Delhi District Court
Smt. Naima Begum vs Mohd. Gulfam on 21 April, 2016
1
In the Court of Ms. Sonam Singh, Civil Judge-05, Central District, Tis Hazari
Court, Delhi.
CS No. 417/14
Unique ID02401C0571932003
Smt. Naima Begum
D/o Late Shekih Mohd. Siddiqi
Widow of Late Sh. Mohd. Isrial
R/o House No. 814, Katra, Hiddu
Farash Khanna, Delhi-110006
............. Plaintiff.
Versus
1.Mohd. Gulfam
2. Mohd. Irshad 3 Mohd. Rafi All sons of Sh. Noor Mohd.
All Residents of House no. 615, Gali Fakhrullah Baiq. G.B. Road Delhi-110006
4. Mohd. Safi (Deceased) Suit No. 417/14 Naeema Begum Vs. Mohd. Gulfam 2 Through his LRs.
a) Smt. Bhoori @ Raisa Begum
Widow of Mohd. Shafi
b) Mohd. Nadeem
S/o Mohd. Shafi
c) Mohd. Naeem
S/o Mohd. Shafi
d) Smt. Asma Parveen
W/o Mohd Afsar ......Defendants
All residents of 599, First Floor, Shardha Nand Marg, Gali Fakhrullah Baiq G.B Road (Near Mother Dairy) Delhi-6.
Date of Institution: 19.12.2003 Date of Final Decision: 21.04.2016 Judgment
1. The present suit has been instituted by the Plaintiff against the Defendants for relief of mandatory injunction, in order to direct the Defendants to restore the tin shed on the first floor of the property, bearing no. 615, Ward no. VII, Gali Fakhrulla Beg, GB Road, Delhi-110006 and relief of permanent injunction, in order to restrain the Defendants, their agents, servants, employees, etc. from raising any unauthorized or illegal construction or additions and alterations or creating any third party interest in the double storied building of the property, bearing no. 615, Ward no. VII, Gali Fakhrulla Beg, GB Road, Delhi-110006 Suit No. 417/14 Naeema Begum Vs. Mohd. Gulfam 3 (hereinafter referred to as "suit property").
Plaintiff's version as per the Plaint:
2. 1 The plaintiff in her plaint has averred that she is the owner of the suit property, by way of inheritance from her deceased mother, namely Mst. Jamal Ara, being the successor of interest of the assets of her deceased mother and the mutation of the suit property, in the municipal records, also being in her name.
2.2 Further, she has averred that the suit property was given on rent by the plaintiff's mother to one, Sh. Karam Elahi, on monthly rent of Rs. 23.50 p, who was residing as a tenant in the suit property along with his family. Moreover, it is averred that after the death of Sh. Karam Elahi, the tenancy rights devolved upon his son, Sh. Noor Mohd and after his demise, upon Defendants along with Mohd. Nawab. It is also averred that the Defendants are in possession in respect of different portion of the property, as shown in red color in the site plan, being tenants of the plaintiff but they have not been making the payment of rent, since the death of their father, Sh. Noor Mohd.
2.3 It is also averred that the plaintiff had filed a suit for perpetual injunction against Mohd. Gulfam in 1991, in respect of portion of ground floor which was in his possession and the vacant possession of the same, shown in blue color on the site plan was given to her and since then Plaintiff is occupying the said portion.
2.4 It is the case of the plaintiff that the suit property is very old and being in a dilapidated condition can be dangerous. It is also averred that in case further construction is raised, the property will collapse. It is further averred that on Suit No. 417/14 Naeema Begum Vs. Mohd. Gulfam 4 17.12.2003, the defendants removed the tin-shed on the first floor of the suit property and collected some building material, to raise unauthorized construction on the first floor of the suit property. It is further averred by the plaintiffs, that threats were meted out to the plaintiff, on her inquiry regarding the verification of the construction material.
2.5 The plaintiff averred that the defendants have no right to raise any unauthorized construction in the suit premises without getting the consent of the plaintiff as well as obtaining the sanction plan.
