Delhi District Court
Smt. Chhaglam Devi vs Mr. Rakesh Dass on 29 August, 2018
IN THE COURT OF VIPLAV DABAS,
CIVIL JUDGE01, CENTRAL DISTRICT, DELHI
New Suit No.593868/2016
Smt. Chhaglam Devi
W/o late Jaikaran Dass
R/o 5770, Mohalla Sikligran,
Nabi Karim, Pahar Ganj, New Delhi. .........Plaintiff
Versus
1. Mr. Rakesh Dass
S/o Late Banarsi Dass @ Santosh Dass
R/o Apt. Blk. 180, Pasir Ris,
St11.#0902, Singapore510180
2. Mr. Jagmandar Dass
S/o Late Banarsi Dass @ Santosh Dass
R/o Apt. Blk. 352C,#05243,
Canberra Road, Singapore753352
3.Mr. Joginder Dass
S/o Lt. Banarsi Dass@Santosh Dass
R/o Apt. Blk. 361, Yishun Ring Road,
#031660, Singapore760361. ...........Defendants
Date of institution of suit : 13.01.2015
Date of pronouncement of Judgment : 29.08.2018
SUIT FOR PERMANENT INJUNCTION.
JUDGMENT
1. The present suit has been filed for permanent injunction. It is stated Smt. Chhaglam Devi vs Rakesh Dass & Ors Suit No.593868/2016 Page 1 of 10 in the plaint that the plaintiff is a widow lady and is the coowner and in possession along with her sons namely Gagan Dass and Chetan Dass of the built up to ground floor at property No. 5770, area measuring 50 square yards, Mohalla Sikligran, Nabi Karim, Pahar Ganj, New Delhi and property No. 5861, area measuring 25 square yards, built up to third floor, Mohalla Sikligran, Nabi Karim, Pahar Ganj, New Delhi(hereinafter referred to as suit properties), being a legal heir of late Jaikaran Dass and the defendants are the brother in laws of plaintiff and residents of Singapore.
2. The brief facts of the case are that the son of the plaintiff namely Gagan Dass has filed a criminal complaint case under Section 200 and 156(3) Cr.P.C. against the defendants which is clubbed with FIR No. 81/2013 and both are still pending before Sh. Ankit Singla, the then Ld. MM, Saket Court Complex, New Delhi and has also filed Civil Suit for Permanent Injunction vide Suit No. 443/2013 against defendants which is pending before Ms. Jyoti Kler, the then Ld. Judge, Saket Court Complex, New Delhi. It is further averred in the plaint that Late Banarsi Dass @ Baba Santosh Nath, father in law of plaintiff has executed Three Wills dated 19.05.1988, 24.01.1990 and 05.12.1995 during his life time and initially he executed Will dated 19.05.1988 in respect of different acquired properties i.e. (1) P81 South Extension, Part2, New Delhi, area measuring 200 square yards (2) R25, Rita Building Shakarpur consisting 24 shops(3) Flat No.2, Ist Floor, Stutee Building, Karol Bagh, New Delhi Smt. Chhaglam Devi vs Rakesh Dass & Ors Suit No.593868/2016 Page 2 of 10 (4) Property Nos. 5861 and 5770, Mohalla Sikligran, Nabi Karim, Paharganj, New Delhi, in favour of husband of plaintiff and defendants and that thereafter Late Banarsi Dass @ Baba Santosh Nath has made a Declaration Deed which was got registered on 06.12.1995 with Sub Registrar, Delhi and bequeathed his movable and immovable properties situated in India and Singapore. It is further averred that after execution of Declaration Deed by Late Banarsi Dass @ Baba Santosh Nath, the previous Will dated 19.05.1988 stands cancelled as null and void and Will dated 24.01.1990 was changed as Declaration Deed was last bequeath of Late Banarsi Dass @ Baba Santosh Nath in respect of his entire properties situated in India and Singapore.
