Delhi District Court
Sh. Vijay Kapoor vs Smt. Shanti Kapoor on 24 September, 2009
IN THE COURT OF Dr. KAMINI LAU: ADDL. DISTRICT
JUDGE-13: CENTRAL DISTRICT: DELHI
CS No. 329/2004
Date of Institution: 21.3.2000
Sh. Vijay Kapoor
S/o Late Sh. Rallia Ram Kapoor
R/o-19/27, Punjabi Bagh (East),
New Delhi -110026.
......... Plaintiff
VERSUS
1. Smt. Shanti Kapoor
W/o- late Shri Rallia Ram Kapoor,
R/o-19/27, Punjabi Bagh (East),
New Delhi-110026.
2. Ms. Shashi Kapoor,
D/o Late Shri Rallia Ram Kapoor,
R/o-19/27, Punjabi Bagh (East),
New Delhi-110026.
3. Smt. Veena Khosla,
W/o Shri Vinod Khosla,
R/o 8-A/36 WEA, Karol Bagh,
New Delhi-110005.
4. Shri Vinod Khosla,
S/o- late Shri Diwakar Khosla,
R/o 8-A/36 WEA, Karol Bagh,
New Delhi-110005.
5. Shri Rajiv Ohlan,
S/o- Shri Hawa Singh Ohlan,
R/o AB/16, Mianwali Nagar,
Paschim Vihar, New Delhi.
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6. Shri Sanjiv Ohlan,
S/o Shri Hawa Singh Ohlan,
R/o AB/16, Mianwali Nagar,
Paschim Vihar, New Delhi. .
.......... Defendants
CS No. 330/04
Date of Institution: 20.4.2000
Shri Sanjeev Ohlan
S/o Shri Hawa Singh
R/o H. No. 19/27, Punjabi Baagh,
East, New Delhi - 110026
................ Plaintiff
VERSUS
1. Vijay Kapoor
S/o Late Shri Ralia Ram Kapoor
R/o First floor of Property No. 19/27,
Punjabi Bagh, New Delhi
2. Asst. Commissioner of Police
Service be effected at PS : Punjabi Bagh
New Delhi.
3. Station House Officer
PS: Punjabi Bagh,
New Delhi
............. Defendants
CS No. 331/2004
Date of Institution: 31.5.2001
Shri Rajiv Ohlan
S/o Shri Hawa Singh
R/O AB16, Miyanwali Nagar
Paschim Vihar, New Delhi.
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Through its Gereral Attorney
Shri Hawa Singh
S/o late Shri Ram Swaroop
R/o AB16,Miyanwali Nagar,
Paschim Vihar, New Delhi
.............Plaintiff
VERSUS
Shri Vijay Kapoor
S/o Late Shri Rallia Ram Kapoor
R/o 19/27, First Floor Punjabi Bagh
East, New Delhi
.........Defendant
Arguments Heard on: 11.8.2009
Last date for filing written synopsis: 31.8.2009
Date of Decision: 24.9.2009
-: J U D G M E N T :-
Vide this common order I propose to dispose off
three suits i.e. suit bearing no.329/04 under the title 'Vijay
Kapoor Vs. Shanti Kapoor & Ors.'; Suit bearing no.330/04
under the title 'Sanjeev Ohlan Vs. Vijay Kapoor & Ors.' and
suit bearing no. 331/04 under the title 'Rajiv Ohlan Vs. Vijay
Kapoor & Ors.'.
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The suits bearing CS No.329/04 under the title
'Vijay Kapoor Vs. Shanti Kapoor & Ors' and suit bearing CS
No.330/04 under the title 'Sanjeev Ohlan Vs. Vijay Kapoor'
were consolidated by the Ld. Predecessor of this court in Suit
No. 330/04 on 23.10.2003. Thereafter, a joint request was made
by the parties for consolidation of all the three cases and the
evidence was lead in only one case i.e. suit bearing CS
No.329/04 to be adopted in the other suits bearing CS
No.330/04 and CS No.331/04 as well. The case file of suit
bearing CS No.329/04 is being taken as the principal file and all
the three suits are being disposed off vide this common
judgment.
B R I E F F A C T S:
SUIT NO.329/04
(Vijay Kapoor Vs. Shanti Kapoor & Ors.)
In so far as the suit bearing no.329/04 is concerned
the same had been filed by Vijay Kapoor seeking mandatory
and perpetual injunction and other consequential reliefs. The
brief facts of the case are as under:
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PLAINTIFF'S CASE:
(Vijay Kapoor)
The plaintiff Vijay Kapoor has approached this
court in the present suit praying for a decree of declaration
thereby declaring Conveyance Deeds signed by defendant No.1
in favour of defendants 5 & 6 in respect to immovable property,
the family dwelling house known as 19/27, Punjabi Bagh (East),
New Delhi-110026, being conveyance deeds registered as
document No. 1402, Addl. Book No.1, Volume No. 9481 pages
128 to 133, document No. 1403 Addl. book No. 1, Volume No.
9481 pages 134 to 139 and rectification deed dated 21.2.2000
registered as document No. 1779 between defendants 1 & 6 as
invalid and void respecting share of plaintiff in dwelling house
known as 19-27, Punjabi Bagh (East), New Delhi-1100063. He
has also sought a decree of perpetual injunction restraining
defendants 5/6 from claiming possession of ground floor and
first floor of above said property under the cover of covenants
of the above said conveyance deeds. He has further sought a
decree of perpetual injunction restraining defendants 5 and 6
from interfering in plaintiffs use, possession and enjoyment of
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dwelling house known as 19/27, Punjabi Bagh (East), New
Delhi-110026 consisting of ground floor and first floor in any
manner and a decree of mandatory injunction directing
defendants 5 & 6 to transfer share of defendants 1 to 3 in above
said property in favour of plaintiff on pro-rata value disclosed
in above said sale deeds or such other value as fixed by this
Court.
The case of the plaintiff is that he and the
defendants no. 1 to 4 are related to each other as under:-
Shri Rallia Ram Kapoor
(Dated on 20.7.1996)
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Smt. Shanti Kapoor
(wife)
( defendant no. 1)
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Smt. Veena Khosla Vijay Kapoor Shashi Kapoor
(married daughter) (son) (daughter)
(defendant No.3) (plaintiff) (defendant No.2)
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Vinod Khosla
(husband of deft. 3)
(defendant No. 4)
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It is pleaded that the suit property is dwelling house bearing no. 19/27, Punjabi Bagh (East), New Delhi, consisting of ground floor and first floor built on plot of land measuring 279.05 Sq. Yds., bounded on North by House No. 17/27; South by House No. 21/27; East by Service Lane and West by Main Road. The said property is in occupation of undivided family consisting of plaintiff, defendant No.1 and 2 and the defendant No.3 being the married daughter of deceased Shri Rallia Ram Kapoor, since married to defendant No.4 has her own matrimonial home at the address. It is pleaded that the ground floor of the property is occupied by plaintiff, defendant No.1 & 2 and the first floor of the property is occupied by family members of plaintiff. According to the plaintiff the defendants 3 & 4 are creating differences between plaintiff and other family members for over the last 8-10 years and there are not even talking terms between the plaintiff and the defendants. It is also pleaded that during the life time of plaintiff's father, the defendants 3 & 4 coerced and instigated him to litigate with plaintiff and after his death the design continues to be followed by them for defendants 1 & 2 under advice of their friend Mr. 7 S.C. Arora, Advocate.
According to the plaintiff, after the death of his father the aforesaid persons based upon the purported Will of deceased Rallia Ram Kapoor dated 28.6.1993 scribing the name of Shri S.C. Arora, Advocate as the sole witness built litigation by having Probate Case No. 402/1996 in the name of defendants No.1. It is stated that whenever the defendants 3 & 4 visited the family house at 19/27, Punjabi Bagh (East), New Delhi, they threatened the plaintiff of dire consequences and instigated defendants 1 & 2 to take fight with plaintiff and at many occasions police had to be called to preserve peace and to prevent visit of defendants 3 & 4. It is alleged that on the morning of 19.2.2000 defendants 3 & 4 accompanied by defendants 5 & 6 whose names the plaintiff learnt in the presence of police officials called by plaintiff, desired to occupy the rooms at ground floor which were earlier occupied by defendant 5 & 6 by placing their belongings in the same. The plaintiff resisted the same and called the local police and could save from attempt of above said defendants to come in possession of ground floor. It is stated that the defendants 3 to 8 6 claimed sale of dwelling house by defendant No.1 in favour of defendants 5 & 6 and except stating the said claim, no proof in support or claim was produced by such persons. Thereafter, the plaintiff inspected records of the registering authority at Janakpuri the District Registration Office, in whose jurisdiction the plaintiff's property is situated and after inspection the plaintiff found that defendant No.1 executed sale deed bearing registration No. 1402, Additional Book No.1, Vol. No. 9481 at pages 128 to 133 in favour of defendant No.5 in respect to first floor and roof rights of said property, another sale deed bearing registration No. 1403, Addl. Book No.1, Vol. 9481 at pages 134-139 in favour of defendant No. 6 also in respect to first floor and roof rights of said property.
According to the plaintiff, the defendant No. 6 filed a suit for injunction before the Ld. Civil Judge on 20.4.2000 wherein the plaintiff found that defendant No.1 executed a rectification deed dated 21.2.2000 registered as II, Janakpuri, Delhi and under the cover of said deeds, the defendants 5 & 6 are attempting to make forced entry on to the ground floor of said property due to which reason the plaintiff filed complaints 9 pursuant to which the local police registered Kalandaras under
section 107/150 Cr. P.C. for the illegal acts so committed by defendants 5 & 6 and their associates and criminal proceedings have also been initiated against such persons. It is stated that in order to give impedence to their above said acts, the defendants no. 5 and 6 approached the Rationing Department for ration cards, Mahanagar Telephone Nigam Limited for telephone connection, Municipality for mutation, water connection and Election Office for inclusion of their names in the Voter list, under the cover of above said sale deeds. It is pleaded that on account of the conduct of defendants no. 1 to 4 and the contumacious claims of defendant 5 & 6, the plaintiff is constrained to file the present suits to secure relief of mandatory and perpetual injunction.
