Delhi District Court
Arun Kumar vs (1) Sh. Sukhdev Singh on 22 March, 2018
Page No. 1 of 18
IN THE COURT OF PRAGATI, CIVIL JUDGE03,
CENTRAL DISTRICT, TIS HAZARI COURT, DELHI.
New Case No. 93399/16
1. Arun Kumar,
S/o Late Sh. Shashi Kumar,
R/o 1586, Main Bazar,
Pahar Ganj, New Delhi110055. ....... Plaintiff
Versus
(1) Sh. Sukhdev Singh,
S/o Late Sh. Baldev Singh,
(2) Smt. Neelam,
W/o Sh. Sukhdev Singh,
Both R/o E156, Naraina Vihar,
New Delhi110028
Also at :
R/o 1586, Main Bazar, Pahar Ganj,
Delhi110055.
3. Smt. Sheetal Suri,
D/o Late Sh. Baldev Singh,
W/o Sh. Arun Kumar,
R/o 1586, Main Bazar, Pahar Ganj,
Delhi110055 ....... Defendants.
CS No. 93399/16 Arun Kumar Vs. Sukhdev Singh & Ors.
Page No. 2 of 18
Date of Institution of the suit : 27.09.2011
Date of judgment passed : 22.03.2018
SUIT FOR POSSESSION (UNDER SECTION 6 OF SPECIFIC
RELIEF ACT 1963) AND FOR PERMANENT INJUNCTION.
Present : None.
JUDGMENT
1. The suit in hand has been filed by the plaintiff against the defendants seeking the relief of possession under Section 6 of the Specific Relief Act, 1963 and for permanent injunction.
2. Briefly stating, plaintiff's case is that defendant no. 1 is his brotherinlaw, defendant no. 2 is the wife of defendant no. 1 and defendant no. 3 is the landlady and his (plaintiff's) wife. That he was a tenant and in peaceful possession of a premises measuring 20 X 13 ft. including a one STD booth in property bearing no. 1584, Main Bazar, Pahar Ganj, New Delhi, alongwith some open space, as shown with red colour in the site plan annexed with the plaint (hereinafter referred to as the suit property). That he was inducted as a tenant in the suit property by its owner namely Sh. Baldev Singh vide a rent agreement dt. 02.04.2009 and he was continuing his business of STD booth and cargo booking from the CS No. 93399/16 Arun Kumar Vs. Sukhdev Singh & Ors.
Page No. 3 of 18suit property. That after the death of Sh. Baldev Singh, the suit property devolved upon defendant no. 3 by virtue of being daughter of Sh. Baldev Singh and defendant no. 3 had further extended his tenancy in the suit property vide lease deed dt. 09.02.2011 and as such, he continued his business from the suit property till 17.08.2011. That since he (plaintiff) had got married with defendant no. 3 against the wishes of defendants no. 1 and 2, therefore, defendants no. 1 and 2 never accepted their marriage and they always attempted to avail any chance to ruin their married life. That on 17.08.2011 when the plaintiff and defendant no. 3 were present in the suit property, then, defendant no. 1 visited there alongwith other tenants and forcibly entered the suit property and gave beatings to him, due to which, he had to go to the hospital for his treatment but by the time he returned, the suit property was occupied by defendants no. 1 and 2 who also threatened him with dire consequences in case he approaches the police in this regard. That the police officials have also colluded with defendants no. 1 and 2 and in pursuance of the said collusion, they detained him overnight by the preparing a false calendra against him u/s. 107/151 Cr.P.C. That a police complaint was also filed by him, but no action was taken thereupon. It has further been alleged that the defendant no. 1 has robbed him (plaintiff) of his valuable jewellery CS No. 93399/16 Arun Kumar Vs. Sukhdev Singh & Ors.
Page No. 4 of 18and has also dispossessed him from the suit property and has further threatened him to create a third party interest therein and not to enter the suit property. Hence, the suit in hand has been filed and prayer made that the possession of the suit property be restored to him from defendants no. 1 and 2 and that defendants no. 1 and 2 be restrained from creating any third party interest therein.
3. On notice, defendants no. 1 and 2 appeared before the court and filed their joint written statement denying therein any relationship of landlord and tenant between Sh. Baldev Singh and plaintiff or between defendant no. 3 and plaintiff. It has been averred that defendant no. 3 has also filed one suit for partition before the Hon'ble High Court of Delhi, titled as "Sheetal Suri & Anr.Vs. Sukhdev Singh & Anr.' bearing no. CS(OS) No. 2092/2010 and another suit bearing no. 1573/11 before the Ld. Civil Court. It has been averred that the suit property has always been in the exclusive possession of defendant no. 1 and it was never in possession of plaintiff neither any business was conducted by him therefrom nor he was ever inducted as a tenant in the suit property. It has further been denied that on 17.08.2011, defendant no. 1 had assaulted the plaintiff and defendant no. 3 and it has been averred that it was rather plaintiff and defendant no. 3 who had assaulted defendant no. 1 due to which, he suffered fracture and CS No. 93399/16 Arun Kumar Vs. Sukhdev Singh & Ors.
