Delhi District Court
(East) vs C.B. Antony on 15 May, 2010
IN THE COURT OF MS. NIRJA BHATIA, SENIOR CIVIL JUDGE
(EAST), KKD, COURTS, DELHI
Suit No. 1121/06
C.B. Joseph
S/o Sh. C.A. Bastian
R/o First floor, B-2,
Gharonda Apartments,
Shrestra Vihar, Delhi-92 ....Plaintiff
Versus
C.B. Antony
S/o Sh. C.A. Bastian
R/o Ground floor,
B-2, Gharonda Apartments,
Shrestra Vihar, Delhi-110092 ...Defendant
Nature of Suit : Suit for Permanent Injunction
Date of Institution : 27/03/2006
Reserved for order : 03/05/2010
Date of Decision : 15/05/2010
JUDGMENT
1. By this judgment I shall decide the present suit filed by the plaintiff for seeking the relief of recovery of possession and mesne profits.
2. The facts relevant for decision of the present suit have been detailed by the parties in their respective pleadings wherein it is disclosed that the plaintiff and the defendant are both real brothers. The plaintiff shifted to Delhi in the year 1974 in search of job and got a job somewhere in the month of September 1974 in M/s General Plastics India, Okhla Industrial Estate, New Delhi. Plaintiff served in several companies and lastly in February 1984 he got a job as typist in permanent post in RBI, Regional office at New Delhi. Plaintiff being a employee of RBI got staff quarters bearing no. RB-120, RBI 1121/06 1/29 Quarters, Sector-6, R.K.Puram, New Delhi in 1987. In the meanwhile the defendant, being younger brother of the plaintiff shifted to Delhi in search of Job and started living with the plaintiff after taking permission of the plaintiff.
3. Plaintiff in the year 1987 shifted to staff quarters of RBI which was alloted to him. By that time defendant though younger to him, got married and was having three daughters. At the time of shifting to staff quarters defendant again made request to plaintiff to allow him to stay with him and out of pure affection and compassion and having regard to the fact that the defendant is having three daughters, plaintiff allowed him to stay with him in the staff quarters.
4. In the year 1990 plaintiff was alloted the membership of "Gharonda Co-opeartive Group Housing Society" which was provided exclusively to the employees of the RBI. Being permanent employee of RBI, plaintiff got membership in the said society. The society constructed residential flats and in November 1992 by way of draw of lots, alloted a duplex flat bearing no. B-2, Gharonda Apartments, Shreshta Vihar, Delhi -110092 to the plaintiff. The said flat is having area of 1144 square feet and comprising of ground floor and first floor. It is stated that ground floor consist of one living room, one bed room, one balcony, one kitchen and toilet cum bathroom. The first floor consists of two bedrooms, one small lounge, toilet cum bathroom and a balcony. The entrance of the first floor is through the ground floor 1121/06 2/29 living room.
5. Plaintiff states that he is absolute owner and has got clear title of the flat bearing no. B-2, Gharonda Apartments, Shresthra Vihar, New Delhi 110092 and the said flat has been purchased from his own sources and income. It is stated that due to compelling circumstances he has been forced to live in the first floor of the above said flat leaving the ground floor which is claimed to be in illegal possession of the defendant.
6. Plaintiff states that cost of the above flat was about Rs.
3,15,800/- and the entire cost have been paid by him out of his own savings, earnings and resources including RBI housing loan and loan availed from RBI Employees Thrift and Credit Society.
7. Plaintiff states that he received the possession of the above said flat on 03/03/1993 whereafter he shifted to the abovesaid flat on 10/03/94 from RBI staff quarters bearing no. RB-120.
8. Plaintiff states that again at that time defendant requested him to allow him and his family to stay with him for a short period of time till he would get suitable rented accommodation. Though the plaintiff was not bound to accede to the request of the defendant, only out of pure affection and as he was younger brother and was facing difficulties in finding alternate suitable accommodation, plaintiff allowed him to stay with him in the above mentioned flat for a short period. Thereafter defendant and his family started staying with the plaintiff and jointly 1121/06 3/29 enjoyed the entire two floors of the suit property commonly.
9. It is stated that in January 1997 plaintiff got married and brought his wife in the suit property. The parties thereafter jointly shared the kitchen and entire two floors commanly. It is alleged that after marriage of plaintiff, attitude of the defendant changed and he started creating problems. It is alleged that till then defendant had thought that the plaintiff would never marry and after his demise defendant would become the absolute owner of the suit property by way of inheritance. It is alleged that his design and dreams were shattered as the plaintiff got married. Defendant thereafter picked up quarrels with the plaintiff and his wife and started abusing the plaintiff and his wife. Defendant and his wife behaved in cruelest manner possible, unbecoming of younger brother. The plaintiff's wife who stayed in house for longer duration suffered more. It is stated that at that time first the plaintiff tried to pursuade the defendant to behave fraternally but without success. It is alleged that behaviour of the defendant and his wife became worst due to which the plaintiff was constrained to ask the defendant to leave the suit property from June 1997. Defendant did not accede this request of plaintiff and continued to live unauthorisedly in the suit property. Defendant thereafter started using abusive language and manhandling the plaintiff and his wife.
10. It is alleged that defendant carried out alternation in the flat by carving out a drawing room by way squeezing/bifurcating the well 1121/06 4/29 designed living room and covering whole of balcony in the ground floor of the plaintiff's flat. Defendant covered the balcony with glass frame and created separate drawing room. He installed a door and lock to the newly created drawing room and kept the keys with him. Finally in May 2005 defendant by using muscle power forced the plaintiff move to the first floor of the suit property and unauthorisedly kept whole area of the ground floor. It is claimed that there was no kitchen on the first floor plaintiff put up a makeshift kitchen in the lounge.
11. Plaintiff alleges that due to the conduct of the defendant and his wife as they were using abusive language to the plaintiff and their visitors going to the first floor through living room of the ground floor, became nightmare. Plaintiff claims that despite the above he tried to pursuade the defendant to see the reason and peacefully hand over the vacant peaceful possession of the ground floor of the suit property, however defendant became more aggressive and started threatening the plaintiff to transfer the suit property in his name or to face dire consequences.