According to the plaintiff the claim of the defendant No.1 in respect to dwelling house by taking aid of alleged Will of deceased Rallia Ram Kapoor is untenable and there is no cause to defendant No.1 to take aid thereof in view of pending legal proceedings in Probate Case No. 402/1996. It is contended that the alleged Will is not cognizable as a Will of a 10 person in law being not witnessed and attested in terms of law. It is also stated that the alleged Will describes the name of Mr. S.C. Arora, Advocate as the sole witness and Shri Rallia Ram Kapoor in his life time managed the joint family and the business as well as the property in question was built/acquired by plaintiff's father, was the joint family property/ancestral property in which plaintiff acquired right/share by birth and father of the plaintiff could not have made a Will of whole of the assets as has been claimed by defendants 1 to 3. It is pleaded that the claim of defendants 5 & 6 to dwelling house under the cover of their claimed transaction with defendant No.1 or any other defendant is illegal and merits no cognizance in view of provisions of Section 44 of Transfer of property Act and/or Section 4 of the Partition Act.
It is pleaded that the property in question is a dwelling house in occupation of the plaintiff, the defendants No. 1 & 2, the defendants 5 & 6 under the cover of covenants got incorporated by them in the instruments of sale obtained from defendant No.1, have no right to ask for dispossession of plaintiff from the dwelling house or joint possession in the 11 dwelling house by stating claim of a transferee under defendant No.1 or any other defendant.
According to the plaintiff the cause of action in favour of the plaintiff in filing of suit arose when the property was being purchased, constructed and established as a dwelling house by common ancestor of the parties Shri Rallia Ram Kapoor, again when the property was occupied by plaintiff and defendants 1 to 3 on the death of Shri Rallia Ram Kapoor on 20.7.199, again when defendants 3 & 4 sought to interfere with plaintiff by persuading/coercing defendants 1 & 2 to litigate with plaintiff and again in May 1999 when resultant of acts/actions of defendants 3 & 4 accompanied by defendants 5 & 6 and group of persons sought to enter the dwelling house and interfere with plaintiff's possession. The cause of action further arose on 28.02.2000 when plaintiff after making enquiries in the office of Registering Authority learnt of defendants 5 & 6 holding conveyance deed in respect to dwelling house from defendant No.1.
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DEFENDANT'S CASE:
Defendant no. 1 and 2 (Smt. Shanti Kapoor and Ms. Shashi Kapoor) In their written statement the defendants no. 1 and 2 Ms. Shanti Kapoor and Ms. Shashi Kapoor have raised a preliminary objection that the suit is not maintainable in as much the same does not disclose any cause of action against the defendants no. 1 and 2 and that the plaintiff has suppressed the material facts from this court and as such has not only mislead this Court but has filed a wrong affidavit before this Court for which he is liable to be prosecuted and the suit is liable to dismissed on this short ground alone.
It is pleaded that Late Shri Rallia Ram Kapoor who was the father of the plaintiff, defendants No.2 and 3 and husband of defendant No.1 had purchased the suit property bearing No. 19/27, Punjabi Bagh (East), New Delhi out of his own funds in the year 1957 and as such the said property was his self acquired property, in which none of the defendants and or the plaintiff had any share. Late Shri Rallia Ram Kapoor died in the year 1996 leaving behind defendants No.1 to 3 and the plaintiff as his legal heirs and the plaintiff was disowned by 13 the late Ralia Ram Kapoor by way of notice and publication, during his life time due to his misbehaviour and misconduct. It is pleaded that the plaintiff not only misbehaved with the late Shri Ralia Ram Kapoor but also gave beatings to him and keeping in view the said attitude and behaviour late Ralia Ram Kapoor filed various suits against the plaintiff which are still pending before the Ld. Civil Judge, Delhi. In the suit before the Ld. Civil Judge late Sh. Ralia Ram Kapoor sought a relief for permanent injunction for restraining the plaintiff from entering into the ground floor on the premises bearing No. 19/27, Punjabi Bagh, (East), New Delhi and also from entering into the business premises of M/s. Raka Trading Company at Old Delhi. In the said suit the application of late Shri Ralia Ram Kapoor under Order 39 Rules 1 and 2 readwith Section 151 C.P.C was dismissed by the Ld. Trial Court, however, in the appeal, against the said order by late Ralia Ram Kapoor the Hon'ble Appellate Court of Smt. Mamta Sehgal, Sr. Civil Judge vide order dated 09.05.1992 passed a clear cut restraint order against the plaintiff from entering into the ground floor of the premises bearing No. 19/27, Punjabi Bagh (East), New Delhi. However, 14 he was allowed to use the stair cases which was leading to the first floor and the Varanda for using booster pump only.
It is pleaded that Late Ralia Ram Kapoor keeping in view the misbehaviour and misconduct of the plaintiff intentionally out of his own and without having any pressure from any corner executed his last and final Will dated 28.6.1993 thereby bequeathed the property bearing No. 19/27, Punjabi Bagh (East) New Delhi to his wife Smt. Shanti Kapoor and as such after the demise of the Ralia Ram Kapoor it was defendant No.1 alone who became the sole and absolute owner of the property in question with all ownership rights. According to the defendants no. 1 and 2 they had applied for a probate of the said Will wherein the plaintiff herein is trying to linger it on, on one pretext or the other. It is stated that due to the misbehaviour and continuous torture of plaintiff, the defendant no.1 has during the pendency of the probate proceedings, sold the above said property to defendant No.5 and 6 vide sale deed dated 08.02.2000 registered on 09.02.2000 but since the clerical error crept up by typist, the same was rectified vide rectification deed duly registered with the Sub-registrar, Janak Puri, on 15 21.02.2000 after which the defendant no. 5 became the owner in respect of the first floor an above portion whereas defendant no. 6 became the owner of Ground Floor of the said property and since the first floor portion was in the possession of the plaintiff the symbolic possession was handed over to the defendant no. 5 whereas the actual vacant physical possession of the ground floor was handed over to the defendant no.6 who is in exclusive possession of the entire ground floor.
It is alleged that the plaintiff has connived with the area SHO and the ACP who are trying to dispossess him illegally. A complaint had been filed by the defendant no.1 to the SHO but no action so far has been taken. It is stated that at the time of sale by the defendant no. 1, the plaintiff Vijay Kapoor was in illegal occupation of the first floor of the property in question and had undertaken to vacate the first floor on or before 12.2.2000 but instead of vacating the said first floor, he has filed the present suit. It is also alleged that under the grab of present suit the plaintiff is trying to illegally dispossess the defendant no. 6 from the ground floor of the property in question. It is stated that the illegal designs and 16 malafide intentions of the plaintiff are clear in the present case in as much as at page 2 of para 2 of the plaint filed before this court he has stated that it is the plaintiff along with defendants no. 1 and 2 who are in occupation of the property in dispute whereas the plaintiff made a statement before the court of Ms. Mamta Sehgal, the then Sr. Civil Judge that he will not enter into ground floor portion and on the basis of the said statement the Hon'ble Court was pleaded to pass restraint order against the plaintiff. It is further stated that the suit of the plaintiff is not maintainable in the present form as the relief prayed by the plaintiff in the present suit are illegal and as such can not be granted at all. According to the defendants no. 1 and 2 the relief of injunction as prayed for by the plaintiff in the present suit is a discretionary relief and the same cannot be exercised in favour of the plaintiff like person who has not only filed wrong facts before this Court but has also filed wrong affidavit before this Court. It has also been alleged that the assertions made in the plaint are vague and as such the plaintiff has failed to disclose any cause of action. Further, it is pleaded that the suit of the plaintiff has not been properly valued due to which 17 reason the suit of the plaintiff is liable to be rejected on this short ground alone. According to the defendants no. 1 & 2 the plaintiff has sought the reliefs of declaration and consequential reliefs have been sought by the plaintiff in the form of permanent and mandatory injunction hence the valuation of the suit by the plaintiff under Article 17 is not only misconceived but illegal and the plaintiff for the purpose of court fees ought to have value under Section 7(iv)(c) of the Court Fees Act. According to the defendants no. 1 & 2 it is incumbent upon the plaintiff to pay court fees ad-valorem on the amount valuated in the plaint and has to pay ad-valorem court fees on the amount of Rs.8,50,000/- as provided under Section 7(iv) (c) of the Court Fees Act. It is also stated that the reliefs as prayed by the plaintiff in its prayer clause are not available to the plaintiff as the same are hopelessly barred under Article 56 of the Limitation Act in view of the fact that the plaintiff under the garb of challenging the sale Deeds executed by defendant no. 1, is in fact seeking declaration of last and final Will executed by Late Shri Ralia Ram Kapoor way back in the year 1993 hence the relief of Declaration and its consequential relief are 18 misconceived, illegal and are liable to be rejected. It is also stated that the relief of perpetual injunction is also not available to the plaintiff in view of the fact that the plaintiff is not in possession of any part of the ground floor portion of the property in dispute and perpetual injunction in respect of the first floor can not be granted to the plaintiff. It is pleaded that the plaintiff has no right to claim the suit property as a dwelling house at this belated stage as the said claim would have been properly sought for at the relevant time hence the very basis of the sought of the plaintiff is illegal On merits, the defendants no. 1 and 2 have denied all the allegations made against them and have repeated what has been stated in the preliminary objections. It is stated that the plaintiff is not only misusing the process of law but is also disobeying the last and final desire of his deceased father and the Will under probate is a registered document and executed due to the fact that there was a hot litigation pending between the plaintiff and the deceased executor, therefore, there is no impediment in implicating the last Will and desire of deceased. The defendants no. 1 and 2 have denied the allegations against 19 Sh. S.C. Arora advocate. It is also stated that the claim of the defendant no. 5 and 6 is legal and valid and the sale deeds executed are the master documents for their title.
It is evident from the record that the defendant no. 3 Smt. Veena Khosla and defendant no. 4 Sh. Vinod Khosla have appeared and made a statement that they do not wish to file any written statement.
