Delhi District Court
Suman Dhingra vs Harsh Bhutani on 28 March, 2024
Suman Dhingra v. Harsh Bhutani
IN THE COURT OF MS. PAYAL SINGAL : CIVIL JUDGE - 08
(CENTRAL), ROOM NO.283, TIS HAZARI COURTS, DELHI
SUIT NO : 1130/2018
CNR NO.DLCT0030024962018
IN THE MATTER OF :
Suman Dhingra,
W/o Sh. Sudhir Dhingra
R/o Flat No.435, Pocket2,
Sector9, Dwarka,
New Delhi 110077 ...PLAINTIFF
VERSUS
Harsh Bhutani
S/o Late Sh. Duni Chand Bhutani
R/o 6/57, Old Rajender Nagar,
Shankar Road, New Delhi ...DEFENDANT
Date of Institution : 12.04.2018
Date of Reservation : 22.03.2024
Date of Judgment : 28.03.2024
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
JUDGMENT
1. Vide this judgment, I shall decide the suit of the plaintiff for permanent and mandatory injunction.
BRIEF FACTS OF THE PLAINT:
2. The brief facts as alleged by the plaintiff are that the plaintiff is the owner CS No.1130/2018 Pg 1 of 17 Suman Dhingra v. Harsh Bhutani of the second floor with roof rights of property admeasuring 88 sq. yards bearing No.6/57, Old Rajender Nagar, Shankar Road, New Delhi (hereinafter referred to as suit property) which she inherited from her father late Sh. Duni Chand Bhutani by way of oral partition amongst the family members. It is the case of the plaintiff that she came into possession of the suit property i.e. the second floor immediately after the said oral partition and that the same can be accessed only through one common stair case which connects the second floor to the first floor. It is then the case of the plaintiff that the defendant is intentionally and deliberately blocking the said staircase by placing cartons, water bottles etc. which has hampered the plaintiff's right to access the suit property. Further, that despite repeated requests to the defendant, the defendant has failed to remove the said obstructions and is even threatening to illegally dispossess the plaintiff from the same and create third party interest in the same. Left with no option, the present suit has been filed by the plaintiff claiming the following reliefs:
a) Pass a decree of permanent injunction in favour of the plaintiff and against the defendant thereby restraining them, their agents, servants, associates, assigns, legal heirs from blocking, obstructing and wrongfully occupying the suit property and create third party interest, lien, in the interest of justice.
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b) Pass a decree of mandatory injunction in favour of the plaintiff and against the defendant thereby restraining them, their agents, servants, associates, assigns, legal heirs from blocking, obstructing and wrongfully occupying the suit property and create third party interest, lien, in the interest of justice.
3. It is imperative to note that defendant was duly served on 17.07.2018, but despite the expiry of stipulated period, no written statement was filed and accordingly, vide order dated 23.10.2018, the defence of the defendant was struck off. Thereafter, vide order dated 01.02.2019, application of the defendant under Order VIII Rule 1 of CPC was allowed and the written statement was taken on record.
WRITTEN STATEMENT:
4. The defendant filed his written statement controverting the claims of the plaintiff and raising several preliminary objections i.e. the suit being liable to be dismissed as the same is a gross abuse and misuse of the process of law; plaintiff having no cause of action or locus standi to file the present suit as she is neither the owner nor in possession nor has any right, title or interest in the suit property; the suit being improperly valued for the purpose of court fees and jurisdiction; the suit being bad for non joinder of parties; the suit being barred under Section 41 of Specific Relief Act as the plaintiff has alternate efficacious remedy available.
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5. Further, it has been averred on behalf of the defendant that the plaintiff has no cause of action in her favour as no oral partition ever took place between the family members. It is the case of the defendant that his father Late Sh. Duni Chand was the absolute owner of the property No.6/57, Old Rajender Nagar, New Delhi which was allotted to him on lease hold basis from the government through registered lease deed dated 27.12.1965, whereafter the same was converted into free hold in his name on 29.01.1998, thereby making the father of the defendant as absolute owner of the said property. The father of the defendant passed away on 04.08.2005 and left behind his wife Smt. Prakash Bhutani (who died on 22.07.2011), his two sons i.e. defendant and Sh. Sunil Kumar Bhutani and one daughter i.e. the plaintiff as legal heirs. During the lifetime of the parents of the parties, they declared their two sons to be the joint owners of the said property and the plaintiff was stated to have no right in the same as she had already received enough at the time of her marriage on various festivals, occasions etc. It is then the case of the defendant that after the death of the mother, all her jewellery and cash was also given to the plaintiff and that she has no right, title or interest in the said property or any portion thereof. It is further stated that the elder CS No.1130/2018 Pg 4 of 17 Suman Dhingra v. Harsh Bhutani brother of the defendant is residing at the ground floor of the said property, the defendant at the first floor and the second floor is in their joint possession but not being used by either. It is then the case of the plaintiff that under the garb of visiting the defendant on the said property, the plaintiff has malafidely taken pictures of the second floor to create false evidence of her possession upon the same i.e. the suit property whereas she is residing in her matrimonial home and has no connection with the suit property.
