Delhi District Court
Sh. Kailash Chand vs Smt. Ragini on 21 August, 2019
IN THE COURT OF NEHA MITTAL: CIVIL JUDGE10, CENTRAL,
TIS HAZARI COURTS : DELHI
Suit No. 554/16
In reference:
1. Sh. Kailash Chand,
S/o Late Meva Lal,
R/o 4817, First Floor, Ram Gali, Laddu Ghati,
Paharganj, New Delhi55.
2. Sh. Rajender Kumar
S/o Sh. Kailash Chand
R/o 4816, First Floor, Ram Gali, Laddu Ghati,
Paharganj, New Delhi55.
...........Plaintiffs
VERSUS
Smt. Ragini
D/o Sh. Umesh Verma,
R/o 4817, First Floor, Ram Gali, Laddu Ghati,
Paharganj, New Delhi55. ........... Defendant
Date of Institution : 15.03.2016
Date of reservation of Judgment : 26.07.2019
Date of Judgment : 21.08.2019
SUIT FOR PERMANENT INJUNCTION
JUDGMENT
1. Vide this judgment, I shall dispose of the aforementioned suit. This is a suit for permanent injunction filed by the plaintiffs against the defendant. The defendant is grand daughter of plaintiff no.1 and niece of plaintiff no.2.
Case No. 554/16 Kailash Chand Vs Ragni Verma Page No. 1 of 18 PLAINT:
2. The present suit is being filed by plaintiff no.1 through his special power of attorney holder i.e. plaintiff no.2. As per the averments made in the plaint, the brief facts are that the plaintiff no.1 is living at house bearing no.4817, First Floor, Ram Gali, Laddu Ghati, Paharganj, New Delhi (hereinafter referred to as suit property). Plaintiff no.2 is son of plaintiff no.1, who is residing at house bearing no.4816, Ground Floor, Ram Gali, Laddu Ghati, Paharganj, New Delhi at rent of Rs.41.25 per month. It has further been averred that plaintiff no.1 was tenant in the suit property since the year 1943 at rent of Rs.11.60 per month and he was paying rent to landlords regularly. It has further been averred that the plaintiff no.2 had got constructed one room (terrace room) at roof of first floor and thereafter landlord started charging rent for that portion from plaintiff no.1 for which rent receipts have been annexed. It has further been averred that the possession of terrace room is with the plaintiff no.2 till date as he has locked the terrace room and key is with him. It has further been averred that on 26.4.05, plaintiff no.1 purchased the suit property with roof rights for a sum of Rs.60,000/ and made payment for the same by cheque from his account and sale deed was got executed in favor of his wife namely late Brij Rani. It has further been averred that plaintiff no.1 and his wife were living in the suit property and plaintiff no.2 has possession of terrace room. It has further been averred that on 25.11.04, the wife of plaintiff no.1 had expired in suit property intestate and thereafter plaintiffs have become coowner of suit property alongwith other legal heirs. It has Case No. 554/16 Kailash Chand Vs Ragni Verma Page No. 2 of 18 further been averred that in the month of December 2015, defendant had entered into suit property on pretext that she wanted to take care of plaintiff no.1 and thereafter she starting harassing plaintiff no.1 and 2. It has further been averred that on 14.12.15 defendant had tried to withdraw Rs.1,43,894/ by forging signature of plaintiff no.1 on cheque bearing no. 004034, Oriental Bank of Commerce, Paharganj and when plaintiff no.1 got this information by bank officials then he made one application for stop payment in respect of aforesaid cheque. It has further been averred that defendant had stolen jewelery of plaintiff no.1 from box kept in suit property and when this fact came to knowledge of plaintiff no.1, he immediately got lodged FIR no. 846/15 u/s. 380 IPC PS Paharganj. It has further been averred that on 02.01.16 defendant was fighting and abusing with plaintiff no.1 and threatening to vacate the suit property & when plaintiff resisted her, she pushed him from staircase, due to which he got intracranial bleed and was removed by Kanika (daughter of plaintiff no.2) to Lady Harding Medical College and Smt. Sucheta Kriplani Hopsital where his OPD card no.253 was prepared and he was advised R.T. MedicineD for intracranial bleed. It has further been averred that defendant want to dispossess plaintiff no.1 from the suit property and grab the suit property. It has further been averred that on 24.2.16, defendant had assaulted upon plaintiff no.1 due to which he sustained some injuries and defendant was threatening to plaintiff that he should vacate the suit property peacefully. It has further been averred that when plaintiff no.2 tried to rescue plaintiff no.1 she even threatened plaintiff no.2 that she would implicate him in false case of outraging the modesty of a woman. It Case No. 554/16 Kailash Chand Vs Ragni Verma Page No. 3 of 18 has further been averred that the plaintiff no.2 had taken plaintiff to Lady Harding Medical Hospital and Smt. Sucheta Kriplani Hospital for his treatment where his MLC no.56168 was prepared. It has further been averred that the plaintiff no.1 got installed electricity and water meter in his name and he is regularly paying the electricity and water charges to concerned departments. It has further been averred that plaintiff no.2 provides food to plaintiff no.1 as he is not able to cook food, however, defendant stops plaintiff no.2 from providing food to plaintiff no.1. It has further been averred that defendant is attempting to dispossess the plaintiffs from their respective portion which is shown in site plan. Hence, the present suit has been filed praying for a decree of permanent injunction for restraining the defendant from illegally dispossessing the plaintiffs from the suit property.
