Delhi District Court
Balraj Vasisth vs . Vijender & Ors. on 18 September, 2013
Balraj Vasisth Vs. Vijender & Ors.
Suit No.157/13
18.09.2013.
Present: Sh. A. K. Bhardwaj, Ld. counsel for the plaintiff.
Ld. counsel for the plaintiff submits that he has received the
copy of written arguments. He maintains the arguments that he had
advanced in reply to the same. Matter is now listed at 3.30 pm for orders.
At 10.30am
Sh. Prakash Chandra, Ld. Counsel for the defendant no.1.
The matter was fixed for arguments on the point of
maintainability of the present suit. During the course of arguments it
was realized that separate issue has not yet been framed in this case
pertaining to the maintainability of the matter. Therefore this court
deems appropriate to frame the following issue :
1.Whether the suit is maintainable in its present form? OPP This issue be treated as preliminary issue in the present case. Matter be put for orders at 3.30pm.
(TANVI KHURANA) Civil Judge5 (South) Saket Courts/New Delhi 18.09.2013 Balraj Vasisth Vs. Vijender & Ors.
Suit No.157/13
At 03.30 pm.
Present : Ld. counsel for the plaintiff.
Ld. Counsel for the defendant.
Order:
This order shall decide the maintainability of the present suit as in accordance with the preliminary issue framed which is no.1.
Onus to prove this issue lies on the plaintiff. Ld. counsel for the plaintiff argued that suit is maintainable as he has title document to prove that he is the owner inpossession over the suit property. He has the agreement of bayana dated 11.08.2009 in his favour. It is contended that Will, Irrevocable will , General Power of Attorney, Affidavit, Receipt of payment and Possession Letter dated 01.10.2009, the defendant no.1 has sold his property for an amount of Rs. 6 Lacs to the plaintiff. Again affidavit dated 06.04.2011 was also executed by the defendant no. 1 stating that he had created nuisance to the possession of the plaintiff on the instigation of other defendants. Therefore it is necessary that suit for declaration be filed as the plaintiff is the exclusive and absolute owner of the suit premises.
On the other hand, Ld. Counsel for the defendant no. 1 and Ld. Counsel for the defendant no. 2 to 4 have argued that the present suit is not maintainable in its present form as title documents as alleged by the plaintiff are all unregistered documents which do not confer any title of property to the plaintiff. They seeking support from the judgment Suraj Lamps and Industries Pvt Ltd. Vs. State of Haryana and Anr. , (2012)1 SCC 656. They also argued that the entire plaint is full of contradictions and in actuality, the suit property is the ancestral property of the defendants and no one has the title to alienate the property without partition. It has also been argued that the documents prepared by the plaintiff are false and fabricated and defendant no.1 never executed any document as alleged. Further no documents to ..2..
prove the possession or to prove the residence of the plaintiff has been annexed thereto. There are certain contradictions regarding the measurement, payment possession of the property. Plaintiff has suppressed material facts of the case and has not come to the court with clean hands. Therefore, suit is not maintainable.
I have heard the rival contentions raised by both the parties and have perused the case file meticulously.
On perusal of the case file, it can be noted that the suit has been filed simplicitor for declaration as it has been prayed that the plaintiff is owner in possession of the property. He relies upon unregistered,General Power of Attorney, will, affidavit and the possession letter to establish his title over the property.
On the other hand, in written statement filed by the defendant no. 1, denied the locus standi of the plaintiff and it has been maintained that the plaintiff has never resided at the suit property nor. Has he been in possession over the same. All the documents are stated to be forged and fabricated. Moreover in joint written statement on behalf of the defendant no. 2 ,3 and 4 again it has been objected that the present suit is not maintainable as no document in support of the possession has been tendered and property is the ancestral property and therefore, plaintiff has no right or title over the property in question.
It has been pleaded by the defendants that defendant no. 1 does not have any power or authority to alienate to property without partition. It has been maintained thereby that the property is ancestral. The photocopy of property tax bill of MCD to establish that the property is the ancestral is also annexed. Therefore, the plaintiff does not have any right or title. This is the first contention that the has been raised as to the maintainability of the present case. However, the plaintiff has maintained that as per documents that have ..3..
been submitted, it was the defendant no. 1 who had taken entire amount of Rs. 6 lacs and had got this document executed. Therefore, he is the absolute owner of the property. It can be noted at this stage that all the documents that have been submitted by the plaintiff are unregistered documents and do not confer any right or title over the property, in light of the judgment of Suraj Lamps (Supra).
Second most pertinent question raised by the defendants on the point of maintainability is the fact that the documents annexed with the plaint are unregistered and hence in light of Suraj Lamp & Industries Pvt Ltd. (Supra), suit is not maintainable. This plaintiff has replied that Suraj Lamp & Industries Pvt Ltd. authority is not applicable on him as it is a judgment of 2012 whereas the transactions had taken place in 2009. However, it has not been made clear that from the 2009 till date why were the documents not registered and also why proper conveyance deed was not executed. No satisfactory answer has been provided by the plaintiff in this regard. Indeed the documents on which the plaintiff places reliance are all unregistered and also have contradictions. However as there are many issues of fact raised stemming out from the these documents the issue does not remain an issue of fact rather, it is an issue of both fact and law and therefore it can not be decided without the opportunity being awarded to both the parties to adduce evidence on their part. Underlying mootable question well always remain that whether these documents confer any right on the plaintiff, or not. However without affording an opportunity to the plaintiff ends of the justice can not be met.
Again, as to the objection raised by the defendant that entire plaint is full on contradiction can also not be decided preliminarily. It is again is on issue of fact which needs production of evidence in support thereto. Therefore, at this stage, this objection is not tenable.
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Further the objection as to the plaintiff not approaching the court with clean hands and concealing the material facts can also not been conclusively decided without any evidence to support the same.
Though the law contained in Suraj Lamp & Industries Pvt Ltd. (Supra) throws enough light upon the facts of the case. However as the issue in question does not remain the issue of law only, rather it is issue of both fact and law and therefore it is in interest of justice that evidence is required to throw light on the subject at hand. It will be upon the plaintiff to prove that whether he is entitled to the relief as sought.
On perusal of the file it can be seen that the replication has not yet been filed in the present case.
Matter is fixed for filing of replication, admission/ denial of document, framing of issues as well as consideration on pending applications in the present case.
List the matter on 28.10.2013.
(TANVI KHURANA) Civil Judge5 (South) Saket Courts/New Delhi 18.09.2013