12. It is stated that the suit property if given on rent can fetch rent of Rs. 5000/- per month as per the prevailing market rent. As the plaintiff is having a clear title to the suit property he is entitled to claim amount of Rs. 5000/- per month towards mesne profits. Plaintiff states that he served the defendant with legal notice issued through his counsel on 05/01/06 sent by registered AD as well as UPC calling 1121/06 5/29 upon the defendant to hand over the vacant possession of the suit property despite which the defendant has failed to comply. In the backdrop of above the plaintiff prayed for the relief of possession and mesne profits.
13. Defendant filed his WS and has taken several preliminary objections claiming that the suit of the plaintiff is based on false facts and is not properly valued for the purpose of court fee. It is stated that the suit properly is a joint property of both parties, the defendant admitted the factum of relation between the parties as brothers. It is admitted that the plaintiff shifted to Delhi in the year 1974 and subsequently defendant shifted to Delhi in 1977 and both the parties have been living together. It is stated that since the left hand of the plaintiff has no strength and he carried high leftist political thinking, plaintiff refused to get married. Defendant, due to the above reasons married earlier to the plaintiff in 1984, in the same year in which plaintiff got the job of typist in RBI. Defendant stated that subsequent to his marriage, he, plaintiff and defendant's wife started living on rent at Mayur Vihar, Phase I Delhi. After the marriage, the defendant's wife shifted to Delhi by taking transfer. As defendant's wife got posting at Sadiq Nagar, the parties shifted their residence to Sadiq Nagar and in 1987, the staff quarters of RBI alloted to the plaintiff at R.K. Puram.
14. It is claimed that as the plaintiff got quarters, he stopped sharing the household expenses saying that his HRA was being 1121/06 6/29 deducted from his salary. It is averred that there was no disagreement over this as the defendant never considered his brother as the outsider. It is stated that in 1990, the third daughter of the defendant was also born and the plaintiff was used to be very fond of the his daughter and cared for them as if his own.
15. It is claimed that in the year 1990 he was informed by the plaintiff that RBI has a housing scheme through which houses were being constructed at Shrestha Vihar, Delhi. Plaintiff told him that there was a membership available as one of the officer has resigned from the membership. He was told by the plaintiff that if he wanted the house, plaintiff shall be give application for the membership. Defendant was advised by the plaintiff to invest in the property as he was having three daughters and needed a house, he was further told that neighbours who would all be members of the RBI staff, and defendant's daughters will have good surrounding to grow up. Plaintiff cleared that he did not need the house as he was a bachelor and had no plan for marriage. Defendant was informed that if he could arrange a lump sum amount then the plaintiff could get the allotment done of the house. The house was to be duplex and the price was about Rs. 3,50,000/-. It is stated that as the defendant liked the idea of the plaintiff and he showed his willingness to apply for the allotment. whereafter he started running to collect the sums in urgent manner. For collecting the sums he went to Kerala to sell the gold ornaments of 1121/06 7/29 his wife and sold the same for an amount of Rs.50,000/-. He borrowed an amount of Rs. 25,000/- from his sister in law which he received by way of demand draft and returned to Delhi in one week. As the amount were not sufficient he sold his two shops bearing no. 126/127 DDA flats, Nehru Nagar, and collected another amount of Rs.1,00,000/- from the sale proceeds. Thus the defendant collected an amount of Rs. 1,75,000/- and handed over to the plaintiff for allotment of the flat. Plaintiff also took housing loan of Rs. 1,00,000/-.
16. Defendant states that he was informed by the plaintiff that since there was some income tax issue he has to make record for the amount taken towards gifts and loan. The record was stated to be prepared by him in a particular manner. As the defendant did not have any reason to doubt the intention of the plaintiff he believed the plaintiff's version. The draw of the flat was done in 1992 which was made in the plaintiff's name as he was the employee of RBI. Defendant states that he was informed by the plaintiff that RBI would not permit allotment of flat in the joint names of the parties. Again as the defendant did not doubt the version of the plaintiff he raised no objection for the allotment in the name of plaintiff's alone. Plaintiff further collected few certificates from the defendant stating that both the brothers were co-allotee. Lastly both plaintiff and defendant alongwith his wife and daughters shifted to the said flat.
17. It is claimed that the plaintiff at the age of 48 got interested to 1121/06 8/29 marry and he was co-operated by the defendants for the above purpose. The marriage of the plaintiff was solemnised in January 1997. After the marriage of the plaintiff, parties continued to stay as family and all the expenses were met by the defendant. The parties used one kitchen. Later the first floor bedroom which was till then being used by the defendant and his family was taken by the plaintiff and his wife for sake of their privacy. It is stated that during this period wife of the defendant was hospitalized and many of the relatives and friends came to visit her at their flat. The wife of the plaintiff was having reserve nature did not like defendant's frequent visitors and she started spending more time alone on the first floor. Thereafter the plaintiff's wife became pregnant and started to have independent kitchen on the first floor as it was difficult for her to come down. It is stated that thereafter two kitchen started functioning in the home. Defendant alleges that during this period plaintiff started talking about selling the flat and sharing the proceeds. As the defendant's wife was employed nearby and his daughters were more than accustomed to the neighbourhood, the defendant did not like the idea of selling the house.
18. Defendant claims that as the first child of the plaintiff did not survive and as plaintiff 's wife wanted the sad memories to fade before coming to the flat, plaintiff took rented accommodation at R.K. Puram. After living there for sometime, plaintiff shifted with his wife 1121/06 9/29 and started using first floor exclusively. Family of the defendant with five members found it difficult to accommodate themselves on the ground floor as it had only one Bed Room and one living room. Plaintiff thereafter suggested to divide the living room into two to make additional bed room. Plaintiff again in the month of May 2008 raised the issue of selling the flat and as the defendant had spent more money he demanded the ratio of 60:40 for distribution of the sale proceeds. At that point of time plaintiff brought out the record in which an amount of Rs. 25,000/- only was shown to have been received through defendant's sister in law and balance amount of Rs. 1,50,000/- is allegedly shown to have been contributed by the plaintiff's own resources.
19. It is stated that the plaintiff had even got some papers signed by the defendant at that time, but he did not doubt the intention and motives of the plaintiff. It is stated that the plaintiff did not pay the entire cost of the flat from his own resources and amount paid by the defendant are being fraudulently shown as his resources. Defendant states that he had spend more money on the flat apart from the above amount of Rs. 1,75,000/- which he gave to the plaintiff in cash.
