Delhi District Court
By This Order vs Gursharna Kaur & Anr. Rfa No.747/2010. ... on 23 October, 2013
1
IN THE COURT OF SHIRISH AGGARWAL, CIVIL JUDGE -1
CENTRAL DISTRICT, DELHI
Umesh Kumar and Anr.
v.
Shiv Kumar and Ors.
Suit No. 150/13
ORDER
1. By this order, I shall decide the application under Order 39 Rules 1 and 2 read with Section 151 of Code of Civil Procedure, 1908 filed by the plaintiffs. It shall also be examined whether the suit can be disposed off by exercising powers under Order 12 Rule 6, Code of Civil Procedure, 1908.
2. The defendant no.2 is the mother of plaintiffs and defendant no.1. The undisputed facts of the case are that the Plaintiffs and Defendants No. 1 and 2 were co-owners of one-fifth share in property bearing no. 5171, Gali No.4, Krishnan Nagar, Karol Bagh, New Delhi measuring 30 square yards (hereinafter referred to as "the suit property"). It is the case of the parties that the plaintiffs and defendant no.1 relinquished their share in the suit property in favour of defendant no.2 thereby making the defendant no.2 the sole owner of the suit property. However, the defendant no.2 is in possession of only ground floor of the suit property. Whereas, the defendant no.1 is in possession of first floor and plaintiff no.1 is in possession of second floor of this property.
3. It is contended by the plaintiffs that they had relinquished their share in the suit property in favour of the defendant no.2 subject to the oral condition that the defendant no.2 shall not transfer the suit property in favour of anyone and that after Umesh Kumar and Anr. v. Shiv Kumar and Ors. Suit No.150/13 Page 1 of 9 2 her demise, the property will devolve upon the plaintiffs and defendant no.1 in equal shares. In support of this claim, the plaintiffs have relied upon a registered Will which has been executed by the defendant no.2 in which she has stated that her property should devolve upon her children after her demise. It is stated that the defendant no.1 has been pressurizing the defendant no.2 to transfer the suit property in his favour. It is pleaded that the transfer of the suit property shall be in contravention of the condition subject to which the plaintiffs had relinquished their share in favour of the defendant no.2. It is also stated that the plaintiffs apprehend that the defendant no.1 may dispossess the plaintiff no.1 from the suit property illegally and forcibly.
4. The present suit has been filed seeking declaration that the Relinquishment Deed is null and void as the same was executed by plaintiffs in good faith and now the defendants have become dishonest. The plaintiffs have also prayed that the defendant no.2 be restrained from transferring the suit property to defendant no.1 or anyone else. It is also prayed that the defendant no.1 and his agents be restrained from dispossessing the plaintiffs from the suit property without due process of law. The plaintiffs also seek injunction to restrain the defendant no.3 from registering any document pertaining to the suit property till the disposal of the present suit.
5. Written statement has been filed on behalf of the defendants no. 1 and 2. They have denied that the relinquishment was done subject to the condition that the defendant no.2 shall not transfer the suit property to anyone except her children in equal shares. The attention of the court has been drawn to paragraph no. 6 of the Relinquishment Deed.
Umesh Kumar and Anr. v. Shiv Kumar and Ors. Suit No.150/13 Page 2 of 9 3
6. It has been further pleaded by defendants no.1 and 2 that even before the filing of suit, the defendant no.2 has gifted the ground and first floor of the suit property to the defendant no.1. Copy of the registered gift deed has been filed.
7. By the application under Order 39 Rules 1 and 2 read with section 151 of Code of Civil Procedure, 1908 the plaintiffs have prayed for interim injunction restraining the defendant no.2 from transferring the suit property. It has also been prayed that defendant no.1 be restrained from dispossessing the plaintiffs from the suit property and from interfering in the peaceful use and occupation of the same, till the disposal of the suit. In order to decide the application of the plaintiffs, the court is required to evaluate at the outset whether the plaintiffs have succeeded in making out a prima facie case.
8. The plaintiffs are seeking that the Relinquishment Deed be declared null and void since the same was executed in good faith and now the defendants have become dishonest. The Relinquishment Deed has been executed by the plaintiffs themselves. Therefore, in view of the decision of Hon'ble Supreme Court passed in the case of Suhrid Singh @ Sardool Singh v. Randhir Singh and Ors. Civil Appeal No.2811-2813 of 2010 dated 29.3.2010, the plaintiffs ought to have sought cancellation of the deed and not declaration that it is null and void. Also, the plaintiffs are required to pay ad-valorem court fees on the value of their share in the suit property. This has not been done.
9. Section 31 of the Specific Relief Act, 1963 lays down the circumstances under which an instrument can be ordered to be cancelled. It prescribes that the instrument should be void or voidable against the person who seeks cancellation of the same.