Defendants no. 5 and 6 (Rajiv Ohlan Vs. Sanjeev Ohlan):
The defendants no. 5 and 6 (Rajiv Ohlan and Sanjeev Ohlan) have also filed their statement wherein they have corroborated what has been pleaded in the written statement filed by the defendants no.1 and 2 in toto. In addition to the same it has also been alleged that the plaintiff Vijay Kapoor in connivance with the area SHO Shri Ram Singh Chauhan and the ACP Mr. Kushwaha tried to dispossess the defendant no. 6 from ground floor portion of the property in question and apprehending the said dispossession the defendant no. 6 filed a civil suit bearing no. 150/2000 wherein status quo orders have been passed by Sh. Rajinder Kumar, the then Civil 20 Judge vide order dated 22.4.2000 in terms of the report of the Local Commissioner. On 27.4.2000 Vijay Kapoor filed objections to the report of the Local Commissioner and also sought time for filing written statement after which the interim order was extended and the matter was adjourned to 28.04.2000. On the said date the Vijay Kapoor first of all in the morning sought time as his counsel was not available and the case was passed over upto 1.00 O' clock from where it was again taken up at 2.00 O'clock at that time the Hon'ble Court at the back of the defendant no. 6 and his counsel simply discontinued the interim order without assigning any reason whatsoever. The defendant No. 6 has preferred a writ against the said said order which was disposed off vide order dated 22.4.2000 passed by Hon'ble Mr. Justice S.K. Mahjan. It has been alleged that on 26.04.2000 when some guest of defendant no. 6 happened to visit him on the ground floor of the said property at about 6.30 pm in the evening the SHO Shri Ram Singh Chauhan illegally trespassed into the ground floor of the property and not only violated the order but also outraged the modesty of Smt. Sheela Devi who happens to be the Bhabi 21 (cousin brother' s wife) of defendants no. 5 & 6 and defendant No. 6 could manage to flee away whereas the defendant no. 5, his father Shri Hawa Singh, were falsely and illegally arrested and the proceedings under section 107/151 Cr.P.C. were initiated and were released on bail only on 27.04.2000 for which various complaints to the various authorities were lodged and a contempt petition was also moved before the court of Shri Rajinder Kumar, the then Civil Judge Delhi. It is pleaded that by clerical mistake instead of word 'Ground Floor' the word 'First Floor' was printed in the sale deed of defendant no. 6 which was later on rectified vide rectification deed dated 21.02.2000 duly registered with Sub-Registrar, Jankapuri, New Delhi. According to the defendants no. 5 and 6 they are well within their powers to use and enjoy and possess their respective purchased portions without any hindrance from any corner in accordance with law and they have no intention to dispossess the plaintiff from his first floor portion without following the due process of law. It is stated that at the time of the sale the plaintiff agreed to vacate the first floor portion on or before 12.02.2000 but the intention of the plaintiff became 22 malafide and therefore, after execution of the sale deed and after expiry of agreed date i.e. 12.2.2000 he started demanding more money and a such a sum of Rs. 3 lacs was demanded and on the occasion of non paying the same, the present suit has been filled by the plaintiff without any reason whatsoever. SUIT NO. 330/04
(Sanjeev Ohlan Vs. Vijay Kapoor & Ors.) This suit for permanent injunction has been filed by the plaintiff Sanjeev Ohlan against the defendants seeking to restrain the defendants from forcibly and unlawfully dispossessing him from the suit property bearing no. 19/27, Punjabi Bagh (East), New Delhi without following due process of law and from causing any kind of interference in the peaceful use and enjoyment of the plaintiff.
PLAINTIFF'S CASE:
(Sanjeev Ohlan) The case of the plaintiff Sanjeev Ohlan is that he is the owner in possession of the ground floor portion of the property bearing Plot No. 19, on road No. 27, measuring 279.05 23 sq. yds. situated at Punjabi Bagh (East) forming part of the, Village Basai Darapur, Delhi and had purchased the above said ground floor portion of the property in question from Smt Shanti Kapoor wife of late Shri Rallia Ram Kapoor on 8.2.2000 vide sale deed registered with the office of the Sub-Registrar, Janakpuri, New Delhi. According to the plaintiff, due to inadvertent mistake, instead of word "Ground Floor" the word "First Floor" was got written in the said sale deed which was rectified by way of a Rectification of sale deed on 21.02.2000 which was also registered with the office of the Sub-Registrar, Janakpuri, New Delhi. It is pleaded that initially the property in question was purchased by the late husband of Smt Shanti Kapoor and as such who was the registered owner and in possession of the property by virtue of the Conveyance deed. As per the pleadings the said Shri Rallia Ram Kapoor had executed his last and final Will in favour of his wife Smt. Shanti Kapoor who in turn after the death of late Rallia Ram Kapoor became sole and absolute owner of the entire property consisting of ground floor, first floor with all roof rights and after becoming the sole and absolute owner she sold the ground 24 floor portion to the plaintiff on 08.02.2000 and ever since the plaintiff is in possession of the same.
It is pleaded that ever since the plaintiff purchased the ground floor portion of the property in question he is in settled possession of the same consisting of four rooms, one kitchen, one store, two verandas, one lavatory, one bath room, one W.C., stair case and one passage. According to the plaintiff, after purchase of the property in question he instructed and allowed his employee Shri Kaptan Singh to look after his above said property till the plaintiff complete all the formalities for shifting in the said suit property. The first floor portion of the property in question was purchased by his brother from the same seller which property is in the unauthorised occupation of defendant No. 1 Vijay Kapoor who has no connection with the ground floor portion but to the distress of the plaintiff the defendant no. 1 Vijay Kapoor (who was supposed to deliver vacant possession of first floor on or about 12.02.2000) with malafide intentions have developed a dispute with the brother of the plaintiff and therefore the plaintiff is being squeezed in between the dispute of Vijay Kapoor and his brother especially 25 when he has nothing to do with either Vijay Kapoor and or his brother. It is alleged Mr. Vijay Kapoor is having the connection with the local police officials especially defendant No. 2 who in utter disregard of his official duties has been threatening the brother of the plaintiff on the pretext that the brother of the plaintiff should fetch a huge amount to the said Vijay Kapoor for vacation of the first floor of the suit property. It is pleaded that at the time of registration of sale deed and rectification deed, the share as desired to the tune of Rs.2,50,000/- has already been handed over to the defendant no. 1 Vijay Kapoor. According to the plaintiff, when he did not accede to the illegal demands of putting pressure over his brother, the plaintiff was first threatened to be implicated in some false criminal cases, thereafter, the employee of the plaintiff was manhandled and thereafter a false criminal case under Section 107/151 Cr.P.C. was registered and he was arrested by the defendant No. 3 on 19.02.2000. It is stated that no such dispute as is alleged in the Kalandra U/s 107/151 Cr.P.C. ever arose and Kaptan Singh ever threatened either the Vijay Kapoor as alleged in the complaint.
It is also stated that thereafter another case was registered 26 against the father of the plaintiff so that pressure could be put over his two sons to bow their heads towards the illegal demands raised by the defendant No.1 to 3.
According to the plaintiff, he has been threatened with forcible dispossession and of being ousted from the property and the local police is acting in connivance with Vijay Kapoor. He has stated that he was summoned to the police station Punjabi Bagh, New Delhi, on 3rd march, 2000, 18th of March, 2000, 31st of March 2000, and 2nd of April , 2000 respectively without assigning any reason of whatsoever nature and he was illegally confined to Police Station from morning to evening without any fault on his part and thereafter released without any reason. He has also alleged that officials from the local police station are often visiting the property in question of the plaintiff and threatening him to accede to the demands as made earlier. Even on 12.04.2000 when the defendant No. 1 along with some police officials who were in plain clothes visited the property in question and manhandled the plaintiff and threatened that he must accede to their demands otherwise within seven days he would be forcibly dispossessed from the 27 suit property. It is stated that when the plaintiff asked for documents, the defendant No.1 used filthy language and threatened the plaintiff that in case he dare to raise any voice against him and threatened him with implication in some false criminal cases.
According to the plaintiff again on 14.04.2000, the defendant No. 1 along with police officials in plain clothes visited the suit property at about 2.30 PM and manhandled the employee of the plaintiff and tried to dispossess him but could not succeed due to the timely intervention of Shri Hawa Singh, father of the plaintiff who happened to visit the suit property but while leaving the spot, it was threatened that they will come soon and will dispossess the plaintiff at any time. It is stated that the defendants have vested with no right, title or interest to visit the suit property off and again and to harass and humiliate the plaintiff in one way or the other or to extend threats of forcible dispossession of the plaintiff from the suit property and the threatened action of the defendants is illegal, unwarranted, uncalled for, arbitrary and without jurisdiction due to which reason the same is liable to be restrained by passing a decree of 28 permanent injunction in favour of the plaintiff and against the defendants which is the only efficacious remedy available to the plaintiff under the peculiar facts and circumstances of the case. DEFENDANT'S CASE:
(Vijay Kapoor) In his written statement the defendant no. 1 has raised a preliminary objection that the suit of the plaintiff is liable to be dismissed as the same is not maintainable in the present form as the alleged seller of the property is necessary party to the present suit and plaintiff has deliberately not arrayed the alleged seller of the suit property as defendant in the present suit due to which reason the suit is liable to be dismissed for non-joinder of necessary parties. It is stated that the suit of the plaintiff is without cause of action. According to the defendant no.1, the suit of the plaintiff is liable to be dismissed under the provisions of Specific Relief Act and the suit being for injunction simplicitor is not maintainable. Objection has also been raised with regard to the continuing of the suit which according to the defendant no.1 is liable to be stayed under section 10 C.P.C. in view of the suit filed by the 29 defendant no.1 for Mandatory and Permanent Injunction against the plaintiff prior to filing of present suit and the issues in the present suit and the suit filed by the present defendant are directly and substantially same. It is also stated that the suit of the plaintiff is not properly valued since under the garb of permanent injunction the plaintiff is claiming declaration and possession and therefore the same is liable to be dismissed.
On merits, the defendant no. 1 has denied all the allegations made against him by the plaintiff and it is stated that the father of defendant owned the suit property who died intestate leaving behind the defendant no.1, his mother of and two sisters and the defendant no. 1 having inherited the property along with other legal heirs, is living in the suit property since the inception. According to the defendant no.1 his mother was having strained relations with him and she filed false case of Probate on the basis of forged Will alleged to have been executed by his father which petition of probate is pending before the Ld. District Judge, Delhi.
It is pleaded that the falsity of sale deed is apparent on its face in as much as in para (6) of the alleged sale deed it 30 has been stated that the suit property is free from all sorts of encumbrances i.e. litigation, family disputes etc. whereas there are various litigations pending between the alleged seller and the defendant no. 1 in respect of suit property. It is stated that apart from two suits for permanent injunction pending in the Court of Civil Judge, one Probate Petition bearing No. 402/96 is already pending in the court of Ld. District Judge, Delhi and the validity of the alleged sale deed is under challenge in suit no.487/2000. According to the defendant no.1, the alleged Will is a forged and fabricated document which is under challenge in the court of Ld. District Judge, Delhi and the plaintiff and Smt. Shanti Kapoor have concealed the material facts from this Court in order to play fraud upon the defendants. It is also alleged that the plaintiff and his other family members are in the business of purchasing disputed properties and threatening the occupants to obtain the entire property. It has been denied that Smt. Shanti Kapoor is absolute owner of the suit property and it is stated that it is the defendant no. 1 who is joint owner of suit property along with other legal heirs and is in actual and physical possession of the ground floor and first floor of the suit 31 property. It is pleaded that the plaintiff has never obtained the possession of the suit property till date and the same is in exclusive possession of the defendant no. 1.