20. Defendant states that the plaintiff got two affidavits prepared on 14/12/90 and got them signed from the defendant. In one of the affidavit it was stated that the defendant has advanced a sum of Rs. 25,000/-out of natural love and affection to enable the plaintiff to meet 1121/06 10/29 the short fall in the cost of the acquisition of the flat at Gharonda Society and in second affidavit it was stated that defendant had gifted a sum of Rs. 20,000/- for the same purpose. Defendant claimed that there were such other affidavits got signed from mother of the parties Smt. Regina Bastian. Defendant claimed that he never thought of situation where the plaintiff would want to turn him and his family out of the flat which he acquired with hard earned money contributed generously by him. It is stated that his "other sources are the contribution of the defendant and other family members including his mother. Defendant states that subsequently to the parties shifted at Gharonda Apartment defendant used to pay all the electricity, water and other expenses till the marriage of the plaintiff whereafter both paid alternatively. Defendant also paid his half share wherever any expenses were involved in the flat. It is alleged that on all occasions plaintiff made sure to take only cash from the defendant leaving no evidence.
21. It is claimed that in April 2005 through mediation of mutual friends of the parties it was decided that the plaintiff would sell his share in the flat to the defendant for an amount of Rs. 12,00,000/- and amount of Rs. 1,50,000/- as advance was to be paid. When defendant approached the plaintiff with agreement to sell and receipt for advance payment of Rs. 1,50,000/-, the plaintiff backed out on some false excuses.
1121/06 11/29
22. While replying on merits, contentions of the plaintiff are denied and disputed. Though it was no denied that the plaintiff is a class III employee in Reserve Bank of Inida, Regional Office, New Delhi. It was denied that plaintiff is an absolute owner and has clear title of residential duplex flat no. B-2, Gharonda Apartments , Shrethra Vihar, Delhi-92. It is further denied that the plaintiff purchased the above said property from his own resources. Defendant alleged that he contributed more than 60% of all the expenses incurred in allotment/purchasing of the flat. It is denied that at present, due to compelling circumstances, defendant has been forced to live in the first floor of the flat. It is averred that defendant alongwith his wife and children have been living in the above said flat since 1994. It is stated that initially plaintiff and his wife were only occupying one room on first floor however with passage of time plaintiff alongwith his wife and daughter has taken over the entire first floor which is under his occupation. Defendant denied that he occupied the ground floor of the property as unauthorised occupant. It is not denied that in 1990 plaintiff was alloted the membership of Gharonda Co-operative Group Housing Society. It is further not denied that in November 1992 by draw of lots a duplex flat no. B-2 at CGHS was alloted to the plaintiff. The dimension of the flat were not denied , however defendant claimed that he has contributed more than 60% in acquisition of the above flat. Defendant did not deny that total cost of the flat was Rs. 3,15,800/-, 1121/06 12/29 however it was disputed that entire amount was paid by the plaintiff through his own saving and resources. It is not denied that possession of the flat was taken on 03/03/93. It is further not denied that plaintiff was bachelor at that time.
23. Defendant did not deny the shifting of parties in 1994 from RBI Staff quarters, R.K. Puram to the suit property. However, it is denied that defendant requested the plaintiff again to allow him and his family to stay with him for a short period till he would get a suitable rented accommodation. Defendant states that there was no occasion or question for the defendant to make any request as property was purchased for the defendant as plaintiff did not contribute towards acquiring of the property and all the jobs of running around was done by the defendant alone. It is stated that the above property had been purchased on account of need of the defendant only. Defendant did not dispute the factum of marriage of the plaintiff in 1997, however he denied that the defendant was not happy with the marriage of the plaintiff as he desired and dreamt of acquiring the aforesaid property by way of inheritence after the demise of the plaintiff. It is denied that the defendant thought that the plaintiff would never marry and defendant would become owner of the entire property. It is further denied that subsequent to the marriage of the plaintiff defendant and his wife became abusive towards plaintiff and his wife. It is denied that defendant has no legal or justified reason to stay in the suit property. It 1121/06 13/29 is further denied that the defendant with his wife became cruel with the plaintiff and his wife and created hindrance in their ingress and egress through the ground floor living room. It is denied that visitors of the plaintiff were stopped and wife of the plaintiff had to suffer more due to longer duration of her stay at home. It is denied that defendant illegally bifurcated well designed living room and covered the balcony completely. It is claimed that an additional room was created on the suggestion of the plaintiff himself as he took over master bed room also on the first floor. It is denied that finally in May 2005 defendant by using muscle power forced the plaintiff to move to the first floor of the flat. Defendant claimed that after the marriage of the plaintiff he started using the first floor execlusively and stopped coming and mixing with family of the defendant. It is further denied that defendant did not allow the plaintiff to use ground floor and occupied it for himself and his family members illegally. It is denied that defendant has no legal, moral or ethical or justified right to occupy the ground floor of the flat.
24. Defendant claimed that entrance of the plaintiff is not through the ground floor living room as the flat has two entrance out of which the entrance near the stair case to the first floor is used by the plaintiff and wife and visitors. It is denied that there is any hindrance to the access or exit of the plaintiff and his visitors. Defendant denied that he tried to prevail upon the plaintiff and /or is becoming more 1121/06 14/29 aggressive and threatening to the plaintiff. It is denied that he ever caused threat to the plaintiff to transfer the flat in his name and/or to face dire consequences. Defendant states that plaintiff himself agreed to transfer the flat in the name of the defendant for consideration of Rs.12 lacs and asked the defendant to raise funds. However amount were arranged by the defendant and a part payment was ready for consideration when the plaintiff changed his mind. It is further denied that the property if given on rent can fetch an amount of Rs. 5000/- per month as rent. Service of notice dated 05/01/06 was also denied. It was denied that defendant was called upon to hand over the vacant peaceful possession of the suit property on or before 04/02/06. Rest of the averments are denied and it is prayed that the suit of the plaintiff be dismissed.