WRITTEN STATEMENT:
3. Summons were issued to the defendant and written statement was filed. In the written statement, the defendant has stated that she is in possession of the suit property and the plaintiff is neither residing nor in possession of the property in question. It has further been submitted that the grandmother of the defendant had asked the father of defendant to construct the terrace room because of shortage of space and the same was constructed by her father with his own money. It has further been submitted that the defendant is in possession of the first floor and the terrace room. It has further been submitted that Smt. Brij Rani, grandmother of defendant and wife of plaintiff no.1 executed a Will dt.
Case No. 554/16 Kailash Chand Vs Ragni Verma Page No. 4 of 18 09.10.13 in favour of father of defendant thereby bequeathing the suit property to father of defendant which was registered on 10.10.13 with the office of SubRegistrarII, New Delhi vide document no.4902 Book No.III Volume No.1058 on page no.198200. It has further been submitted that at the time of execution of said Will, plaintiff no.1 was also present and he has full knowledge of the said Will. It has further been submitted that Smt. Brij Rani was looked after by the father of defendant and all the expenses of her treatment and her last rites were borne by him alone. It has further been submitted that the defendant came to Delhi for doing job in the month of October 2015 and she joined W company on 20.10.16 and it is the plaintiffs no.1 & 2 who harassed the defendant many times and assaulted her with malafide intention to grab the suit property. It has further been submitted that it is the plaintiff no.1 who had committed cheating and fraud upon the defendant by withdrawing the amount of Rs.21,759/ from UTI fraudulently by showing other girl as Ragini Verma which was invested by the grandmother of the defendant in the name of defendant. It has further been submitted that it is the plaintiffs no.1 &2, wife of plaintiff no.2 and Sh. Suresh Soni other son of plaintiff no.1 who many times assaulted and threatened the defendant to vacate the suit property. It has further been submitted that on 24.2.16 the plaintiff no.1 assaulted the defendant with water bottle and stick and threatened the defendant with the help of daughter of plaintiff no.2 namely, Anika and other persons of the locality. It has further been submitted that the defendant lodged a complaint about the same in PS Paharganj vide DD no.10B dt. 25.2.16 after which the police officials took her to Lady Case No. 554/16 Kailash Chand Vs Ragni Verma Page No. 5 of 18 Harding Medical College where the medical of defendant was conducted. It has further been submitted that defendant is paying the electricity and water bills and that the house tax of the suit property from 200405 to 201516 is also deposited by father of defendant. It has further been submitted that when the plaintiffs are not in possession of suit property then how the defendant can dispossess them and by virtue of Will dt. 09.10.13, father of defendant is the absolute owner of the suit property and plaintiffs have no right, title or interest in the suit property. Rest of the averments made in the plaint have also been denied by the defendant.
REPLICATION:
4. Replication was filed by the plaintiffs to the written statement of defendant wherein the plaintiffs have denied all the averments made in the written statement and reiterated the averments made in the plaint.