Umesh Kumar and Anr. v. Shiv Kumar and Ors. Suit No.150/13 Page 3 of 9 4 Keeping in view Section 25(1) of the Indian Contract Act, 1872, the Relinquishment Deed is a written contract between the plaintiffs and the defendant no.2. In the Indian Contract Act, 1872, the circumstances under which a contract is void or voidable have been prescribed. The Plaintiffs have not alleged that at the time when they entered into the contract of relinquishment, their consent was not free within the meaning provided under Section 14 of the Indian Contract Act, 1872. They have not even averred that any of the other circumstances existed due to which the contract is void or voidable under the Indian Contract Act, 1872. At best, even if the case of the plaintiffs is true and correct, they may sue the defendants for violation of the contract. Merely because the contract has been violated does not make the contract null and void. This is besides the fact that Section 92 of the Indian Evidence Act, 1872 bars the plaintiffs from adding any oral terms in the written and registered Relinquishment Deed.
10. Paragraph no. 6 of the Relinquishment Deed clearly prescribes that the plaintiffs herein are left with no right, title, interest or concern of any nature in the suit property and the defendant no.2 has become the absolute owner of the same. It has further been stated that the defendant no.2 is competent to use and enjoy the suit property. She is further entitled to receive rent and to transfer the same by way of sale, gift, mortgage, lease or otherwise to anyone and without any claim, demand and objections from the plaintiffs.
11. In view of this clause in the Relinquishment Deed, the contention that it was orally agreed that the defendant no.2 shall not transfer the suit property in favour of anyone and that after her demise, the property will devolve upon the plaintiffs and defendant no.1 in equal shares, amounts to contradicting and varying the terms Umesh Kumar and Anr. v. Shiv Kumar and Ors. Suit No.150/13 Page 4 of 9 5 of the registered written agreement by an alleged oral agreement. In view of Section 92 of the Indian Evidence Act, 1872 evidence of such an oral agreement is not admissible. Even the provisos of this Section do not apply to the facts of the present case.
12. Therefore, the law bars the plaintiffs from taking the plea that the relinquishment was done subject to the oral condition that the defendant no.2 shall not transfer the suit property in favour of anyone and that after her demise, the property will devolve upon the plaintiffs and defendant no.1 in equal shares. Even the registered Will executed by the defendant no.2 does not bar her from changing her will. She is free to change her mind as many times as she wants. The plaintiffs have placed reliance upon the affidavits of their relatives to substantiate that defendant no.2 had indeed undertaken not to transfer the suit property to anyone else. As per Section 92 of Indian Evidence Act, 1872 these affidavits and the testimony of these relatives are not admissible in evidence.
13. Since the plaintiffs can never be permitted to lead evidence to show that there was any such oral term to the agreement of relinquishment, they can never be successful in proving that the transfer of the suit property by defendant no.2 would be in violation of the oral term of agreement.
14. With respect to the prayer as made in the application to pass an interim injunction restraining the defendant no.1 from dispossessing the plaintiff from the suit property and from interfering in his peaceful use and occupation of the suit property till disposal of the suit, is concerned, it is noticed that only plaintiff no.1 claims to be in possession of the suit property and that too, only of the second floor of this property. It has been admitted by defendant no.1 that the plaintiff no.1 is in occupation of this part of the property though Umesh Kumar and Anr. v. Shiv Kumar and Ors. Suit No.150/13 Page 5 of 9 6 only as a licensee. The proposition that a person in settled possession cannot be removed by unlawful use of force irrespective of title is clearly borne out from the decisions of Rame Gowda (D) v. M. Varadappa Naidu, AIR 2004 SC 4609, Bhagabat Pradhan and Others v. Laxman Pradhan and others AIR 2004 NOC 53(Orissa) M/S. S.S. Fasteners v. Satya Paul Verma AIR 2000 P&H 301, Babu Lal V. D.D.A 43(1991) DLT 570, N Umapathy v. B.V.Muniyappa AIR 1997 SC 2467, Hem Chand Jain v. Anil Kumar and Anr. 1992 RLR 224, and Ramasamy Moopanar v. Rathnammal and Others 1961 MLJ R 363.
15. For the aforementioned reasons, in my opinion, the plaintiffs have failed to make out a prima facie case in their favour except to the extent of the relief to restrain the defendant no.1 from dispossessing the plaintiff no.1 from the suit property and from interfering in his peaceful use and occupation of the same. This indispensable requirement for grant of interim injunction remaining unfulfilled, I find no merit in the application of the plaintiffs except to extent of the prayer to restrain the defendant no.1 from dispossessing the plaintiff no.1 from the suit property and from interfering in his peaceful use and occupation of the same. The application under Order 39 Rules 1 and 2 read with section 151 of Code of Civil Procedure, 1908 is accordingly disposed off with the direction that till the disposal of the suit, the defendant no.1 is restrained from dispossessing the plaintiff no.1 from the suit property and from interfering in his peaceful use and occupation of the same.
16. Now it shall also be examined whether the suit can be disposed off by exercising powers under Order 12 Rule 6, Code of Civil Procedure, 1908.
