Delhi High Court
S Srinivas Raju vs S Ravi Raju & Anr on 15 September, 2014
Author: G.S.Sistani
Bench: G.S.Sistani
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision :15th September, 2014
+ CS(OS) 1711/2010
S SRINIVAS RAJU ..... Plaintiff
Through: Mr.Subhash Oberoi, Advocate
versus
S RAVI RAJU & ANR ..... Defendant
Through
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J. (Oral)
1. Present suit has been filed by the plaintiff for declaration and permanent injunction. Summons in the suit and notice in the application under Order XXXIX Rule 1 & 2, were issued on 25.08.2010. Defendant no.2 entered appearance on 28.11.2010 and sought time to file written statement. Fresh summons were issued to defendant no.1 on 28.10.2010, 04.02.2011 and 25.04.2011. Thereafter, plaintiff filed an application under Order 22 Rule 4 for bringing legal representative of defendant no.1 on record as defendant no.1 expired on 16.05.2011. Legal representative of defendant no.1, Ms. Prasanna Surabhi was impleaded on 07.02.2012. None has chosen to contest the matter. Statement of defendant no.2 was recorded on 04.02.2011 and same is reproduced herein below:
"18 CS(OS) 1711/2010 Date:04.02.2011 CS(OS)No.1711/2010 Page 1 of 7 STATEMENT OF MR. RAVI KUMAR SOLANKI, S/O LATE SH. RAJVEER SINGH, AGED- 40 YEARS, R/O G- 4, BLOCK-G, POLICE STATION, SAROJINI NAGAR, DELHI- 110023.
ON SA I am the defendant No.2 in above case. I am the director of M/s B.R.S Estates Pvt. Ltd. running the business of commission agency dealing with the properties. My office is situated at 131-B, Somdutt Chambers - 1,5,Bhikaji Cama Place, New Delhi- 110066. I do not know the plaintiff. I know defendant no.1 Ravi Raju had come to my office twice. I have no intentions to deal with the suit property bearing no. B-5/117, Safdarzung Enclave, New Delhi.
Since I have nothing to do with the parties to the suit and with the property in question, I may be discharged from this case.
RO&AC A.S JAYA CHANDRA
P Joint Registrar
Dated:4.2.2011"
2. Ms. Prasanna, legal representative of defendant no.1 had also filed a no objection affidavit. Relevant paragraph 3 of the affidavit has been reproduced herein below:
"3. That I state that I have no right or interest in the property in question and I have no objection if the relief as prayed for is granted to the plaintiff. I further state that the deponent shall not claim or challenge any right or interest in the said property in question in future nor will challenge the instant affidavit at any point of time being made out of my own free will and consent."
3. Plaintiff has filed his affidavit by way of evidence and same has been exhibited as Ex.PW1/A. PW1 has deposed in his affidavit that that he has CS(OS)No.1711/2010 Page 2 of 7 been residing at property no.B-5/117, Safdarjung Enclave, New Delhi (hereinafter referred to as „suit property‟), alongwith his wife and two minor children. He has deposed that he is the sole and absolute owner and in possession of the suit property. Copy of Election ID card and passport issued in favour of PW1 and his wife showing the address, have been exhibited as Ex.PW1/1 and Ex.PW1/2, respectively.
3. PW1 has further deposed that defendant no.1 was his elder brother and defendant no.2 is local property dealer. He has also deposed that defendant no.1 in collusion and connivance with defendant no.2, were trying to forcibly dispossess PW1 and his family from the suit property.
4. PW1 has also deposed that the suit property is lease hold property allotted by DDA vide a perpetual lease deed in favour of the mother of PW1, Mrs. S. Janaki, which was her self acquired property. It has also been deposed that apart from the suit property, the parents of the PW1 and defendant no.1 had owned and possessed various other moveable and immoveable properties such as agricultural land in Village -Vedireswaram, Taluk- Kothapeta, District-East Godavari and 11.98 acres of agricultural land in Minimanchipadu, Poduru, Gummaluru of Narsapur Taluk, West Godavari District, Rs.5,00,000/- obtained by selling the lands and house No.42, and a plot of 410 sq. yds. at Panjagutta Nagarjuna Co-operative Housing Society, Hyderabad.
5. PW1 has next deposed that till 1984, the parents of PW1 and defendant no.1 has been using and enjoying various moveable and immoveable properties and they were living together in a joint family. However, defendant no.1 consciously started asking for partition as he wanted to live separately with his family. Therefore, in order to avoid any dispute, parents of PW1 partitioned all their properties and assets vide a family CS(OS)No.1711/2010 Page 3 of 7 settlement dated 31.01.2985. A copy of family settlement dated 31.01.2985 has been exhibited as Ex.PW1/3.
6. Further, as per the terms of the settlement, suit property had fallen into the share of PW1, whereas various properties in Andhra Pradesh had fallen into the shares of other two brothers of PW1 respectively who have been using, enjoying and occupying the same. PW1 had been residing in the suit property with his parents. It has also been deposed that mother of PW1 also executed a registered Will dated 01.06.1998, whereby she bequeathed the entire suit property to PW1. A copy of the Will dated 01.06.1998 has been exhibited as Ex.PW1/4. It has also been deposed that defendant no.1 had never stayed in the suit property. Mother of PW1 expired on 02.01.1998 and after the death of mother, the father of PW1 had been residing with him till he also expired on 11.06.2003.
