Delhi District Court
Vijay Kumar (Dr.) vs Kalawati on 10 February, 2016
IN THE COURT OF SH. APOORV SARVARIA, CIVIL JUDGE14,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Unique Case ID No. : 02401C0288602002
Suit No. : 619/15
Vijay Kumar (Dr.)
S/o Dr. C.N. Sharma,
R/o 10B, M.I.G. Flats Sarai, Jullena,
New Delhi. .......... PLAINTIFF
VERSUS
1. Kalawati
W/o Sh. Ram Chander,
R/o 2/47 D.D.A. Flats, Garhi,
East of Kailash,
New Delhi.
2. Amrik Singh,
S/o Sh. Jagat Singh,
R/o 2/47 J.J. Colony, Garhi,
East of Kailash,
New Delhi.
3. Radha Kishan
S/o Sh. Mool Chand,
R/o 59A/12 Shera Mohalla,
Garhi, East of Kailash,
New Delhi.
4. Raj Rani,
W/o Sh. Niranjan Dass,
R/o F97 Vishnu Garden,
New Delhi.
Suit No. 619/15
Vijay Kumar v. Kalawati & Ors. Page No. 1 of 23
5. Seema,
W/o Sh. Alimuddin,
R/o 31 Jamroodpur, Greater Kailash,
New Delhi.
6. Asha Rani
W/o Sh. Shiv Kumar,
BIV/54 Amar Colony, Lajpat Nagar,
New Delhi.
7. Gurdev Singh,
S/o Sh. Bewa Singh,
R/o 6/175 DDA Flats, Garhi,
East of Kailash,
New Delhi.
8. Ram Parvesh Thakur
S/o Sh. Dukhe Thakur,
R/o House No. 317/7 Garhi,
East of Kailash,
New Delhi.
9. Naseem
R/o 2/47 DDA Flats, Garhi,
Lajpat Nagar,
Delhi. ....... DEFENDANTS
Date of institution of suit : 25.08.2001
Date of reserving Judgment : 26.11.2015
Date of pronouncement : 10.02.2016
SUIT FOR POSSESSION, RECOVERY AND DAMAGES/MESNE
PROFIT AND PERMANENT INJUNCTION
Suit No. 619/15
Vijay Kumar v. Kalawati & Ors. Page No. 2 of 23
JUDGMENT
1. In the present suit, the plaintiff has prayed for decree of possession of flat bearing no. 2/47 DDA Flats, Garhi, Lajpat Nagar, New Delhi against the defendants no.1 and 9. It is further prayed that the suit of the plaintiff for recovery of Rs. 99,000/ be decreed with costs in favour of the plaintiff and against the defendants no.1 and 9. It is further prayed that the suit of the plaintiff for permanent injunction be decreed against the defendants no.1 and 9 and they be restrained in respect of the flat bearing no. 2/47 DDA Flats, Garhi, Lajpat Nagar, New Delhi from creating third party interest as well as carrying out any additions, alterations or structural changes and damages to the same. It is further prayed that suit of the plaintiff for recovery of damages/mesne profits from the date of filing of the suit till realization be also decreed with costs @ Rs. 30,000/ per month from the date of filing of the suit till vacation of the suit premises.
Plaintiff's case
2. It is stated in the plaint that the plaintiff is the owner of built up property bearing Flat No. 2/47 entire third floor with roof at DDA Flats, Garhi, Lajpat Nagar, New Delhi. The defendants no. 2 to 8 have been impleaded in the present case as they are the proper parties to the present case as well as on account of the fact that the defendant no. 1 has falsely, frivolously and malafidely claimed Suit No. 619/15 Vijay Kumar v. Kalawati & Ors. Page No. 3 of 23 herself to be the owner of the suit property. It is stated that the defendant no. 1 has not claimed any letting of the premise from any of the earlier owners mentioned as defendant no. 2 to 8 in the present case and she herself is also not the owner and her possession as well as possession of defendant no.9 is illegal and unauthorized.