25. Replication was filed wherein contents of the plaint are affirmed and those of WS are denied. It is specifically denied that plaintiff requested the defendant to stay with him. It is claimed that defendant tailed the plaintiff, and even today plaintiff is paying rent as well large portion of the family expenditure. Plaintiff averred that defendant has became greedy and want to grab the entire property despite the fact that he has got his own residential accommodation in Mayur Vihar, instead of staying therein he is running jewellary business in the above residential accommodation. It is alleged that the defendant is also running business of STD booth and is in real estate 1121/06 15/29 business purchasing and selling the property and is earning huge commission. It is claimed that now defendant does not want to leave the suit property which is owned by plaintiff hard earned money. It is stated that there was no necessity for the plaintiff to seek permission of the defendant to become member of the housing society. It is denied that at any stage he expressely or impliedly showed his inclination to give the house to the defendant. It is denied that plaintiff ever made it clear that he did not want any property being bachelor and has no plan to marry. Plaintiff states that in order to arrange for payment of the above said flat he took an amount of Rs,1,25,000/- from RBI which facility available to the bank employees. Plaintiff states to have been making payment of installments even at the time of filing the present suit. It is stated that he borrowed a sum of Rs. 28,000/- from Thrift and Credit Society of RBI. From his personal saving he pooled Rs. 75,000/- and took further loan of Rs. 50,000/- from Sh. M.L. Malikotia. He took Rs. 25,000/- from Ajit Singh Anand, Rs. 25,000/- from Sh. P.S. Kanda all are personal friends of the plaintiff working in the RBI. Rest of the averments made in the WS have been specifically denied. It is denied by the plaintiff that there was proposal of selling the property. It is claimed that there was no question for the defendant demanding the ratio of 60:40 from the sale proceeds as it is claimed that no transaction has been made by the defendant in purchasing the suit property. It is claimed that the affidavits signed by 1121/06 16/29 the defendant himself is reflecting that "the advance is free of interest and repayable at his convenience and that I shall not claim any right, title or interest in or to the said property. I declare that I will not resort to legal process for recovery of the loan granted to him for acquiring the property". It is stated similarly in the another affidavit that defendant himself solemnly affirmed that "I have gifted a sum of Rs. 20,000/- to the plaintiff... out of natural love and affection to enable him to meet the shortfall in the cost of acquisiton of flat at Yozna Vihar , Delhi from Gharonda Co-operative Group Housing Society, New Delhi and that he shall not claim any right, title or interest in the suit property." Plaintiff alleges that out of sheer physical force, tried to force the plaintiff to sell the property to him which has been resisted by the plaintiff constraining the plaintiff to file the present suit. In the backdrop of above, plaintiff prayed for decree the suit.
26. Subsequent to the completion of the pleadings, following issues were framed by my Ld. Predecessor vide order dated 13/10/06:-
1. Whether the plaintiff is sole and absolute owner of the suit property?OPP
2. Whether the plaintiff is entitled for recovery of possession of the suit property?OPP
3. Whether the plaintiff is entitled to recover the mesne profits, If yes at what rate?OPP
4. Relief.
1121/06 17/29
27. Subsequent to framing of issues, misc applications moved by the parties were disposed off and application u/o 11 Rule 14 CPC was dismissed vide order dated 25/02/08. Subsequently application for recall of PW1 for cross examination was allowed. Plaintiff's application u/s 151 CPC for placing three original document on record was also allowed vide order dated 23/04/08. Defendant subsequently moved an application u/o 6 Rule 17 CPC and another application u/o 14 Rule 45 CPC. The above applications were also allowed. Plaintiff in furtherance of his onus put on him, appeared as his own witness as PW1 and also produced Sh. K.K. Sharma as PW2. He produced Sh. M.L. Malkotia as PW3 whereafter PE was closed. Defendant appeared as his own witness and produced Sh. A.P. Chawla as DW1 Asstt. Manager, Establishment Dept. RBI, DW2 Sh. Ajit Singh Anand, DW3 Partho Ghosh , clerk cum cashier , PNB , DW5 Sh. Mahesh Chander Gosain, Manager, PNB. Thereafter DE was closed. Parties were given opportunity to make their oral submissions by way of final arguments. Ld. counsel for the plaintiff appeared and made his oral submissions. He also tendered written submissions. Ld. counsel for the defendant also filed written submissions. I have perused the same and gone through the record.
28. Now I propose to record my findings in the issues as follows:_ ISSUE NO.1 & 2
29. The onus to prove this issue was upon the plaintiff as it was for 1121/06 18/29 the plaintiff to establish that the plaintiff is sole and absolute owner of the suit property. In the plaint itself plaintiff disclosed that by virtue of being employee of RBI as typist in Grade III in permanent post he received an offer to become member of the Gharonda Co-operative Group Housing Society. For which he applied for and received membership . He has stated that an amount of Rs. 3,15,800 which was the total cost of the flat was paid by him form his own hard earning and savings. He also stated to have borrowed some amounts. He disclosed that for the purpose of purchasing the suit property he paid an amount of Rs, 1,25,000/- by taking loan from RBI as per their policy. Defendant has not denied and disputed this fact . There is no cross examination or rebuttal to the aspect that the plaintiff contributed an amount of Rs. 1,25,000/- by taking loan from RBI and has been making payment of installments from his salary. There is no averments at any stage that any contribution in respect of the payment of installments had been made by the defendant directly or indirectly. Defendant has not denied and disputed the fact that the plaintiff took another amount of Rs. 28,000/- from RBI Thrift and Credit Society for payment of the amount to purchase the suit property. Defendant claimed that intention of the plaintiff was to offer the suit property for use and occupation of the defendant and his family members and keeping in mind he was advised to take the membership. Defendant from the above statements is intending to take reference that suit 1121/06 19/29 property was actually purchased for the defendant and his family as the plaintiff since declared his intentions not to settle in his life by contracting marriage. It is averred that in furtherance of the above, the plaintiff advised the defendant to make investment keeping in view that he has three daughters. He was also advised to apply for the membership so as to provide better living environment to his grown up children and good surrounding to himself. The above submissions are showing that the property infact had been bought Benami for the defendant and his family and role of the plaintiff was limited to the extent of taking allotment of membership which was available to him by virtue of his employment. However, defendant has not explained that if the plaintiff's intention was to never keep the property with him and same was being purchased Benami for defendant and his family what occasion arose for the plaintiff to generate advances for purchasing the suit property from his resources. The plaintiff by taking loan of Rs. 1,25,000/- put himself under continuous obligation for many years qua its repayment. For want of any averments of defendant that at any stage the defendant come forward and made payment of EMI, the probabilities of property being purchased for occupation and use of defendant appears to be thin.
