Delhi District Court
Sh. Sita Ram Arora vs Sh. Girish on 23 September, 2021
IN THE COURT OF Ms. SAUMYA CHAUHAN, SENIOR CIVIL JUDGECUM
RENT CONTROLLER (EAST): DELHI
CS No.736/2017
CNR No.DLET030013842017
1.Sh. Sita Ram Arora
S/o late Sh. Chhotu Ram
2. Smt. Reshma
W/o Sh. Sitaram Arora
Both R/o H.No.53, Gali No.2,
Shastri Park, Krishna Nagar,
Delhi110051 ... .Plaintiffs
VERSUS
Sh. Girish
S/o Sh.Sitaram Arora,
R/o H.No.53, Gali No.2,
Shastri Park, Krishna Nagar,
Delhi110051
.....Defendant
Date of Institution : 08.09.2017
Date of reserving for judgment : 28.07.2021
Date of pronouncement of Judgment : 23.09.2021
JUDGMENT
1. By this judgment, the court shall decide the present suit for declaration, permanent injunction and mandatory injunction.
2. The present suit has been filed by the plaintiffs against the defendant who is their son. The briefly stated facts as per the plaint that the plaintiff no.1 is the owner of property house No. 53, street No. 2, Shastri Park, Krishna Nagar, Delhi110051. The CS No.736/17 page no.1/16 defendant is the son of the plaintiffs living in the suit property. It has been alleged that the defendant is regularly harassing and humiliating the plaintiffs by his illegal and immoral acts. He also does not provide maintenance, food and other basic necessities of life to the plaintiffs. To the contrary, he wants to capture their property. It has been further alleged that the defendant brings bad character girls in their house and make physical relations with them which causes bad influence on the other children of the plaintiff. It has been further averred that due to the continuous humiliation and torture of the plaintiffs by the defendant, they debarred the defendant by way of publication of a public notice in the newspaper "Rashtriya Sahara" dated 10.09.2016. Accordingly, the plaintiffs have broken all the ties and relations with the defendant and he has no right in the suit property.
3. The plaintiffs have further averred that the defendant is living in the property as a licensee. However the plaintiffs are no longer willing to permit the defendant to live there. They have already terminated his living capacity with effect from 10.09.2016. Hence the defendant is liable to pay use and occupational charges at the rate of ₹ 10,000 per month, being in unauthorised occupation of the property. The plaintiffs had also sent a complaint to the SHO, PS Krishna Nagar on 05.09.2017. However despite that, the defendant has failed to vacate the suit property. Hence the present suit.
4. The plaintiffs have prayed for a decree of declaration thereby declaring that the defendant has been legally debarred by the plaintiffs by way of publication and the defendant has no right, title or interest in the movable and immovable properties of the plaintiffs in any manner. They have further sought the relief of mandatory injunction directing the defendant to remove his assets and belongings from the portion shown in red colour forming the part of the property. Further, a decree of permanent injunction has been sought against the defendant, restraining him from creating any thirdparty interest in the suit property.
CS No.736/17 page no.2/165. The defendant has vehemently opposed the contentions of the plaintiffs. In the written statement filed by the defendant, preliminary objections have been taken on the ground that plaintiffs have concealed material facts from the court. The plaintiffs have failed to disclose that they have other children namely, Kamlesh, Barkha, Kiran, Jyoti and Sahil. The plaintiffs are in joint possession of the suit property with their children.
6. The defendant has contended that the suit property is an ancestral property and he has right in the same being the son of the plaintiffs. The plaintiffs have not placed on record any document of ownership for the suit property. Only a General Power of Attorney dated 02.05.2005 has been placed on record which does not create any right or title of the plaintiff in the suit property.
7. The defendant has alleged that after completing his school, he had joined a course of Fashion Designing in 2013. The plaintiffs used to pay his fees and provide him with meagre living expenses. However, the plaintiffs abruptly ceased to pay the fees and the defendant was forced to drop out of the course in 2014. Subsequently, the defendant took up a job in 2015 and has been living on his own since then.
