Punjab and Haryana High Court, dated 09.01.2012 Suresh Chander Vs. Durga Dutta, Delhi High Court, dated 22.01.2019 Narbada Devi Gupta Vs. Birendra Kumar Jaiswal & Anr., Supreme court, reported in (2003) 8 SCC 745 and AIR 2004 SC 175, dated 03.11.2003 Dattatraya Vs. Rangnath Gopalrao Kawathekar (Dead), Supreme court, reported in AIR 1971 SC 2548 and (1972) 4 SCC 181, dated 29.01.1971 Murugesa Moopanar Vs. Sivagnana Mudaliar, Madras High Court, reported in 1997 (1) CTC 348, dated 16.08.1996 Bakshi Dev Raj Vs. Sudheer Kumar, Supreme Court, reported in MANU/SC/0909/2011, AIR 2011 SC 3137 and 2011 (8) SCALE 259, dated 04.08.2011 Ranganayakamma Vs. KS Prakash, Supreme Court, reported in AIR 2009 SC (Supp) 1218 and 2008 (15) SCC 673, dated 16.05.2008 Harish Relan Vs. Kaushal Kumari Relan, Delhi High Court, reported in MANU/DE/2438/2015 and 2016 II AD (Delhi) 571 Kusum Kumria Vs. Pharma Venture India P. Ltd., Delhi High Court, reported in MANU/DE/3144/2015, dated 20.10.2015 Chet Ram Gupta Vs. Motian Devi, Delhi High Court, dated 10.05.2006 Jai Gopal Sethi Vs. Sanjay Sabharwal, Delhi High Court, dated 08.01.2014 Oswal Fats and Oils Ltd. Vs. Addl. Commnr Bareilly Division, Supreme Court, reported in JT 2010 (3) SC 510, dated 01.04.2010 Madan Lal Kapoor Vs. Subhash Lal Kapoor, Delhi High Court, reported in 105 (203) DLT 987, dated 22.02.2012 Razia Begum Vs. Delhi Development Authority, Delhi High Court, dated 11.10.2013 CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 20/32 Home Developers Vs. Bhanu Sangwan & Ors., Delhi High Court, reported in 105 (203) DLT 987, dated 22.02.2012 Sasikala Pushpa Vs. The State of Tamil Nadu, Supreme Court, dated 07.05.2019
10. Heard the arguments advanced by Ld counsel for plaintiff and defendant and this court has carefully perused the evidence on record in light of the pleadings of the parties.
11. Appreciation and findings The issues are adjudicated as under:-
11.1. Issue no.(i) Whether the plaintiff is entitled to relief of permanent injunction as prayed for in prayer clause (a) of plaint ?
OPP 11.1.1. The onus to prove this issue is upon the plaintiff.
11.1.2. By way of prayer clause (a) of the plaint, the plaintiff seeks to restrain the defendants or any person claiming through them from obstructing / interfering the plaintiff, his family members, visitors, representatives, guests, assigns, etc. in the peaceful ingress and egress of the suit property from ground floor upto second floor. Further, the plaintiff be allowed to park his car in the suit property. It is worth mentioning here that two reliefs in the nature of restraining the defendants from obstructing in the peaceful ingress and egress of the suit property and for allowing the plaintiff to park his car at the suit property has been sought. However, the valuation has not been done separately.
11.1.3. The claim of the plaintiff rested on a decree dated 17.07.1975 Ex.PW1/1 passed by the Hon'ble High Court of Delhi in suit bearing no.397/1974, to state that the plaintiff has right, title and interest in the suit property to the tune of 15% being the co-
CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 21/32 owner. Perusal of the aforesaid decree dated 17.07.1975 Ex.PW1/1, reveals that by way of compromise arrived at between the parties in the suit bearing no.397/1974, the plaintiff owned 15% interest in the suit property. The plaintiff is therefore entitled to peaceful enjoyment of the suit property and enforce its rights qua the suit property, being one of the co-owners in the suit property.
