Delhi District Court
Sh.Hari Krishan vs Rajvir Singh on 4 June, 2024
IN THE COURT OF SH. MAYANK GOEL, JSCC/ASCJ/GJ,
SHAHDARA, KARKARDOOMA COURTS, DELHI
Civ. Suit 874/2017
HARI KRISHAN & ANR. Vs. RAJVIR SINGH & ANR.
CNR No. DLSH03-001613-2017
IN THE MATTER OF
(1.) SH. HARI KRISHAN
S/o LATE SH. HOSHIYAR SINGH.
(2.) SMT. RAMWATI
W/o SH. HARI KRISHAN
BOTH R/o A-8/734,
GALI No. 8, AMAR COLONY,
EAST GOKALPUR,
DELHI-110094.
...... Plaintiffs
Versus
(1) SH. RAJVIR SINGH,
S/o SH. HARI KRISHAN.
(2) SMT. MITHLESH,
W/o SH. RAJVIR SINGH
BOTH R/o A-8/734, GALI No. 8,
AMAR COLONY,
EAST GOKALPUR,
DELHI-110095.
...... Defendants
SUIT FOR MANDATORY INJUNCTION, PERMANENT
INJUNCTION, DECLARATION AND MESNE PROFIT
DATE OF INSTITUTION : 01.08.2017
DATE OF RESERVING THE ORDER : 18.05.2024
DATE OF DECISION : 04.06.2024
DECISION :DISMISSED Digitally signed
MAYANK by MAYANK
GOEL
GOEL Date: 2024.06.04
14:34:18 +0530
Civ. Suit 874/2017
HARI KRISHAN & ANR. Vs. RAJVIR SINGH & ANR.
CNR No. DLSH03-001613-2017 Page No. 1 of 14
JUDGMENT
1. The present suit has been instituted by Sh. Hari Krishan (hereinafter referred to as "plaintiff no. 1") & Smt. Ramwati (hereinafter referred to as "plaintiff no. 2") against Sh. Rajvir Singh (hereinafter referred to as "defendant no. 1") & Smt. Mithlesh (hereinafter referred to as "defendant no.2") for mandatory injunction, permanent injunction, declaration and mesne profit.
BRIEF FACTS PLEADED IN THE PLAINT.
2. The brief facts pleaded in the plaint are that the plaintiffs are husband and wife and defendants are their son and daughter-in- law. That the plaintiff no. 1 is the sole and exclusive owner and bhumidar of the property bearing no. A-8/734, Gali No. 8, Amar Colony, East Gokalpur, Delhi-110094, constructed upto second and half floor (herein after called as "suit property") which is specifically shown in red color in the site plan attached herewith and the portion occupied by the defendants in green color in the site plan. That the plaintiff no. 1 constructed the entire suit property from his own funds in the year 1988 and in sole and exclusive possession of the entire suit property. That the plaintiff was a government servant and therefore, the plaintiff no. 1 executed the GPA of the suit property in favour of plaintiff no. 2 on 01.01.1999 so that the plaintiff no. 1 can look after the suit property. That the defendant no. 1 and 2 are residing in the suit property being their son and daughter-in-law and therefore, the defendants are in permissive possession. That the behaviour of defendants was not good towards the plaintiffs and they did not contribute in the household expenses. That when it becomes impossible for plaintiff no. 1 to maintain the expenses, the defendant no. 1 offered to the plaintiffs to install a new electricity connection for him for which the plaintiffs agreed. That for applying the new Civ. Suit 874/2017 Digitally signed by MAYANK MAYANK GOEL HARI KRISHAN & ANR. Vs. RAJVIR SINGH & ANR. GOEL Date: 2024.06.04 14:34:28 +0530 CNR No. DLSH03-001613-2017 Page No. 2 of 14 electricity connection, the defendants demanded formal document i.e. GPA as per the requirement of BSES for the portion of suit property enjoyed by them and to avoid day to day annoyance, the plaintiff no. 2 executed a GPA in favour of defendant no. 1 on 20.01.2016 and accordingly, the defendant no. 1 got installed a new electricity connection in his name for the portion of the suit property enjoyed by him. That after obtaining the said GPA, the behavior of the defendants become worse towards the plaintiffs and it became impossible for the plaintiffs to reside peacefully in the suit property. That the plaintiffs broke all their relations with the defendants and disowned them from all their movable and immovable property and also cancelled the above said GPA on 17.05.2017 by way of deed of cancellation and published public information in this effect in the daily newspaper "Pioneer" dated 06.06.2017. That on 06.06.2017, the plaintiffs requested the defendants to vacate the suit property but the defendants failed to do so. The plaintiffs served a legal notice dated 04.07.2017 on the defendants. That the defendants replied the said legal notice on the basis of false and fabricated facts claiming themselves the owner of 55 sq. yards in the suit property. Hence, the present suit has been filed by the plaintiffs seeking decree of mandatory injunction