Page No. 5 of 18consequently, an FIR u/s. 325/34 IPC was registered against the plaintiff and defendant no. 3. Further, it has been denied that any threats were extended by them to plaintiff and prayer has been made that the suit in hand is not maintainable against them and is liable to be dismissed.
4. Defendant no. 3 also appeared before the Court, however, no written statement has been filed by her.
5. Replication to the written statement of defendants no. 1 and 2 has been filed by the plaintiff wherein averments of the written statement have been denied and the averments of the plaint have been reaffirmed.
6. From the pleadings of the parties, following issues were framed for adjudication of the suit in hand on 03.03.2012 :
1. Whether the plaintiff is entitled for the relief of possession against defendant no. 1 and 2, as prayed for ? OPP
2. Whether the plaintiff is entitled for the relief of permanent injunction against the defendants no. 1 and 2, as prayed for ? OPP
3. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction ? OPD
4. Whether the plaintiff has not approached the court with clean hands ? OPD
5. Whether the suit as framed is not maintainable and plaintiff CS No. 93399/16 Arun Kumar Vs. Sukhdev Singh & Ors.
Page No. 6 of 18ought to have claimed the relief of declaration as well ? OPD
6. Whether the suit is collusive in nature ? OPD
7. Relief.
7. Thereafter, both the parties were asked to lead their evidence. Plaintiff in his evidence got examined Sh. Manoj (LDC, Sub Registrar Office) as PW1, Ct. Sh. Surender (PS Pahar Ganj) as PW2, Sh. Anil Dutt Sharma as PW3 and himself/plaintiff as PW4. On the other hand, defendants no. 1 and 2 got examined defendant no. 1 Sh. Sukhdev Singh as DW1. Whereas no evidence was led by defendant no. 3.
8. Arguments advanced by ld. counsel for plaintiff and ld.
counsel for defendants no. 1 and 2 were heard.
9. My issue wise findings are as under : ISSUE No. 1
10. The onus to prove this issue was upon the plaintiff. In order to prove the same, he got examined Sh. Manoj (LDC, Office of SubRegistrar) who proved the lease deed dt. 09.02.2011, registered on 15.02.2011 (Ex. PW1/1) to be correct as per record.
11. PW2 Constable Surender (P.S. Pahar Ganj) brought the summoned record and proved the copy of DD entry no. 6B dt. 18.08.2011 (Ex. PW2/A) to be correct as per record.
12. PW3 Sh. Anil Dutt Sharma, tendered his affidavit Ex.
CS No. 93399/16 Arun Kumar Vs. Sukhdev Singh & Ors.
Page No. 7 of 18PW3/A in his testimony wherein he supported the averments of the plaintiff. He further stated that he had also started a business of artificial jewellery with the plaintiff/Sh. Arun Kumar, in the suit property, in the year 2010, but later he had left the said business after settlement of accounts and presently the suit property is in possession of defendant no. 1.
13. In his crossexamination, he stated that he knows the family of both the parties to the suit in hand since the year 200304 and when he had visited the plaintiff's house for the first time in the year 2005, then at that time, plaintiff was residing above the suit property. That plaintiff and Sh. Baldev Singh had told him about the plaintiff's tenancy in the suit property, however, no rent agreement was executed in his presence. That when he had visited the suit property for the first time, then, at that time an STD booth was installed therein, but, he expressed his ignorance as to in whose name the said STD booth was installed. That neither any transaction took place in the suit property with respect to their partnership business nor does he have any document to show that any partnership was being run there between him and plaintiff or to show the purchase/sale of articles by him for the said partnership business but he volunteered that he had kept some articles for sale at the suit property but due to dispute between the plaintiff and CS No. 93399/16 Arun Kumar Vs. Sukhdev Singh & Ors.
Page No. 8 of 18defendant, he dropped the idea of partnership business with the plaintiff and left the suit property. That plaintiff had returned to him Rs. 50,000/, but no receipt was executed in this regard. That the partnership was started on the basis that plaintiff will provide for the space (suit property) whereas he will invest in the articles to be sold in the shop (suit property). He further stated that he had also sent his consignment of readymade garments through the plaintiff from the suit property and a receipt Ex. PW3/D1 was also executed in this regard.