30. The plaintiff in furtherance of his claim to have borrowed the amount from his relative and friends has produced Sh. M.L.Malkotia who has affirmed the fact of is providing the amount of Rs. 50,000/- 1121/06 20/29 from his as well as his wife's saving to plaintiff. It is averred that above amount were repaid by the plaintiff installments. The testimony of this witness could not be shaken except for the fact that the affidavit has been signed by the witness at his house and he did not put any attesting signature in the notary register. The above statements is mere technical defect. Defendant failed to produce the concerned notary/ oath commissioner to dispute the affidavit of Sh. M.L. Malkotia to prove that the affidavit was not duly prepared, signed and notarised and rather proceeded to continue with his cross examination on the same affidavit. At no stage defendant asked the witness to tender his evidence orally in court. No request at any stage made for discarding the affidavit. For want of above, the objection/faults qua due notariszation are merely technical and the evidence hence is made an substantial aspects and is above suspicion and reliable.
31. Defendant in his pleadings and cross examination of plaintiff confronted him with the affidavit of Smt. Regina Bastian and plaintiff admitted of having received the amount of Rs. 50,000/- from her. Smt. Regina Bastian is the mother of the parties. By putting the above affidavits to the plaintiff the defendant is deemed to have exhibited its contents. If the amount received by the plaintiff from the above resources and calculated it is shown that the plaintiff received an amount of Rs. 1,25,000/- by loan, another loan of Rs. 28,000/- from Thrift and Credit Society and another loan of Rs. 50,000/- from Sh. 1121/06 21/29 M.L. Malkotia and an amount of Rs. 50,000/- was contributed by his mother. The amount thus which plaintiff generated is about Rs. 2,52,000/-. In such circumstances, the onus shifted on the defendant to prove that the defendant contributed an amount of Rs. 1,75,000/- as is claimed by him. Defendant claimed to have sold gold ornaments of his wife for an amount of Rs. 50,000/-, however he did not produce any material to show the sale of ornaments and or its receipts of Rs. 50,000/-. He did not produce any documentary evidence to show sale of shops bearing no. 126/127, DDA Flat, Nehru Nagar for an amount of Rs. 1 lac. He did not reveal even the name of purchaser and did not bring on record any documentary evidence to show the transaction. He did not produce any material to show receipt of the above amount. Defendant has failed to produce even pass book and/or cheque of the above two receipts qua sale of gold ornaments and sale of his shops, Interestingly, defendant claimed that though he was not the owner of the said shop but title was in his name. He voluntared that after paying sale amount for the above said shops he took possession of the shop after preparation of documents and sold it to another persons. He stated to have purchased the shops for an amount of Rs. 44,000/- in the year 1988. He did not pay any capital gain tax on the profits of sale of these two shops which he alleged to have been sold for an amount of Rs. 1 lac. He stated that he received entire sale proceeds in cash which fact in itself is improbable. Defendant also failed to bring on 1121/06 22/29 record demand draft of Rs. 25,000/- allegedly received by his sister in law for purchasing the above flat. The testimony of Sh. K.K. Sharma who appeared as PW2 is relevant in this regard as he confirmed the signatures on Ex. PW1/1, original possession letter at relevant time. He also confirmed his signatures on documents Ex. PW1/2 issued by the society in the name of the plaintiff qua the inventory of civil items and inventory of electricity items . Documents dated 23/03/05 issued by the society in plaintiffs' favour showing that the plaintiff has cleared dues of the society which may not be objected for conversion of disputed flat to free hold by DDA exhibited by plaintiff as Ex. PW1/3. It is worthwhile to observe at this stage that the defendant who claimed himself to be owner did not make any objections to the efforts of the plaintiff to get the house converted at the time when dispute between the parties came out in open and had also been mediated. Defendant himself made no attempt of any such nature by raising dispute to plaintiff's claiming the ownership of suit property which he alleged to have been owned by him as well. From the above facts plaintiff proved that the he has clear title being owner of the disputed property.
32. The claim of the defendant qua its ownership by virtue of Benami transaction rested on the evidence that he contributed to its purchase. In view of the discussion above, defendant failed miserably to produce any material to show that the contribution of Rs. 1121/06 23/29 1,75,000/- had been made by him from his resoruces for purchasing the flat.
33. Ld. counsel for the defendant argued that statement of the plaintiff is not credit worthy or believable as he admitted the affidavit of Smt. Regina Bastian through which he admitted to have received the amount of Rs.50,000/-. He denied the contribution of Rs. 45,000/- made by the defendant by way of other affidavit, the copies of which have been marked as Mark B. It be observed that the defendant himself did not reveal any sources of his providing amount of Rs.25,000/- and Rs. 20,000/- available to plaintiff by defendant Mark A & B. It is averred by the defendant in the WS that at the time of allotment the plaintiff took his signatures on some documents to keep the record. The defendant at no stage denied or disputed that affidavits were executed in furtherance of same process and at that point of time only. Rather the nature of the affidavit, it is shown that amounts were being handed over due to relations of the parties without giving any rights to the defendant to claim any interest in the suit property. It is settled law that while interpretating the document either complete contents of the documents are to be read or documents is to be rejected. It is not open to argue for defendant to read only that part of the affidavit which favours the defendant while discarding his other statement made in the affidavit. In my view the above affidavit does not help the averments of the defendant.
1121/06 24/29
34. It be observed that plea of the defendant to have right, title or interest in the suit property by way of joint ownership is not substantiated for want of any documentary proof. It is settled law that a person cannot acquire ownership in a property other than as prescribed by the Transfer of Property Act. In the absence of above, plea of the defendant is reduced to having gained title by virtue of Benami transaction. Subsequent to the enactment of Benami Transaction Act the plea of the defendant is barred and no defense on above plea can be permitted to be entertained. Defendant has made no effort to controvert the above proposition. Thus my findings on issue no. 1 &2 rest in favour of the plaintiff and against the defendant. ISSUE NO.3
35. The onus to prove this issue was upon the plaintiff as the plaintiff has to prove his entitlement to claim mesne profits at the rate of Rs. 5000/- per month. Plaintiff sought mesne profits from the date of filing of the suit i.e 25/03/06. He made statement for claiming the above in para no. 9 of the affidavit Ex. PW1/A. There has been no cross examination of the plaintiff on this point. Defendant admitted in his WS as well as in cross examination that both the parties have been living separately having separate kitchen in two portions of the property. Whereas it was claimed that the plaintiff is in exclusive possession of the entire first floor. It was specifically not denied that the defendant and his family have been exclusively retaining entire 1121/06 25/29 ground floor of the property. The property of the plaintiff is situated at the prime location and the area in possession of the defendant is comprising of one living room, one Bed Room, balcony, toilet and bathroom. In view of the fact that defendant is occupying sufficient area in his possession of the suit property which is measuring 1144 sq feet on the ground floor, I am of the view that for want of any other material being produced by the defendant the rent of the suit property can be assessed easily at least @ Rs. 5000/- per month having due regard to its location and surroundings.