ISSUES:
5. Following issues were framed vide order dt. 31.05.16:
1. Whether on the date when the suit was filed and the time immediately period previous to it, plaintiffs were in possession of the suit property ? OPP
2. Whether the defendant threatened the plaintiffs regarding dispossessing the plaintiffs from the suit property? OPP
3. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for ? OPP Case No. 554/16 Kailash Chand Vs Ragni Verma Page No. 6 of 18
4. Relief.
EVIDENCE:
6. To substantiate its case, the plaintiff has examined seven witnesses.
PW1 is the plaintiff himself who has tendered affidavit Ex. PW1/1 in his evidence and has relied upon the documents i.e. photocopy of Aadhar card as Ex. PW1/A (OSR), original SPA Ex. PW1/B, original rent receipt as Ex. PW1/C, site plan as Ex. PW1/D, copy of OPD card and other medical papers as Ex. PW1/E (OSR), copy of OPD card no.13867 as Ex. PW1/F (OSR), copy of electricity bill as Ex. PW1/G (OSR), original water bill as Ex. PW1/H, complaint dt. 01.3.16 as Ex. PW1/I, copy of order dt. 15.3.16 as Ex. PW1/J, original postal receipt speed post as Ex. PW1/K, Mark A is copy of complaint dt. 30.4.16, copy of application u/o 39 rule 2A r/w sec. 151 CPC as Ex. PW1/M and copy of application u/s. 151 CPC as Ex. PW1/N. PW2 Sh. Rajender Kumar tendered his affidavit in evidence as Ex. PW2/1 and relied upon the copy of his aadhar card as Ex. PW2/A (OSR).
PW3 Ms. Anika Verma tendered her affidavit in evidence as Ex.PW3/1.
PW4 ASI Satyavir from PS Paharganj, Delhi is summoned witness who has brought the photocopy of compliant dt. 01.03.16 already Ex. PW1/I. PW5 Sh. Rakesh Kumar, Record Clerk from Dr. R.M. L. Hospital is summoned witness who has deposed about the record pertaining to Case No. 554/16 Kailash Chand Vs Ragni Verma Page No. 7 of 18 Casualty no 20160311976.
PW6 Sh. Laden Singh, Civil Nazir form the court of Ms. Neha, the then Ld. Civil Judge09, Central, Delhi is summoned witness who has brought the judicial file of suit bearing no.94361/16 titled Ragini Verma vs. Kailash Chand Verma and the photocopy of plaint of the said suit is exhibited as Ex. PW6/A (OSR).
PW7 Sh. Roop Singh, Medical Record Keeper from Lady Harding Medical College and Smt. Sucheta Kriplani Hospital, New Delhi is summoned witness who has brought the carbon copy of MLC No.56168 of patient Kailash Chand dt. 24.2.16 at 7 pm and photocopy of same is ExPW7/A (OSR).
Vide separate statement, plaintiff evidence was closed and matter was fixed for defendant evidence.
DEFENDANT EVIDENCE Four witnesses have been examined in DE.
DW1 is the defendant no.1 herself who has tendered her evidence by way of affidavit Ex. DW1/A and has relied upon the documents i.e. 4 photographs of suit property as Ex. DW1/1 (colly), original Will dt. 10.10.13 as Ex. DW1/2 (colly running in six pages back to back), Ex. DW1/3 is email sent to UTI by the defendant, Ex. DW1/4 is reply of email sent by UTI, Mark A is closure report by police, Ex. DW1/6 is two CDs of audio recording, Ex. DW1/7 typed conversation of aforesaid CDs, Case No. 554/16 Kailash Chand Vs Ragni Verma Page No. 8 of 18 Ex. DW1/8 email sent to Commissioner of Police which is inadvertently dt. 20.12.16 instead of 20.12.15, Ex. DW1/9 is reminder dt. 25.2.16 to Commissioner of Police and Ex. DW1/10 is certificate u/s. 65B Indian Evidence Act, Mark B is statement given to police by the defendant, Mark C is DD no.35B dt. 06.3.16, Mark D inadvertently written as MLR instead of MLC, ExDW1/14 email dt. 25.2.16, Mark E is photocopy of statement of account, Ex. DW1/16 is true copy of house tax receipt (OSR), Ex. DW1/17 is copy of application for mutation.