3. It is further stated that Sh. Ram Parvesh Thakur, defendant no.8 filed a petition U/s 14(1)(a) and (b) of Delhi Rent Control Act against one Sh. Deepak Kumar stating said Sh. Deepak Kumar to be the tenant in respect of aforesaid flat/property, consisting of two rooms, one drawing room, godown, bath room and open space and claimed defendant no. 2 Smt. Kalawati as the subtenant. During the pendency of the said case, the defendant Smt. Kalawati filed her written statement as well as an affidavit before the court of Sh. V.K. Bansal, the then Ld. Addl. Rent Controller, Delhi in eviction case no. E89/99 disputing the rights of said Sh. Ram Parvesh Thakur and wrongly claimed Sh. Ram Parvesh Thakur to have been working as servant with the plaintiff and has further claimed that there was no person in the name of Sh. Deepak Kumar as tenant and interestingly claimed herself to be the owner of the property without disclosing any basis of ownership rights. It has also been claimed that the said petition was filed by said Sh. R.P. Thakur at the instance of the plaintiff on the basis of some forged and fabricated documents as it was further claimed that the plaintiff Vijay Kumar made a statement on oath as AW1 on 22.07.1999 and obtained ex Suit No. 619/15 Vijay Kumar v. Kalawati & Ors. Page No. 4 of 23 parte decree on 23.07.1999 on the basis of the General Power of Attorney.
4. It was further claimed that another petition for eviction was filed by Smt. Suman Goswami against the defendant no. 1 on the basis of forged documents in the Court of Smt. Asha Menon, the then Ld. Addl. Rent Controller, Delhi through Smt. Suman Goswami, the wife of the plaintiff and again exparte orders were passed on 25.02.1999 which orders were later on set aside and the matter was still pending. It has also been claimed that Sh. Gurdev Singh, defendant no. 7 also filed an eviction petition against Smt. Kalawati, defendant no. 1 in respect of same suit property being eviction case no. E30/98 and eviction order was again claimed to have been passed exparte in the said proceedings but later on the said case was withdrawn by defendant no. 7 Sh. Gurdev Singh and said petition was dismissed.
5. It is stated that the fact remains that the plaintiff is the owner of the aforesaid property and the defendant no. 1 is falsely claiming herself to be the owner of the suit property before the Addl. Rent Controller, Delhi in eviction case no. E89/99. The said petition was also withdrawn by Sh. R.P. Thakur and property has also been sold and transferred to the plaintiff and the plaintiff is filing the present suit as the defendant no.1 is not having any right, title or interest in the property to retain its possession and is liable to be Suit No. 619/15 Vijay Kumar v. Kalawati & Ors. Page No. 5 of 23 dispossessed since her possession is illegal and unauthorized. It has also been learnt that defendant no. 9 is also in possession of same portion of the demised flat who is neither the tenant nor was ever allowed by plaintiff and defendants no. 2 to 8 to occupy the portion of the demised premises. Therefore, his possession being illegal and unlawful he is also liable to be dispossessed alongwith the defendant no. 1.
6. It is further stated that defendant no.1 and 9 are also liable to pay damages for unauthorized use and occupation of the said portion of the property as the possession of the defendants is not only illegal but unlawful and unauthorized and the defendants no.1 and 9 cannot be allowed to use, occupy and possess the same without payment of use and occupation charges/damages and in case the said portion of the property is let out, the plaintiff can recover rent of more than Rs. 3000/ per month which amount the defendants no.1 and 9 are liable to pay to the plaintiff and the plaintiff is claiming the same w.e.f. 01.12.1998 to 31.08.2001 which comes to Rs. 99,000/.
7. It is further stated that the plaintiff has learnt that the intention of the defendants no.1 and 9 is to create encumbrances and dispute in respect of portion shown red in the site plan by assigning or otherwise parting with the possession of the same to some other person/persons illegally and unauthorizedly which cannot be allowed to be done and the defendants no. 1 and 9 to be restrained Suit No. 619/15 Vijay Kumar v. Kalawati & Ors. Page No. 6 of 23 from assigning or parting with the possession of the said portion of the property to any other person/persons or creating any encumbrances on the property.