11.1.4. On the other hand, the claim of the defendant is that the plaintiff has no right, title or interest in the suit property. Therefore the onus was upon the defendant to prove that any right, title or interest in the suit property of the plaintiff was relinquished, extinguished, alienated, transferred etc., by any legally recognizable modes of transfer of property. Since 15% interest in the suit property was owned by the plaintiff by way of decree dated 17.07.1975 Ex.PW1/1 and therefore, it was incumbent upon the defendant to show that by subsequent event i.e., post decree dated 17.07.1975, the plaintiff cannot claim any right, title or interest in the suit property. In case the defendant fails to prove the same, the plaintiff shall continue to have right, title and interest in the suit property and the plaintiff being one of the co- owners in the suit property can enforce such rights against other co-owners, who are defendants in the present case.
11.1.5.It is the case of the defendant that vide affidavit dated 20.10.2010 Ex.PW1/X5 alleged to be signed by the plaintiff and sworn before the Oath Commissioner on 21.10.2010, the matter has been finally settled between the plaintiff and the defendant. As per the settlement, the plaintiff shall have no claim, title, share, right, interest, license or easement whatsoever in the suit property. It is further the case of the defendant that vide CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 22/32 acceptance dated 28.10.2010 Ex.PW2/D1, the settlement vide affidavit dated 20.10.2010 Ex.PW1/X5 signed by plaintiff is accepted on the terms and conditions therein. It is alleged that the said acceptance dated 28.10.2010 Ex.PW2/D1 has been signed by defendant no.3, also being advocate for defendant no.1 and defendant no.2 and counter-signed by the plaintiff. Both the documents i.e., affidavit dated 20.10.2010 Ex.PW1/X5 and acceptance dated 28.10.2010 Ex.PW2/D1 was brought on record by defendant on 28.10.2010.
11.1.6. The plaintiff has denied the aforesaid settlement as claimed by the defendant. Record reveals that on the said date i.e., 28.10.2010, by way of separately recorded statement of the plaintiff, it was submitted that the plaintiff does not accept the contents of the affidavit dated 20.10.2010 Ex.PW1/X5 as they were never agreed by the plaintiff and the plaintiff never appeared before the Oath Commissioner on 21.10.2010 to sign on the affidavit.
11.1.7. It is to be noted that the alleged settlement vide affidavit dated 20.10.2010 Ex.PW1/X5 and document dated 28.10.2010 Ex.PW2/A, was during the pendency of the present suit and the alleged settlement arrived at between the parties was outside the court. If the intention of the plaintiff was to settle the matter with the defendant then the plaintiff would have recorded his statement on oath before this court to the effect that the matter has been settled between the parties and the plaintiff has no claim whatsoever in the suit property. But to the contrary, the defendant has denied in totality the contents of the affidavit vide order dated 28.10.2010.
CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 23/32 11.1.8. Even if the version of the defendant is accepted that the settlement took place between the parties outside the court, then in such circumstances the statement of parties ought to have been recorded on oath before this court to give a binding effect to the settlement arrived at between the parties outside the court and in order to ascertain the voluntariness and free will of the parties to enter into the alleged settlement. No such statement of parties were recorded on oath before the court rather the plaintiff refuted the affidavit filed by defendant no.3 and stated it to be forged and fabricated. In these circumstances, it was incumbent upon the defendant to show the legal basis of placing reliance upon the settlement vide affidavit dated 20.10.2010 Ex.PW1/X5, which the defendant clearly has failed to show the same.
11.1.9. It is the case of the defendant that the plaintiff and defendant no.2 voluntarily executed composition deed dated 05.09.1975, wherein the plaintiff has relinquished each and every claim, title, share, ownership, right, interest, privilege and easement with respect to the suit property. Plaintiff's wife had dishonestly taken away the original, and all copies, of the composition deed dated 05.09.1975 from the mother of the plaintiff and had dishonestly destroyed the original, and all copies of composition deed dated 05.09.1975. The plaintiff again executed composition deed dated 20.10.2010 Ex.PW1/X7 wherein, the aforesaid facts with respect to composition deed dated 05.09.1975 was again executed to maintain status quo on title.