for directing the defendants to vacate the suit property i.e. A-8/734, Gali NO. 8, Amar Colony East Gokalpur, Delhi-110094, which is specifically shown in Green Color in the site plan annexed with the plaint. That the plaintiff also seeks the decree of permanent injunction for restraining the defendants from entering into the suit property and from creating any interference in the peaceful enjoyment of the suit property i.e. A-8/734, Gali NO. 8, Amar Colony East Gokalpur, Delhi-110094, which is specifically shown in Red Colour in the site plan annexed with the plaint, by the plaintiffs and also for restraining the defendant no. 1 from creating any third party interest in the suit property i.e. A-8/734, Gali NO. 8, Amar Colony East Gokalpur, Civ. Suit 874/2017 Digitally signed by MAYANK MAYANK GOEL HARI KRISHAN & ANR. Vs. RAJVIR SINGH & ANR. GOEL Date: 2024.06.04 14:34:34 +0530 CNR No. DLSH03-001613-2017 Page No. 3 of 14 Delhi-110094, which is specifically shown in Red Colour in the site plan annexed with the plaint. The plaintiff also seeks a decree of declaration for declaring the GPA dated 20.01.2016 as null and void. The plaintiff also seeks the decree of mesne profits from the defendants for a sum of Rs. 836/- per day from the date of filing of the present suit till vacation of the suit property by the defendants.
3. Summons of the suit were issued to the defendants. The defendants appeared and filed their written statement.
BRIEF FACTS PLEADED IN THE WRITTEN STATEMENT BY DEFENDANTS.
4. In the written statement filed by defendants, defendants have taken certain preliminary objections. It has been averred that the present suit has been filed by the plaintiffs without any cause of action and hence, liable to be dismissed u/o VII Rule 11 CPC. That the suit of the plaintiff is not maintainable in the eyes of the law and hence, liable to be dismissed. That the plaintiff has concealed the material facts and had not approached the court with clean hands and hence, the present suit is liable to be dismissed. That on 20.01.2016 in the presence of relatives and respectable persons of the society, meeting was held between the plaintiffs and the defendants and it was settled that in the suit property measuring 90 sq. yards, the defendants shall have 55 sq. yards share in the suit property and in this regard, the plaintiff no. 2 had executed a GPA, Gift Deed, alongwith supporting affidavit in favour of defendants on 20.01.2016 in the presence of witnesses and the witnesses also signed the same in the presence of both the parties. That the suit property was divided between the plaintiffs and the defendants thereby constructing a wall in the suit property. That the defendants are the owner of their respective share of 55 sq. yards in the suit property and the plaintiffs are residing Civ. Suit 874/2017 MAYANK by Digitally signed MAYANK GOEL HARI KRISHAN & ANR. Vs. RAJVIR SINGH & ANR. GOEL Date: 2024.06.04 14:34:50 +0530 CNR No. DLSH03-001613-2017 Page No. 4 of 14 separately in their share in the suit property. That the defendant no. 1 used to handover his salary to the plaintiffs and the defendants had constructed the suit property by the hard earned money of defendant no. 1. That the plaintiffs can cancel the GPA after giving the share to the defendants as per law. Hence, the suit of the plaintiff is liable to be dismissed.
5. Thereafter, the plaintiffs have filed replication to the written statement of the defendants denying all the averments made in the written statement and reiterating the averments of the plaint.
6. On completion of pleadings, following issues were framed vide order dated 03.09.2019:-
i) Whether the plaintiff is entitled to decree of mandatory injunction as prayed for?
OPP
ii) Whether the plaintiff is entitled to
decree of permanent injunction as prayed for ? OPP
iii) Whether the plaintiff is entitled to declaration as prayed for? OPP
(iv) Whether the plaintiff is entitled to decree of mesne profits ? If so, at what rate and for which period ? OPP.
(v) Whether the suit is not maintainable in the present form? OPD
(vi) Whether the plaintiff has concealed the material facts? OPD
(vii) Whether any settlement/ agreement had taken place between the parties on Digitally signed 20.01.2016? If so, its effect? OPD MAYANK by MAYANK GOEL GOEL Date: 2024.06.04 14:34:56 +0530 Civ. Suit 874/2017 HARI KRISHAN & ANR. Vs. RAJVIR SINGH & ANR.