8. It is further stated that the aforesaid flat was originally allotted by Delhi Development Authority in favour of Sh. Amrik Singh, defendant no.2 son of Sh. Jagat Singh resident of 2/47 J.J. Colony, Garhi, East of Kailash, New Delhi and said Sh. Amrik Singh sold and transferred the same to Sh. Radha Kishan, defendant no.3 son of Sh. Mool Chand, resident of 59A/12 Shera Mohalla, Garhi, New Delhi vide Agreement to Sell and other documents executed on 08.08.1984. Sh. Radha Kishan thereafter sold and transferred the said flat to Smt. Raj Rani, defendant no. 4 wife of Sh. Nirnjan Dass, resident of F97 Vishnu Garden, New Delhi vide document dated 05.07.1985 for valuable consideration. It is further stated that Smt. Raj Rani sold and transferred the said flat to Mrs. Seema, defendant no. 5 W/o Sh. Alimuddin, R/o 31 Jamroodpur, Greater Kailash, New Delhi document dated 15.08.1985 for valuable consideration. Smt. Seema further sold and transferred the said flat to Mr. Shiv Kumar, S/o Sh. Hari Lal, R/o BIV/54 Amar Colony, Lajpat Nagar, New Delhi for valuable consideration vide documents dated 11.09.1986. Sh. Shiv Kumar however, expired and after his death his wife Smt. Asha Rani sold and transferred the same to Dr. Vijay Kumar son of Sh. C.N. Sharma, R/o 70B/4 Amrit PuriB, Garhi, Near East of Kailash, New Delhi who is plaintiff in the present case and Suit No. 619/15 Vijay Kumar v. Kalawati & Ors. Page No. 7 of 23 documents were duly executed for valuable consideration on 15.04.1996 in favour of plaintiff. Smt. Asha Rani is being impleaded as defendant no.6.
9. Thereafter, it is stated that the plaintiff Dr. Vijay Kumar sold and transferred the said property to one Sh. Gurdev Singh, S/o Sh. Bawa Singh, R/o 6/175 DDA Flats, Garhi, East of Kailash, New Delhi for valuable consideration vide documents duly executed on 24.02.1997 and said Sh. Gurdev Singh is being impleaded as defendant no. 7. Sh. Gurdev Singh thereafter sold and transferred the same to Sh. Ram Parvesh Thakur, S/o Sh. Dukhe Thakur, R/o House no. 317/7 Amrit PuriB, Garhi, East of Kailash, New Delhi for valuable consideration vide documents duly executed on 25.09.1997 and said Sh. Ram Parvesh Thakur is being impleaded as defendant no.8 and thereafter said defendant no.8 Sh. Ram Parvesh Thakur again sold and transferred the same to the plaintiff for valuable consideration vide document dated 07.06.2001. The plaintiff is stated as absolute and sole owner of the aforesaid flat which is in unauthorized use, occupation and possession of the defendants no.1 and 9 and plaintiff is not only entitled to restoration of possession but also recovery of damages amounting to Rs. 99,000/ and for the said purposes the present suit is being filed.
Suit No. 619/15 Vijay Kumar v. Kalawati & Ors. Page No. 8 of 23Defendant no.1's case
10.In the written statement of defendant no.1, it is stated that the present suit is not maintainable due to the reason that the plaintiff is not the owner of the suit premises. The plaintiff has filed the suit for possession only on the basis of forged and fabricated documents of ownership which were prepared by the plaintiff most probably after 31.05.2001 because the plaint is silent when and on which date the plaintiff become the owner of the suit premises. It is stated that the defendant no. 1 Smt. Kala Wati is a widow lady and is the owner as well as in possession of the suit property. Plaintiff is residing in the same locality in which defendant no. 1 is residing and the plaintiff is a bad character of the area and many criminal cases for preparing forged documents in respect of property of innocent persons are pending against the plaintiff in the court of concerned Metropolitan Magistrate, Delhi and even today the plaintiff is in Jail for preparing forged documents of property bearing no. 2/22, Main Market, Amrit Puri, Lajpat Nagar, New Delhi in a case registered vide FIR No. 474/2000 U/s. 420/467/468/471 I.P.C. of P.S. Lajpat Nagar, New Delhi. It is further submitted that plaintiff is running a racket to grab the property of innocent persons, widow ladies and dead persons. His modus operandi is first to prepare the forged documents of property or the Will of dead person and after that he used to file the eviction petition against the real owner and also get exparte eviction order with the collusion of processserver and postman of the area.