It is also stated that Smt. Shanti Kapoor has no right or authority to sell any portion of suit property nor she is the absolute owner of suit property and the suit property is jointly owned by all the legal heirs of Shri Rallia Ram Kapoor. According to the defendant no. 1, in the alleged sale deed it is falsely mentioned in para 3 that actual physical possession of the first floor of property has been handed over to buyer, since till date the possession of the ground floor and the first floor is with the defendant no.1 and he has already filed complaints with the DCP (West) wherein he has conducted independent inquiry regarding allegations of defendant and the statement of neighbourers was also recorded. According to the defendant no. 1, the plaintiff, his father namely Shri Hawa Singh and some hired criminals attempted to take forcible possession of the suit property on 19.02.2000, which attempt was foiled by the defendant and all the people living in the area. It is pleaded that the plaintiff alongwith his father made attempt to take forcible 32 possession of the suit property but they were prevented from doing so and when the matter was reported to the local police but no action was initiated against the plaintiff. However, on the contrary Kalandra was prepared against the defendant, his wife and two relatives under section 107/150 Cr.P.C. by the police in order to harass the defendant and his family members. It is further stated that at no point of time the plaintiff was in possession of suit property therefore there was no reason to dispossess as the suit property is in exclusive possession of the defendant.
The record reveals that the defendants no.2 and 3 have never appeared before this court and therefore, they were proceeded exparte.
SUIT NO. 331/2004 (Rajiv Ohlan Vs. Vijay Kapoor) This suit for possession and permanent injunction has been filed by the plaintiff Rajiv Ohlan against the defendant Vijay Kapoor seeking a decree of possession with directions to the defendant to vacate the suit property i.e. first floor 33 alongwith roof rights portion of the property bearing no. 19/27, situated in the erstwhile estate of Village Basai Darapur known as Punjabi Bagh (East), New Delhi comprising of two rooms, one kitchen, one Verandah, one lavatory, one open W.C. and one stair case. The plaintiff Rajiv Ohlan has further sought a relief of permanent injunction seeking to restrain the defendant, his agents, assigns, heirs, relatives, family members from selling, assigning or creating any third party interest in the suit property. The brief facts of the case are as under:
PLAINTIFF'S CASE:
(Rajiv Ohlan) The case of the plaintiff Rajiv Ohlan is that he is the owner of the first floor portion along with roof rights of property bearing plot no. 19 on road no. 27 situated at Punjabi Bagh East, forming part of the Village Basai Darapur Delhi. The plaintiff became owner of the said property vide sale deed dated 8.02.2000 for valuable consideration, executed by Smt. Shanti Kapoor wife of late Ralia Ram Kapoor which property consist of two rooms. one Kitchen, one verandah, one lavatory, one open W.C and stair case. According to the plaintiff, 34 initially the suit property was purchased by late Shri Rallia Ram Kapoor from Refugee Cooperative Housing Society Ltd, Punjabi Bagh New Delhi for a valuable consideration, vide conveyance deed and the same was a self acquired property of late Sh. Ralia Ram Kapoor who constructed the same as per sanctioned site plan out of his own funds. It is pleaded that there had been litigation between the defendant and the said Rallia Ram Kapoor and keeping in view the bitter relations said Rallia Ram Kapoor executed his first and last Will on 28.0693 duly registered with Sub Registrar thereby explaining all the circumstances under which he executed the said Will and declared that he has disowned the defendant vide legal notice dated 17.04.92 and thereafter bequeathed the entire property bearing no. 19/27 Punjabi Bagh East Delhi including the suit property on his wife Shanti Kapoor. It is stated that Rallia Ram Kapoor died in the year 1996 and after his death, because of operation of the above said Will, Smt. Shanti Kapoor became the absolute owner of the entire property bearing no. 19/27 Punjabi Bagh East who in exercise of her ownership rights sold the first floor portion alongwith roof rights to the plaintiff for a 35 valuable consideration by way of a registered sale deed dated 8.2.2000. According to the plaintiff, during the life time of late Shri Rallia Ram Kapoor defendant' s license was terminated and the defendant was asked number of times to vacate the above said first floor portion of property number 19/27 Punjabi Bagh, East New Delhi under his license but the defendant miserably failed to vacate the suit property and continued to remain in the unauthorized occupation of the suit property along with his family members, which includes his wife and two sons. It is stated that though the license of the defendant was terminated by the erstwhile owner of the suit property i.e. predecessor in interest of the plaintiff, but on account of abundant precaution plaintiff terminated the license of the defendant vide a legal notice dated 10.04.2001 issued through his advocate under registered cover and U.P.C. thereby demanding the vacation of the suit property by defendant but despite service of the said notice the defendant has failed to vacate the suit property and the plaintiff is left with no alternative but to approach this court.
It is pleaded that after the service of said notice the possession of the defendant is that of an unauthorized occupant and hence 36 defendant is liable to pay damages to the plaintiff @ Rs.25,000/ per month which damage has been assessed tentatively as this is the prevalent rate in the vicinity. However, the plaintiff is not claiming damage in the present suit the defendant has no right to remain in the suit property and as such is liable to be rejected from the suit property. It is also pleaded that defendant at the time of the purchase of the suit property for a valuable consideration agreed to vacate the same but after having received the consideration the intentions of the defendant had gone malafide and as such started demanding more and more money from the plaintiff but when the plaintiff declined to succumb to the illegal demands of the defendant, he flatly refused to vacate the suit property. It is alleged that the defendant also implicated the relatives of the plaintiff alongwith plaintiff in some false criminal cases in connivance with the local police. It is stated that the defendant and or any of his family members has no right to remain in the suit property and as such are liable to vacate the same due to which reason the present suit has been filed.
By way of present suit the plaintiff Rajiv Ohlan 37 sought a decree of possession thereby directing the defendant to vacate the suit property i.e. first floor alongwith roof rights portion of the property bearing no. 19/27, Punjabi Bagh (East), New Delhi comprising of two rooms, one kitchen, over verandah, one lavatory, one open WC and one stair case. He has also sought a decree of permanent injunction thereby permanently restrained the defendant, his agents, assigns, heirs, relatives, family members from selling, assigning or creating any third party interest in the suit property. DEFENDANT'S CASE:
(Vijay Kapoor) In his written statement the defendant Vijay Kapoor has raised a preliminary objection that the suit of the plaintiff is without any cause of action due to which it is liable to be dismissed for want of cause of action and that the suit is bad for of non joinder / misjoinder of necessary parties since Smt. Shanti Kapoor from whom the plaintiff alleges to have purchased the suit property has not been impleaded as party in the present case. It is stated that Shri Ralia Ram Kapoor was the father of the defendant and Smt. Shanti Kapoor is mother of 38 the defendant is the only son of Late Shri Ralia Ram Kapoor who has two sisters namely Smt. Veena Khosal and Miss Shashi Kapoor. It is pleaded that the property bearing no.19/27, Punjabi Bagh (East), New Delhi is in possession of the defendant and after death of the father, the ground floor of this property was occupied by the defendant and his mother, one sister namely Miss Shashi Kapoor and the first floor of the property is in exclusive possession of the defendant and his family members.
The defendant no.1 Vijay Kapoor has in the written statement filed in the present case taken a similar stand to the one taken in the written statement filed in Suit No.330/04 and repeated what he has pleaded therein.
On merits the defendant has denied the allegations made against him by the plaintiff and it is stated that Smt. Shanti Kapoor had no right, title or interest to sell the property to the plaintiff. It is further stated that the sale deed was executed by the deceased in his favour for the benefit of Joint Hindu Family, which included the defendant as well and the construction has been made from the funds acquired from the 39 partnership business, in which the defendant was a partner. It is specifically denied that late Shri Ralia Ram Kapoor had executed any Will. It is specifically denied that Smt. Shanti Kapoor was having ownership rights in respect of the said property and could have executed any sale deed in favour of the plaintiff, however, the sale deed has been challenged by the defendant. According to the defendant he was living as a son in the Joint Hindu Family and hence there is no question of granting any license to the defendant. It is denied that he is liable to pay damages to the plaintiff at the rate of Rs.25,000/ per month as alleged and that the property would fetch Rs.25,000/ per month as has been assessed by the plaintiff. It has been specifically denied that the defendant agreed to vacate the premises at the time of purchase of property by the plaintiff and it is stated that the allegations are totally false, frivolous and concocted.
ISSUES FRAMED:
Perusal of the record shows that in Suit No. 329/2004 on the basis of the pleadings of the parties the Ld. 40 predecessor of this court vide order dated 13.5.2002 has framed the following issues:
1. Whether Sh. Rallia Ram Kapoor left a valid 'W ill' in favour of the defendant no. 1? If so, to what effect?
(OPD 1 & 2)
2. What was the share of defendant no. 1 in the suit property on the date of execution of sale deed 8.2.2000 and rectification deed dated 21.2.2000 in favour of Defendant No. 5 and 6? (OPP)
3. Whether the sale deeds executed in favour of defendant no. 5 and 6 are invalid and void in respect of the alleged share of plaintiff in the house in question, in view of the fact that no probate has yet been granted of the 'W ill'?
(OPP)
4. What are the rights of Defendants No. 5 and 6 under the two sale deeds and the deed of rectification? (OPD 5 & 6)
5. Whether the plaintiff is entitled to the relief prayed in para 13 (b) of the plaint? (OPP)
6. Whether the plaintiff is entitled to relief of perpetual injunction as prayed for in para 13 (c) of the plaint?(OPP) 41
7. Whether the plaintiff is entitled to a decree for mandatory injunction as prayed for in para 13 (d) of the plaint?
(OPP)
8. Whether the suit is barred by limitation? (OPD)
9. Whether the suit is not properly valued for the purposes of Court fee and jurisdiction? (OPD 5&6)
10. Relief.
Further in Suit No. 330/2004 on the basis of the pleadings of the parties the Ld. predecessor of this court vide order dated 23.10.2003 has framed the following issues:
1. Whether the suit is liable to be dismissed as not maintainable in the present form? (OPD)
2. Whether plaintiff suit is liable to be dismissed for non joinder of necessary parties? (OPD)
3. Whether suit of the plaintiff is liable to be dismissed under Order 7 Rule 11 CPC? (OPD)
4. Whether the suit is liable to be dismissed as plaintiff is not owner nor in possession of the suit property? (OPD) 42
5. Whether suit is liable to be stayed under Section 10 CPC in view of preliminary objection in WS filed by defendant no. 1?