CNR No. DLSH03-001613-2017 Page No. 5 of 14(viii) Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD
(ix) Relief
7. In order to prove his case, plaintiff no. 1 examined himself as PW-1, who tendered his evidence by way of affidavit Ex. PW 1/A and also relied upon following documents:
1. Ex. PW 1/1 Copy of Aadhar Card.
(OSR)
2. Ex. PW 1/2 Original Site plan.
3. Ex. PW 1/3 Original Khasra Girdawari.
4. Ex. PW 1/4 Original GPA.
(Colly 2 pages)
5. Ex. PW 1/5 Original water tax bill of 1989, 1989-2004, (Colly 3 pages) 2016 and 2017.
6. Ex. PW 1/6 Original property tax of 2000-2001.
7. Ex. PW 1/7 Original electricity bill of July 2015- November 2015, December 2016-April 2017.
8. Ex. PW 1/8 Original cancellation deed dated 17.05.2017.
9. Mark A Copy of newspaper publication.
10. Ex. PW 1/10 Legal notice dated 04.07.2017. (Colly 5 pages)
11. Ex. PW 1/11 Reply of legal notice.
(Colly 6 pages) PW 1 was duly cross-examined by Ld. Counsel for defendants. He deposed that he has filed present suit with respect to the first floor of the suit property as defendant no. 1 is residing at the first floor of the suit property. He further deposed that it is correct that vide Ex. PW 1/4 i.e. GPA he had transferred the suit property in the name of his wife and at present, he did not have any title in the suit property. He further deposed that it is correct that the suit property is MAYANK Digitally signed by MAYANK GOEL GOEL Date: 2024.06.04 14:35:02 +0530 Civ. Suit 874/2017 HARI KRISHAN & ANR. Vs. RAJVIR SINGH & ANR.
CNR No. DLSH03-001613-2017 Page No. 6 of 14in the name of defendants through GPA, Gift deed and deed of will, all dated 20.01.2016 and voluntarily deposed that all these documents were transferred for the purpose of getting electricity connection. He further deposed that it is correct that the electricity connection is in the name of defendant no. 2. He further deposed that it is correct that GPA was cancelled later on 17.05.2017 only against defendant no. 1. He further deposed that it is correct that during the stay of defendants with him the behaviour of defendants towards PW 1 was good/normal.
7.1 Thereafter, plaintiff no. 2 examined herself as PW 2, who tendered her evidence by way of affidavit, Ex. PW 2/A and relied upon the documents already exhibited by PW 1.
PW 2 was duly cross-examined by Ld. Counsel for defendants and she deposed that it is correct that she issued GPA, Gift Deed, Will, affidavit, all documents notarized and dated 20.01.2016 in favour of defendants. She further deposed that the said GPA was issued only to install separate meter and water meter in the name of the defendants. She further deposed that it is correct that she had only executed the water bill and electricity bill in favour of defendant no. 1 and 2 but she had not sold the suit property to them. She further deposed that it is correct that defendant no. 2 started to quarrel with her each time whenever she asked for payment of electricity bill.
Thereafter, PE stands closed.
8. In their defence, defendants examined defendant no. 2 as DW1, who tendered her evidence by way of affidavit Ex.DW1/A and relied upon following documents:
Ex. DW1/1 Copy of reply dated 20.07.2017 to the legal notice sent by the plaintiffs.
MAYANK Digitally signed by
MAYANK GOEL
GOEL Date: 2024.06.04
14:35:10 +0530
Civ. Suit 874/2017
HARI KRISHAN & ANR. Vs. RAJVIR SINGH & ANR.CNR No. DLSH03-001613-2017 Page No. 7 of 14
Ex. DW1/2(OSR) Copy of GPA of suit property dated 20.01.2016. (Colly 5 pages) Ex. DW1/3(OSR) Copy of gift deed dated 20.01.2016. (Colly 5 pages) Ex. DW1/4(OSR) Copy of deed of Will dated 20.01.2016. (Colly 2 pages) Ex. DW1/5(OSR) Copy of Affidavit dated 20.01.2016.
(Colly 2 pages) Ex. DW1/6(OSR) Copy of Bill of building material dated (Colly 3 pages) 14.02.2016, 20.02.2016 & 12.02.2016 Ex. DW1/7 Electricity and water bills. (Colly 2 pages) Ex. DW1/8 (OSR) Copy of Possession Letter.