ISSUE NO. 4
36. The onus to prove this issue was upon the defendant. It was for the defendant to prove that the plaintiff has committed perjury in the proceedings before the court. In furtherance of the above issue, it is contended by the defendant that the plaintiff got two affidavits prepared on 14/12/90 and took signatures of the defendant thereupon. In one of the affidavit, it is stated that the defendant advanced an amount of Rs. 25,000/- out of natural love and affection to enable the plaintiff to meet the short fall in acquisition of the flat and in the second it was stated that defendant gifted a sum of Rs. 20,000/- for the above purpose. Defendant in furtherance of the above was required to prove the document mark A & B duly. It was also required to be proved that the plaintiff has made false statement by denying contribution of the defendant despite his receiving an amount of 1121/06 26/29 Rs.45,000/- under the above affidavits mark A & B. Defendant was required to show that amount of Rs. 45,000/- changed hands and was received duly by the plaintiff to prove the allegation of perjury. Defendant himself in his cross examination admitted that at the stage of taking the flat by way of allotment of membership, the plaintiff presented to him, his requirement of taking signatures on some document from relevance as was required for the membership and loan. It is the defendant's averments that he signed many documents on mere asking of the plaintiff. Defendant at no stage disclosed the nature of other documents initially, however lateron they were disclosed as documents mark A & B. The execution of above documents is coupled with contention that the documents were not merely executed on asking of the plaintiff subsist the requirement sought for acquisition of the property that the plaintiff received an amount of Rs. 45,000/- and despite the same he made false statement denying of having received the above amount on oath during his examination in court. Defendant sought to prove this fact through his witness, however instead of corroborating the fact of any amount being exchanged by the parties, witness DW1 A.P. Chawla corroborated the contentions of the plaintiff and made statement in plaintiff's favour stating that old loan rules required for filing of such affidavits from relatives of the applicants taking loan from them for the purpose of constructing the house and according to their rules the 1121/06 27/29 plaintiff could have filed the affidavit of his brother and mother for availing loan. There is no dispute to the above statement affidavit which goes to show that the signatures on the documents Mark A & B were mere formalities to secure loan. The affidavit of amount of Rs.45,000/- received by the plaintiff could not have been duly established as no relevant evidence was produced by DW3 and DW5 who were summoned by the defendant. Even otherwise it is settled law that prosecution of a person for perjury is not to be invoked for personal gratification of the parties nursing personal revenge or vendatta. Further the defendant did not produce any document or oral evidence to show plaintiff''s receiving the amounts mentioned in the affidavit. There is no averments that the affidavit have been misused . Defendant did not even raise the issue of execution of the affidavit in favour of plaintiff till the filing of the present suit for the period of 15 years as he was enjoying the fruits of acquisition of the suit property alongwith his family. In such circumstances, I am of the view that defendant has not been able to prove the issue which rest in favour of the plaintiff.
37. The suit is accordingly decreed in favour of the plaintiff for the relief of possession in respect of ground floor of the suit property bearing no. B-2, Gharonda Apartments, Shreshta Vihar, Delhi-110092. Plaintiff is entitled to mesne profits at the rate of Rs. 5000/- per month from the date of filing of the suit till the date of handing over of the 1121/06 28/29 possession. Cost is also awarded on account of court fee. Litigation charges of Rs. 5000/- are awarded to the plaintiff as costs. Decree sheet be prepared. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT NIRJA BHATIA
ON 15/05/2010 SR. CIVIL JUDGE(EAST):
KKD COURTS, DELHI
1121/06 29/29
Suit No. 1121/06
15/05/10
Present: None.
Vide separate judgment, the suit of the plaintiff is decreed with costs. Decree sheet be prepared. File be consigned to Record Room.
NIRJA BHATIA SR. CIVIL JUDGE(EAST):
KKD COURTS, DELHI 1121/06 30/29
38.Plaintiff has detailed that she was married with defendant no.1 as per Hindu rites and ceremonies on 19/02/06. The marriage was solemnized consequent to a love affair between the parties without the consent and permission of family of both sides, and was performed in Arya Samaj Mandir, Jamuna Bazar, Near Dada Darbar, Delhi- 110006. The marriage was also registered vide registration no. ASM/271/06 dated 19/02/06.
39. It is stated that from the marriage of plaintiff and defendant no. 1, defendant no. 2 to 7 were unhappy and desired to break the relations of the parties. They always advised defendant no. 1 to severe his ties with the plaintiff as they wanted him to marry with a girl of their choice. Plaintiff states that after passage of time good sense prevailed upon defendants no. 2 to 7 and they accepted the marriage of plaintiff and defendant no.1. The parties thereafter started visiting the parental house of defendant no.1, however subsequently it was disclosed to the plaintiff by defendant no. 1 that the other defendants were still unable to accept the fact of their marriage and were unhappy with the same. They wanted the parties to severe their relations so that defendant no. 1 could remarry with some other girl of their choice who would bring handsome dowry. It is alleged that due to constant interference the relationship between the parties became weak and the parties indulged in frequent quarrels on petty matters. It is claimed that defendant no. 6 & 7, sisters of defendant no. 1 frequently visited 1121/06 31/29 the plaintiff's house with intention to trigger more fight on petty issues between the parties and subjected plaintiff to taunts, stating that if the defendant no. 1 would have not married with her, he would have been married to a rich girl who would have brought expensive gifts.
40. It is alleged that on 04/02/08 defendant no. 1 alongwith defendant no. 4 Amar Pal Singh came to the house of the plaintiff at about 11. 45 pm whereafter defendant no. 4 straightway entered into her bed room by using criminal force and subjected plaintiff to assault. He outraged her modesty and threatened her either to leave defendant no.1 by divorcing him or she shall face the adverse consequences. She was threatened that defendant no. 1will pour acid on her face after which she will not be able to move in the society. Plaintiff subsequently made a police complaint on 05/02/08.