14. PW4 / plaintiff Sh. Arun Kumar tendered his affidavit Ex.
PW4/A in his testimony wherein, he reiterated the averments of the plaint and he further tendered the following documents :
1. Ex. PW4/1 i.e. Site plan.
2. Mark 1 i.e. Rent agreement dt. 02.04.2009.
3. Mark 2 i.e. copy of mutation letter dt. 26.10.2010.
4. Mark 4 i.e. copy of medical documents.
5. Ex. PW4/5 i.e. photographs.
6. Mark 5 i.e. copy of Kalandra dt. 17.08.2011.
7. Mark 6 i.e. copy of police complaint.
8. Mark 7 (colly) i.e. copy of complaint dt. 19.08.2011 and 17.06.2011.
15. In his crossexamination, he stated that he and defendant CS No. 93399/16 Arun Kumar Vs. Sukhdev Singh & Ors.
Page No. 9 of 18no. 3 were running a partnership firm in the suit property in the name of Sita Express Cargo and he alongwith the aforesaid firm, were a tenant in the suit property. That an unregistered partnership deed (Ex. PW4/5) was executed between him and his wife (defendant no. 3) in this regard. That he and defendant no. 3 have been divorced by mutual consent, however, the aforesaid partnership has not been dissolved. That no rent receipt with respect to the suit property has been filed by him before the Court as the same was not issued to him, however, he volunteered that the same was not demanded by him as he used to believe the landlord Sh. Baldev Singh. He further stated that he remained a tenant in the suit property from the year 2005 to 2011 and volunteered that his tenancy had commenced from June, 2005, which was an oral tenancy, but stated that no rent agreement was executed in this regard. That there was no need for him to enter into the rent agreement, therefore, the same was not executed in the year 2005 and it was Sh. Baldev Singh who desired to enter into a written rent agreement. He admitted that the fact of commencement of his tenancy in the suit property in the year 2005 has not been mentioned by him in his plaint and further admitted that the rent agreement (Mark 1) was also not prepared in his presence neither the same was signed by Sh. Baldev Singh or any other witness in CS No. 93399/16 Arun Kumar Vs. Sukhdev Singh & Ors.
Page No. 10 of 18his presence. He further stated that the suit property was one of his transit office wherefrom, he was doing his business of cargo and artificial jewellery, but no regular account of business was maintained by him at the suit property. He further admitted that he has not filed on record any document of his bank account reflecting his address as that of the suit property or any income tax return record for the period 2005 to 2012 in his own name or in the name of his partnership firm. He also admitted that Sh. Baldev Singh was running an STD booth in the suit property till his death on 24.09.2010 and volunteered that he was helping Sh. Baldev Singh in running the said STD booth. He also admitted that he and defendant no. 3 used to live at the first floor above the suit property, but denied that after the death of Sh. Baldev Singh, defendant no. 1 used to continue with the STD booth business. He further admitted that an FIR no. 134/11, PS Pahar Ganj has been filed against him and defendant no. 3 u/s. 325/34 IPC which has now been converted into u/s. 308 IPC, but stated that same is a false case. He also admitted that a criminal complaint (Ex. PW4/D2) was filed by the defendant no. 3 against the defendant no. 1 with respect to incident dt. 17.08.2011 and the same has been dismissed, however, he stated that it was dismissed due to connivance of defendant no. 1 and 3. He further expressed his CS No. 93399/16 Arun Kumar Vs. Sukhdev Singh & Ors.
Page No. 11 of 18ignorance as to whether defendant no. 1 is also a coowner of the suit property.
16. DW1 / defendant no. 1 Sh. Sukhdev Singh tendered his affidavit Ex. DW1/A in his testimony, wherein, he reiterated the averments of the written statement and further stated that plaintiff's marriage with defendant no. 3 has been dissolved by mutual consent. He further tendered the certified copy of the plaint of suit for permanent injunction filed by defendant no. 3 against the defendant no. 1 (herein) and others as Ex. DW1/1. In his cross examination, he admitted that the marriage of plaintiff and defendant no. 3 was an intercaste marriage and stated that he has never visited the home of plaintiff and defendant no. 3 nor did he invite them to his home. He expressed his ignorance as to since when the plaintiff was known to his father Sh. Baldev Singh and admitted that his father Sh. Baldev Singh had arranged and performed the marriage ceremony of plaintiff and defendant no. 3. He denied that plaintiff and defendant no. 3 were running a cargo booking shop in the suit property under the name and style of Sita Express Cargo and were also running an STD booth therein but expressed his ignorance as to whether the plaintiff and defendant no. 3 were partners in the firm Sita Express Cargo. He admitted that plaintiff and defendant no. 3 are residing in house no. 1856, CS No. 93399/16 Arun Kumar Vs. Sukhdev Singh & Ors.