8. The defendant has alleged that it is the plaintiffs who physically abuse him and harass him. Around October 19, 2017 the plaintiff suddenly started treating the defendant badly, physically assaulted him and threatened to call the police and make false complaint.
9. The defendant has also contended that the suit is bad for nonjoiner of necessary party as the owner of the property Mr. Subhash Tandon has not been made a party in the suit. It has also been alleged that the plaint has not been properly verified as there are blanks for the date and paragraph No. in the verification clause of the plaint. The defendant has denied that he is living in the suit property in capacity of a licensee. He has also denied having received any notice from the plaintiffs.
CS No.736/17 page no.3/1610. The defendant has denied that he has been harassing and humiliating the plaintiffs or that he indulges in any immoral or illegal acts. In fact the defendant had good relationship with the plaintiffs till 2017. He has submitted that in February 2017, he suffered an accident and was welcomed by the plaintiffs back in the home. The defendant has denied that he brings bad character girls to the house. He has further denied indulging in quarrels with the plaintiffs on minor issues.
11. No replication was filed by the plaintiffs. After completion of the pleadings of the parties, following issues were framed on 26.03.2018:
1. Whether the plaintiff is entitled to the relief of declaration as prayed for? OPP.
2. Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for? OPP
3. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP
4. Whether the plaintiff has no right title or interest in the suit property? OPD
5. Whether the suit property is an ancestral property in which defendant has a right as the son of the plaintiff? OPD
6. Whether the suit is bad for misjoinder or nonjoinder of necessary party? OPD
7. Whether the plaint has not been properly verified? OPD
8. Relief.
12. Thereafter the matter was listed for plaintiffs' evidence. To prove their case, plaintiff no.1 Sita Ram Arora entered the witness box as PW1 and tendered his evidence by way of affidavit which is Ex.PW1/1. He reiterated his contentions made in the plaint and relied upon the following documents:
CS No.736/17 page no.4/161. Copy of Id proof of the witness is Ex.PW1/A.
2. Original site plan is Ex.PW1/B.
3. Copy of property document is Ex.PW1/C.
4. Copy of complaint dt.05.09.2017 to SHO PS Krishna Nagar vide DD no.24B is Mark PW1/D.
5. Copy of newspaper Rashtriya Sahara dated 10.09.2016 wherein notice regarding debarring of defendant was published is Ex.PW1/E (OSR).
13. In his crossexamination, the witness stated that he is staying in the house alongwith his wife Reshma, son Girish (defendant) and Raja and daughters Kiran and Barkha. There is no other property in his name except the suit property. He further stated that there is a property in the name of his wife at Mangal Bazar, Laxmi Nagar. He stated that all his children except Raja are working. However, no child is paying maintenance to him and his wife. He further stated that the defendant has never made any police complaint against him or his wife. The witness never made any police compliant against the alleged threat extended by the defendant to implicate him in false criminal cases. He denied the suggestion that the suit property is an ancestral property and there is no other document except the one filed by him relating to his title. He denied the suggestion that defendant has not harassed him or his wife, nor has he mishandled him and his wife. He denied the suggestion that he is deposing falsely to ensure that the defendant does not stay in the suit property.
14. The plaintiff no.2/Reshma entered the witness box as PW2 and tendered her evidence by way of affidavit which is Ex.PW2/1. She reiterated her contentions made in the plaint and relied upon the following documents i.e. Ex.PW2/A is the copy of voter I card. Though in the evidence recorded on 02.05.2018, the witness had relied upon the document Ex.PW2/A to Ex.PW2/E (OSR), however, perusal of the record transpires that no such documents are on the judicial record except Ex.PW2/A. CS No.736/17 page no.5/16
15. During crossexamination, the witness stated that Raja, Barkha, Sita Ram Arora, Girish and the witness herself are residing in the suit property. The title papers of the suit property are in her husband's name. None of child are working except Barkha. Except Barkha, no other child provided any household expenses. She further deposed that defendant has lodged a police complaint against her that she does not provide maintenance to him. She too had made various complaints against the defendant. She denied the suggestion that the suit property is an ancestral property. She denied the suggestion that defendant was living separately from September, 2015 to February 2017.