41. It is claimed further by the plaintiff that on 07/02/08 defendant no. 1 once again came to her house and took away all valuable articles including cash of Rs. 23,000/- which were kept in the house for payment of salary to the staff as well as took two Gold Necklace, 8 gold bangles, two pairs of gold earrings, 4 gold finger rings and 2 sets of silver pajebs worth about Rs.2,00,000/-. The above articles were taken without the consent of the plaintiff.
42. Plaintiff alleges that defendant no. 1 also made telephonic conversation with her threatening her with dire consequences if she did not withdraw her complaint made on 05/02/08. Defendant no.2 to 1121/06 32/29 7 also visited her house and subjected her to threat that if she did not divorce defendant no.1 and withdraw the complaint made by her before the police, she would be burnt alive. The defendants harassed, humiliated and tortured her mentally, physically and economically.
It is claimed that defendant no. 2 to 7 are still bent upon to remarry defendant no. 1 with some other girl without getting divorce from the plaintiff, illegally and in furtherance of above threat she has filed the present suit seeking the relief of injunction for restraining the defendant no.1 from contracting remarriage without obtaining decree of divorce from the plaintiff.
43. Defendants filed joint WS. Several objections were raised by way of preliminary objections. Defendants claimed that suit of the plaintiff is devoid of cause of action and it is barred by the provisions of Order 7 Rule 11 CPC. It was averred that suit of the plaintiff is not maintainable and is barred by section 41(h) of the Specific Relief Act as plaintiff has another efficacious remedy available to her. It was claimed that suit is also bad on account of misjoinder as it was averred that defendant no. 2 to 7 are not the necessary parties for the decision of the present suit. While replying on merits, the factum of marriage on 19/02/06 was admitted, however rest of the contentions and allegations were disputed. It was denied that defendant no. 2 to 7 were unhappy with the marriage of parties and tried their best to break their relations. It was denied that they ill advised defendant no. 1 to 1121/06 33/29 severe his ties from the plaintiff as marriage was solemnized against their wishes.
44. It is stated by the defendants that initially defendant no. 2 to 7 did not consent with the marriage of parties, however subsequent to the marriage being performed they went to bliss them, however it was the plaintiff herself who had no intention to live with the parents of defendant no.1 and compelled the defendant no.1 to leave their house. It is claimed that defendant no.1 was pressurized and under compulsive circumstances having no other alternative he had to 'cow down' to unreasonable and unwarranted demands of the plaintiff as a result of which plaintiff and defendant no.1 started residing at 44, Guru Ram Dass Nagar, Laxmi Nagar, Delhi where the plaintiff is still residing. The premises is stated to have taken on rent of Rs. 3,500/-.
45. Defendant alleged that plaintiff is habitual of picking quarrels and using abusive language and ill treating defendant no.1 who was subjected to mental and physical torture and was lastly thrown out from the matrimonial house by the plaintiff on 04/02/08. It is claimed that plaintiff is guilty of her own mis-deeds which resulted in weakening the ties of the plaintiff and defendant no.1 whereas the defendant no. 2 to 7 have nothing to do with the matrimonial relation of the parties.
46. It is alleged that the plaintiff has some personal agenda and vendetta against the defendants and she is trying to destroy the happy life of defendants in furtherance of her ill intentions and she has 1121/06 34/29 already made life of defendants miserable by filing false case against other defendants as well as defendant no.1. It is claimed that plaintiff has filed criminal complaint before CAW Cell against all the defendants and has levelled serious allegations against the defendants. It is claimed that she has filed a complaint before DCP, East and has also moved a petition u/s 9 of HMA Act which is pending before the court of Sh. Man Mohan Sharma, ADJ, KKD courts. It is claimed that plaintiff has filed another suit which is pending before court of Sh. S.P.S.Laler. Ld. CJ wherein she has impleaded Sh. Ajay Pal Singh, brother in law of the defendant no.1. It is claimed that the plaintiff is habitual of filing false, frivolous and concocted suits as on one hand she has filed a suit u/s 9 HMA and on the other hand she has filed a petition under various provisions of Domestic Voilence Act which was pending before the Mahila Courts. It is claimed that plaintiff has also initiated proceedings u/s 125 Cr. PC and has claimed maintainence from defendant no.1. It is stated that the above acts of the plaintiff reflects that she has no genuine intention to save her matrimonial relations and due to her own frustration she has filed cases against the defendants. It is further claimed that the suit of the plaintiff is based on vague pleadings as she has claimed that the parties indulged in quarrels but she has not given any date or date when alleged quarrels took place. It is alleged that she has fabricated the facts to suit her needs. It is claimed that the plaintiff has made 1121/06 35/29 false story without any substance or merits.
47. Defendant denied that at no stage plaintiff was threatened to leave defendant no. 1 by granting him divorce and to withdraw the complaints as is alleged. It is denied specifically that she was threatened that her face would be disfigured by pouring acid and burnt alive. Incidents of 04/02/08 and 07/02/08 have been denied. It is prayed that the suit of the plaintiff be dismissed with heavy costs.
48. Replication was filed to the WS of defendants wherein contents of the plaint are reaffirmed and those of WS are denied and disputed.
49. Subsequent to the completion of pleadings, issues were framed by Ld. Predecessor vide order dated 26/11/08:-
1. Whether the suit of the plaintiff is barred by section 41(h) of Specific Relief Act ?OPD
2. Whether the defendant no.1 threatened to get re-
married without seeking divorce from the plaintiff and whether the defendant no. 2 to 7 are necessary and proper parties?OPP
3. Whether the plaintiff is entitled for the relief of permanent injunction as prayed? If yes, against which of the defendants?OPP
4. Relief.
50. Thereafter matter was listed for evidence. Plaintiff herself 1121/06 36/29 appeared in support of her case and was subjected to cross examination. Defendant himself appeared as his witness. No other witness were produced. After completion of evidence arguments were addressed by Ld. Counsel and I have gone through the record.