Page No. 12 of 18main Bazar, Pahar Ganj, Delhi and volunteered that they had started residing there since the time of illness of Sh. Baldev Singh. On being confronted with rent agreement (Mark 1), he denied that the same was executed by late Sh. Baldev Singh in favour of plaintiff. He stated that he cannot produce any document to show that he and late Sh. Baldev Singh were running an STD booth in the suit property, but stated that he is in possession of the suit property since beginning. He admitted that he is residing at Narayana Vihar since the year 1993, however, he stated that before 17.08.2011, he was working with his father Sh. Baldev Singh, who was earlier doing the business of electroplating and later had started running the STD booth. As such, he denied that Sh. Baldev Singh had given the suit property on rent to plaintiff to enable him to meet his day to day requirements since the plaintiff was unemployed.
17. Plaintiff has averred that he was inducted as a tenant in the suit property by late Sh. Baldev Singh vide rent agreement dt. 02.04.2009 (Mark 1) and that he remained in possession of the suit property till 17.08.2011, whereafter, he was forcibly dispossessed therefrom. He has further averred that he was running a business of booking cargo as well as an STD booth in the suit property, but in his crossexamination, plaintiff/PW4 Sh. Arun Kumar has deposed CS No. 93399/16 Arun Kumar Vs. Sukhdev Singh & Ors.
Page No. 13 of 18that he was a tenant in the suit property since the year 2005 till the year 2011, but no rent agreement was executed between him and Sh. Baldev Singh till the year 2009. The only reason cited for non execution of a rent agreement in the year 2005 is that the plaintiff did not feel the need to enter into any such agreement and since, Late Ssh. Baldev Singh desired a written rent agreement, therefore, the same was executed in the year 2009. This reasoning of plaintiff/PW4 Sh. Arun Kumar seems to be unconvincing since if late Sh. Baldev Singh had desired a written rent agreement then he could have executed the same in favour of plaintiff in the year 2005 itself. Be that as it may, the original rent agreement dt. 02.04.2009, allegedly executed by late Sh. Baldev Singh in favour of plaintiff, has not been produced before this Court. Since defendants no. 1 & 2 have specifically averred that the rent agreement dt. 02.04.2009 (Mark 1) has been forged by the plaintiff, therefore, the onus was upon the plaintiff to prove that the rent agreement dt. 02.04.2009 was duly executed by late Sh. Baldev Singh. Plaintiff / PW4 Sh. Arun Kumar has himself deposed in his crossexamination that the rent agreement dt. 02.04.2009 was not signed by late Sh. Baldev Singh in his presence nor the witnesses had signed the same in his presence. Neither any witness to the said rent agreement nor any hand writing/signature expert has been examined by the plaintiff to CS No. 93399/16 Arun Kumar Vs. Sukhdev Singh & Ors.
Page No. 14 of 18prove that the rent agreement (Mark 1) was executed by late Sh. Baldev Singh. Further, no rent receipts or statement of bank account of plaintiff has been filed to prove that plaintiff was a tenant in the suit property and was tendering rent in respect thereof to late Sh. Baldev Singh. As such, this Court is of the view that plaintiff has failed to prove that the rent agreement dt. 02.04.2009 (Mark 1) was duly executed by Sh. Baldev Singh. Moreover, plaintiff/PW4 Sh. Arun Kumar has admitted in his cross examination that it was late Sh. Baldev Singh who was running the said STD Booth in the suit property till the time of his death on 24.09.2010. Plaintiff/PW4 Sh. Arun Kumar himself has volunteered that he was helping late Sh. Baldev Singh in the running of the said business of STD Booth which means that plaintiff himself was not running the STD booth in the suit property in his individual capacity, but was merely assisting late Sh. Baldev Singh. No proof of ownership of the said STD booth or any license in his own name with respect to running of the same has been filed by the plaintiff. As such, it cannot be said that plaintiff was running the said STD booth in the suit property.
18. Plaintiff has further relied upon the partnership deed dt.
12.08.2006 (wrongly exhibited as Ex. PW4/5, hereinafter referred to as the partnership deed dt. 12.08.2006) to show that a CS No. 93399/16 Arun Kumar Vs. Sukhdev Singh & Ors.