Suit No. 619/15 Vijay Kumar v. Kalawati & Ors. Page No. 9 of 2311. It is further stated that in respect of suit property, the plaintiff first of all prepared the forged documents in the name of defendant no.7 Gurdev Singh and filed the eviction petition against the defendant no. 1 on 18.03.1998 in the Court of Sh. N.P. Kaushik, then A.R.C Delhi vide case no. E30/98, titled as "Gurdev Singh Vs. Smt. Kalawati" and after committing the fraud of personation representing himself to be Gurdev Singh and getting the exparte Eviction Decree on 31.08.1998, when the answering defendant came to know regarding that eviction proceeding, she immediately moved an application under Order 9 Rule 13 read with Section 151 CPC to set aside exparte decree and the Court issued the Court notice to petitioner and his counsel Sh. D.R. Jain, but the counsel did not appear despite of several notice and Sh. Gurdev Singh appeared before the Court who made the statement on oath that he never filed the eviction petition against defendant nor engaged any counsel and further stated that he has no concern with suit property nor he ever remained the owner of the suit property. On 14.05.1999, the Court had dismissed the Eviction Petition after setting aside the exparte eviction decree.
12.It is further stated that plaintiff has no regard to the process of law and again prepared the forged documents of ownership in respect of suit property in favour of his wife Smt. Suman Goswami and filed an Eviction petition on 03.11.1998 against the defendant in the Court Suit No. 619/15 Vijay Kumar v. Kalawati & Ors. Page No. 10 of 23 of Smt. Asha Menon, then A.R.C. Delhi bearing no. E320/98 titled as Smt. Suman Goswami v. Smt. Kalawati and also succeeded in getting exparte order U/s 15 (1) of D.R.C. Act on 25.02.1999 and the said order was set aside on 03.05.1999 on the application of defendant and said case is still pending. It is further stated that plaintiff as the attorney of his wife Smt. Suman Goswami and had filed an affidavit in that case. Moreover, the plaintiff himself is appearing and conducting that case. It is further stated that in present case the plaintiff is saying that he is the owner of the suit property and in the above noted Eviction Petition the wife of plaintiff is saying that she is the owner and plaintiff is the Attorney of his wife and as such suit is hit by the principle of estoppel by conduct, act and acquiescence and is not maintainable.
13.It is further stated that the plaintiff Sh.Vijay Kumar had also filed a suit for permanent Injunction in the name of his wife Smt. Suman Goswami against the defendant Smt. Kala Wati in the Court of Sh. Gulshan Kumar, then Civil Judge, Delhi, bearing case no. 250/98 titled as "Smt. Suman Goswami v. Smt. Kala Wati" on the basis of Eviction Decree passed in a case 'Gurdev v. Kalawati', alleging therein that the Court of Sh. N.P Kaushik, then A.R.C. Delhi had passed the Eviction Decree against the defendant and prayed that defendant may kindly be restrained from selling the suit property and also filed the copy of eviction order which clearly proves that the eviction petition in the name of Sh. Gurdev Singh was filed by Suit No. 619/15 Vijay Kumar v. Kalawati & Ors. Page No. 11 of 23 plaintiff himself. However, the Court dismissed the suit for permanent injunction after hearing arguments even before filing the written statement.
14. It is further stated that the plaintiff is so mischievous person that on one hand he is conducting the eviction petition of his wife as an attorney and on the other hand he again prepared the ownership document of the suit property in the name of his servant R.P. Thakur who was/is working as a salesman in the shop of plaintiff situated in the same locality titled as 'M/s. Suman Gift & Cosmetics Store' and filed the Eviction Petition on 30.04.1999 against the defendant in the Court of Ms. Ravinder Kaur, the then A.R.C. Delhi vide Eviction Petition No. 89/99 titled as 'R.P.Thakur v. Deepak Kumar and Smt. Kalawati' whereas R.P. Thakur has no concern with suit property and being servant he is playing at the hands of plaintiff. In the above noted case also the plaintiff was the attorney of Sh. R.P. Thakur and plaintiff Sh. Vijay Kumar himself made the statement Ex. AW1 as Attorney and got the exparte eviction decree on 23.07.1999 against the defendant and when defendant came to know she moved an application U/o 9 Rule 13 of C.P.C. to set aside the exparte decree and after hearing arguments, the Court of Ms. Ravinder Kaur, the then A.R.C. Delhi, set aside the exparte decree and after that case was transferred to the Court of Sh. V.K. Bansal, A.R.C Delhi and on 26.02.2001, the defendant filed an affidavit mentioning therein all the above said facts and the Court of Sh.
