Delhi District Court
Shri Hamender Sharma vs Shri Hamender Sharma on 30 March, 2021
IN THE COURT OF MS. KIRANDEEP KAUR, CIVIL JUDGE-05,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI.
CSSCJ No. 3504/2018
Shri Hamender Sharma
S/o Shri Indersen
R/o 7070, Gali Pahar Wali,
Pahari Dheeraj, Delhi. ... Plaintiff
Versus
Shri Hamender Sharma
S/o Shri Balbir Singh
R/o House No. 4479, Gali Jatan,
Pahari Dheeraj, Delhi ... Defendant
SUIT FOR POSSESSION AND FOR RECOVERY OF
DAMAGES/MESNE PROFIT
Date of Institution : 07.01.2013
Date of Judgment : 30.03.2021
JUDGMENT
1. Vide this judgment, I shall decide the present suit filed by the Plaintiff for relief of possession and for recovery of damages/mesne profits against the Defendant.
It is pertinent to mention that the present case was received back from the appellate court whereby the judgment and decree dated 31.03.2017 has been set aside and the matter was remanded back for fresh trial on all the issues, with liberty to both the parties to lead further evidence.
2. The brief facts of the present case, are as follows:-
Hamender Sharma v Suresh Panewal P.No. 1 Of 14(a) Plaintiff is the owner/landlord of property bearing no. 7070, Gali Pahar Wali, Pahari Dheeraj, Delhi, as the same is an ancestral property and the Defendant is an unauthorized occupant in one room, on the first floor of the aforesaid property (hereinafter referred to as 'the suit property').A civil suit for relief of permanent injunction, filed by the father of the Plaintiff, was decreed against the Defendant, vide judgment and decree dated 04.09.2000, wherein the Defendant was restrained from transferring or parting with the possession of the suit property to any third person and hence, Defendant is bound by the said judgment.
(b) On being asked by the Plaintiff, to vacate the suit property, the Defendant assured the Plaintiff that he will deliver the vacant possession of the suit property yet, the Defendant has failed to deliver the same.
(c) A legal notice dated 05.10.2012, was sent to the Defendant by the Plaintiff through registered A.D. Post, which was duly served upon the Defendant, for payment of mesne profit @ Rs. 5000/- per month, for illegal use of the suit property and directing the Defendant to vacate the suit property yet, Defendant failed to comply with the said legal notice.
In view of the aforesaid submissions, Plaintiff has sought the relief of possession of the suit property as well as recovery of mesne profits @ Rs. 5000/- per month from date of filing of the suit till vacation of the suit property along with Hamender Sharma v Suresh Panewal P.No. 2 Of 14 interest @ 18 % per annum, on the said amount payable by the Defendant to the Plaintiff.
3. The defendant filed his WS, wherein he has made the following averments:
a) The Plaintiff is neither the owner nor the landlord, in respect of the suit property. The suit property was owned by Pt. Jodh Raj Sharma, who had five sons, namely, Shakti Swaroop, Hari Ram, Inder Sen, Harish and Sunder. The suit property devolved upon Sh. Sunder and after his death, the same devolved upon his wife, Smt. Ganga Devi. Defendant was the tenant in respect of the suit property, wherein Smt. Ganga Devi was the landlord. Subsequently, the Defendant had purchased the suit property from Smt. Ganga Devi, for a sum of Rs. 85,000/- and the consideration was duly paid. The suit property was sold on 17.12.1990 vide Bayana/receipt, duly signed by Smt. Ganga Devi for an amount of Rs. 10,000/- and the balance sum of Rs. 75,000/- was paid subsequently.
b) The present suit is barred by Order II Rule 2 of the Code of Civil Procedure,1908 (in short 'CPC'). In the earlier suit filed by the father of the Plaintiff, the relief of possession was not sought and the suit pertained only to the relief of injunction. The relief of possession was available to the Plaintiff, at the time of filing of the first suit. The present suit has been filed on the same cause of action, on which the previous suit was filed and since, Plaintiff was entitled to Hamender Sharma v Suresh Panewal P.No. 3 Of 14 more than one relief, the Plaintiff without obtaining the leave from the court, omitted to sue for relief of possession.
c) The present suit is also barred by limitation, since, the previous suit was disposed of on 04.09.2000 and the Defendant has been continuously enjoying the possession of the suit property, without any objection being raised by the Plaintiff and hence, the present suit being filed after 23 years is clearly time barred.