6. Whether the suit of the plaintiff is not properly valued as per preliminary objection no. 7 in WS of defendant no. 1?
7. Whether the suit property is in exclusive possession of defendant no. 1 and plaintiff is attempting to tresspass in the same? (OPD)
8. Whether plaintiff is owner of the suit property as per the plea taken in plaint in para no. 2? (OPP) In Suit No. 331/04 the Ld. predecessor of this court has framed the following issues vide order dated 23.10.2003:
1. Whether plaintiff is owner of the first floor alongwith roof rights as per plea taken in para no. 1 of the plaint?
(OPD)
2. Whether the suit of the plaintiff is without any cause of action? (OPD)
3. Whether the suit is liable to be dismissed for nonjoinder, mis joinder of necessary parties? (OPD) 43
4. Whether property bearing no. 19/27 East Punjabi Bagh is ancestral property of defendant? (OPD)
5. Whether the sale deed was executed in the name of Sh.
Rallia Ram Kapoor, deceased, being head of the joint family and plot of Punjabi Bagh was purchased by selling ancestral property? (OPD)
6. Whether plaintiff is entitled for relief claimed
7. Relief.
EVIDENCE:
In Suit No. 329/2004 Vijay Kapoor has examined himself as his sole witness. He has in his examination in chief by way of affidavit corroborated what has been earlier stated in his petition. He has placed on record the Voter I Card, receipt of gas agency, electricity bills, water bills, telephone bills etc. which is Ex.PW1/1 (Collectively); the various complaints made by him which are collectively Ex.PW1/2; copies of the documents/ reports submitted by the concerned police which are collectively Ex.PW1/3 and the objections filed by the witness which are collectively Ex.PW1/4.
44
It is evident from the record that the affidavit of evidence of Smt. Shanti Kapoor has been filed but she could not be examined, the case having been delayed and Smt. Shanti Kapoor having expired during this period. However, her daughter Smt. Shashi Kapoor who is also one of the defendant has examined herself as DW1 and in her examination in chief by way of affidavit she has corroborated what she has stated in her written statement. She has supported and proved the stand which her mother Smt. Shanti Kapoor had taken in her affidavit of evidence, who incidentally could not be put to cross- examination having expired. She has relied upon the documents i.e. public notice which is Ex.DW1/1; certified copy of the Will which is Ex.DW1/2; death certificate of Ralia Ram Kapoor which is Ex.DW1/3; the sale deeds which are Ex.DW1/4 & Ex.DW1/5; rectification deed which is Ex.DW1/6; the possession letter which is Ex.DW1/7 and the NOC which is Ex.DW1/8.
Om Prakash LDC from the office of Sub-Registrar- 6A, Pitampura has been examined as D5W1 but it had been 45 transpired that the witness from the Sub Registrar Janakpuri was required to be summoned.
The defendant no. 5 in Suit No. 329/04 namely Sanjeev Ohlan has examined himself as D5W2 and in his examination in chief by way of affidavit corroborated what has been earlier stated in the written statement/ plaint filed by him. He has relied upon the sale deed dated 11.3.1963 which is Ex.D5W2/1 and the documents already Ex.DW1/2, Ex.DW1/4, Ex.DW1/5, Ex.DW1/6 and Ex.DW1/7. He has also placed his reliance on the plaint of suit under the title 'Sanjeev Ohlan Vs. Vijay Kapoor' which is Ex.D5W2/2; Local Commissioner report filed in the said suit which is Ex.D5W2/3 and the proceedings sheets which are already Ex.PW1/DX1.
D5W3 Naresh Kumar, Mauza Clerk Record Room (Sessions) has been summoned and according to him the record pertaining to CR - 43/2000 under the title 'Hawa Singh Vs. State' decided on 31.10.2000 by Sh. R.S. Verma, the then ASJ bearing Goshwara no. 34/F had already been destroyed on 6.6.2005 by Weeding Out Cell. He has placed on record copy 46 of the Goshwara Register which is Ex.D5W3/1.
Sh. Rajinder Prashad Parashar Advocate has been examined as D5W4 who was the Local Commissioner and has proved his report which is already Ex.D5W2/3; the proceedings which are Ex.PW1/DX1; the list of articles and goods lying in the suit property which is Ex.D5W4/1; photographs are Mark A and B; carbon copy of the letter written by him to the SHO PS Punjabi Bagh which is Ex.D5W4/2 and the notice served by him to the parties for joining the proceedings which are already Ex.PW1/DX2.
Sh. Hawa Singh father of the defendants Rajiv Ohlan and Sanjeev Ohlan has also been examined as Ex.D6W1/A. He has in his examination in chief by way of affidavit supported the testimony of Sanjeev Ohlan and Rajiv Ohlan. He has placed his reliance on the attorney which is Ex.D6W1/1; the sale deeds which are Ex.DW1/5 & Ex.DW1/4; copy of the judgment passed by the court of Sh. R.S. Verma, ADJ and the written submission filed by the SHO which are collectively Ex.D6W1/2; report of the Local Commissioner 47 which is Ex.D5W2/3 and the proceeding sheets which are Ex.PW1/DX1.
D6W2 Rajiv Ohlan has in his examination in chief by way of affidavit corroborated what he has earlier stated in his written statement/ plaint. He has placed his reliance on the sale deed of the year 1963 which is already Ex.PW1/X3; Will dated 28.6.1993 which is already Ex.DW1/2; two sale deeds which are already Ex.DW1/4 & DW1/5; rectification deed dated 21.2.2000 which is Ex.DW1/6; certified copy of the judgment passed by the court of Sh. R.S. Verma, the then ADJ and the written submissions filed by the SHO which are already Ex.D6W1/2; the attorney which is already Ex.D6W1/1 and copy of the legal notice which is Ex.PW1/DX5.
Sh. Ram Singh Chauhan, Retired ACP who was the concerned SHO at the relevant point of time has also appeared as a witness and deposed that there was a dispute between Sh. Hawa Singh, his sons and Smt. Shanti Kapoor on one side and Vijay Kapoor S/o Smt. Shanti Kapoor on the other side. He has corroborated the testimony of the other witnesses to the extent 48 that Smt. Shanti Kapoor widow of Sh. Ralia Ram Kapoor had executed two sale deed of the house in separate parts in the name of two sons of Hawa Singh in February 2000. The witness has identified the signatures of Inspector Charan Singh on Ex.PW1/DX-2 and has testified that he had filed a reply in the revision petition preferred by Hawa Singh and his sons in the court of Sh. R.S. Verma, the then ASJ against the proceedings initiated under Section 107/150/151 Cr.P.C. and at that time son of Hawa Singh was in possession of the ground floor whereas Vijay Kapoor was in possession of the first floor.
FINDINGS:
I have heard the arguments advanced before me by the counsels for all the parties and have gone through the records of the case. My consolidated findings on the various issues in all the three suits are as under:
Issue no. 1 Whether the suit is liable to be
(Suit No.330/04) dismissed as not maintainable in the
present form?
49
A preliminary objection has been raised by Vijay Kapoor in his written statement that the suit filed by Sanjeev Ohlan is not maintainable in the present form. It is stated that the present suit being a suit for injunction simplicitor is not maintainable. It is argued that the plaintiff Sanjeev Ohlan has deliberately in order to avoid the payment of ad-valorem court fees, has not sought the relief of declaration and that in fact under the garb of the present suit for injunction simplicitor Sanjeev Ohlan is seeking a declaration to his rights.
I have considered the submissions made before me. It is not disputed that Sanjeev Ohlan is already in possession of the ground floor portion of the property in question. He claims to be in possession of the same in his independent right having purchased the same from Smt. Shanti Kapoor the mother of Vijay Kapoor who expired during the pendency of the proceedings before this court. In fact Smt. Shanti Kapoor in her written statement filed in connected suit bearing CS No. 329/04 has admitted having sold the property in question to Sanjeev Ohlan and Rajiv Ohlan and in her examination in chief by way of affidavit which is present on record of CS No.329/04 she has 50 corroborated this aspect on oath, though she could not be subjected to examination having expired during the intervening period. The deposition made by Smt. Shanti Kapoor in her affidavit has been proved by her daughter Ms. Shashi Kapoor who is the real sister of Vijay Kapoor. Therefore, under these circumstances, Sanjeev Ohlan already being in possession of the property pursuant to the sale deed, there was no requirement for him to seek any relief of declaration more so as the issue was already sub-judice before the court in the previously instituted suit by Vijay Kapoor bearing CS No.329/04 under the title 'Vijay Kapoor Vs. Shanti Kapoor' and all the suits filed by the parties have now been consolidated and are being tried together. I find no merit in the objection so raised. Issue is decided in favour of Sanjeev Ohlan and against Vijay Kapoor.
Issue no. 3 Whether the suit is liable to be
(Suit No. 331/04) dismissed for non-joinder of necessary
parties?
Issue no. 2 Whether plaintiff suit is liable to be
(Suit No. 330/04) dismissed under Order 7 Rule 11 CPC?
51
Vijay Kapoor who is the defendant in both the cases bearing CS No. 331/04 and CS No. 330/04, has raised a preliminary objection in his written statement with regard to the non joinder/ mis-joinder of the parties. It is stated that Smt. Shanti Kapoor the alleged seller from whom the plaintiffs Rajiv Ohlan and Sanjeev Ohlan have purchased the property in question has not been impleaded as a party and therefore the suit is bad in law.
I have considered the submissions made before me. In view of the order dated 23.10.2003 passed by the Ld. Predecessor of this court and the subsequent order of this court, all the three suits under the title 'Vijay Kapoor Vs. Santi Kapoor'; 'Rajiv Ohlan Vs. Vijay Kapoor' and 'Sanjeev Ohlan Vs. Vijay Kapoor' have been consolidated and are being tried and disposed off together, the objection of non-joinder no longer subsists. Issues are hereby disposed off having become infructuous.
Issue no. 3 Whether suit of the plaintiff is liable to (Suit No.330/04) be dismissed under Order 7 Rule 11 CPC?