Suit No. 619/15 Vijay Kumar v. Kalawati & Ors. Page No. 12 of 23V.K.Bansal, then A.R.C. Delhi took a serious view and issued the court notice to plaintiff to start the proceedings against him for making false statement on oath in two different courts as an Attorney in respect of ownership of suit property but after that neither the plaintiff nor the petitioner Sh. R.P. Thakur appeared before the court and on 24.07.2001, the counsel for petitioner moved an application to withdraw the Eviction Petition and the Court of Sh. V.K. Bansal, the then A.R.C., Delhi dismissed the petition as withdrawn on the ground that on the same cause of action, no fresh petition can be filed in future and after that the plaintiff again prepared the ownership documents of suit property in his own name and filed the present suit for possession against the defendant on the ground of illegal and unauthorized possession.
15.It is further stated that at present two cases are pending in respect of suit property against the defendant. One Eviction Petition filed by the wife of plaintiff named Smt. Suman Goswami in which plaintiff is the Attorney of his wife and second is the present suit for possession filed by plaintiff Dr. Vijay Kumar and under such condition, present suit is hit by the principle of estoppel by conduct, act and acquiescence and principle of res judicata also applies and as such suit is liable to be dismissed on this ground. It is further submitted that plaintiff filed the present suit on the ground that he purchased the suit property from Sh. R.P. Thakur. First of all Sh. R.P. Thakur was not the owner of suit property. However, for the Suit No. 619/15 Vijay Kumar v. Kalawati & Ors. Page No. 13 of 23 sake of arguments, if we admit the submission of plaintiff even then the defendant is not illegal and unauthorized occupant of suit property. Sh. R.P. Thakur had filed the Eviction Petition against defendant on the ground that defendant is the tenant and it is a settled law that a person cannot confer/transfer a better title than he himself has in the property and the defendant automatically became the tenant of plaintiff and as such question of illegal and unauthorized possession does not arise. Therefore, present suit is not maintainable.
16.It is further stated that the plaintiff filed a Criminal Writ Petition No. 74/99 in the High Court of Delhi against the police persons in which plaintiff alleged that defendant is the tenant of his wife Smt. Suman Goswami. Moreover, he further alleged that Court of Sh. N.P. Kaushik, the then A.R.C. Delhi had passed an eviction order against defendant on 31.08.1998 and in the present case the plaintiff is saying that he has purchased the suit property from Sh. R.P. Thakur which clearly proves that plaintiff prepared forged and fabricated documents of property in his own name. Moreover, it also proves that it is the plaintiff who filed the Eviction Petition against the defendant in the Court of Sh. N.P. Kaushik, then A.R.C. Delhi in the name of Gurdev Singh and got the exparte decree by playing fraud of personation representing himself to be Gurdev and the present suit is totally false, based on forged and fabricated documents and is liable to be dismissed.
Suit No. 619/15 Vijay Kumar v. Kalawati & Ors. Page No. 14 of 2317. It is stated that the Crime Branch of Police conducted a raid on 26.05.2000 at the residence of plaintiff and recovered many forged Ration Card and Power of Attorney etc. of different properties. Moreover, plaintiff is having criminal record and D.C.P. of South District had passed order against the plaintiff U/s 47 of D.P.Act for one year and criminal cases are registered against the plaintiff.
18.It is further stated that Sh. Gurdev Singh defendant no.7, Smt. Suman Goswami, Sh. R.P. Thakur (Defendant No.8), Sh. Naseem (Defendant No.10) and plaintiff himself never remained the owner of the suit property and as such they have no right, title or interest in the suit property. It is submitted that defendant Smt. Kalawati is the owner of the suit property and she is residing in the suit property since the last more than six years alongwith two minor children.
19.Replication was filed by the plaintiff to the written statement of the defendant no.1 in which it is stated that in the entire written statement the defendant has not mentioned as to how and on what basis the defendant has been claiming herself to be the owner of the suit property.