DW 1 was duly cross-examined by Ld. Counsel for plaintiff. She deposed that it is correct that she had not placed on record any document to show that partition had took place between them and their in-laws. She further deposed that it is correct that she had received the legal notice from the plaintiffs regarding the fact that she and her family were debarred from the property of the plaintiffs.
8.1 Thereafter, defendant no. 1 examined himself as DW 2, who tendered his evidence by way of affidavit, Ex. DW 2/A and relied upon the documents already exhibited by DW 1.
DW 2 was duly cross-examined by Ld. Counsel for plaintiffs and he deposed that it is correct that he had received the legal notice from the plaintiffs regarding the fact that he and his family were debarred from the property of the plaintiffs. He further deposed that it is correct that his parents/plaintiffs are the owners of the suit property and voluntarily deposed that he had built the suit property and had no place to go and two daughters to take care of.
Digitally signed by MAYANK GOEL MAYANK Date:
GOEL 2024.06.04
14:35:20
+0530
Civ. Suit 874/2017
HARI KRISHAN & ANR. Vs. RAJVIR SINGH & ANR.
CNR No. DLSH03-001613-2017 Page No. 8 of 148.2 Thereafter, defendants examined Sh. Chatter Singh as DW 3, who tendered his evidence by way of affidavit, Ex. DW 3/A and relied upon the copy of his Aadhar Card for his identification, which is Ex. DW 3/1(OSR).
DW 3 was duly cross-examined by Ld. Counsel for plaintiffs.
Thereafter, DE stands closed.
9. I have heard the arguments on behalf of both the parties. I have also gone through the case file and evidence on record very carefully.
10. Issue-wise findings as follows:
ISSUE NO. 5 & 8The burden to prove these issues is on the defendants. In order to prove these issues, no evidence has been led by the defendants. Therefore, the defendants have failed to prove these issues.
Accordingly, issue no. 5 & 8 are decided against the defendants and in favour of the plaintiffs.ISSUE NO. 6 & 7
The burden to prove these issue is on the defendants. In order to prove these issue, the defendants have examined DW3/Sh. Chatter Singh, who in his evidence by way of affidavit deposed that there were dispute between the plaintiffs and the defendants as the defendants used to demand their shares in the property bearing no.Digitally signed by
MAYANK MAYANK GOEL Civ. Suit 874/2017 GOEL Date: 2024.06.04 14:35:27 +0530 HARI KRISHAN & ANR. Vs. RAJVIR SINGH & ANR.CNR No. DLSH03-001613-2017 Page No. 9 of 14
8/734, Gali No. 8, Amar Colony, East Gokul Pur, Delhi-94 from the plaintiffs. He further deposed that the defendants and plaintiffs called a panchayat to finish the dispute of the above property and he was present in the panchayat. He further deposed that it was decided by the panchayat that the plaintiffs will give 55 sq. yards to the defendants from the said property and notarized documents i.e. GPA, Gift Deed, Deed of Will, Possession Letter and Affidavit dated 20.01.2016 were executed and he is a witness in the said notarized documents. The deposition of the said witness is duly corroborated by the fact that from the bare perusal of the notarized documents of the suit property, it is specifically clear that DW3 is the witness to these documents.
The issues in civil cases are to be decided on the scale of preponderance of probabilities. The doctrine of preponderance of probabilities was discussed in the judgment titled Postgraduate Institute of Medical Education and Research Vs. Jaspal Singh, (2009) 7 SCC 330 which reads as under :-
"17. In Syad Akbar Vs State of Karnataka (1980) 1 SCC 30 this curt dealt with in details the distinction beteen negligence in civil law n din criminal law. It has been held that there is marked difference as to the effect of evidence, namely, the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the court, as a reasonable man, beyond all reasonable doubt".
In Dr. N. G. Dastane Vs. Mrs. S. Dastane on 19th March, 1975 AIR 1975 SC 1534, (1975), SCC 326 , Hon'ble Supreme Court held as under :- Digitally signed MAYANK by MAYANK GOEL GOEL Date: 2024.06.04 14:35:31 +0530 Civ. Suit 874/2017 HARI KRISHAN & ANR. Vs. RAJVIR SINGH & ANR.