3. It is further averred in the plaint that Smt. Saroj Devi and Smt. Mansa Devi(sisters of defendants) have filed suit for Permanent Injunction against son of plaintiff just to harass and extort the money on the basis of unknown documents, which was later on withdrawn by them from the Court of Sh. Surabhi Sharma Vats, the then Ld. SCJ, Saket Courts, Delhi. It is further averred in the plaint that the plaintiff found the copy of the said Declaration Deed from Samadhi of Baba B.D. Santosh Nath when the plaintiff arranged there. It is averred that the original Declaration Deed along with other original documents are kept with Mr. Rakesh Dass and Mr. Jagmander Dass, who have broken the Almirah of Late Baba Banarsi Dass @ Baba Santosh Nath after his death and that the said fact is confirmed by the hand written letter dated Smt. Chhaglam Devi vs Rakesh Dass & Ors Suit No.593868/2016 Page 3 of 10 19.08.1996 which was written by defendant No.3 to his elder sister namely Ms. Mansa Devi. It is further averred that defendants have concealed the said Declaration Deed and other documents of properties situated in India and Singapore with malafide intention from the family of plaintiff as well as from the Court of Sh. Naresh Kumar, the then Ld. CJ, Delhi in partition suit vide No. 241/1997 and that the defendants have intentionally not appeared and contested the partition suit filed by the husband of plaintiff because defendants did not want to divide the properties of Singapore left by Late Banarsi Dass @ Baba Santosh Nath among all legal heirs and that the said properties were fraudulently kept and hold by defendants and no share was given to husband of the plaintiff. It is further averred that the plaintiff served the legal demand notice dated 01.10.2010 to the defendants and claimed her share therein and that the plaintiff has also given written application in High Commission of Singapore in India to file appropriate suit in Singapore. It is further averred that the defendant No.3 hatched criminal conspiracy in connivance with other defendants and prepared false NOCs cum undertaking, Affidavit and Attorney dated 29.05.1996 and 08.06.2011 on behalf of husband of plaintiff in respect of property No. P81, South Extension, Part2, New Delhi and also in respect of suit properties with intention to dispose off the same while the husband of the plaintiff died on 04.05.2009. It is further averred that thereafter defendant No.1 and 2 sent email to Registrar, Krishna Kunj, Shahdra, Delhi that they have never authorised defendant No.3 or any person in any transaction with Smt. Chhaglam Devi vs Rakesh Dass & Ors Suit No.593868/2016 Page 4 of 10 regard to any property. It is further averred that the husband of plaintiff was in bonafide belief that late Baba Banarsi Dass @ Baba Santosh Nath executed his last Will dated 24.01.1990 and relying upon the same had filed the suit for Partition of entire properties including the suit properties bearing Civil Suit No. 241/1997 and Hon'ble Court vide Exparte Preliminary Decree dated 09.04.2004 by holding last Will of Late Baba Banarsi Dass Dangi @ Baba Santoshi Nath if the Will dated 24.01.1990 is the last Will and that the said preliminary decree was passed by then Ld. Court on confirmation of defendants which was sent by way of joint affidavit dated 12.11.1997. It is further averred that the defendant NO.1 and 2 had moved an application under Order 9 of CPC to set aside the preliminary decree after about period of ten years only against one legal heir namely Gagan Dass just to harass him. It is further averred that defendant No.3 in connivance with other defendants sold the property of Karol Bagh to Sh. Vivek Jalan M/s Kartik Infracon Pvt Ltd on 27.02.2012 on the basis of false and forged documents wherein he claimed himself to be the sole owner of the Karol Bagh property and that defendant No.3 in connivance with defendant No.1 and 2 sold the property bearing No. R25, Shakarpur to Sh. Anil Vohra on 08.04.2001 and thereafter defendant No.1 and 2 also sold the property of Shakarpur to Smt. Manju Tyagi on 13.03.2013 on the basis of previous Will dated 19.05.1988 and when plaintiff came to know the illegal acts of the defendants then plaintiff filed a Written complaint dated 28.04.2012 against the defendants in the police station Hauz Khans and police station Smt. Chhaglam Devi vs Rakesh Dass & Ors Suit No.593868/2016 Page 5 of 10 Shakarpur and that Sh. Anil Vohra has also filed criminal complaint under Section 200 and 156(3) Cr.P.C. titled as Anil Vohra vs Rakesh Dass etc for cheating, forgery, criminal intimidation and criminal conspiracy. It is further averred that the plaintiff is in apprehension that the defendants can sell or enter into agreement for sale or to create third party interest or dispossess the plaintiff from the suit properties as they have previously cheated the plaintiff in properties situated at Karol Bagh, South Extension, Shakarpur and Singapore as they have grabbed the share of husband of plaintiff in property of Singapore, which were left by late Baba Banarsi Dass @Baba Santosh Nath. It is further averred that in October 2011 and February 2012, the defendant no.3 visited the suit properties and extended threats to dispossess the plaintiff and that defendant No.1 and 2 had also visited the suit properties in March 2013 and tried to dispossess the plaintiff from the suit properties.
4. It is further stated that the cause of action has arisen in favour of the plaintiff and against the defendants firstly in October 2011 and in February 2012 when defendant No.3 visited the suit properties and threatened the plaintiff to dispossess from the suit property and that cause of action further arose in March 2013, when defendant no.1 and 2 in connivance with defendant No.3 threatened the plaintiff to dispossess from the suit properties and that cause of action further arose in March 2014 when plaintiff came to know from reliable sources that defendant No.1 has tried to search prospective buyers of the suit properties and that Smt. Chhaglam Devi vs Rakesh Dass & Ors Suit No.593868/2016 Page 6 of 10 the cause of action is still subsisting as defendants are extending threats to dispossess the plaintiff from the suit properties whenever they visited India.