Defendant No.7's Case
20.In the written statement of defendant no.7, it is stated that he has no concern with the property bearing no. 2/47 DDA Flats, Garhi, Suit No. 619/15 Vijay Kumar v. Kalawati & Ors. Page No. 15 of 23 Lajpat Nagar, New Delhi. Earlier also the defendant no. 7 had clearly stated in the court of Sh. T.S. Kashyap in case titled Gurdev Singh v. Kalawati & Ors bearing no. E30/98 which was filed by the plaintiff without the knowledge of the defendant no. 7. When the defendant no. 7 came to know after receiving the notice from the court, he appeared in person before the court of Sh. T.S. Kashyap, ARC on 14.05.1999 and stated that he had not engaged any counsel for institution of the eviction petition nor he had filed any eviction petition and the plaintiff did not appear in that Court despite repeated calls.
21. It is further stated that the plaintiff has a criminal record and bad reputation in the locality. Number of criminal cases are pending against him in the courts.
22.It is further stated that on the basis of his criminal record the externment order U/s. 47 of DP Act, for one year, was passed against the plaintiff by the South District DCP. He was declared bad character of the area also.
23.It is specifically mentioned that the defendant no.1 is the owner of the property in question, she is residing with her two minor children for last about 56 years.
Suit No. 619/15 Vijay Kumar v. Kalawati & Ors. Page No. 16 of 2324.Replication was filed to the written statement of defendant no. 7. On 13.02.2002, defendants no. 2 to 6, 8 and 9 were proceeded exparte.
Issues
25.On 05.07.2002, following issues were framed:
1. Whether the plaintiff is the owner of the property in question?
OPP
2. Whether the suit is bad for misjoinder of parties? OPD1
3. Whether the suit is not valued properly for the purpose of Court fee & jurisdiction? OPD1
4. Whether the suit is barred by res judicata? OPD1
5. Whether the plaintiff is entitled to possession of the suit property? OPP
6. Whether the defendant is unauthorized occupation of suit property? OPP
7. Whether the plaintiff is entitled to damages as prayed for and if so, at what rate & for what period? OPP
8. Whether the plaintiff is entitled to mesne profits of the rate of Rs. 30,000/ pm? OPP
9. Relief.Suit No. 619/15 Vijay Kumar v. Kalawati & Ors. Page No. 17 of 23
Evidence led by parties
26.Plaintiff produced himself as PW1 and tendered his evidence affidavit Ex. PW1/A along with documents. Thereafter, PW1 was crossexamined. Thereafter, plaintiff evidence was closed.
27. Defendant no.1 produced herself as DW1 who tendered her evidence affidavit. Thereafter, DW1 was crossexamined after which defendant closed the evidence.
28.This Court has heard Ld. Advocates for parties and perused the record.
Findings
29.Issuewise findings of this Court are as under:
Issue no. 1: Whether the plaintiff is the owner of the property in question? OPP
30.Onus to prove this issue is on the plaintiff. PW1 has deposed that he purchased the suit property from Smt. Asha Rani and he sold the suit property to S. Gurdev Singh and executed an agreement to sell Ex. PW1/38. He deposed that S. Gurdev Singh further sold the suit property to Sh. Ram Parvesh on 25.09.1997 vide agreement to sell Ex. PW1/41, receipt, GPA. He deposed that Sh. Ram Parvesh further Suit No. 619/15 Vijay Kumar v. Kalawati & Ors. Page No. 18 of 23 sold the suit property to the plaintiff on 07.06.2001 for consideration vide agreement to sell Ex. PW1/44, receipt Ex. PW1/45 and GPA Ex. PW1/46. First of all, the agreement to sell, receipt and GPA do not confer ownership rights to the plaintiff.
31. In Suraj Lamps and Industries Pvt. Ltd. vs. State of Haryana & Anr., (2012) 1 SCC 656, the Supreme Court has held as under:
"24. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales."
(emphasis added) Suit No. 619/15 Vijay Kumar v. Kalawati & Ors. Page No. 19 of 23
32.In view of the law laid down in Suraj Lamps, the plaintiff cannot be held to be the owner of the suit property on the basis of the documents filed by him.