7. PW1 has also deposed that on the basis of the Will dated 01.06.1998 as had been executed by his late mother and other relevant documents as were necessary for the purpose of mutation of the property, PW1 had applied with the DDA for mutation of the property in question in his favour.
8. PW1 has next deposed that he received a letter dated 12.02.2007 from the office of Deputy Director (LA) DDA, that defendant no.1 had filed an objection vide letter dated 03.01.2007, thus DDA had failed to mutate the suit property in the name of PW1. Officials of DDA had twice asked defendant no.1 to submit documents and to appear in person on 26.2.2007 to provide necessary documentary evidence in support of his claim. The officials of the DDA had further given the said date as last opportunity to provide the documents and to attend the hearing failing which they will proceed further in the matter without any further intimation. Despite having given last opportunity to provide necessary documentary evidence CS(OS)No.1711/2010 Page 4 of 7 to prove the defendant‟s no.1 claim, the officials of DDA had further sent another notice dated 30.7.2007 and thereafter once again on 7.9.2007, asking the defendant no.1 to appear in person on 27.9.2007 and to produce documents, if any, as final opportunity to prove his claim by providing necessary documentary evidence in his favour. Despite giving final opportunity to the defendant no.1, the officials of the DDA have till date failed to proceed further in the matter or mutate the property in the name of the deponent. A copy of the letters dated 12.2.2007 and 10.9.2007 have been exhibited as EX. PW1/6 and PW1/7, respectively.
9. PW1 has further deposed that he has been employed in a Multinational Company in Singapore as a Business Development Consultant and due to exigencies of his work, he has to live in Singapore and has to travel a lot, leaving behind his wife and two minor children, who are studying in Delhi, because of which PW1 is personally unable to remain and guard the property all the time. In view of the rapid increase in prices, the defendant no.1, who is having evil designs over the suit property, with a sole oblique motive and malafide intention to somehow usurp and grab the property in connivance with the defendant no.2, raised a vague and baseless objection with the DDA, without any document, right or locus to raise such an objection or without any documentary proof of the same, since he had acted upon the terms and conditions of the family settlement deed dated 31.1.1985 Though the eldest brother of PW1, who was also a party to the family settlement vide his letter addressed to DDA, had given his no objection affidavit to the DDA and before the probate Court as well, so that the mutation can be done in the exclusive name of PW1 at the earliest as per the family settlement and last wishes of his mother.
10. PW1 has further deposed that in view of false and frivolous objections having been raised with the DDA by the defendant no.1, and knowing his CS(OS)No.1711/2010 Page 5 of 7 greedy nature and dishonest intention, PW1 was constrained to approach the court of law by filing a petition seeking letter of administration in respect of the property in question by virtue of the registered Will dated 1.6.1998, which is pending adjudication before the ADJ, New Delhi.
11. Further, on 16.11.2009, defendant no.1 had tried forcefully to trespass into the suit property and tried to occupy the premises claiming to be a part owner of the suit property. However, he could not succeed as the neighbors and local security guards intervened and threatened to call the police. Again on 17.11.2009, defendant no.1 alongwith defendant no.2 and some accomplices came to the suit property and tried to break open the lock of the front gate. The neighbors and other residents of the locality have once again stopped the activities of defendants.
12. PW1 has also deposed that thereafter PW1 through his advocate had got published a public notice dated 23.11.2009, informing the general public at large that PW1 is the sole and absolute owner of the property in question and nobody except him has any right, title or interest in the said property and anybody dealing with the aforementioned property with anyone except PW1 then they shall be doing so at his own risk, cost and consequences. Apart from the above public notice, PW1 had also lodged a police complaint on 31.12.2009, so that he can protect his property from being trespassed into or from being forcibly disposed at the hands of the defendants and their goons and antisocial elements. A copy of the public notice and police complaint dated 31.12.2009 have been exhibited as Ex. PW1/9 and Ex. PW1/10, respectively.
13. PW1 has next deposed that his eldest brother also condemned the acts and actions of defendant no.1 and had also written a letter dated 6.8.2010 to the SHO Safdarjung Police Station and other concerned authorities concerning the safety of PW1 and his family members. It has also been CS(OS)No.1711/2010 Page 6 of 7 deposed that till date the police officials have not taken any action in the matter, against the defendant no.1, therefore, PW1 has filed the present suit. A copy of the letter dated 6.8.2010 has been as Ex. PW 1/11.
14. I have heard counsel for the plaintiff and carefully perused the documents which have been placed on record along with the affidavit by way of evidence which has been filed as also the affidavit and the statement of the defendants.
15. In view of the evidence, which has gone un-rebutted and unchallenged and the stand taken by the defendant no.2 and legal representative of defendant no.1, the present suit is decreed.
16. Decree sheet be drawn up accordingly.
(G.S.SISTANI) JUDGE SEPTEMBER 15, 2014 ssn CS(OS)No.1711/2010 Page 7 of 7