52 Issue no.2 Whether the suit of the plaintiff is (Suit No.331/04) without any cause of action?
Both the issues are clubbed together for the sake of convenience. Vijay Kapoor who is the defendant in the aforesaid suits has raised a preliminary objection that the suit is without any cause of action and is liable to be dismissed under order 7 Rule 11 CPC. I have gone through the pleadings of the plaint. Admittedly there is a dispute existing between the parties in respect of the property in question. The initial owner of the suit property was Sh. Ralia Ram Kapoor who was the father of Vijay Kapoor who allegedly very serious differences and disputes with Vijay Kapoor during his life time itself and had vide public notice/ publication disowned him. He is stated to have executed the Will in favour of his wife Smt. Shanti Kapoor which is under dispute in respect of which probate proceedings were also filed wherein objections were filed by Vijay Kapoor. On the basis of the said Will Smt. Shanti Kapoor sold the said property to Sanjeev Ohlan and Rajiv Ohlan pursuant to which Sanjeev Ohlan is in possession of the ground floor of the suit property but Rajiv Ohlan is yet to get the 53 possession of the first floor which is presently with Vijay Kapoor. The subsequent purchaser Sanjeev Ohlan has come before this court seeking a restrain from Vijay Kapoor from interfering in the ground floor portion of the property in question. In so far as Rajiv Ohlan is concerned, pursuant to the execution of the sale deed he is claiming his rights over the first floor of the property in question which is under the possession of Vijay Kapoor which possession Vijay Kapoor is not handing over to Rajiv Ohlan and therefore the suit for possession has been filed by Rajiv Ohlan in respect of the aforesaid portion.
The pleadings in both the suits bearing CS No.330/04 and CS No.331/04 disclose the existence of valid cause of action and it is evident from the examination and testimony of Vijay Kapoor who has examined himself as his sole witness that he has no where in his evidence pressed this issue regarding there being no cause of action in so far as the suit filed by Rajiv Ohlan and Sanjeev Ohlan is concerned. I therefore, hold that there exists a valid cause of action for Sanjeev Ohlan to approach this court in a suit for injunction and Rajiv Ohlan who has approached this court in a suit for 54 injunction and possession. Issues are accordingly decided in favour of Rajiv Ohlan and Sanjeev Ohlan and against Vijay Kapoor.
Issue no. 8 Whether the suit is barred by (Suit No. 329/04) limitation?
Onus of proving this issue was upon Smt. Shanti Kapoor and Ms. Shashi Kapoor who are the defendants no. 1 and 2 in suit no. 329/04. The case of Smt. Shanti Kapoor and Shashi Kapoor is that Vijay Kapoor who is the son of Smt. Shanti Kapoor and brother of Smt. Shahshi Kapoor, is seeking a declaration against the last and final Will of late Sh. Ralia Ram Kapoor dated 28.6.1993 which became executable after the death of Ralia Ram Kapoor in the year 1996 and under the garb of the aforesaid he is infact challenging the sale deeds executed by the defendant no. 1 and therefore, the relief of declaration and its consequential reliefs are misconceived, illegal and barred by the provisions of Article 56 of the Limitation Act.
I have gone through the pleadings of the plaint which reveals that Vijay Kapoor plaintiff in suit no. 329/04 is 55 challenging the Conveyance Deeds signed by the defendant no.1 in favour of the defendant no. 5 and 6 in respect of the suit property and also restrain against the defendants no. 5 and 6 from claiming any possession of ground floor and first floor and further restrain to defendant no. 3 to 6 from interfering in his possession/ enjoyment of the grand floor and first floor of the property in any manner. He further seeks a decree of mandatory injunction with directions to the defendants no. 5 & 6 to transfer the share of defendants no. 1 to 3 in the suit property in his favour on pro-rata value disclosed in the sale deeds. It is also evident from the pleadings that the alleged sale deeds in respect of which Vijay Kapoor is seeking the reliefs with regard to the documents executed pursuant to the Will of late Sh. Rallia Ram Kapoor dated 28.6.1993 which became executable after the death of Rallia Ram Kapoor in the year 1996. As per the pleadings Vijay Kapoor came to know about the aforesaid Will when a probate case bearing no.402/1996 was filed by Smt. Shanti Kapoor which according to the plaintiff Vijay Kapoor is still pending. The plaintiff Vijay Kapoor is challenging the sale deeds executed by Smt. Shanti 56 Kapoor in favour of defendant no.5 and 6 Rajiv Ohlan and Sanjeev Ohlan and has not specifically challenged the Will of his father late Sh. Rallia Ram Kapoor. The documents were admittedly executed in the year 2000 which are under challenge before this court. Admittedly Smt. Shanti Devi the alleged seller derived her rights on the basis of the alleged Will of late Sh. Rallia Ram Kapoor but the plaintiff Vijay Kapoor has not specifically sought a relief regarding the Will in question whose probate proceedings are still pending disposal before the competent court. I hereby hold that the present suit for cancellation of documents is therefore within the period of limitation. Issue is decided in favour of the plaintiff Vijay Kapoor in suit no.329/04.
Issue no. 9 Whether the suit is not properly valued (Suit No. 329/04) for the purposes of Court fee and jurisdiction?
Issue no. 6 Whether the suit of the plaintiff is not (Suit No. 330/04) property valued as per preliminary objection no. 7 in WS of defendant no.1?
57 In the suit filed by Vijay Kapoor, Sanjeev Ohlan and Rajeev Ohlan who are the purchasers of the property in question have raised a preliminary objection with regard to the improper valuation of the suit in respect of the court fees and jurisdiction. In their written statement they have pleaded that the plaintiff has sought the relief of declaration and consequential relief in the form of permanent and mandatory injunction and hence the valuation of the suit by Vijay Kapoor under Article 17 is not only misconceived but illegal and the suit for the purposes of court fees have to be valued under Section 7 (iv) (c) of the Court Fee Act and the plaintiff is required to affix the ad- valorem court fees on the amount valued in the plaint. Similarly in the suit filed by Sanjeev Ohlan against Vijay Kapoor the defendant Vijay Kapoor who is the plaintiff in the earlier suit has raised a preliminary objection that the suit has not been properly valued for the purposes of court fees and jurisdiction. It is evident from the record that both the plaintiffs i.e. Sanjeev Ohlan in Suit No. 330/04 and Vijay Kapoor in Suit No. 329/04 have affixed only the fixed court fees. 58
I have considered the submissions made before me and also the provisions of Section 7 of the Court Fees Act. In so far as the suit filed by Vijay Kapoor is concerned he has valued the suit for purposes of jurisdiction at Rs.8,50,000/-. He has also sought a specific relief of declaration alongwith the consequential relief of permanent and mandatory injunction. Under these circumstances, the valuation has to be done under Section 7 (iv) (c) of the Court Fees Act which has not been done. I hereby hold that the plaintiff Vijay Kapoor has improperly valued the suit for purposes of court fess. The issue is decided against the plaintiff Vijay Kapoor in Suit No.329/04 and he is granted 30 days time to make up the deficiency of the court fees only after which the decree sheet shall be drawn up in his case.
In so far as the case filed by Sanjeev Ohlan bearing CS No.330/04 is concerned it is evident from the record that the only relief sought for is for permanent injunction in respect of the property in question and Saneev Ohlan is already in possession. I hereby hold that this is not a suit where 59 declaration is an essential relief rather the only relief claimed is for injunction and I hereby hold that the suit filed by Sanjeev Ohlan has been properly valued in so far as the aspect of court fees and jurisdiction is concerned. Issues are accordingly disposed off.
Issue no. 5 Whether suit is liable to be stayed (Suit No. 330/04) under Section 10 CPC in view of preliminary objection in WS filed by the defendant no. 1?
A preliminary objection has been raised in the written statement by the defendant no. 1 Vijay Kapoor in suit no. 330/04 that the suit of the plaintiff is liable to be stayed under Section 10 CPC in view of the prior suit filed by him and the issues being directly and substantially the same. This issue has become infructuous in view of the fact that all the court cases between the parties are now being dealt together. Rather vide order dated 23.10.2003 passed by the Ld. Predecessor of this court all the three suits under the title 'Vijay Kapoor Vs. Santi Kapoor'; 'Rajiv Ohlan Vs. Vijay Kapoor' and 'Sanjeev Ohlan Vs. Vijay Kapoor' have been consolidated. The issue is 60 hereby disposed off having become infructuous. Issue no. 1 Whether Sh. Rallia Ram Kapoor left a (Suit No. 329/04) valid Will in favour of the defendant no. 1? If so, to what effect?
Issue no. 3 Whether the sale deeds executed in (Suit No. 329/04) favour of defendant no. 5 and 6 are invalid and void in respect of the alleged share of plaintiff in the house in question, in view of the fact that no probate has yet been granted of the Will?
Issue no.4 Whether property bearing no. 19/27, (Suit No.331/04) East Punjabi Bagh is ancestral property of defendant?
Issue no. 5 Whether the sale deed was executed in (Suit No.331/04) the name of Sh. Rallia Ram Kapoor, deceased, being head of the joint family and plot of Punjabi Bagh was purchased by selling ancestral property?
All the aforesaid issues are clubbed together for the sake of convenience involving common discussion. The case of Smt. Shanti Kapoor and Ms. Shashi Kapoor i.e. the defendants no. 1 and 2 in suit no.329/04, is that late Sh. Rallia Ram Kapoor had left a valid Will in favour of Smt. Shanti Kapoor due to 61 which reason she had acquired absolute right to dispose off the property in question whereas the case of Vijay Kapoor is that Smt. Shanti Kapoor has no right, the Will being invalid and and the sale deeds executed in favour of Rajiv Ohlan and Sanjeev Ohlan are invalid and void in respect of the alleged share of Vijay Kapoor in the house in question, in view of the fact that no probate has yet been granted of the Will.
The arguments of Vijay Kapoor are two fold.
Firstly that his father late Sh. Rallia Ram Kapoor was not having any exclusive rights over the property in question and he could not have executed the Will in favour of Smt. Shanti Kapoor thereby bequeathed the property to her since the property in question was an ancestral property and only he i.e. Vijay Kapoor has an absolute right over the same being the only son and legal heir of late Sh. Rallia Ram Kapoor. Secondly that late Sh. Rallia Ram Kapoor had not left any Will in favour of Smt. Shanti Kapoor.