11.1.10. At the outset it is relevant to mention that the composition deed dated 05.09.1975 as mentioned in composition deed dated 20.10.2010 Ex.PW1/X7 is not on record for the perusal of this court. Since the plea that all rights, title and interest in the suit CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 24/32 property has been relinquished by the plaintiff by way of composition deed dated 05.09.1975 and subsequently by composition deed dated 20.10.2010 Ex.PW1/X7, has been taken by the defendant and therefore the onus was upon the defendant to prove the said composition deed. During cross examination of PW1, when confronted with the composition deed dated 20.10.2010 Ex.PW1/X7, PW1 categorically denied his signatures on the same. Thereafter, no steps were taken by the defendant during the course of proceedings to get the signatures of the plaintiff in the aforesaid composition deed compared with the admitted signatures of the plaintiff in order to prove the composition deed dated 20.10.2010. In fact no evidence was led on behalf of defendant to prove the composition deed.
11.1.11. The defendant has placed reliance upon letter dated 31.08.2010 Ex.PW1/X6, letter dated 19.05.2011 Ex.PW1/X4 and affidavit dated 20.10.2010 Ex.PW1/X5 wherein it is allegedly stated that a composition deed was voluntarily executed by the plaintiff in favour of defendant no.1 and claimed it to be an admission on the part of the plaintiff. It is to be noted that these documents have not been categorically and unequivocably admitted by the plaintiff, therefore the contents of the same cannot be construed as admission. In these circumstances, it was incumbent upon the defendant to prove the contents of the aforesaid documents otherwise, which the defendant has failed to do so.
11.1.12. Even if it is assumed that the aforesaid documents contain admission that composition deed was executed in favour of defendant no.2, it is trite that any right, title and interest in the suit property can be effected only by legally recognizable modes of CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 25/32 transfer of property. No amount of admission of any kind whatsoever can confer any kind of right, title or interest in the suit property and the document confirming right, title or interest in the suit property has to be proved during the course of trial. The legal mandate of proving the document i.e., composition deed dated 20.10.2010 Ex.PW1/X7 in the present case cannot be dispensed with on the basis of alleged admission of plaintiff in the aforesaid documents. In these circumstances, the composition deed dated 20.10.2010 Ex.PW1/X7 relied upon by the plaintiff remains not proved. Consequently, the plaintiff cannot be said to have relinquished any right, title and interest in the suit property in favour of defendant no.2.
11.1.13. In view of the above, it is clear that the defendant has not been able to establish that the plaintiff has transferred or alienated his right, title and interest in the suit property as conferred vide decree dated 17.07.1975 Ex.PW1/1 to the tune of 15% interest in the suit property. The plaintiff, therefore, continues to have right, title and interest in the suit property and plaintiff being one of the co-owners in the suit property by virtue of decree dated 17.07.1975 Ex.PW1/1, can enforce its rights in the suit property against other co-owners.
11.1.14.It is the case of the defendant that the plaintiff had signed twice as a witness on Sh. Harcharan Das Bhalla's (father of the plaintiff herein) deed of composition dated 12.10.1964 vide which Sh. Harcharan Das Bhalla relinquished all his rights in the suit property in favour of defendant no.1 and defendant no.2. Sh. Harcharan Das Bhalla has executed his last and final will and testament dated 21.06.1965 wherein it is stated that the plaintiff would have no claim in the suit property. It is to be noted that the CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 26/32 plaintiff is deriving its claim from decree dated 17.07.1975 wherein the plaintiff owned 15% share in the suit property. The aforesaid documents dated 12.10.1964 and 21.06.1965 is prior in point of time and the rights of the plaintiff to the tune of 15% in the suit property crystallized vide decree dated 17.07.1975. Therefore, the documents dated 12.10.1964 and 21.06.1965 cannot be considered for the purposes of determining the rights of the plaintiff in the present suit.