Thus, the plaintiff has prayed for relief of mandatory injunction in favour of the plaintiff and against the defendants, directing the defendants to restore the tin-shed as shown in the site plan on the first floor of the suit property. Further, the plaintiff has prayed for relief of permanent injunction in favour of the plaintiff and against the defendants, restraining the defendants from raising any unauthorized or illegal construction or any additions or alterations and alienation or creating third party interest in the suit property.
Defendant's case as per the Written Statement:
3.1 The defendants have taken the preliminary objections to the suit filed by the plaintiff on the ground that the plaintiff has no locus standi to file the present suit, as she is neither the owner of the suit property nor there is a landlord-tenant relation between the parties. The defendants have stated that the plaintiffs have no cause of action for filing of present suit and it is time barred also. It is also averred that the plaintiff has not come to the court with clean hands and thus, equitable relief of injunction cannot be granted. Further, it is averred that the present suit is Suit No. 417/14 Naeema Begum Vs. Mohd. Gulfam 5 bad for non-joinder of necessary parties and all the occupants of the property have not been impleaded as defendants. Further, the possession of the Defendant has been ripened by owners by way of adverse possession as they are in continuous, uninterrupted possession of the property as owner, even in the knowledge of the plaintiff since more than the last thirty years.
3.2 On merits, the defendants have replied that the Plaintiff has manipulated the mutation in her name, by misstating the facts and mutation does not confer right, title or interest in any person.
3.3 It is averred by the defendants that the suit property was owned by Late Mst. Jamal Ara, who had no child and left for Pakistan and as per their knowledge, died in Pakistan. Further, it is the case of the defendants that the plaintiff has no concern with the suit property as she is not the daughter of Mst. Jamal Ara. It is also averred that as per, Muslim law, step daughter could not succeed the property of step mother.
3.4 The defendants averred that they have considered themselves to be the owner of the suit property, as Mst. Jamal Ara, before leaving for Pakistan, had given a consideration amount for the suit property to the predecessor of defendants. Further, they averred that the defendants are in peaceful, continuous and uninterrupted possession of the suit property since more than 30 years, which has been in the knowledge of the plaintiff.
3.5 The defendants have averred that neither their deceased father nor they have paid any rent to the plaintiff and thus, the relationship of landlord and tenant between the plaintiff and defendants does not arise. It is also the case of the Suit No. 417/14 Naeema Begum Vs. Mohd. Gulfam 6 defendants that they are maintaining the suit property and carrying out necessary repair and renovation and not any unauthorized construction. Thus, they averred that the suit property is not dangerous.
Replication filed by the plaintiff:
4. It is averred by the plaintiff in her replication that Mst. Jamal Ara died on 05.11.1977 at 814, Katra Hiddu, Farash Khana, Delhi. Further, it was averred that Mst. Jamal Ara was the wife of Mohd. Siddique, the father of the plaintiff. Plaintiff also denied that she was the step daughter of Mst. Jamal Ara and that Mst. Jamal Ara went to Pakistan. Plaintiff denied that the predecessor of the defendants took consideration from Mst. Jamal Ara. She maintained the stand taken by her in the plaint and denied the arguments of the Defendants made in the written statement.
5. Issues were framed on 19.03.2004. The following issues were framed as given below:
1) Whether the Plaintiff has no locus standi to file the present suit? OPD
2) Whether the suit of the Plaintiff is barred by law of limitation? OPD
3) Whether the suit of the Plaintiff is bad for non joinder of necessary parties? OPD
4) Whether the Plaintiff is the owner of the suit property? OPP
5) Whether the Plaintiff is entitled for the decree of mandatory injunction?
OPP
6) Whether the Plaintiff is entitled for the decree of permanent injunction
against the Defendant for the suit property? OPP
7) Relief.