6. It is the case of the defendant that no oral partition ever took place between the family members which is clearly evident from the fact that the plaint does not contain any separate paragraph for cause of action nor has the plaintiff anywhere mentioned any date or other details when the said oral partition took place or any part of cause of action arose. Lastly, it is averred on behalf of the defendant that the present suit has been malafidely filed by the defendant to seek a declaration of her ownership rights and possession on the said property which do not exist, and that the present suit being simplicitor for injunction is barred in view of the judgment of Anathula Sudhakar v P. Buchi Reddy ( Dead ) by LRs & Ors. AIR 2008 SC 2033.
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7. In reply of merits, all the contents of the plaint have been denied being wrong and false. Further it has been reiterated that the plaintiff has no right, title or interest in the suit property which is jointly owned by defendant and his elder brother. The other paras are the legal paragraphs. Accordingly, it is prayed that the suit is liable to be dismissed.
ISSUES:
8. Vide order dated 03.04.2019, following issues were framed for trail on the basis of pleadings of the parties viz.,
1. Whether plaintiff is entitled to the decree of permanent injunction, as prayed for in prayer clause (a) of the plaint? OPP.
2. Whether plaintiff is entitled to the decree of mandatory injunction, as prayed for in prayer clause (b) of the plaint? OPP.
3. Relief.
PLAINTIFF'S EVIDENCE:
9. Plaintiff in order to prove her case, examined herself as PW1 whose examination in chief was by way of affidavit Ex.PW1/1. PW1 relied upon following documents:
a) Ex.PW1/A was deexhibited.
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b) Ex.PW1/B (OSR) Death Certificate of father of plaintiff dt.
04.08.2005.
c) Ex.PW1/C (OSR) Death Certificate of Mother of plaintiff dt. 22.07.2011.
d) Ex.PW1/D was deexhibited as not filed by plaintiff.
e) Ex.PW1/E was deexhibited as not filed by plaintiff.
f) Ex.PW1/F (Colly) Photographs of possession by plaintiff.
g) Ex.PW1/G (Colly) Photographs of obstruction of property by the defendant.
10. PW1 was duly cross examined on 28.08.2019 and 11.10.2021 and accordingly discharged on the said date.
11. PW2 was Sh. Sunil Kumar Bhutani whose examination in chief was by way of affidavit Ex.PW2/A. PW2 relied upon the documents as relied upon by PW1. PW2 was duly cross examined on 20.05.2022 and discharged.
12. Thereafter, plaintiff's evidence was closed on 20.05.2022.
DEFENDANT'S EVIDENCE:
13. Defendant to prove his version, examined Ms. Nikita Bhutani as DW1 whose examination in chief was by way of affidavit Ex.DW1/A. DW1 CS No.1130/2018 Pg 7 of 17 Suman Dhingra v. Harsh Bhutani relied upon following documents:
a) Ex.DW1/1(OSR) (colly. running into two pages) are the photocopies of medical documents of the defendant.
b) Ex.DW1/2 is the original electricity bill of the complete suit property.
c) Ex.DW1/3 (Colly.) 15 Photographs of the defendant on the second floor of the suit property.
14. DW1 was duly cross examined on 30.11.2023 and on 20.01.2024 and discharged. Thereafter, defendant's evidence was also closed on 20.01.2024.
FINAL ARGUMENTS:
15. It was argued on behalf of the plaintiff that by way of present suit, the plaintiff is merely seeking access to her portion of the property i.e. second floor of property No.6/57, Old Rajender Nagar, Shankar Road, New Delhi which she became the owner of, by way of oral partition that took place between the parties (along with their elder brother Sh. Sunil Kumar Bhutani) in the presence of their father Late Sh. Duni Chand Bhutani. It was argued the the factum of said oral partition has been supported by the testimony of the said elder brother who appeared as PW2. It was further argued that factum of possession of plaintiff over CS No.1130/2018 Pg 8 of 17 Suman Dhingra v. Harsh Bhutani the suit property and the obstruction caused by the defendant on the staircase of the same is evident from the photographs as filed on record and accordingly, it was prayed that suit of the plaintiff was liable to be decreed.