11.1.15. It is further the case of the plaintiff that vide registered relinquishment deed dated 12.01.1995, the mother of the plaintiff Smt. Basant Bhalla had relinquished all her rights, title and interest in the suit property in favour of defendant no.2. Thereafter, vide registered relinquishment deed dated 17.06.2005, defendant no.2 relinquished all its rights, title and interest in the suit property in favour of defendant no.1. It is clear that any relinquishment can happen only of the rights which the person relinquishing it has on the date of relinquishment. As already noted above, the plaintiff continues to own 15% share in the suit property vide decree dated 17.07.1975 and therefore by no stretch of imagination can it be said that Smt. Basant Bhalla and defendant no.2 has relinquished even the 15% share in the suit property as owned by the plaintiff in favour of defendant no.1.
11.1.16. It has been vehemently argued by the defendant that the plaintiff was not in possession on the date of filing of the present suit. It was also contended that plaintiff by his own admission was not residing in the suit property on the date of filing of the suit. The case laws relied upon by the defendant talks about the settled principles of law, however, in the facts and circumstances CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 27/32 of the case, it is to be seen whether the plaintiff is in lawful possession of the suit property and is entitled to the relief of injunction as prayed for.
11.1.17.As already noted above that the plaintiff has been able to establish his ownership rights in the suit property by virtue of decree dated 17.07.1975. It is trite that every owner is presumed to be in possession of the suit property and a co-owner is presumed to be in joint possession of the suit property, even if the co-owner is not actually, physically residing at the suit property. Being one of co-owners of the suit property, even if the plaintiff is not residing in the suit property, he is presumed to be have symbolic possession and every co-owner can enforce his legal rights. Any amount of alleged admission by the plaintiff that he is not in possession of the suit property cannot take away the legally enforceable rights of the plaintiff for which the present suit has been filed on behalf of plaintiff.
11.1.18.Even if the version of the defendant is accepted that the plaintiff was not in actual physical possession of the suit property that only means that the plaintiff was not residing in the suit property and cannot mean that the plaintiff was not in lawful possession of the suit property considering the fact that plaintiff has 15% right, title and interest in the suit property. It might be a possibility that the defendant might not be residing in the suit property on the date of filing of the present suit however that does not necessarily mean that the plaintiff was not in lawful possession of the suit property.
11.1.19.The defendant has averred that the defendant has been paying various expenses relating to the suit property including property CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 28/32 tax/ house tax, maintenance, electricity, water, telephone and all other necessary and incidental expenses. The defendant has placed reliance upon documents which is letter dated 29.04.2010 issued by Public Information Officer, MCD Ex.DW2/1A, Copy of property tax Mark DW1/2, Copy of two MTNL bills Ex.DW1/3 (OSR) to show that the defendants are in possession of the suit property, however the fact remains that the plaintiff has ownership rights in the suit property to the tune of 15% and defendants can under no circumstances be allowed to create any kind of obstruction in the peaceful enjoyment of the suit property by the plaintiff.
11.1.20. Although, it has been prayed by the plaintiff vide prayer clause
(a) that the plaintiff be allowed to park his car in the suit property, however, the pleadings in this regard is bereft of necessary particulars. It has not been pleaded as to how much is the total space available for car parking in the suit property. It has not been stated as to the portion allotted to the plaintiff for parking his car. In fact no site plan has been filed in the present matter. It is noted that the plaintiff is entitled to only 15% of the share of the suit property vide decree dated 17.07.1975 Ex.PW1/1. A logical inference would be that each of the co-sharers would be entitled to certain space for parking the car. In such circumstances, it was incumbent upon the plaintiff to at least prima facie show that 15% of the total car parking area in the suit property is sufficient to park the car of the plaintiff. However, no evidence has been led in this regard. The plaintiff being one of the co-sharers cannot be given preference over the other co-sharers. Accordingly, the relief that the plaintiff be allowed to park his car in the suit property is hereby declined.
CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 29/32 11.1.21.In view of the foregoing reasons, the plaintiff is held entitled to a decree of permanent injunction and the defendants or any person claiming through them is restrained from obstructing/ interfering the plaintiff, his family members, visitors, representatives, guests, assigns etc., in the peaceful ingress and egress of the suit property.
11.1.22.This issue is decided in favour of the plaintiff and against the defendant in aforesaid terms.
11.2. Issues No. (ii) Whether the plaintiff is entitled to relief of mandatory injunction as prayed for in prayer clause (b) of plaint ? OPP 11.2.1. The onus to prove this issue was upon the plaintiff.
11.2.2.By way of prayer clause (b) of the plaint, the plaintiff seeks a direction from this court that the defendants be directed to install an electric bell, name plate and a letter box on the main gate of the suit property. It is pleaded by the plaintiff that the defendants are not permitting the plaintiff to install an electric bell for the second floor, name plate and a letter box on the main gate which existed earlier and was removed illegally by the defendants. It is evident that the plaintiff seeks to restore the earlier position wherein the electric bell for the second floor, name plate and a letter box existed on the main gate of the suit property. In this backdrop, it was incumbent upon the plaintiff to at least prima facie show that an electric bell for the second floor, name plate and a letter box existed in the first place and the illegal removal of the same is solely attributable to the defendants.
11.2.3. Since this particular fact that the defendants have illegally CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 30/32 removed the electric bell, name plate and a letter box was pleaded by the plaintiff and therefore, the onus was upon the plaintiff to prove the said fact, however the same is bereft of necessary particulars. The plaintiff has not pleaded as to the date, year and the attending circumstances which led the defendant to illegally remove the electric bell, name plate and a letter box for which directions is being sought by this court. In fact no evidence has been led in this regard by the plaintiff. The aforesaid relief as prayed by way of prayer clause (b) of the plaint cannot be granted as the plaintiff has not been able to even prima facie show his case in its favour. Accordingly, the said relief is declined.
11.2.4. This issue is decided against the plaintiff and in favour of the defendant.
11.3. Issues No. (iii) Whether the plaintiff has no locus standi to file the present suit ? OPD 11.3.1. The onus to prove this issue is upon the defendant. In view of the findings at issue no.(i), this issue is decided against the defendant and in favour of the plaintiff.
11.4. Issues No. (iv) Whether the defendant no.3 has committed perjury by filing false and fabricated affidavit dated 20.10.2010 before the Court, if so to what it's effect ? OPP 11.4.1. A separate provision in the nature of Section 340 of Code of Criminal Procedure, 1973 exists for the aforesaid issue which requires separate proceedings and the same cannot be decided by way of the present judgment. Accordingly, in exercise of powers Order XIV Rule 5 CPC, this issue is striked out.
CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 31/32
12. Relief 12.1. In view of the aforesaid appreciation and findings, the plaintiff is held entitled to a decree of permanent injunction in favour of the plaintiff and against the defendants, thereby restraining the defendants or any person claiming through them from obstructing /interfering the plaintiff, his family members, visitors, representatives, guests, assigns, etc. in the peaceful ingress and egress of the suit property bearing no. S-61, Greater Kailash - I, New Delhi from ground floor upto second floor.
13. Cost of the suit is also awarded in favour of the plaintiff.
14. Decree sheet be prepared accordingly.
15. File be consigned to Record Room after due compliance.
Digitally signed by ANURADHA ANURADHA PRASAD
PRASAD Date: 2020.02.24
18:01:43 +0530
Pronounced in the open Court (Anuradha Prasad)
on this 20.02.2020 Civil Judge, South East,
Saket Court, New Delhi.
20.02.2020
CS No. 51187/16 Mahinder Pratap Bhalla Vs. Narendra Pratap Bhalla & Ors 32/32