33.There is one more reason which would put the case of the plaintiff in serious doubts and infer that the plaintiff has filed a frivolous litigation. Plaintiff's version is that he sold the suit property to S. Gurdev Singh and then he purchased the same back from Sh. Ram Parvesh who purchased it from S. Gurdev Singh, defendant no. 7. The averment that a person sells an immovable property and thereafter, again buys the same is itself creating a doubt about what kind of transaction was made by the plaintiff. Moreover, defendant no. 7 Gurdev Singh has stated that he was never the owner and had no concern with the suit property. This fact itself creates further doubts on the case of the plaintiff. Defendant no. 1 has stated that plaintiff has instituted eviction proceedings as power of attorney in the name of his wife Smt. Suman Goswami in respect of the same suit property alleging her to be the owner of the suit property. Such shifting of stands in relation to the ownership of the suit property not only creates doubt on the conduct of the plaintiff but also disqualifies the plaintiff by applying the principle of estoppel. Even during his crossexamination, PW1 has deposed that in the writ petition no. 271/2000, his wife Smt. Suman Goswami is stated to be the owner of the suit property. He deposed that the same was Suit No. 619/15 Vijay Kumar v. Kalawati & Ors. Page No. 20 of 23 mistake but has not produced any positive evidence to prove the so called mistake. For the above reasons, plaintiff has failed to prove that the he is the owner of the suit property. Issue is decided against the plaintiff.
Issue no. 2: Whether the suit is bad for misjoinder of parties? OPD1
34.Onus to prove this issue is on the defendant no. 1. Defendant no. 1 has not led any evidence to prove this issue. Therefore, defendant no. 1 has failed to discharge the onus to prove the issue. Hence, issue is decided against the defendant no. 1.
Issue no. 3: Whether the suit is not valued properly for the purpose of Court fee & jurisdiction? OPD1
35.Onus to prove this issue is on the defendant no. 1. Defendant no. 1 has not led any evidence to prove this issue. Therefore, defendant no. 1 has failed to discharge the onus to prove the issue. Hence, issue is decided against the defendant no. 1.
Issue no. 4: Whether the suit is barred by res judicata? OPD1
36.Onus to prove this issue is on defendant no. 1. While there is mention of previous litigations in the form of eviction petitions, writ petition but no previous suit between the parties on the same subject matter has been mentioned. Therefore, the principle of res judicata Suit No. 619/15 Vijay Kumar v. Kalawati & Ors. Page No. 21 of 23 is not attracted to the present suit. Issue is decided against the defendant no. 1.
Issue no. 5: Whether the plaintiff is entitled to possession of the suit property? OPP
37. Onus to prove this issue is on the plaintiff. While dealing with issue no. 1, the Court has already found that the plaintiff is not the owner of the suit property. Therefore, the plaintiff is not entitled to the relief of possession as prayed. Issue is decided against the plaintiff.
Issue no. 6: Whether the defendant is unauthorized occupation of suit property? OPP
38.Onus to prove this issue is on the plaintiff. While dealing with issue no. 1, the Court has already found that the plaintiff is not the owner of the suit property. Therefore, whether the defendant is an unauthorised occupant or not is not material in respect of the claim made by the plaintiff since he has no concern with the suit property. Issue is decided against the plaintiff.
Issue no. 7: Whether the plaintiff is entitled to damages as prayed for and if so, at what rate & for what period? OPP Issue no. 8: Whether the plaintiff is entitled to mesne profits of the rate of Rs. 30,000/ pm? OPP
39.Onus to prove these issues is on the plaintiff. While dealing with issue no. 1, the Court has already found that the plaintiff is not the Suit No. 619/15 Vijay Kumar v. Kalawati & Ors. Page No. 22 of 23 owner of the suit property. Therefore, the plaintiff is not entitled to recover any damages or mesne profits as prayed. These two issues are decided against the plaintiff.
Issue no. 9: Relief
40.In view of the findings of this Court on the above issues, the plaintiff is not entitled to any relief as prayed. The suit is dismissed alongwith costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the Open Court Apoorv Sarvaria,
on the day 10th February, 2016 Civil Judge14, Central,
Tis Hazari Courts, Delhi
Suit No. 619/15
Vijay Kumar v. Kalawati & Ors. Page No. 23 of 23