17. In view of the denial of the defendants no. 1 and 2 that Umesh Kumar and Anr. v. Shiv Kumar and Ors. Suit No.150/13 Page 6 of 9 7 there were any oral terms to the agreement of relinquishment, I am of the opinion that the prayer of declaration that the deed of relinquishment is null and void/ cancellation of the deed, can never be allowed in view of the aforementioned facts and circumstances. Consequently, the prayer to restrain the defendant no.2 from transferring the suit property and the prayer to restrain the defendant no.3 from registering any transfer documents pertaining to the suit property can also never be allowed.
18. Disposal of suit on the basis of admissions includes not only decreeing but also dismissal as has been laid down by the Hon'ble High Court of Delhi in the case of Preet Inder Singh Vs. Gursharna Kaur & Anr. RFA No.747/2010. The following was held by the Hon'ble High Court in this case:
"A decree is defined under Section 2(2) CPC to include a dismissal of the suit. Therefore, the defendant can also pray for dismissal of the suit under order 12 Rule 6 CPC on the basis of admitted facts which appear from pleadings or documents or otherwise in terms of Order 12 Rule 6 CPC. The object of the legislature while enacting Order 12 Rule 6 CPC was to prevent unnecessary continuation of litigation, therefore, Order 12 Rule 6 CPC is very widely worded whereby the suit can be decreed/dismissed even by the Court on its own motion by referring to admissions made in pleadings or whether made orally or in writing."
19. In these circumstances, I find no good ground to keep the suit pending or to put it to trial. The plaintiffs can never succeed in proving the disputed averments made in the plaint. Therefore, they would not become entitled to the reliefs claimed by them except for the relief to restrain the defendant no.1 and his representatives from dispossession the plaintiff no.1 from the Second Floor of the suit property without due process of law.
20. The plaintiffs have contended in paragraph no.7 of the plaint that the plaintiff no.1 is in possession of second floor of the suit property. The defendant no.1 has admitted that the plaintiff no. 1 is in settled possession of this part of the suit property. Defendant Umesh Kumar and Anr. v. Shiv Kumar and Ors. Suit No.150/13 Page 7 of 9 8 no.1 has stated that the plaintiff no.1 is in occupation of the second floor in the capacity of a licensee. Admittedly, the licence has not been terminated. The proposition that a person in settled possession cannot be removed by unlawful use of force irrespective of title is clearly borne out from the decisions of Rame Gowda (D) v. M. Varadappa Naidu, AIR 2004 SC 4609, Bhagabat Pradhan and Others v. Laxman Pradhan and others AIR 2004 NOC 53(Orissa) M/S. S.S. Fasteners v. Satya Paul Verma AIR 2000 P&H 301, Babu Lal V. D.D.A 43(1991) DLT 570, N Umapathy v. B.V.Muniyappa AIR 1997 SC 2467, Hem Chand Jain v. Anil Kumar and Anr. 1992 RLR 224, and Ramasamy Moopanar v. Rathnammal and Others 1961 MLJ R 363. This does not imply that the plaintiff can never be evicted from the premises. However, his eviction must be in accordance with law. Therefore, the defendant no.1 cannot dispossess the plaintiff no.1 from the second floor of the suit property without due process of law.
21. The Hon'ble Supreme Court has held the following in the case of Balraj Taneja & Anr. Vs. Sunil Madan & Anr. decided on 08.09.1999:-
"22. There is yet another provision under which it is possible for the Court to pronounce judgment on admission. This is contained in Rule 6 of Order 12 which provides as under:
Rule 6 Judgment on admissions.
(1) Where admissions of fact have been made either in the pleadings or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the ap-
plication of any party or of its own motion and without waiting for the determination of any other question be- tween the parties, make such order or give such judg- ment as it may think fit, having regard to such admis- sions.
(2) Whenever a judgment is pronounced under Sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.
...24. Under this Rule, the Court can, at an interlocutory stage of the proceedings, pass a judgment on the basis of admissions made by the defendant. But before the Court can act upon the admission, it has to be shown that the admission is unequivocal, clear and positive. This Umesh Kumar and Anr. v. Shiv Kumar and Ors. Suit No.150/13 Page 8 of 9 9 Rule empowers the Court to pass judgment and decree in respect of admitted claims pending adjudication of the disputed claims in the suit."
22. In the case of Uttam Singh Dugal and Co. Ltd. v. Union Bank of India AIR 2000 SC 2740, the following was held by the apex court:
"Where other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed."
23. In these circumstances, in exercise of powers under Order 12 Rule 6 Code of Civil Procedure, 1908, prayers no.a, c, d and e are dismissed and prayer no.b is decreed in favour of the plaintiff no.1 and against defendant no.1 only to the extent that the defendant no.1 is hereby restrained from dispossessing the plaintiff no.1 from the second floor of the suit property without due process of law.
Decree sheet be prepared accordingly.
Matter is disposed off.
File be consigned to record room.
Announced in the open court [SHIRISH AGGARWAL]
today on 23.10.2013 CIVIL JUDGE-1
CENTRAL DISTRICT
DELHI
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