16. PW3 Barkha daughter of plaintiff tendered her evidence by way of affidavit which is Ex.PW3/1. She corroborated the testimony of PW1 and PW2.
17. During crossexamination, PW3 stated that she has been divorced since November, 2018. She has been staying in the suit property from 2016 onwards alongwith her two kids. She is staying in the suit property with the plaintiff, the defendant and her younger sibling namely Raja and Kiran. She further stated that she is working in a private company in Noida and her salary is Rs.35,000/ per month. She does not pay rent to the plaintiff. However, she is paying Rs.10,000/ per month as expenses for her children. She admitted that she has no title in the suit property. She denied the suggestion that she is deposing falsely to continue live in the property.
18. After the plaintiffs concluded their evidence, the defendant also led evidence and entered the witness box as DW1. He tendered his evidence by way of affidavit which is Ex.DW1/A. He reiterated the averments made in the written statement and relied upon certain photographs which are Mark D1 (colly.) to show that the plaintiffs have not broken all ties and relations with him. He deposed that in February 2017 he had moved back into the suit property and plaintiffs had welcomed him. He also participated in a Kirtan in the house with plaintiff no.2 in September, 2017. In October, 2018 he alongwith his siblings CS No.736/17 page no.6/16 had participated in another Kirtan in the house. He had attended a family wedding with plaintiff no.2 in December, 2018. Again, in March 2019 he attended another marriage with plaintiff no.2 at Tilak Nagar.
19. During crossexamination, the witness admitted that he has no document regarding the suit property. He had never filed any compliant against the plaintiff. He stated that he does not know who is the actual owner of the suit property. He voluntarily stated that he believes that the suit property is in the name of his ancestors. He did not know when his grandfather had expired. He had no knowledge that the plaintiffs have debarred him by way of publication in newspaper on 10.09.2016. No claim has been raised by his siblings against the suit property. There are six siblings including him, two brothers and four sisters.
20. DW1 stated that he is earning Rs.18,000/ per month. The witness was confronted with a complaint dated 10.06.2019 filed by his sister Barkha regarding misbehavior, physical and mental harassment and torture of her children. The same is Ex.DW1/P1. He denied the suggestion that the suit property is self acquired property of his parents. However, he admitted that he has not filed any document to prove that the suit property is an ancestral property. No other witness was examined and DE was closed.
21. I have heard the oral submissions made by both the counsels and perused the entire record carefully.
22. During oral submissions, Ld. counsel for plaintiff has submitted that plaintiffs are entitled to a decree in their favour as it is the self acquired property and they are at liberty to decide who shall live with him in the suit property. He has submitted that defendant has failed to prove that the property in question is an ancestral property. He relied upon the judgment titled as 'Sachin Kumar Vs. Jhabbu Lal' AIR 2017 Delhi wherein it has been observed by Hon'ble Court that even if suit property is an ancestral, father's right is superior to the son. He has further submitted that the plaintiffs have already debarred the CS No.736/17 page no.7/16 defendant and hence a decree of declaration be passed in their favour. Written submissions have also been filed by the plaintiff and plaintiff has relied upon the following documents:
1. Sant Lal Jain Vs. Avtar Singh (1985) 2 SCC 332 and Joseth Severance Vs. Benny Mathew (2005) 7 SCC 667.
2. Om Prakash Vs. Birbal Singh (2015) SCC online DEL 13275.
23. Per contra, Ld. counsel for defendant has submitted that suit is not maintainable as there is no cause of action in favour of the plaintiffs. She has submitted that no specific date or time or incident of harassment or humiliation has been mentioned in the plaint or in the evidentiary affidavit of PWs. Further, even till date the defendant is living in the suit property despite the public notice dated 10.09.2016. She further submitted that the present suit is barred by the Maintenance and Welfare of Parents and Senior Citizen Act, 2007 (PSC Act in short). As per Section 3 of PSC Act, the Act has an overriding effect and by virtue of Section 27 of the Act, the jurisdiction of Civil Court is barred. Hence, the plaintiff ought to have filed an application for Eviction under the said Act. She has relied upon the judgment in Shahdab Khairi Vs. Govt. of NCT of Deehi (2017) SCC online DEL 11328. Ld. counsel has further submitted that the plaintiffs have failed to place on record any document to prove that plaintiff no.1 is the sole owner of the suit property. She has also submitted that the plaint is not property verified and hence is liable to be rejected.
24. The issues wise finding of the court as follows.
25. Issue no.6 "Whether the suit is bad for misjoinder or nonjoinder of necessary party? OPD"
26. The onus of proving this issue was upon the defendant. However, no evidence has been led on this aspect. The defendant has averred in his written statement that the CS No.736/17 page no.8/16 owner of the property is one Subhash Tandon and he should have been made a party to the suit. However, he has failed to lead any evidence on this point. Also, the defendant has taken contradictory stands in his defence. On one hand, he has claimed that the property belongs to one Subhash Tandon and on the other hand, he has claimed the property to be ancestral one.
27. Since the defendant has failed to discharge the onus put on him, issues no.6 is decided in favour of the plaintiff and against the defendant.
28. Issue no.7.
"Whether the plaint has not been properly verified? OPD"
29. The onus of proving this issue was on the defendant. It is the contention of the defendant that the plaintiffs have not verified the plaint properly as paragraph numbers and dates are not mentioned in the verification clause of the plaint. However, Hon'ble Supreme Court in the case titled as "Uday Shankar Triyar Vs. Ram Kalewar Prasad Singh"
(2006) 1 SCC 75 has held that defects of signing and verification cannot be fatal and are curable. The technical defence in the pleadings should not affect root of the matter and the sole purpose of codified and evolved law is to chaff away the unnecessary technical ap proach to promote the interest of justice.
30. Also, the plaint is accompanied with the affidavits of both the plaintiffs. There is no major defect in the verification clause of the plaint. Only the paragraph number and date are missing at some places. This is not such a major defect so as to defeat the whole plaint. There is thus no merit in the said contention also.
31. In view of the above discussion, this issue is decided in favour of the plaintiffs and against the defendant.
CS No.736/17 page no.9/1632. Issue no.5.
"Whether the suit property is an ancestral property in which defendant has a right as a son of the plaintiff? OPD"
33 The onus to prove this issue was upon the defendant. However, there is no evidence/documents placed on record by the defendant to prove that the property is an ancestral one. Infact, DW1 has categorically admitted in his crossexamination that he is not aware who is the owner of the suit property. He further stated the he 'believed' that the suit property is in the name of his ancestors. The witness is was not even aware when his grandfather had expired.
34. Hence, the defendant has failed to prove that the suit property is an ancestral one. This issue is accordingly decided in favour of the plaintiffs and against the defendant.
35. Issue no.4.
"Whether the plaintiff has no right title or interest in the suit property? OPD"
36. The onus to prove this issue was upon the defendant.
37. The plaintiff no.1 has claimed to be the owner of the suit property. He has relied upon the documents Ex.PW1/C (colly.) which are Agreement to Sell, GPA, Affidavit, Possession Letter, Will and a receipt of Rs.3,50,000/ all dated 02.05.2005. All these documents are duly notarized and are executed by one Subhash Tondon in favour of the plaintiff no.1. Ld. counsel for defendant has submitted that a sale through GPA, Agreement to sell is not valid as per the celebrated judgment in the case of "Suraj Lamps V, State of Haryana."