16. Per contra, it was argued on behalf of the defendant that in the garb of the present suit, plaintiff is trying to seek a declaration qua her ownership and possession on the suit property which she cannot be permitted to do as admittedly, she is residing in her matrimonial home and not upon the suit property. It was then argued that the plaintiff is not entitled to any share of the property i.e. 6/57, Old Rajender Nagar, Shankar Road, New Delhi and that the same is under the lock and key of the defendant and their elder brother Sh. Sunil Kumar Bhutani. It was further argued that the suit in the present form is not maintainable as the same does not mention any dates when cause of action arose in favour of the plaintiff, in which case, the same is hopelessly barred by limitation as according to the plaintiff's own version, the partition took place on 26.01.2004. Accordingly, it was prayed that the suit was liable to be dismissed.
17. I have heard the arguments and perused the record.
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18. Before proceeding further with the issuewise findings, it is relevant to note that it is settled law that to obtain any decree for injunction, a party has to prove two things; firstly, that he has a right in his favor and secondly that the said right is being infringed or threatened to be infringed by the defendant. Accordingly, in the case at hand, in order to obtain a decree in her favor, the plaintiff will firstly have to prove that she has a right to access the suit property which she can prove by either showing her possession upon the same or in the alternative, her title over the same. Once the said factum has been proved, the plaintiff will then have to prove that the said right is being infringed or threatened to be infringed by the defendant.
19. In view of the above settled law, my issuewise findings are as follows:
ISSUES NO.1 & 2:
Whether plaintiff is entitled to the decree of permanent injunction, as prayed for in prayer clause (a) of the plaint? OPP.
Whether plaintiff is entitled to the decree of mandatory injunction, as prayed for in prayer clause (b) of the plaint? OPP.
20. Both the said issues are being taken up together as they deal with common questions of law and fact. At the outset, it is relevant to mention that as per the prayer clause of the plaint, both the issues are identically CS No.1130/2018 Pg 10 of 17 Suman Dhingra v. Harsh Bhutani worded but on perusal of record, the same appears to be a typographical error wherein by prayer (a), the plaintiff is seeking permanent injunction restraining the defendant from causing any obstruction in the plaintiff's access to the suit property and by way of prayer (b), the plaintiff is seeking a mandatory injunction thereby directing the defendants to remove the blockages, obstructions etc. that have been made upon the suit property. Accordingly, the issues are being considered as such.
21. The onus to prove the said issues was upon the plaintiff. The plaintiff in support of her case has examined herself as PW1 and relied upon certain photographs Ex.PW1/F and Ex.PW1/G showing her possession upon the suit property as well as the obstructions as caused by the defendant in way of the same, respectively. Plaintiff has also relied upon her own testimony as well as the testimony of her elder brother Sh. Sunil Kumar Bhutani who appeared as PW2 to prove that an oral partition took place between the parties whereby the second floor of property No.6/57, Old Rajender Nagar fell into the share of the plaintiff.
22. What is important to note here is that the entire plaint is silent as to the date when the alleged oral partition took place or other particulars about the said partition. The fact that the partition took place on 26.04.2004 CS No.1130/2018 Pg 11 of 17 Suman Dhingra v. Harsh Bhutani was disclosed by PW1 during her cross examination only and even her affidavit of evidence is silent upon the same. Similarly, there is no mention of the date of oral partition or as to what portion fell in the share of which sibling in the evidence affidavit of PW2 as well and it was only during his cross examination that he stated the shares that were allegedly given to all the siblings; but even in the cross examination no date of said oral partition ever came on record. Furthermore, the evidence affidavit of PW1 (Ex.PW1/A) & PW2 (Ex.PW2/A) are identically worded with the only difference being that PW1 is stated to be owner of the second floor with roof rights and PW2 is stated to be the owner of ground floor; rest all the averments of the said two affidavits are identical. What is also relevant to note here is that the plaint is completely silent as to the date of the alleged oral partition or any other particulars relating to the same.
23. At this juncture, I find it relevant to mention the judgment of the Hon'ble Supreme Court of India in the case of Vineeta Sharma v. Rakesh Sharma & Ors. as relied upon by the defendant qua the validity of oral partition.
In the said judgment, it has been held that by virtue of the provisions of Explanation to Section 6(5) of the Hindu Succession Act, 1956, a plea of CS No.1130/2018 Pg 12 of 17 Suman Dhingra v. Harsh Bhutani oral partition cannot be accepted as statutorily recognized mode of partition unless it is supported by public documents. A partition can be effected by a duly registered deed or decree of the Court.
24. When the facts of the present case are read in the light of the said judgment, the Court is of the opinion that owing to the vague averments of the plaint regarding oral partition, the evidence of PW1 and PW2 is not sufficient to prove the factum of oral partition, especially when PW2 appears to be deposing at the instructions of the plaintiff itself. Accordingly, the Court is of the opinion that the plaintiff has been unable to prove the fact that any oral partition took place between the parties.