5. Summons were issued to all the defendants and the same were served upon the defendant No.1 on 24.07.2015, however, despite service, the defendant No.1 failed to appear and therefore, vide Order dated 28.01.2016 the defendant No.1 was proceeded exparte. Upon service of summons upon defendant No.2, SPA of defendant No.2 appeared and filed application for condonation of delay in filing the written statement on behalf of the said defendant and the said application for condonation of delay was dismissed and the written statement filed on behalf of defendant No.2 was taken off the record and his defence was struck off. Thereafter the matter was listed for recording of plaintiff's evidence.
Evidence
6. Plaintiff in order to prove her case examined herself as PW1 by tendering evidence by way of affidavit and she relied upon the documents i.e. (Ex.PW1/1)(OSR) copy of Election Identity Card, (mark X)copy of Electricity Bill dated 29.12.2014, (mark Y)copy of Electricity Bill dated 29.11.2014, (Ex.PW1/4)Site Plan of the suit properties, (mark A) copy of Declaration Deed, (mark B) copy of letter dated19.08.1996, (mark C) copy of legal demand notice, (mark D) copy of NOC cum Undertaking dated 08.06.2011, (mark E) copy of affidavit dated Smt. Chhaglam Devi vs Rakesh Dass & Ors Suit No.593868/2016 Page 7 of 10 29.05.1996, (mark F) copy of Email.
7. Thereafter, plaintiff's evidence was closed on 26.07.2018 upon separate statement of plaintiff recorded to this effect and the matter was proceeded for final arguments.
8. Exparte final arguments were heard on behalf of plaintiff and record has been carefully perused by this Court.
9. The suit has been filed within the period of limitation. This Court has jurisdiction to try the present suit.
10. Record shows that the plaintiff is claiming herself to be one of the coowners of the suit property and has filed this suit seeking injunction thereby restraining the defendants from creating third party interest and from forcibly dispossessing the plaintiff. It is evident that the plaintiff has neither filed nor proved any original document suggesting that she is one of the coowners of the suit properties, which is a material omission on the part of the plaintiff and the mere oral averments regarding the aspect of coownership are not sufficient for establishing ownership in the suit properties. It is further clear from the testimony of the plaintiff that even the Declaration Deed has not been filed in original, which is again a material omission on the part of the plaintiff. Perusal of the affidavit in evidence of the plaintiff reveals that she has stated that she came to know Smt. Chhaglam Devi vs Rakesh Dass & Ors Suit No.593868/2016 Page 8 of 10 from reliable sources that in March, 2014 the defendant No.1 has tried to search the prospective buyers of the suit properties. Regarding the said averments, no independent evidence was led by the plaintiff by either calling those reliable sources in evidence or by filing certain document suggesting that the defendant No.1 was trying to create third party interest by searching prospective buyers. In the absence of any independent evidence regarding the aforesaid fact, sole testimony of plaintiff cannot be relied as the same is merely a hearsay and she has neither seen nor heard the defendant No.1 searching the prospective buyers of the suit properties.
11. Considering the aforesaid observations, this Court is of the view that plaintiff has failed to give rise to preponderance of probabilities suggesting that attempts were made by the defendant No.1 to create third party interest by searching the prospective buyers of the suit properties. In view of aforesaid observations, the prayer seeking restraint order against creating third party interest by the defendants is rejected.
12. However, the entire testimony of PW1 regarding the aspect of threats extended by the defendants to forcibly dispossess the plaintiff has gone unchallenged. I have no reason to disbelieve the testimony of this witness qua the said aspect which established that plaintiff is in possession of suit properties, that the defendants attempted to dispossess the plaintiff from the suit properties forcibly and also threatened the Smt. Chhaglam Devi vs Rakesh Dass & Ors Suit No.593868/2016 Page 9 of 10 plaintiff to dispossess her from the suit properties and thus the plaintiff is entitled to protect her possession by seeking the relief of injunction against forcible dispossession.
13. In view of aforesaid uncontroverted and unchallenged testimony and discussion, the present suit is partly decreed in favour of the plaintiff and against the defendants thereby restraining the defendants, their agents, successors, assignees, attorneys etc from dispossessing the plaintiff from the suit properties No.s 5770 & 5861, Mohalla Sikligram, Nabi Karim, Paharganj, New Delhi(as shown in the site plan)without due process of law.
Costs are also awarded in favour of the plaintiff.
Decree sheet be prepared accordingly.
File be consigned to the record room after due completion.
Digitally signedVIPLAV by VIPLAV DABAS DABAS Date: 2018.08.30 17:30:58 +0530 Announced in the open Court (Viplav Dabas) on 29.08.2018 Civil Judge01/Central, Tis Hazari Courts/Delhi. Smt. Chhaglam Devi vs Rakesh Dass & Ors Suit No.593868/2016 Page 10 of 10