Suit No. 417/14 Naeema Begum Vs. Mohd. Gulfam
7
6. The Plaintiff herself stepped into the witness box as PW-1 and placed her affidavit in lieu of evidence as Ex. PW-1/A and placed on record the following documents as given below:
Sr. No. Exhibits Nature of Documents
1. Ex. PW-1/1 Death certificate of Mst. Jamal Ara
2. Ex. PW-1/3 Ration card of Jamal Ara
3. Ex. PW-1/4 The letter of mutation of the property dated
26.06.1991 in the name of the Plaintiff
4. Ex. PW-1/5 House tax receipt
5. Ex PW-1/6 Photocopy of passport
6. Ex. PW-1/7 Site Plan
7. Ex. PW-1/8 and Ex. PW- Complaint to the police as well as MCD 1/9 dated 15.12.2003 PW-1 was duly cross examined by the defence counsel and confronted with Ex.PW1/D1-1, which was the death certificate of Mohd. Siddiqui, husband of Ms. Jamal Ara and Ex. PW1/D-2 which was the ration card issued by Food& Supply Department.
7. The Plaintiff brought PW-2, namely, her daughter, Ms. Farheen Israil, as her witness, who placed her affidavit in lieu of evidence, as Ex. PW-2/A and placed the following documents on record:
Sr. No. Exhibits Nature of documents
1. Mark A Documents executed by Mohd. Nawab
in favour of Plaintiff
2. Mark B Show cause notice issued by MCD to
the defendant for raising unauthorized
construction
Suit No. 417/14 Naeema Begum Vs. Mohd. Gulfam
8
3. Mark C 18 Photographs showing Defendant
no.3, raising unauthorized construction
PW-2 was cross examined by the defence counsel and confronted with Ex. PW2/D1, which is the certified copy of the plaint/suit for possession filed by the Plaintiff.
8. Further, Plaintiff had brought PW-3, as her witness, namely, Sh. Sanjay Bhardwaj, Record Clerk, Building Department, Sadar Paharganj, MCD who placed the following documents on record i.e.:-
Sr. No. Exhibits Nature of Documents
1. Ex. PW-3/1(Mark B) Show Cause notice dated
13.09.2010
2. Ex. PW-3/2 Hearing notice dated 06.12.2010
PW-3 Sh. Sanjay Bhardwaj, was duly cross examined by defence counsel.
9. The Defendant no.1 in support of his case had stepped into the witness box and filed his affidavit in evidence, which is Ex. DW-1/A and placed on record the following documents:
Sr. No. Exhibits Nature of Documents
1. Ex. DW-1/1, Ex. DW-1/2 The original telephone bills dated and Ex. DW-1/3 17.04.1996, dated 01.11.1996 and dated 01.03.1997.
2. Mark A Photocopy of the ration card of Defendant No. 1
3. Ex. DW-1/5/P-1 Copy of the Plaint filed by the Suit No. 417/14 Naeema Begum Vs. Mohd. Gulfam 9 Plaintiff against the Defendant in 1991
4. Ex. DW-1/6 Certified copy of the affidavit dated 10.05.2000 filed in eviction petition no.E-207/1999
5. Ex. PW-2/D-1(already on Certified copy of the plaint/suit for record) possession filed by the Plaintiff
6. Ex. DW-1/7/DW-2/1 Judgment/decree dated 03.04.2010
7. Ex. DW-1/8 Site plan
8. Ex. DW-1/9/DW-3/1 Copy of the suit bearing no.
101/2010DW-1 Sh. Mohd. Gulfam, was duly cross examined by Plaintiff's counsel and confronted with Ex. DW-2/P-1, Ex. DW-2/P-2 and Ex. DW-2/P-3, which are photographs and
10. Defendant further brought DW-2 Smt. Parminder Kaur, Senior Judicial Assistant, High Court of Delhi, as his witness, who has placed the following documents on record:
Sr. No. Exhibits Nature of Document
1. Ex. DW-2/1 (PW-1/B) True copy of the judgment
dated 03.04.2010
DW-2 Smt. Parminder Kaur, Senior Judicial Assistant,was duly cross examined by Plaintiff's counsel.