51. Now I propose to record my findings issue wise in the following manner:-
ISSUE NO. 1
52. The onus to prove that the suit of the plaintiff is barred by the provisions of section 41(h) of Specific Relief Act was upon the defendant. It be observed that the above provision qualify the relief sought u/s 38 Specific Relief Act in those cases where another efficacious remedy is available to the plaintiff. The defendant apart from making above submissions did not stress upon the same. No arguments in furtherance of the above objections were made disclosing any other remedy which could be termed more efficacious than the present relief. Averments in this respect appears to mere objections and hence onus is not discharged. The present issue thus rests in favour of the plaintiff and against the defendants. ISSUE No. 2 & 3
53. The onus to prove these issues was upon the plaintiff as she was required to establish that the suit is not bad for misjoinder of defendant no.2 to 7 and that she has a cause of action as well as entitlement to receive the relief prayed for.
1121/06 37/29
54. The entire pleadings of the plaintiff is premised on the averments that defendant no. 2 to 7 have been showing displeasure from the marriage of plaintiff and defendant no. 1 as it is admittedly a love marriage and they were of the view that defendant no. 1 could contract marriage with more suitable girl with rich background who could bring more dowry to the family fold. There is no material on record to establish any of the above contentions. The plaint does not discloses any date when any of the defendants specifically uttered any such statements before the plaintiff. No detail has been furthered to reflect upon any incident and/or spoken words etc in furtherance of the alleged intentions of defendant no. 2 to 7 to actually distract defendant no.1 from the plaintiff. In fact it is admitted that from the date of marriage in February 2006 to August 2006 there has been no contact between defendant no. 2 to 7 and plaintiff who were even not aware about the whereabout of defendant no.1. The lack of intimacy between defendant no.1 and other defendants is admitted by the plaintiff whereas she has disclosed that defendant no. 1 on his birth day on 16/08/06 alongwith plaintiff went to Haridwar without imparting any information to other defendants who contacted the plaintiff to seek the information of his whereabouts. The plaintiff has not made any complaint against the alleged conduct of other defendants to defendant no.1 at any stage showing their displeasure qua the relationship of parties. The fact that she has been enjoying blessings 1121/06 38/29 of the parents and relatives of defendant no. 1 is reflected from this fact that plaintiff is running a beauty parlour and getting income therefrom which is run from the shop owned by defendant no. 4.
55. It be observed that the relief prayed by the plaintiff mainly is to restrain defendant no.1 husband from contracting re-marriage during subsistence of the present marriage. The relief is based upon the rights bestowed upon plaintiff consequent to her, legal status as a wife, the said right of her, put a duty corresponding only in her husband. The plaintiff thus legally has not substantiated the basis for claiming such enforcement qua the other defendants, who are the relatives of her husband and accordingly the cause of action claimed by the plaintiff could be attracted only against defendant no.1. No occasions or material and or provisions prescribed is averred by the plaintiff to show that she is entitled to seek performance of obligation from defendant no. 2 to 7.
56. Further more plaintiff has also failed miserably to establish cause of action in her favour and against the defendants. The plaintiff has not disclosed any relevant material which could show that defendant no. 1 is about to contract the marriage outside the purview of relationship. Plaintiff has admitted to have not seen any advertisement issued in any newspaper seeking alliances for remarriage of defendant no.1. She has not heard any of the defendants to the suit discussing the alliance for defendant no. 1. She 1121/06 39/29 has made no averments of having heard about the name of any girl to be considered for alliance of defendant no. 1. She has not produced any material to reflect that defendant no. 1 was about to be remarried which fact came to her knowledge. The only source claimed for the said information is a threat issued to her on phone. She has detailed no date, day, month or time when the said threat were issued. She has not detailed any telephone number specifically from where threats were issued allegedly. No further fact is disclosed by the plaintiff relating the above. She has also not made any complaint specifically to any authority. She admitted that she did not even tell to her family members who claimed to have been residing with her throughout even prior to the solemnisation of marriage at any stage disclosing her fear or apprehension of defendant's threats of getting defendant no. 1 remarried. Police complaint cited by her which are exhibited as EX. PW1/A and Ex. PW1/B do not detail that she had been threatened by the defendants of the fact that defendant no.1 would get remarriage perform.
57. Furthermore, the relief of permanent injunction is a discretionary relief. Plaintiff has to establish by creditive and reliable evidence that she is entitled to the relief claimed. Plaintiff in her examination and cross examination has made contradictory statements. Even some of the statements are beyond pleadings. Plaintiff in her cross examination conducted on 30/04/09 claims to have been threatened by defendant 1121/06 40/29 no. 4 on phone qua the remarriage of defendant no.1. She has not detailed any such fact in her plaint. For the first time the above statements is made in her evidence which is apparently an improvements made on the previous statements. She further stated that "on 04/02/08 defendant no.4 and his associates whom I did not know came to my residence and threatened to leave defendant no.1". In the relief of her plaint she has claimed that on 04/0208 defendant no. 1 i.e. her husband and defendant no. 4 had come to her residence. The improbabilities of incidents is reflected from her statements wherein she omitted to name the defendant no.1. It is improbable that plaintiff would have forgotten to take the name of her husband while stating about the incident of 04/02/08, had the incident occurred actually. The plaintiff who claimed that defendant no. 4 and his associate had committed the incident of 04/02/08, has not detailed the presence of any other person except her husband and defendant no. 4 in the plaint. In fact in complaint qua incident of 04/02/08 also does not disclose on the above date she had been threatened by defendants qua remarriage.
58. She admitted that she does not know the name of any girl qua whom the proposal for consideration might have come for marriage of defendant no.1.
59. Further in cross examination dated 30/04/09 she claimed that her parents were residing with the parties from the beginning 1121/06 41/29 however she took U turn in her cross examination held on 12/11/09 claiming that there had been no interaction of her parents and brothers with defendant no.1 due to which there was no cordial relations between them. The improbabilities in allegation made by the plaintiff also appears from the fact that defendant no. 1 has been a friend of her brother despite which at no stage she shared her fear and anxiety and ill-treatment committed upon her by the defendants and especially defendant no. 1 to her brother. The above statement reflects a clear lack of cause of action in favour of plaintiff. Statements made beyond pleadings as such cannot be read and relied upon. As the testimony of the plaintiff suffers from infirmity and is not creditive enough, I am of the view that plaintiff has failed to prove her entitlement to the relief claimed. The suit is accordingly dismissed. Decree sheet be prepared. File be consigned to Record Room after completion of necessary formalities.
1121/06 42/29