CS No.736/17 page no.10/1638. In the case titled as "Suraj Lamps Industries Vs. State of Haryana" (2012) 1SCC 656" it was held by Hon'ble Supreme Court that sale transaction through GPA/agreement of sell, Will does not convey any title nor create any title nor create any interest in the immovable property which can be legally and lawfully transferred only by a registered deed of conveyance. Such GPA transaction cannot be recognized as deed of title except to the limited extent of Section 53A, TPA. However, while delivering the judgment, the Hon'ble Supreme Court had observed that the judgment shall have prospective effect.
39. In the case at hand, the GPA in favour of the plaintiff no. 1 was executed on 02.05.2005. Hence, it would not come within the purview of the above said judgment. Even otherwise, this is a suit for injunction and not a title suit. The defendant has alleged that the property is ancestral in nature. However, he also says that the property is in name of Subhash Tandon . He has taken two contradictory stands and has failed to prove either of the two versions. It is a settled position in law that a person can seek injunction against the defendant who does not have a better title to the property in question. It is further a principal of law that question regarding title to property is not to be decided in an injunction suit, barring in exceptional cases.
40. In view of the above discussion, this court is of the considered opinion that the defendant has failed to discharge the onus of proving this issue. Hence, this issue is decided in favour of the plaintiff and against the defendant.
41. Issue no. 1 "Whether the plaintiff is entitled to the relief of declaration as prayed for? OPP."
CS No.736/17 page no.11/1642. The onus to prove this issue was on the plaintiff. The plaintiffs have prayed that a declaration be made to the effect that the defendant has been legally debarred by the plaintiffs by way of publication of public notice in daily newspaper "Rashtriya Sahara"
dated and order 09.2016 and now the defendant having no right, title and interest in all the immovable and immovable properties of the plaintiffs in any manner.
43. As per Section 34, Specific Relief Act, 1963, a declaratory decree may be issued when any person is entitled to any legal character or to any right as to any property and the adverse party is denying or is interested to deny his title to such character or right. Hence, in order to seek declaration, the plaintiffs need to establish that they are entitled to any legal character or legal right qua the property. In the opinion of this court, the nature of declaration sought by plaintiffs, to the effect that they have disowned the defendant, does not come within the ambit of any legal right or character which the plaintiffs could be de clared to be entitled to. The act of plaintiffs in disowning the defendants through a public notice is merely an expression of their intention to debar the defendants from their proper ties and sever their relationship. However, the relationship is a matter of legal status and the right to property is governed by appropriate laws. Also, even if a son is disowned by either parent, the death of that parent would, if intestate, still lead to devolution of property upon that son. A mere proclamation does not have a dispositive legal effect, breaking all legally relevant familial ties.
44. Further, both the plaintiffs are at liberty to dispose of their self acquired proper ties in any manner they want, and the defendant has no right whatsoever to interfere in the same. As far as any ancestral property of the plaintiffs is concerned, no degree of declara tion as sought by the plaintiffs can extinguish the claim of the defendant to his share in the ancestral property.
CS No.736/17 page no.12/1645. Hence, in view of the above discussion, the court to the considered opinion that the relief sought by the plaintiffs cannot be granted. Issue no.1 is accordingly decided against the plaintiffs and in favour of defendant.
46. Issue No.2 and 3.
"Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for? OPP Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP"
47. The onus of proving both these issues was on the plaintiffs. The plaintiffs have prayed for a decree of mandatory injunction in favour of the plaintiffs thereby directing the defendant to remove all his assets, belongings and household articles from the portion are shown in red colour in the suit property. They have further prayed that the defendant be re strained by a decree of permanent injunction from creating any thirdparty interest in the suit property.