11. Defendant further brought DW-3, Sh. Sombir, Ahlmad, in the court of Ms. Anchal, Ld. CJ, THC, Delhi as his witness, who has placed the following Suit No. 417/14 Naeema Begum Vs. Mohd. Gulfam 10 documents on record:
Sr. No. Exhibits Nature of Documents
1. Ex. DW-3/1 Copy of summons issued in the suit no.
101/2010
2. Ex. DW-3/2 Copy of plaint in the suit no. 101/2010
DW-3 Sh. Sombir, Ahlmad was duly cross examined by the Plaintiff's counsel.
12. I have gone through the record minutely and based on the evidence and arguments held before this court the issue wise finding in this matter is as under:
13. ISSUE NO.1) Whether the Plaintiff has no locus standi to file the present suit? OPD 13.1 The onus to prove this issue was on the Defendants. According to the Defendants, the Plaintiff has not filed any document on record to prove that she is the only successor of Mst. Jamal Ara nor has she placed any document on record to show that Mst. Jamal Ara was the owner in respect of the suit property except a mutation letter dated 26.06.1991 in favour of the Plaintiff, which does not entitle her to any right, title or interest or ownership rights over the suit property. Per contra, the Plaintiff has stated she is the legal heir of Mst. Jamal Ara and that the suit property was in the name of her mother and after her death, by way succession, she has become the owner of the suit property and thus, she has locus standi to file the present suit.
13.2 The Plaintiff has placed on record, copy of her ration card Ex. PW1/3 and copy of her passport Ex.PW1/6, wherein the name of the mother of the Plaintiff is Suit No. 417/14 Naeema Begum Vs. Mohd. Gulfam 11 stated to be Mst. Jamal Ara, which gives an inference that she is the daughter of Mst. Jamal Ara and on the other hand, Defendants have merely denied that the Plaintiff is not the daughter of Mst. Jamal Ara but have not brought any positive evidence to support their averment. Further, the Defendants have always maintained their stand, that Mst. Jamal Ara was the owner of the suit property but they have become subsequently become owners by way of adverse possession. Hence, in view of the fact that Plaintiff has proved herself to be the daughter of Mst. Jamal Ara, the ownership of the suit property in the name of Mst. Jamal Ara is not denied and coupled with absence of any evidence brought by the Defendants to show that Plaintiff is not the daughter of Mst. Jamal Ara, the Defendants have failed to show that the Plaintiff does not have the locus standi to file the present suit.
Hence, issue no.1 is decided in favour of the Plaintiff and against the Defendants.
15. ISSUE No. 3) Whether the suit of the Plaintiff is bad for non joinder of necessary parties? OPD 15.1 The onus to prove that suit is not maintainable for non-joinder of necessary parties was on the Defendants. The Defendants have stated that the Plaintiff deposed in her cross examination conducted on 07.08.2004, that "besides the four defendants, the cousins of the Defendants are also residing in the suit premises..." but the Plaintiff did not implead them, which makes the present suit bad for non- joinder of necessary parties. Per contra, the Plaintiff has averred that no evidence has been led by the Defendants on this issue.
Suit No. 417/14 Naeema Begum Vs. Mohd. Gulfam 12 15.2 The court is of the opinion that the Defendants have failed to point out as to how and in what manner the absence of joining the cousins of the Defendants has made the suit bad for non-joinder of the parties. The Defendants have not brought anything on record which would show that the suit stands defeated, on the ground of non-joinder of parties.
In view of the above facts and circumstances, I am of the considered view that defendants have failed to prove on record that suit is bad for non- joinder or mis- joinder of parties. Defendants have failed to discharge the onus of issue no. 3, same is accordingly decided against the defendants.
16. ISSUE NO. 4) Whether the Plaintiff is the owner of the suit property? OPP 16.1 The onus to prove this issue was on the Plaintiff. The Defendants argued that since the Plaintiff has filed the present suit only for injunction and not for declaration and possession, hence the issue regarding the ownership of the Plaintiff should not be decided in the present suit. Further, they relied on the judgment passed by the Hon'ble Supreme Court of India in Anathula Sudhakar v. P.Buchhi Reddy AIR 2008 SC 2033 stating that the suit is not maintainable, as the Plaintiff is admittedly not in possession of the suit property and the present suit is only for simplister injunction and the alleged ownership/title of the Plaintiff is under a cloud.