DW2 HC Vikender Kumar PS Paharganj, Delhi is summoned witness who has brought summoned record i.e. complaint bearing DD no.10B dt. 25.2.16 and DD no.35B dt. 06.3.16. Copies of same are ExDW2/A and ExDW2/B respectively. He has also brought copy of FIR no.305/16 dt. 11.8.16 u/s. 354B/509/34 IPC lodged by complainant Ragini Verma which is ExDW2/C. DW3 Sh. Parveen Kumar Rana, UDC from Office of SubRegistrarI, Kashmere Gate, Delhi. He has brought the summoned record i.e. Will which was registered on 10.10.13 vide document no.4902 in addition book no.3, Vol No.1058 at pages 198200 executed by Smt. Brij Rani in favour of her son Umesh Narayan and the copy of same is Ex. DW3/A. DW4 Sh. Ram Kishore is the attesting witness of Will dt. 10.10.13 Ex. DW1/2.
Vide separate statement, defendant evidence was closed and matter was Case No. 554/16 Kailash Chand Vs Ragni Verma Page No. 9 of 18 fixed for final arguments.
FINAL ARGUMENTS:
7. I have heard the final arguments and perused the written submissions filed by the parties.
FINDINGS OF THE COURT: ISSUE NO. 1
8. The burden to prove this issue is on the plaintiff.
9. It has been argued by the counsel for plaintiff that the plaintiff no. 1 is in joint possession of the suit property with defendant and therefore, an ex parte injunction order was passed on 15.03.16. It has further been argued that the possession of the plaintiff has been duly proved by the documents relied upon by the plaintiff in his evidence. It has further been argued that the defendant has also admitted the possession of the plaintiff in complaints and statements made to police. Per contra, the counsel for defendant has taken the objection that plaintiff no. 2 has failed to prove the special power of attorney on the basis of which the present suit has been filed. It has further been argued that the plaintiff has himself admitted that he resides at property no 4816 and that the plaintiff is seeking relief against the suit property i.e. house no 4817, First Floor, Laddu Ghati Pahar Ganj, New Delhi, whereas the plaintiff has produced the document Ex PW1/A for house no 4817, Laddu Ghati Pahar Ganj, New Delhi.
Case No. 554/16 Kailash Chand Vs Ragni Verma Page No. 10 of 18
10.Perusal of record shows that rent receipt w.r.t. suit property pertaining to year 2002 have been issued in the name of plaintiff no. 1. Electricity bill dt. 20.05.15 Ex. PW1/G and water bill Ex. PW1/H of suit property are also in the name of plaintiff no. 1. The date of the aforementioned documents is relevant as showing the possession of plaintiff no. 1 prior to the filing of this suit.
The primary proof of plaintiff's possession over the suit property is the admissions made by the defendant. Hence, it becomes necessary to discuss the evidentiary value of the same. An admission is a statement, (oral or documentary or contained in electronic form), by party to the proceeding or his agent or person claiming under party which suggests any inference as to any fact in issue or relevant fact. An admission constitutes a substantive piece of evidence in a case and for that reason can be relied upon for proving the truth of the facts incorporated therein. An admission has the effect of shifting the onus of proving to the contrary on the party, against whom it is produced with the result that it casts an imperative duty on such party to explain it. In the absence of satisfactory explanation, it is presumed to be true. An admission, in order to be competent and to have the value and effect referred to above should be clear, certain and definite and not ambiguous, vague or confused. It is true that admissions are not conclusive proof of the facts admitted and be explained or shown to be wrong, but they do raise an estoppel and shift the burden of proof to the person making them or his representativeininterest. Unless shown or explained to be wrong, they are efficacious proof of the facts admitted. The evidentiary value of admissions, therefore, depends upon the Case No. 554/16 Kailash Chand Vs Ragni Verma Page No. 11 of 18 circumstances under which they are made.
11.First of all, the defendant has, in her written statement in para 2 of reply on merits, admitted that she is a permanent resident of Ludhiana and admitted in para 8 that she came to Delhi in the month of October 2015. Similarly, the defendant has admitted in para 6 of written statement that the plaintiff no. 1 and his wife were living in the suit property. It has been admitted in para 4 that the plaintiff was a tenant in suit property in 1943. This shows that the plaintiff has been residing in the suit much prior than the defendant. This raises some doubts about the plea of the defendant that only she is in possession of the suit property especially in light of the fact that neither has anything been pleaded nor proved as to when and how the plaintiff lost the possession.