48. It was observed by Hon'ble High Court of Delhi in the case titled as "Neetu Mittal Vs. Kanta Mittal"152 (2008) DLT 691, "The son can live in the house of parents as a matter of right only if the house is an ancestral house in which the son has a share and he can enforce the partition. Where the house is selfacquired house of the parents, son, whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow. Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout the life...
....Once a person gains majority, he becomes independent and parents have no liability to maintain him. It is different thing that out of love and affection, the parents may continue to support him even when he becomes financially independent or continue to help CS No.736/17 page no.13/16 him even after his marriage. This help and support of parents to the son is available only out of their love and affection and out of mutual trust and understanding. There is no legal liability on the parents to continue to support a disobedient son or a son which becomes liability on them or a son who dis respects or disregards them or becomes a source of nuisance for them or trouble for them."
49. In the case at hand, the plaintiffs have proved that they are the owner/landlords of the suit property and the defendant has been living in the suit property as a licensee. PW1 and PW2 have filed evidence and relied upon police complaint Ex. PW1/D that the defendant is harassing and torturing them. The plaintiffs have also made their intention clear that they do not wish to keep any relation with the defendant by way of publication of public notice in a national daily newspaper.
50. Hence, in view of the above discussion and in light of the aforementioned caselaw, this court is of the considered opinion that the plaintiffs have successfully discharged the onus put on them. Accordingly, issue No.2 and 3 are decided in favour of the plaintiffs and against the defendant.
51. Though no issue was framed regarding the maintainability of the present suit, being barred by Section 27 of The Maintenance and Welfare of Parents and Senior Citizens Act. However, during final arguments this issue has been raised and argued at length by the counsel for the defendant. Hence, findings are being recorded by the court regarding the question whether the present suit is barred under the Maintenance and Welfare of Parents and Senior Citizen Act. Section 27 of said Act reads as under : "Section 27. No Civil Court shall have jurisdiction in respect of any matter to which any provision of this Act applies and no injunction shall be granted by any Civil Court in respect of anything which is done or intended to be done by or under this Act."
CS No.736/17 page no.14/1652. At this stage, it would be relevant to refer to the judgment of the Hon'ble High Court of Punjab and Haryana in case titled as "Poonam Mahajan v Shashi Mahajan", RSA 407/2017, date of decision 05.12.2018, wherein it was held, "The legislature in the wisdom, while promulgating the 2007 Act had protected the rights of the senior citizens to espouse their grievances and by incorporating Section 27 of the 2007 Act, ousting jurisdiction of Civil Court was not meant to barring the senior citizen to seek eviction, but on the premise, the opposite side cannot seek the injunction against the senior citizens as and when such proceedings are initiated."
53. In view of the above discussion and the above referred case law, this court is of the considered opinion that this argument of the defendant has no force. Hence, this issue is also decided against the defendant.
54. Relief:
55. In view of the above findings of this court, the present suit is partly decreed in favour of the plaintiff.
56. In view of the above findings of this court, the present suit is partly decreed in favour of the plaintiffs and against the defendant in the following terms:
1. A decree for mandatory injunction in favour of the plaintiffs against the defendant, thereby directing the defendant to remove himself and his all assets, belongings and household articles from the portions shown in red colour forming part of the property bearing H.No.53, Gali No.2, Shastri Park, Krishna Nagar, Delhi110051.
2. A decree for permanent injunction in favour of the plaintiffs against the defendant, thereby restraining the defendant from creating any third party interest or from CS No.736/17 page no.15/16 causing any damage to the property bearing H.No.53, Gali NO.2, Shastri Park, Krishna Nagar, Delhi110051.
57. Parties to bear their own cost.
58. Decree sheet be prepared accordingly.
59. File be consigned to record room after completing the necessary formalities.
Digitally signed by SAUMYA SAUMYA CHAUHAN
CHAUHAN Date: 2021.09.23
16:13:51 -0300
Announced in the Court
today, the 23rd September, 2021 (SAUMYA CHAUHAN)
SCJcumRC, East
CS No.736/17 page no.16/16