16.2 The Hon'ble Supreme Court of India in Anathula Sudhakar v. P. Buchi Reddy (dead) by LR's and others, AIR 2008 SC 2033 wherein the Supreme Court had examined the nature of the relief that the plaintiff must plead and seek in different factual backgrounds, in a suit relating to an immovable property.
Suit No. 417/14 Naeema Begum Vs. Mohd. Gulfam 13 Paragraphs 11 to 14 of that decision, read as follows:
"11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima Suit No. 417/14 Naeema Begum Vs. Mohd. Gulfam 14 facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.
Suit No. 417/14 Naeema Begum Vs. Mohd. Gulfam 15
14. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs."
16.3 Another decision is of E.Sathidass v. C.Ponnuswamy and another, 2011 (1) CTC 801 which would amply make the point clear that a Plaintiff by filing a mere injunction suit cannot call upon the Court to conduct a broad based roving enquiry in respect of the title of the parties over the suit property and the Court also would not be justified in doing so. Once the Court comes to the conclusion that there is some serious title dispute or cloud relating to the title over the suit property, then the parties should be driven to the extent of filing a comprehensive Suit only.
16.4 Admittedly by the Plaintiff, Defendants are in possession and moreover, a cloud/dispute has been raised over the Plaintiff's title by Defendants. Therefore, it is clear that proper remedy for Plaintiff was to file a comprehensive suit for Suit No. 417/14 Naeema Begum Vs. Mohd. Gulfam 16 declaration of title along with injunction. Hence, in the absence of relief of declaration by Plaintiff in his plaint, court cannot give a findings on the issue.
Thus, this issue is decided in the favour of the Defendants and against the Plaintiff. It is ordered accordingly.
17. The evidence led on issues no.5 and 6 are common and inter connected, both the issues are decided simultaneously ISSUE NO. 5) Whether the Plaintiff is entitled for the decree of mandatory injunction? OPP ISSUE NO. 6) Whether the Plaintiff is entitled for the decree of permanent injunction against the Defendant for the suit property? OPP 17.1 The onus to prove these two issues was put on the Plaintiff. The Plaintiff has averred that on 17.12.2003, the Defendants removed the tin shed on the first floor of the suit property and collected some building material to raise the unauthorized construction on the first floor itself. The Plaintiff has placed on record photographs, Ex. PW2/1, Ex.PW2/2 and Ex. PW2/3 (Mark A, B and C) which allegedly show the unauthorized construction being carried out by the Defendants. However, the photographs only reveal that some construction is being carried out however, it can not be said with precision, whether the construction is being carried out by Defendants and also does not reveal the age, nature and extent of the construction if at all, whether it is illegal. The Plaintiff did not make efforts to summon any official from the Municipal Corporation Department (MCD) or any other independent witnesses so as to prove that illegal construction was being carried out by the Defendants. Further, the photographs produced on record are not Suit No. 417/14 Naeema Begum Vs. Mohd. Gulfam 17 accompanied with the negatives nor any photographer has stepped into the witness box to prove them. Therefore, these photographs are not proved as per law. Moreover, the date on which these photograph were taken, cannot be inferred from the bare perusal of these photographs, as they do not bear any date or time when they were allegedly taken.
17.2 The Plaintiff has also averred that the cause of action arose on 17.12.2003 and relied on Ex.PW1/8 and Ex.PW1/9, which are complaints to the police and MCD but these are dated 15.12.2003, before the cause of action arose i.e. on 17.12.2003, which further makes the version of the Plaintiff not believable and makes the Court draw an adverse inference. It is incomprehensible as to how the complaints were made to the authorities even before the alleged act of raising unauthorized construction.
17.3 The Plaintiff had also averred that in the year 1991, she had filed a suit for permanent injunction against Defendant no.1, in respect of ground floor of the suit property and Defendant no.1 vacated possession to the Plaintiff of the portion shown in blue colour in the site plan, Ex. PW1/7 and the Defendants are in possession of the red colour portion in the site plan. However, the Plaintiff in her testimony deposed: " The site plan was not prepared by me but it was prepared by my son, by Shri Gauam, architect, by visiting the site. He had not visited my presence." Thus, the site plan was not formally proved. Further, the Plaintiff did not bring any positive evidence to show that she was in possession of any part of the suit property.