4. The averments made by the Plaintiff in the plaint were reiterated in the Replication. Further, it was averred that the suit was not barred by Order II Rule 2 CPC, since the Defendant assured the Plaintiff from time to time that he will vacate the suit property but in the last week of September, 2012, Defendant refused to vacate the suit property, hence, the cause of action in the present suit is completely different from the cause of action in the previous suit. It was also averred by the Plaintiff that the plea taken by the Defendant regarding purchase of the suit property from Smt. Ganga Devi is false. Further, it was pleaded that the signature of Smt. Ganga Devi on the alleged receipt, by which the sale transactions took place are forged, since, Smt. Ganga Devi used to put her thumb impression, as she was an illiterate lady. It was also submitted by the Plaintiff that the suit property did not devolve upon Smt. Ganga Devi and the share which had devolved upon her was already sold by her. Further, it was pleaded that the said receipt did not bear proper stamp duty and also the said receipt could not create any right, title or interest of Hamender Sharma v Suresh Panewal P.No. 4 Of 14 the Defendant in the suit property, as it is not a title document.
5. Issues were framed on 14.08.2013. The following issues were framed as given below:
i. Whether the suit of the Plaintiff is liable to be dismissed as he has not approached the court with clean hands and had suppressed the material facts? OPD ii. Whether the suit is not maintainable for want of cause of action and locus standi, being barred by limitation and being barred by order 2 Rule 2 CPC? OPD iii. Whether the Plaintiff is entitled for the relief of possession of the suit premises as prayed in prayer clause (a)? OPP iv. Whether the Plaintiff is entitled for the damage/mesne profits @ Rs.5000/- per month to the Plaintiff from the date of filing of the suit till the vacation of the suit property @ 18% per annum? OPP.
v. Relief.
6. Plaintiff in support of his case has himself stepped into the witness box as PW-1. He was examined-in-chief by way of affidavit Ex.PW1/A and relied on the following documents:
Sr.No Exhibits/Marks Nature of documents
1. Ex. PW-1/1 Site plan
2. Ex. PW-1/2 Certified copy of the judgment and decree dated 04.09.2000.Hamender Sharma v Suresh Panewal P.No. 5 Of 14
3. Ex. PW-1/3 Copy of legal notice dated 05.10.2012.
4. Ex. PW-1/4 Postal receipt.
5. Ex. PW-1/5 Original AD card
6. Ex. PW-1/6 (OSR) Copy of Voter Identity Card
7. Ex. PW-1/7 (OSR) Copy of DL
8. Ex. PW-1/8 (OSR) Copy of employment card
7. The said witness was duly cross examined by Ld. counsel for the Defendant. The plaintiff again stepped into the witness box as PW-1 He was examined-in-chief by way of affidavit Ex.PW1/B and relied on the following documents:
(i) The certified copy of the Gift deed in Urdu Language alongwith its Hindi Translation Ex PW-1/9.
The said witness was duly cross examined by Ld. counsel for the Defendant. Thereafter, PE was closed and matter was put up for DE.
8. The Defendant, Sh. Suresh Panewala himself stepped into the witness box as DW-1. He was examined in chief by way of affidavit Ex. DW-1/A and relied upon the document i.e. Bayana receipt Ex.DW-1/1.The said witness was duly cross- examined by Ld. counsel for the Plaintiff. The defendant again stepped into the witness box as DW-1. He was relied upon the written statement filed by him in Civil Suit No. 249/1999 Ex. DW-1/2. Thereafter, DE was closed and matter was put up for final arguments.
Hamender Sharma v Suresh Panewal P.No. 6 Of 149. Final arguments were heard on behalf of both the parties. Record perused.