25. Now, the second factor which the plaintiff could have proved to obtain an injunction in her favour was to show her possession over the suit property. The plaintiff has admitted that after her marriage, she has been residing in her matrimonial home i.e. 435, Pocket No.2, Sector9, Dwarka, New Delhi but it is her case that she frequently visits the suit property for overseeing and maintaining the same. Accordingly, she has filed photographs Ex.PW1/F to show her possession upon the same. Now, although all the suggestions put to her regarding she, not being in possession of the suit property were denied by PW1, nonetheless, it CS No.1130/2018 Pg 13 of 17 Suman Dhingra v. Harsh Bhutani cannot be ignored that any electronic evidence that a party wishes to rely upon has to satisfy the rules for admissibility of electronic records as per Section 65A & B of the Indian Evidence Act, 1872. However, the photographs as relied upon by the plaintiff are neither accompanied by any negatives nor any certificate under Section 65B of the Indian Evidence Act, in which case, the same cannot be looked into by the Court for any purposes. However, even if for arguments sake, the said photographs are considered by the Court, the same do not contain any time or date stamp or any location markers, in the absence of which, it cannot be believed that the same pertain to the suit property especially when DW1 denied that the said photographs belong to the suit property in her cross examination. In view of the discussion hereinabove, the Court is of the view that plaintiff has been unable to show her possession upon the suit property.
26. It is relevant to note here that although the Court is alive to practical realities and gives room to any arithmetical or typographical errors in the pleadings on account of human error but the plaint in the present case is completely vague. The typographical error in the prayer clause has already been noted above. Further, the plaint is vague as to what exactly CS No.1130/2018 Pg 14 of 17 Suman Dhingra v. Harsh Bhutani is the suit property, especially when the same is unaccompanied by any site plan (whether the same is the entire property i.e. property No.6/57, Old Rajender Nagar, second floor of the property or the staircase connecting first and second floor); it nowhere mentions any dates with respect to when the alleged oral partition took place or any details qua the same; it does not mention when the plaintiff approached the defendant for requesting him to remove the obstructions or when the said request was refused. In fact, the plaint is devoid of any paragraph related to cause of action and even the paragraph with respect to valuation is vague as the same does not mention as to the exact valuation of the suit for the purposes of Court Fees and jurisdiction and what Court Fees has been paid upon the same.
27. Now, the case of the defendant is also unsubstantiated and is full of contradictions wherein on the one hand, the defendant states that his father Late Sh. Duni Chand Bhutani died intestate but on the other hand, it is also stated that during their lifetime, the parents made a declaration that the property in question shall vest in both their sons, to the exclusion of their daughter i.e. the plaintiff. Further, the photographs as filed by the defendant to show his possession upon the suit property are similary CS No.1130/2018 Pg 15 of 17 Suman Dhingra v. Harsh Bhutani unaccompanied by any certificate under Section 65B of Indian Evidence Act, 1872 and are devoid of any dates or time stamps or location markers. Lastly, there are serious doubts as to why the defendant himself did not enter into the witness box as the medical documents showing his condition are incomplete and unsubstantiated. Even in the existence of all such facts, it cannot be ignored that it is settled law that the plaintiff's case has to stand on its own legs and the plaintiff cannot take the advantage of the shortcomings of the case of the defendant.
28. In the case at hand, the Court is the opinion that the plaintiff has been unable to discharge his burden to show as to what right she has to access the suit property, in which case, the question of obstructions, if any, caused by the defendant becomes immaterial.
29. Accordingly, both the issues are decided against the plaintiff.
30. The Court also finds it imperative to mention that on perusal of the entire judicial record as well as the evidence lead on behalf of both the sides, it appears that the parties are essentially trying to seek/establish their rights upon the property of their father Late Sh. Duni Chand Bhutani. Both the parties have raised their separate pleas regarding oral partition or declaration qua the property in question but the same are CS No.1130/2018 Pg 16 of 17 Suman Dhingra v. Harsh Bhutani unsubstantiated by any evidence; since neither of the parties have substantiated their claims and defendant has stated that their father died intestate, accordingly, the plaintiff might have some rights qua the property in question but the same cannot be adjudicated upon by way of the present suit, which is for simplicitor injunction. The correct course of action would have been for the parties to file a comprehensive suit for partition/declaration, etc. before an appropriate Court of law for adjudication of their rights qua the property in question. RELIEF
31. In view of the discussion hereinabove, the suit of the plaintiff is dismissed. No order as to costs.
32. Decree sheet be prepared accordingly.
33. File be consigned to Record Room. Digitally signed by PAYAL PAYAL SINGAL (This judgment contains 17 pages SINGAL Date:
and each page has been signed by me.) 2024.03.28
16:42:49
Announced in the open court (PAYAL SINGAL)
+0530
on 28.03.2024 Civil Judge - 08 (Central)/Delhi
CS No.1130/2018 Pg 17 of 17