12.The memo of parties in the two civil suits (Ex. DW1/X1 & Ex. DW1/X2) filed on 15.02.16 and 25.02.16 by the defendant herein mentions the address of the plaintiff no. 1 herein as that of the suit property i.e. house no. 4817. Though DW1 has in her cross examination, on being confronted with the documents Ex. DW1/X1 & Ex. DW1/X2, stated that the address was wrongly mentioned by her counsel, but the fact that the address of plaintiff no. 2 herein (who was defendant no. 2 in the aforestated two suits) has been mentioned as house no. 4816 leads to the inference that the addresses have been mentioned in accordance with the factual position at that time. Further, perusal of plaint Ex. DW1/X2 shows that in para no. 5 it has been mentioned that the defendant herein started residing in the suit Case No. 554/16 Kailash Chand Vs Ragni Verma Page No. 12 of 18 property for last about 34 months. In her statement to police Ex. DW1/X3 dt 06.03.16, the defendant has admitted that her grandfather i.e. plaintiff no. 1 herein resides with her in the suit property and further admitted that he has been residing there since long and the defendant started residing only from 18.10.15. This statement Ex. DW1/X3 has been admitted by the defendant in her cross examination. Even para no. 3 of the Will Ex. DW3/A relied upon by the defendant to establish title of her father over the suit property says that the executor of the will i.e. wife of plaintiff no. 1 resides at the suit property alongwith plaintiff no. 1. Similarly, in the transcript Ex. DW1/7, the defendant can be seen asking her grandfather i.e. plaintiff no. 1 as to why does he close the door everytime which also points towards the possession of the plaintiff no. 1. The defendant has, in her cross examination, stated that she had asked her grandfather i.e. plaintiff no. 1 to come and reside with her in the suit property which is contrary to her stand that the plaintiff no. 1 is not in possession of suit property.
13.The plaintiff no. 1 has admitted in his cross examination that no quarrel took place on 02.01.16 and that he had visited the CGHS dispensary for taking his regular medicines. This is contrary to the pleadings of the plaint wherein it has been stated that the plaintiff no. 1 was injured due to being pushed by the defendant. But this does not disprove or raise any doubt regarding the possession of plaintiff no. 1.
14.The argument of counsel for defendant that PW2 and PW3 have Case No. 554/16 Kailash Chand Vs Ragni Verma Page No. 13 of 18 admitted in their cross examination that the plaintiff no.1 is residing at property no. 4186 is meritless as it does not pertain to the period which is in question before this court. The admission has only been made about the current status of facts which is not even denied by plaintiff no.1. No admission has been made by either of the witnesses regarding the possession of the plaintiff no.1 in property no. 4186 prior to the alleged date of dispossession i.e. 27.4.2016. Rather, both the witnesses have denied the suggestion that plaintiff no.1 never resided in property no. 4187. Another relevant portion of cross examination of PW3 that it has been stated that a quarrel took place in property no. 4187 and PW3 went there to rescue her grandfather i.e. plaintiff no.1 from quarrel which implies that plaintiff no.1 was in possession of property no. 4187. Though, it has been stated by PW1 in para 16 of his affidavit Ex.PW1/1 that the defendant did not allow the plaintiff no.1 to enter the suit property on 27.4.2016, this fact does not in any way go against the case of the plaintiff as it has been asserted by the plaintiff in the plaint itself that the defendant had entered into suit property in the month of December 2015. It is not the case of the plaintiff that the defendant is not in possession of the suit property. Rather, the case is that the suit property is in joint possession of plaintiff no.1 and the defendant. Thus, the possession of the plaintiff over the suit property stands proved.
15.Similarly, the argument of counsel for defendant that the plaintiff has admitted in his cross examination that he resides at property bearing no. 4816 is without any force as it is already the case of the plaintiff that he Case No. 554/16 Kailash Chand Vs Ragni Verma Page No. 14 of 18 has been dispossessed from the suit property on 27.04.16 i.e. during the pendency of the present suit. It has nowhere been admitted by the plaintiff that he did not reside in the suit property even before 27.04.16.