Page No. 15 of 18partnership business in the name and style of M/s. Sita Express Cargo was being run jointly by the plaintiff and defendant no. 3 from the suit property, but careful perusal of this partnership deed reveals that the same pertains to the premises no. 1586 and not the suit property, which is a part and parcel of property no. 1584. As far as the receipt Ex. PW3/D1 is concerned, then, although the same bears house no. 1584, but it does not reflect that the receipt is issued with respect to the ground floor of property no. 1584. PW3 Sh. Anil Dutt Sharma has deposed that the plaintiff and defendant no. 3 were residing at the first floor of the property no. 1584, therefore, it was incumbent upon the plaintiff to show that the said receipt Ex. PW3/D1 pertains to suit property which is on the ground floor of property no. 1584 and not with respect to the first floor of property no. 1584 where plaintiff and defendant no. 3 were maintaining their residence.
19. Plaintiff has also relied upon a lease agreement (Ex.
PW1/A) executed by defendant no. 3 in his favour. Perusal of this lease agreement reveals that defendant no. 3 has claimed herself to be the absolute owner of the property no. 1584, whereas in her plaint/suit for partition (Ex. PW4/D1) filed by her before Hon'ble High Court of Delhi, she has sought partition of property no. 1584 on the ground that the same was owned by her father late Sh.
CS No. 93399/16 Arun Kumar Vs. Sukhdev Singh & Ors.
Page No. 16 of 18Baldev Singh and after his death, she has a share therein by virtue of being his legal heir. As such, there is a clear contradiction in the stand of defendant no. 3. If late Sh. Baldev Singh was the sole/absolute owner of property no. 1584 then after his death the same would devolve upon all his legal heirs and defendant no. 3 alone could not have executed the lease deed Ex. PW1/A in favour of plaintiff, without the consent of other cosharers/coowners. As far as, the criminal complaint of plaintiff with respect to the alleged incident dt. 17.08.2011 is concerned, then, admittedly, the same has been dismissed whereas it is the complaint of defendant no. 1 against plaintiff which is still pending. Hence, in view of the aforesaid discussion, it is held that plaintiff has failed to prove that he was a tenant in the suit property, or that he was in possession thereof six months prior to the filing of the suit in hand or that he has been forcibly dispossessed therefrom. As such, plaintiff is not entitled to recover the possession of the suit property from defendants no. 1 & 2. Accordingly, this issue is decided against the plaintiff.
Issue no. 2
20. The onus to prove this issue was upon the plaintiff. In view of the aforesaid discussion, this issue is decided against the plaintiff.
CS No. 93399/16 Arun Kumar Vs. Sukhdev Singh & Ors.
Page No. 17 of 18 Issue No. 321. The onus to prove this issue was upon the defendants. No evidence has been led by the defendants to prove the same, therefore, this issue is decided against the defendants.
Issue No. 422. The onus to prove this issue was upon the defendants. In view of the aforesaid discussion, this issue is decided in favour of the defendants.
Issue No. 523. The onus to prove this issue was upon the defendants.
Plaintiff has not claimed himself to be the owner of the suit property. He has sought the relief of possession of the suit property and the relief of injunction on the ground that he has been forcibly dispossessed from the suit property, therefore, this court is of the view that no relief regarding declaration was required to be sought by the plaintiff. Further, no evidence has been led by the defendants in this regard. Hence, this issue is decided against the defendants.
Issue No. 6.
24. The onus to prove this issue was upon the defendants. The fact of execution of lease deed (Ex. PW1/A) with respect to suit property by defendant no. 3, the fact of non filing of written CS No. 93399/16 Arun Kumar Vs. Sukhdev Singh & Ors.
Page No. 18 of 18statement and non leading of evidence by defendant no. 3 and lastly, the fact that on the date of addressing of final arguments on behalf of both the parties, defendant no. 3 appeared and sought for passover on behalf of plaintiff and his counsel, goes to show that plaintiff and defendant no. 3 are in collusion with each other. Therefore, in view of the aforesaid discussion, this issue is decided in favour of defendants no. 1 and 2.
RELIEF
25. In view of the aforesaid discussion, the suit in hand is hereby dismissed with costs. Decree Sheet be prepared accordingly. File be consigned to Record Room after due compliance. Digitally signed by PRAGATI PRAGATI Date:
2018.04.24 14:46:02 +0530 Announced in the Open Court (PRAGATI ) nd today on 22 March, 2018 Civil Judge03/Central Tis Hazari Courts, Delhi This judgment contains 18 pages and all the pages are signed by me.Digitally signed by PRAGATI
PRAGATI Date: 2018.04.24
14:46:12 +0530
(PRAGATI)
Civil Judge06/Central
Tis Hazari Courts, Delhi
CS No. 93399/16 Arun Kumar Vs. Sukhdev Singh & Ors.