My issue-wise findings are as follows:
Issue no.3: "Whether the Plaintiff is entitled for the relief of possession of the suit premises as prayed in prayer clause (a)? OPP"
Issue no.4: "Whether the Plaintiff is entitled for the damage/mesne profits @ Rs. 5000/- per month to the Plaintiff from the date of filing of the suit till the vacation of the suit property @ 18% per annum? OPP"
10. For the sake of convenience, issue no. 3 and 4 are taken up before the other issues. Since, both the issues are inter- connected, they are taken up together for a common discussion. The onus to prove the said issues was on the Plaintiff. In short, the case of the Plaintiff is that he is the owner of the suit property, since the same is an ancestral property. Further, it is the case of the Plaintiff that the Defendant is an unauthorized occupant, who has refused to vacate from the suit property, despite giving assurances to the Plaintiff and despite receiving the legal notice dated 05.10.2012. In view of the same, Plaintiff has filed the present suit for recovery of possession of the suit property and damages@ Rs. 5000/- per month from the Defendant from the date of filing of the suit till realization of the amount along with interest@ 18% p.a. Per contra, the case of the Defendant is that Plaintiff is neither the owner nor the landlord of the suit property and in fact, the Defendant was residing in the suit property as a tenant of Smt. Ganga Devi, the erstwhile Hamender Sharma v Suresh Panewal P.No. 7 Of 14 owner, from whom he has purchased the property for an amount of Rs.85,000/-, by way of receipt dated 17.12.19990, signed by her. Hence, the case of the Defendant is that he is the lawful owner and in possession of the suit property and Plaintiff has no right in the suit property.
11. The Plaintiff has claimed to be the owner of the suit property on the basis of it being an ancestral property. The Plaintiff has filed a certified copy of gift deed in Urdu Language along with its Hindi Translation is Ex PW1/9 in order to prove his title. On being cross examined by the counsel of the defendant the plaintiff states that "it is correct that the property No. 7070, Gali Pharwali, Pahari Dheeraj, Delhi-06 has nowhere been mentioned in EX PW1/9."
12. I have perused the gift deed it does not pertains to the property bearing No. 7070, Gali Pharwali, Pahari Dheeraj, Delhi-06 and the plaintiff has clearly stated in his cross examination that the said gift deed does not pertain to the suit property.
13. So, the Plaintiff has filed failed to plead or prove his title. Even after filing of the gift deed, the question still remains open that who was the erstwhile owner; how the suit property was ancestral property; how the suit property devolved upon his father and subsequently on how it devolved upon the Plaintiff and in what capacity was the property given to the Plaintiff.
Hamender Sharma v Suresh Panewal P.No. 8 Of 1414. Further, the plaintiff has not placed on record any title documents to show how he was the owner of the suit property except a gift deed which does not pertain to the suit property.
15. In view of the aforesaid, it is seen that the Plaintiff has failed to substantiate his claim on ownership in the suit property. Plaintiff has clearly failed as gift deed filed by the plaintiff does not pertain to the suit property and he has not led any other to prove the ownership
16. The Plaintiff had highlighted the weaknesses in the defence of the Defendant by alleging that the document, Ex.DW1/1, which is the alleged bayana receipt, on the basis of which the suit property was allegedly purchased by the Defendant from Smt. Ganga Devi, could not transfer any legal title to the Defendant, since the same was neither registered nor stamped. Moreover, the inconsistencies in the testimony of DW-1 in his cross-examination were also highlighted. However, these contentions do not assist the Plaintiff in proving his case. It is settled proposition of law that the plaintiff has to stand on his own legs and even if there are contradictions in the testimony of the witnesses brought by the Defendant or in the case of the Defendant, his onus does not get discharged. The plaintiff has failed to prove his case to the satisfaction of the Court and he cannot succeed on the weakness of the case of the defendant.
In view of the aforesaid discussion, it is clear that the Plaintiff has failed to prove the said issues and thus, issues Hamender Sharma v Suresh Panewal P.No. 9 Of 14 are decided in favour of the Defendant and against the Plaintiff.
Issue no. 1: "Whether the suit of the Plaintiff is liable to be dismissed as he has not approached the court with clean hands and had suppressed the material facts? OPD"
17. The onus to prove the said issue was on the Defendant. The Defendant had taken the plea that the Plaintiff is guilty of suppression of material facts and since, the Plaintiff has not approached the court with clean hands, the suit of the Plaintiff is not maintainable. The said averment was taken in the para No. 10 of the Written Statement. Except for the said para, Defendant did not elaborate as to which facts had been suppressed by the Plaintiff. Neither any documentary nor any oral evidence was led by the Defendant to show that the Plaintiff had suppressed material facts and come to the court without clean hands.