In order to discharge the onus upon him Vijay Kapoor has examined himself as his witness. In so far as Shanti Kapoor is concerned she had filed her affidavit of evidence in 62 the court. As evident from the proceeding sheet dated 13.5.2002 in suit no.329/04, the defendant no.1 was directed to file the affidavit of evidence within two weeks and the case was listed for her cross-examination on 18.7.2002. The said affidavit duly attested on 12.7.2002 was filed before the Delhi High Court (as the matter was being previously dealtwith by the Hon'ble High Court). Thereafter a submission was made by the counsel for the defendant no.1 that the affidavit of Smt. Shanti Kapoor had already been filed and she was to be examined but since the counsels wanted consolidation of all the cases, the case was adjourned. Thereafter, the case was repeatedly adjourned for the purposes of consolidation. On 13.11.2002 the Ld. counsel for the defendant no.1 submitted that he does not wish to rely upon the affidavit of the defendant no. dated 15.7.2002 and would be filing the fresh affidavit and a Local Commissioner was appointed for purposes of conducting the cross-examination of the witness and it was directed that the defendant no.1 was an old lady and therefore, keeping in view her age, an early date should be granted. It was observed by the Joint Registrar Delhi High Court on 10.11.2003 and 14.2.2003 63 that the affidavit of defendant no. 1 and 2 was also on record. The case was delayed only because Vijay Kapoor did not file his affidavit of evidence despite opportunity. Thereafter on account of the general directions issued the case was transferred to the district courts. It was thereafter pointed out by the Ld. counsel for the defendant no.1 that Smt. Shanti Kapoor was more than 80 years and therefore request was made that she be cross-examined first. Vide a detailed order dated 16.10.2003 the Ld. Predecessor of this court permitted to taken on record the previous affidavit of Smt. Shanti Kapoor with the directions that the evidence which was beyond the pleadings would not be allowed. Thereafter, the case was delayed on one account or the other since repeated miscellaneous applications were being filed by the parties and ultimately during this intervening period Smt. Shanti Kapoor unfortunately expired on 25.11.2003 and despite the fact that her affidavit was already on record, she could not be cross-examined. Later, Ms. Shashi Kapoor the daughter of the defendant no.1 and defendant no.2 in suit bearing CS No.329/04 appeared and deposed before this court wherein she has corroborated what had been earlier stated by Smt. Shanti 64 Kapoor in her affidavit of evidence. She, in her testimony supported and corroborated the pleadings made in the written statement and the various documents so executed by her parents i.e. Late Sh. Rallia Ram and Smt. Shanti Kapoor. As per the provisions of Section 32 of the Indian Evidence Act as the authenticity and correctness of the statement made by Smt. Shanti Kapoor in her affidavit has not been put to test but since her cross-examination was delayed only on account of tactics adopted by the plaintiff by the plaintiff Vijay Kapoor, therefore, under these circumstances, the affidavit of examination in chief of Smt. Shanti Kapoor can always be looked into for corroborative and collateral purposes.
Sh. S.C. Arora advocate who has been examined as D2W4 has duly proved the certified copy of the Will which is Ex.DW1/2 executed by late Sh. Rallia Ram Kapoor which was duly registered with the Sub Registrar Kashmere Gate which has been proved by D2W3 Rakesh Ranjan LDC from Sub Registrar Kashmere Gate. Sh. S.C. Arora advocate is the attesting witness to the Will who has identified his signatures at points B,C & D. In fact Sh. S.C. Arora who is the attesting 65 witness to the Will has also identified the signatures of one Sh. P.K. Singh advocate at point mark E on Ex.DW1/2. Sh. S.C. Arora advocate was previously an employee of late Rallia Ram Kapoor and was known to him since 1969 having worked in his firm M/s. Raka Trading Company, Sirkiwalan, Hauz Quazi, Delhi and it was later on that he started practicing law in 1973 and was also conducting the cases of Rallia Ram Kapoor since 1978-79 on behalf of his company M/s. Raka Trading Company. According to the witness D2W4 Sh. P.K. Singh advocate worked with in from 1996 to 1999 and after he had drafted the Will on the instructions of Rallia Ram Kapoor who according to him was an educated person, Mr. P.K. Singh advocate has signed in the presence of Rallia Ram Kapoor. The witness S.C. Arora advocate has also proved the signatures of Rallia Ram Kapoor on each and every page and also his thumb impression which he had put in the office of the Sub Registrar at point F on each page and the plaintiff Vijay Kapoor has not been able to controvert the correctness and authenticity of the same. Sh. S.C. Arora advocate has also proved that he issued a public notice in newspaper 'Patriot' under the instructions of 66 Rallia Ram Kapoor which was published under the instruction of Rallia Ram Kapoor which is already Ex.DW1/1 by way of which the plaintiff Vijay Kapoor had been disowned by late Sh. Rallia Ram Kapoor. It is also an admitted case of the parties that late Sh. Rallia Ram Kapoor during his life time had even filed a suit against Vijay Kapoor seeking to restrain him from entering the ground floor portion of the property in question bearing no.19/27, East Punjabi Bagh, New Delhi and from entering to his business premises of M/s. Raka Trading Company at Hauz Quazi. In fact PW1 Vijay Kapoor has in his cross-examination admitted about the said litigation and also the fact that an appeal was also filed which was decided by Ms. Mamta Sehgal, the then Addl. Senior Civil Judge, Delhi wherein on his behalf a statement has been given by his counsel and an interim order was passed against him.
Firstly the aspect regarding hostile relationship between Vijay Kapoor and his father late Sh. Rallia Ram Kapoor has been admitted and also stands established and proved from the oral testimonies of Vijay Kapoor and Shashi Kapoor duly corroborated by the documents placed on record. 67
Secondly it is also admitted that the relationship was so hostile that even a civil suit was filed by Rallia Ram Kapoor against his son Vijay Kapoor to restrain him from entering into the ground floor portion of the property in question and also his business premises. So much so various complaints are stated to be filed by his father in Police Station Punjabi Bagh and Police Station Hauz Quazi.
Thirdly a public notice had been issued in newspaper 'Patriot' by late Sh. Rallia Ram Kapoor disowning him which notice Ex.DW1/1 has been proved by S.C. Arora advocate who has been examined as D2W4.
Fourthly Vijay Kapoor in his cross-examination has admitted that his father was the sole and exclusive owner of the suit property as per the sale deed and that after death of his father, his late mother Smt. Shanti Kapoor became the owner of the entire suit property as per the last and final Will of his father. The relevant portion of his cross-examination is as under:
"..... It is correct that my father was the sole and exclusive owner of the property 68 bearing no.19/27, East Punjabi Bagh (suit property) as per sale deed. It is correct that after the death of my father as per his last and final Will my late mother Smt. Shanti Kapoor became the owner of the entire suit property......"
Fifthly Vijay Kapoor has alleged that the property in question was an ancestral property. He has, however, failed to bring on record any evidence to show that the said property was ancestral and was purchased by his late father from the funds out of the ancestral property. The only evidence on record is his own oral testimony. He is not even consistent on this aspect and in his cross-examination has admitted that the suit property was initially allotted to his father by the Refugee Cooperative Housing Limited though he did not know the details of the said allotment. Copy of the sale deed/ allotment has been placed on record by late Smt. Shanti Kapoor as Ex.AW1/1 in her affidavit of evidence and later proved by Smt. Shashi Kapoor in her testimony and is not disputed by Vijay Kapoor. Initially in his cross-examination Vijay Kapoor has 69 stated that he does not known whether the plot or suit property was transferred by Refugee Cooperating Housing Limited in favour of his mother on 23.2.1999 which fact was marked in the memorandum of transfer of shares of the society but later he admitted that his mother became the owner of the property in question. In fact Vijay Kapoor has admitted that the Refugee Cooperating Housing Ltd. had executed a sale deed in favour of his father which is Ex.PW1/X3 (already mentioned as Ex.AW1/1 in the affidavit of Smt. Shanti Kapoor). Smt. Shanti Kapoor in her affidavit of evidence testified that her husband had purchased the suit property from his own resources and funds in the year 1958 when initially the first installment and share was deposited, but the sale deed was executed much later in the year 1963. Vijay Kapoor in his cross-examination has admitted that his father had come to Delhi from Pakistan during the partition and was employed with State Bank of India when he came to Delhi. He has further admitted that his father was also running the business under the name and style of M/s. Raka Trading Company. The relevant portion of his cross- examination is as under:
70
".........All the family members of my father's parents migrated from Pakistan to India in 1947. I have no knowledge where my father settled after landing in India in 1947. As per my knowledge my father was in Delhi. My father was approximately 30 years in 1947. He was married at that time. I do not know what was the salary of my father in his employment in Pakistan. Even I do not know his salary and earnings at Delhi after migration. It is correct that all the expenses of my education and my sister's eduction and upbringing was born by my father. I was partner with my father in 1971 when my sister got married. I was about 23 years old in the year 1971. My marriage was solemnised in Delhi........"
Sixthly the report of the Local Commissioner dated 26.4.2000 which is Ex.D5W2/3 has been duly proved by witness Rajinder Prashad Advocate who has been examined as D5W4. It is evident from this report Ex.D5W2/3 to which no 71 objections/ protest has been filed, that the possession of the ground floor of the property is with Sanjeev Ohlan. The rough proceedings sheet of the Local Commissioner's report dated 23.4.2000 which are Ex.PW1/DX1 bear the signatures of Vijay Kapoor as point A which he admits.
Lastly the registered sale deed executed by late Smt. Shanti Kapoor in respect of the first floor of the property in question which is Ex.DW1/4 and sale deed in respect of the ground floor of the property in question which is Ex.DW1/5 and the rectification deed which is Ex.DW1/6 which are all registered documents and duly proved by Rajiv Ohlan, Sanjeev Ohlan and also by the witness to the sale deeds Chaudhary Hawa Singh who has been examined as D6W1 and Vijay Kapoor has not been able to rebut and controvert the correctness and authenticity of these documents.
This being so I hereby hold that Vijay Kapoor has failed to substantiate and prove the grounds raised in suit no. 329/04 that the property in question was an ancestral property whereas in fact it is evident from the record that that same has 72 been duly purchased by his father late Sh. Rallia Ram Kapoor who was gainfully employed at State Bank of India and was also running a business of block making material under the name and style of M/s. Raka Trading Company which fact is admitted by Vijay Kapoor in his cross-examination. I hereby hold that late Sh. Rallia Ram Kapoor had left behind a registered and valid Will in favour of Smt. Shanti Kapoor certified copy of which is Ex.DW1/2 duly registered with the Sub Registrar Kashmere Gate vide registration no. 27057 Addl. Book No.3, Vol. No. 1820 paged 77-80 on 28.6.1993. Further, I hold that the sale deeds executed by late Smt. Shanti Kapoor in favour of Rajiv Ohlan and Sanjeev Ohlan are legal and valid. Issues are decided against Vijay Kapoor and in favour of Ms. Shashi Kapoor, Rajiv Ohlan and Sanjeev Ohlan. Issue no. 2 What was share of the defendant no. 1 (Suit No.329/04) in the suit property on the date of execution of the sale deed dated 8.2.2000 and rectification deed dated 21.2.2000 in favour of defendant no. 5 and 6?