CNR No. DLSH03-001613-2017 Page No. 10 of 14"24. The normal rule which governs civil proceedings is that a fact can be said to be established if it proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either believes it to exist considers its existence so probably that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exist, if on weighing the various probabilities he inks that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable a the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issue like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note:
"the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue "Per Dixon, J. In Wright vs. Wright (1948) 77 C.L.R. 191 at p. 210; or as said by Lord Denning, "the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear". Blyth vs. Blyth (1966) 1 A.E.R. 534 at 536. But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged".Digitally signed
MAYANK by MAYANK GOEL GOEL Date: 2024.06.04 14:35:35 +0530 Civ. Suit 874/2017 HARI KRISHAN & ANR. Vs. RAJVIR SINGH & ANR.
CNR No. DLSH03-001613-2017 Page No. 11 of 14Therefore, the defendants are successful in discharging the burden of proof cast upon them on the scale of preponderance of probabilities to prove that the settlement/agreement had taken place between the parties on 20.01.2016 and that the plaintiff has concealed the material facts.
Accordingly, issue no 6 & 7 are decided in favour of the defendants and against the plaintiffs.
ISSUE NO. 1 to 4Since all the issues are interconnected and can be decided by common findings, all these issues have been taken together.
The burden to prove these issue is on the plaintiffs. The case of plaintiffs is that plaintiff no. 2 is the owner of the suit property and she had executed GPA and other documents in favour of defendants for installation of separate electricity and water meter. That the defendants are residing in the suit property being the son and daughter-in-law of the plaintiffs as licensee and now the plaintiffs want the vacant and peaceful possession of the suit property from the defendants. That the plaintiff no. 2 has also cancelled the GPA in favour of defendant no. 1 on 17.05.2017. The defence of the defendants is that the plaintiff no. 2 has transferred the suit property in the name of the defendants through GPA etc. after the family settlement dated 20.01.2016 before the panchayat, being the share of the defendants and these documents were not executed for installation of separate electricity and water meter.
The issue no. 6 and 7 have been decided in favour of the defendants which proves that the plaintiffs have concealed the material facts pertaining to the family settlement dated 20.01.2016 Digitally signed Civ. Suit 874/2017 MAYANK by MAYANK GOEL HARI KRISHAN & ANR. Vs. RAJVIR SINGH & ANR. GOEL Date: 2024.06.04 14:35:40 +0530 CNR No. DLSH03-001613-2017 Page No. 12 of 14 before the panchayat on the basis of which the notarized documents transferring the suit property in favour of the defendants have been executed.
For many centuries, Indian society cherished two basic values of life i.e. 'Satya' (truth) and 'Ahimsa' (non-violence). Mahavir, Gautam Buddha and Mahatama Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of justice delivery system which was in vogue in pre- independence era and the people used to feel proud to tell the truth in the Courts irrespective of the consequences. However, post- independence period has seen drastic changes in our value system. The materialism has over-shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In last 40 years, a new creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals.
Hon'ble Supreme Court of India in Dalip Singh Vs. State of U.P. & Ors, 2010 AIR SCW 50, has held that :-
"a litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.
Hon'ble Supreme Court of India in S. P. Chengalvaraya Naidu (Dead) By LRs Vs. Jagannath (Dead) By LRs And Ors, AIR 1994 SC 853, has held that :-
"a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."Digitally signed by MAYANK GOEL
MAYANK Date:
GOEL 2024.06.04
14:35:44
+0530
Civ. Suit 874/2017
HARI KRISHAN & ANR. Vs. RAJVIR SINGH & ANR.CNR No. DLSH03-001613-2017 Page No. 13 of 14
Therefore, in view of the law laid down by the Hon'ble Supreme Court of India in both the above stated judgments and considering all the facts and circumstances, the plaintiffs are not entitled to any relief as they have concealed the material facts.
Accordingly, issue no. 1 to 4 are decided against the plaintiffs and in favour of the defendants.
RELIEF
11. In view of the findings given on issues, the suit of the plaintiffs is hereby dismissed.
12. Parties to bear their own costs.
File be consigned to record room after necessary compliance.
Announced in open Court.
On this 4th June, 2024 This Judgment contains 14 pages MAYANK Digitally signed by MAYANK GOEL and is signed by me. GOEL Date: 2024.06.04 14:35:48 +0530 (MAYANK GOEL) JSCC/ASCJ/GJ, SHAHDARA, KARKARDOOMA COURTS, DELHI Civ. Suit 874/2017 HARI KRISHAN & ANR. Vs. RAJVIR SINGH & ANR.
CNR No. DLSH03-001613-2017 Page No. 14 of 14