In view of the aforesaid discussion, it is clear that Defendant has failed to prove the said issue and thus, issue is decided in favour of the Plaintiff and against the Defendant.
Issue no. 2: "Whether the suit is not maintainable for want of cause of action and locus standi, being barred by limitation and being barred by order 2 Rule 2 CPC? OPD"
18. The onus to prove the said issue was on the Defendant. As per the Defendant, the suit was not maintainable on three grounds: suit being without any cause of action, suit being barred by limitation and the suit being barred by Order II Hamender Sharma v Suresh Panewal P.No. 10 Of 14 Rule 2 CPC.
Ground of want of Cause of Action and Locus Standi
19. As far as cause of action is concerned the plaint shows there is a cause of action in the favor of the plaintiff. In the present suit that the Plaintiff has sought the relief of possession and mesne profits by averring that he is the owner of the property and defendant is the tenant in the property. But as far as relief of possession and mesne profits is concerned, the plaintiff has failed to discharge his burden of proof.
In view of the finding given by this court on issue no.4, it is clear that the Plaintiff has not locus standi to file the present suit.
Suit being barred by limitation
20. In the present suit, the defendant has neither pleaded nor set up any adverse possession over the suit property but in fact, he has claimed to be the owner of the suit property, by purchase of the same from Smt. Ganga Devi. It is now well settled that a suit for restoration of possession based on title, would be barred by limitation only if the Defendant has established adverse possession in terms of Article 65 of the Limitation Act. In the present case, no such claim of adverse possession is alleged or established by the Defendant and, hence, the contention regarding the suit based on title being barred by limitation, cannot be sustained. The burden is on the Defendant Hamender Sharma v Suresh Panewal P.No. 11 Of 14 in the light of Article 65 of the Limitation Act, 1963 but the same was not discharged. Therefore, I find that the suit is not barred by time.
Suit being barred by the provisions of Order II, Rule 2 CPC:
21. Order II, Rule 2 CPC is based on the principle that no one should be vexed twice for the one and the same cause. The rule does not preclude a second suit based on a distinct and separate cause of action. The settled position of law with respect to Order II Rule 2 CPC was explained in depth in the case of Gurbux Singh v. Bhooralal: AIR 1964 SC 1810 wherein the following observations were made:
"In order that a plea of a bar under Order 2 Rule 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based, (2) that in respect of that cause of action the plaintiff was entitled to more than one relief, (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed."
22. One of the essential requirements of Order 2 Rule 2 is that there should be similarity in cause of action in previous suit and the subsequent suit. When the essential requirement for the applicability of Order 2 Rule 2, namely, the identity of cause of action in the previous suit and the subsequent suit is not established, the subsequent suit cannot be said to be barred by Order 2 Rule 2.
Hamender Sharma v Suresh Panewal P.No. 12 Of 1423. Applying the aforesaid law to the facts of the present case, it is seen that the first suit instituted by the father of the Plaintiff, it was alleged that Plaintiff is the owner of the suit property and the Defendant is an unauthorized occupant and relief of permanent injunction was sought to restrain the Defendant from parting with or transferring the suit property. Therefore, the cause of action was based on the apprehension that the Defendant may create a third party interest in the suit property but in the present suit, which is the subsequent suit, the cause of action is distinct. In the present suit, the Plaintiff has sought the relief of possession and mesne profits but in the previous suit, the relief of possession was not claimed, which makes all the difference. The cause of action on which the previous suit was based was distinct from the cause of action which forms the basis of the present suit and hence, the bar of Order II Rule 2 CPC does not apply.
Relief:
24. In view of the observations made above, suit of the plaintiff is dismissed. The court is also of the opinion that considering the present facts and circumstances of the case, there is no order as to cost. Decree sheet be prepared accordingly.
25. All the other pending applications, if any, are disposed off as not pressed.
Hamender Sharma v Suresh Panewal P.No. 13 Of 1426. File be consigned to record room, after due Digitally compliance. signed by KIRANDEEP KIRANDEEP KAUR KAUR Date:
Announced in the open court 2021.03.30
17:25:24
on 30.03.2021. +0530
(Kirandeep Kaur)
Civil Judge-05/Central
Tis Hazari, Delhi
Hamender Sharma v Suresh Panewal P.No. 14 Of 14