Issue no. 4 What are the rights of defendant no. 5 (Suit No.329/04) and 6 under the two sale deeds and the 73 deed of rectification?
Both the issues are clubbed together for the sake of convenience involving common discussion. In view of my findings with regard to the aforesaid issues which are not being repeated for the sake of brevity, I hereby hold that after the death of late Sh. Rallia Ram Kapoor, by virtue of registered Will dated Ex.DW1/2 dated 28.6.1993, late Smt. Shanti Kapoor became absolute owner of the entire suit property bearing no. 19/27, Punjabi Bagh (East), Delhi and was entitled to executed the sale deeds dated 8.2.2000 and rectification deed dated 21.2.2000 in favour of Rajiv Ohlan and Sanjeev Ohlan in respect of the ground floor and top floor portion in such capacity and accordingly Rajiv Ohlan and Sanjeev Ohlan became absolute owner of the respective portions. Issues are decided in favour of Ms. Shashi Kapoor, Rajiv Ohlan and Sanjeev Ohlan and against Vijay Kapoor.
Issue no. 4 Whether the suit is liable to be
(Suit No.330/04) dismissed as plaintiff is not the owner
nor in possession of the suit property?
74
Issue no. 7 Whether the suit property is in
(Suit No.330/04) exclusive possession of defendant no. 1
and plaintiff is attempting to tress-pass
in the same?
Issue no. 8 Whether plaintiff is owner of the suit
(Suit No.330/04) property as per plea taken in plaint in
para no. 2?
The issues are clubbed together for the sake of convenience involving common discussion. In view of my detailed findings with regard to the aforesaid issues it has already been held that late Smt. Shanti Kapoor who was the defendant no. 1 in suit no. 329/04 became the absolute owner of the property in question after the death of her husband by virtue of registered Will which is Ex.DW1/2. The plea of Vijay Kapoor the defendant no. 1 in suit no. 330/04 filed by Sanjeev Ohlan that the plaintiff Sanjeev Ohlan is not the owner of the suit property and is attempting to trespass the same is devoid of merits since it is the plaintiff Sanjeev Ohlan who by virtue of the sale deed Ex.DW1/5 became the owner of the suit property. The defendant no. 1 Vijay Kapoor in suit no.330/04 was never been in possession of the ground floor portion of the property in 75 question since even prior to the execution of the sale deed his father had filed a suit against him seeking to restrain him from entering on the ground floor portion which proceedings are Ex.PW1/X1 duly proved by Smt. Shashi Kapoor as Ex.AW1/3 & Ex.AW1/4. I, therefore, hold that the plea raised by Vijay Kapoor that Sanjeev Ohlan is attempting to trespass the ground floor portion is devoid o merit. Rather it is Sanjeev Ohlan the plaintiff in suit no. 330/04 who is the absolute owner in respect of the ground floor portion of the property in question and is in possession of the same in his own rights. Issues are decided in favour of Sanjeev Ohlan and against Vijay Kapoor. Issue no. 1 Whether plaintiff is owner of the first (Suit No.331/04) floor alongwith roof rights as per plea taken in para no. 1 of the plaint?
Issue no. 6 Whether plaintiff is entitled for relief (Suit No.331/04) claimed?
Both the issues are clubbed together for the sake of convenience involving common discussion. Rajiv Ohlan is the plaintiff in suit no.331/04 where Vijay Kapoor is the defendant no. 1. In view of my detailed discussion with regard to the 76 above issues which are not being repeated for the sake of brevity, I hereby hold that Rajiv Ohlan has duly proved the registered sale deed in respect of the first floor portion of the property in question alongwith the roof rights which is Ex.DW1/4 and the rectification deed which is Ex.DW1/6 which has also been witnessed by Chaudhary Hawa Singh who has been examined as D6W1 who has proved his signatures over the same which documents have not un-rebutted and un- controverted. Therefore, in view of the above, I hereby hold that Rajiv Ohlan is the absolute owner of the first floor alongwith the roof rights of the property in question and is entitled to the possession of the same which portion is presently in possession of Vijay Kapoor. I further hold that the possession of Vijay Kapoor over the first floor portion of the property in question is that of unauthorized occupant and Rajiv Ohlan is entitled to the relief of possession thereof. Issues are decided against Vijay Kapoor and in favour of Rajiv Ohlan. Issue no. 5 Whether the plaintiff is entitled to the (Suit No.329/04) relief prayed in para 13 (b) of the plaint?
77 Issue no. 6 Whether the plaintiff is entitled to (Suit No.329/04) relief of perpetual injunction as prayed for in para 13 (c) of the plaint?
Issue no. 7 Whether the plaintiff is entitled to a (Suit No.329/04) decree for mandatory injunction as prayed for in para 13 (d) of the plaint?
All the three issues are clubbed together for the sake of convenience involving common discussion. In view of my detailed findings with regard to the aforesaid issues which are not being repeated for the sake of brevity, I hereby hold that Vijay Kapoor who is the plaintiff in suit no. 329/04 is not entitled to the relief of perpetual and mandatory injunction and of cancellation of documents as claimed by him in prayer clause
(a), (b), (c) and (d) of the plaint. Issues are decided against Vijay Kapoor and in favour of the defendants Sanjeev Ohlan and Rajiv Ohlan.
Relief:
In view of the my detailed findings with regard to the various issues in all the suits bearing no. 329/04, 330/04 and 331/04, I hereby hold that Vijay Kapoor who is the plaintiff in 78 Suit No. 329/04 is not entitled to any relief of cancellation of documents, perpetual & mandatory injunction as asked for in the plaint.
The plaintiff Sanjeev Ohlan in Suit No. 330/04 is the absolute owner in possession of the ground floor portion of property bearing no. 19/27, Punjabi Bagh (East), New Delhi and is therefore entitled to the relief of permanent injunction and I hereby restrain the defendant Vijay Kapoor from dispossessing Sanjeev Ohlan from the ground floor of suit property bearing no. 19/27, Punjabi Bagh (East), New Delhi or from causing any kind of interference in the peaceful use and enjoyment of Sanjeev Ohlan in the said property without adopting due process of law.
In so far as the plaintiff Rajiv Ohlan in Suit No.331/04 is concerned he has been held to be the absolute owner of the first floor and roof rights of the property bearing no.19/27, Punjabi Bagh (East), New Delhi and I hereby hold that he is entitled to the relief of possession and injunction as asked for in the plaint. I direct the defendant Vijay Kapoor to deliver the possession of the same to Rajiv Ohlan within a 79 period of 60 days from today. I also restrain the defendant Vijay Kapoor, his assignees, heirs, relatives, family members from selling, assigning or creating any third interest in the property in question till the delivery of its possession.
The suit bearing no.329/04 is hereby dismissed and both the suits bearing no. 330/04 and 331/04 are decreed. Decree sheets in suits bearing no.330/04 and 331/04 be prepared accordingly. It is clarified that the decree sheet in Suit No.329/04 shall be drawn up after appropriate court fee is affixed by Vijay Kapoor within 30 days from today, as directed by this court while disposing off issue no.9 in Suit No.329/04. File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 24.9.2009 Addl. District Judge: Delhi 80 Vijay Kapoor Vs. Shanti Kapoor & Ors. Suit No. 329/04 10.9.2009 Present: Sh. Vijay Kapoor in person. Sh. Rajiv Ohlan in person.
On account of the voluminous record and detailed issues involved, orders could not be completed due to shortage of time. Be re-listed for orders for 24.9.2009.
(Dr. Kamini Lau)
ADJ: DELHI/ 10.9.2009
24.9.2009
Present: None for Vijay Kapoor.
Sh. Shailender Babbar advocate for Rajiv Ohlan and Sanjeev Ohlan.
Vide my common detailed order dictated and announced in the open court but not yet typed, the suit bearing no.329/04 is hereby dismissed and both the suits bearing no. 330/04 and 331/04 are decreed. Decree sheets in suits bearing no.330/04 and 331/04 be prepared accordingly. It is clarified that the decree sheet in Suit No.329/04 shall be drawn up after appropriate court fee is affixed by Vijay Kapoor within 30 days from today, as directed by this court while disposing off issue no.9 in Suit No.329/04. File be consigned to Record Room.
(Dr. Kamini Lau)
ADJ: DELHI/ 24.9.2009
81
Sanjeev Ohlan Vs. Vijay Kapoor
Suit No. 330/04
10.9.2009
Present: Sh. Vijay Kapoor in person.
Sh. Rajiv Ohlan in person.
On account of the voluminous record and detailed issues involved, orders could not be completed due to shortage of time. Be re-listed for orders for 24.9.2009.
(Dr. Kamini Lau)
ADJ: DELHI/ 10.9.2009
24.9.2009
Present: None for Vijay Kapoor.
Sh. Shailender Babbar advocate for Rajiv Ohlan and Sanjeev Ohlan.
Vide my common detailed order dictated and announced in the open court but not yet typed, the suit bearing no.329/04 is hereby dismissed and both the suits bearing no. 330/04 and 331/04 are decreed. Decree sheets in suits bearing no.330/04 and 331/04 be prepared accordingly. It is clarified that the decree sheet in Suit No.329/04 shall be drawn up after appropriate court fee is affixed by Vijay Kapoor within 30 days from today, as directed by this court while disposing off issue no.9 in Suit No.329/04. File be consigned to Record Room.
(Dr. Kamini Lau)
ADJ: DELHI/ 24.9.2009
82
24.9.2009
Present: None for Vijay Kapoor.
Sh. Shailender Babbar advocate for Rajiv Ohlan and Sanjeev Ohlan.
Vide my common detailed order dictated and announced in the open court but not yet typed, the suit bearing no.329/04 is hereby dismissed and both the suits bearing no. 330/04 and 331/04 are decreed. Decree sheets in suits bearing no.330/04 and 331/04 be prepared accordingly. It is clarified that the decree sheet in Suit No.329/04 shall be drawn up after appropriate court fee is affixed by Vijay Kapoor within 30 days from today, as directed by this court while disposing off issue no.9 in Suit No.329/04. File be consigned to Record Room.
(Dr. Kamini Lau) ADJ: DELHI/ 24.9.2009 83