17.4 PW2 was confronted with a document, namely, Ex. PW2/D1, which is a plaint filed by the Plaintiff in a suit for possession and mesne profits against the Defendants in which the Plaintiff has stated in para 8 that the Defendants are in Suit No. 417/14 Naeema Begum Vs. Mohd. Gulfam 18 "illegal and unauthorized possession as trespassers" but in the present suit, the Plaintiff has claimed that the Defendants are tenants. Thus, it can be observed that both the stands taken by the Plaintiff are contradictory to each other and the Plaintiff has not come with clean hands so as to be entitled to the equitable relief of injunction. The Hon'ble Delhi High Court in M/s Seemax Construction (P) Ltd. v. State Bank of India, AIR 1992 Delhi 197, observed:
"The suppression of material fact by itself is a sufficient ground to decline the discretionary relief of injunction. A party seeking discretionary relief has to approach the Court with clean hands and is required to disclose all material facts which may, one way or the other, affect the decision. A person deliberately concealing material facts from Court is not entitled to any discretionary relief. The Court can refuse to hear such person on merits. A person seeking relief of injunction is required to make honest disclosure of all relevant statements of facts otherwise it would amount to an abuse of the process of the Court. Reference may be made to decision in The King Vs. The General Commissioners for the purpose of the Income-tax Act for the District of Kensington, 1917 (1) King's Bench Division 486, where the Court refused a writ of prohibition without going into the merits because of suppression of material facts by the applicant. The legal position in our country is also not different. (See: Charanji Lal v. Financial Commissioner, Haryana, Chandigarh, AIR 1978 P&H 326 (FB). Reference may also be made to a decision of the Supreme Court in Udai Chand v. Shankar Lal, AIR 1978 SC 265 : (1978)2 SCC 209. In the said decision the Supreme Court revoked the order granting special leave and held that there was a misstatement of material facts and that amounted to serious misrepresentation. The principles applicable are same whether it is a case of misstatement of a material fact or suppression of material fact."
Suit No. 417/14 Naeema Begum Vs. Mohd. Gulfam 19 I am of the opinion that the plaintiff has failed to prove that that the Defendants removed the tin shed from the suit property and were carrying on any unauthorized construction.
In light of the above, this issues are decided against the Plaintiff and in favour of the Defendants. It is ordered accordingly.
For the sake of convenience issue no. 2 is taken in the end:
14. ISSUE NO. 2) Whether the suit of the Plaintiff is barred by law of limitation? OPD The onus to prove this issue was on the Defendants. As per the Defendants, Plaintiff has averred in her plaint that she had filed a suit for perpetual injunction in 1991 against Mohd. Gulfam, for raising illegal construction at ground floor, at the suit property and subsequently, no construction has been carried out by the Defendants in 2003, thus since building was constructed in year 1991, the suit stands barred by limitation. On the other hand, the Plaintiff has stated that no evidence has been led by the Defendants with regard to limitation. In the light of findings on issue No. 5 and 6, that the Plaintiff has not been able to prove that the cause of action has arisen in 2003, the suit of the Plaintiff stands time barred.
Issue no. 2 stands decided in favour of the Defendants and against the Plaintiff.
Relief
18. In view of the facts and circumstances, the Plaintiff is not entitled any relief in this matter.
Suit No. 417/14 Naeema Begum Vs. Mohd. Gulfam
20
Suit is dismissed.
Let a decree sheet be prepared.
No order as to costs.
All pending applications, if any, are disposed off as not pressed.
Pronounced in the open Court on 21.04.2016.
(Sonam Singh ) Civil Judge-05, Central District Tis Hazari Courts,Delhi Present judgment is consisted of 20 pages and each page is signed by me.
Suit No. 417/14 Naeema Begum Vs. Mohd. Gulfam