16.The plaintiff no. 1 has admitted the Special Power of Attorney Ex. PW1/B executed by him in favour of plaintiff no. 2 and hence, it cannot be said that the suit has not been properly instituted. Even the argument that the site plan is not correct and does not match with the suit property does not hold much water as the dispute is not with respect to the dimensions of the suit property.
17.The defendant has also sought to place reliance upon Will Ex. DW1/2. However, the question of title is not involved in the suit for injunction.
18.The question, if any, that remains is whether the plaintiff was in possession on the date of filing of suit or the period immediately prior to it. It is not to be forgotten that one of the cardinal principles of civil law is that in civil cases burden of proof is that of balance of probability and not that of beyond reasonable doubt. The issues in the civil matter have to be decided on balance of probabilities. The balance of probabilities is arrived at after weighing the respective evidence which is led by both the parties. The possession of the plaintiff is proved by the admissions of the defendant and nothing has been proved on record or pleaded how and when the plaintiff lost possession. Hence, the burden placed upon the plaintiff stands discharged and the onus shifts upon the defendant which Case No. 554/16 Kailash Chand Vs Ragni Verma Page No. 15 of 18 the defendant has failed to discharge.
19.Hence, in view of the above discussion, issue no. 1 is decided in favour of the plaintiff and against the defendant.
ISSUE NO 2 & 3:
20.Both the issues are being taken up together since they involve common question of law and facts.
21.The burden to prove both the issues was upon the plaintiff. However, in view of subsequent developments during the pendency of the present suit, these issues have become infructuous as it is the case of the plaintiff that he has been dispossessed from suit property by the defendant on 27.4.2016. Hence, the question that arises now is whether the plaintiff is entitled to the recovery of the possession of the suit property.
22. It has been submitted by counsel for plaintiff that exparte interim order protecting the possession of the plaintiff was passed on 15.3.2016 and the plaintiff was dispossessed in gross violation of this order. Hence, this court should exercise its power under Section 151 CPC to restore the possession of the plaintiff.
23. On the other hand, counsel for defendant has argued that since the plaintiff has never been in possession of the suit property and was not Case No. 554/16 Kailash Chand Vs Ragni Verma Page No. 16 of 18 entitled to the relief claimed in the main suit, he cannot be granted possession by way of application under Section 151 CPC.
24. This court has already observed that plaintiff was in possession of the suit property at the time of filing of present suit. Admittedly, on date, the plaintiff is not in possession which means that he has been dispossessed during the pendency of the present suit. The present suit was filed on 15.3.2016 and on the same date, exparte injunction order was granted in favour of the plaintiff. Hence, undoubtedly, the plaintiff was dispossessed after passing of this order. In such a situation, the plaintiff cannot certainly be called upon to file a fresh suit for recovery of possession. Such a scenario will be inequitable to the plaintiff who will be forced to enter into another round of litigation only because of the illegal act of the defendant of violating the order of this court. This certainly cannot be the intention of law.
25.Further, this court has inherent power under Section 151 CPC to meet the interest of justice. It has been laid down in Kailash Chand v. Anupam Singh Yadav AIR 1988 MP 310 that this court has ample jurisdiction and is perfectly justifiable in passing the order of mandatory injunction under Section 151 CPC for the restoration of the possession of aggrieved party in case such a party has been dispossessed in disobedience of the order of injunction. It was observed that the court can exercise its inherent power to pass such order for ends of justices as would undo the wrong done to the aggrieved party.
Case No. 554/16 Kailash Chand Vs Ragni Verma Page No. 17 of 18 Relief
26. In view of the aforestated discussion, the plaintiff is entitled to restoration of possession and hence, a decree of possession in the suit property i.e. 4817, First Floor, Ram Gali, Laddu Ghati, Paharganj, New Delhi55 is being passed in his favour.
27.Cost of the suit be awarded in favour of plaintiff.
28.Decree sheet be prepared accordingly.
29. File be consigned to the record room after necessary compliance.
Announced in the open
Court on 21.08.2019
(NEHA MITTAL)
Civil Judge10(Central)
Digitally signed THC/DELHI/21.08.2019
by NEHA
NEHA MITTAL
Date:
MITTAL 2019.08.22
12:03:25
+0530
Case No. 554/16 Kailash Chand Vs Ragni Verma Page No. 18 of 18