Delhi District Court
Jyotsna Sharma vs Pankaj Sharma on 23 December, 2023
IN THE COURT OF Ms. PRIYANKA RAJPOOT, ACMM-
04, ROUSE AVENUE DISTRICT COURT, NEW DELHI.
THE THEN ASCJ-JSCC-GJ, NORTH -WEST DISTRICT,
ROHINI COURTS, DELHI
Suit No. 887/21
Ms. Jyotsna Sharma,
D/o Sh. Uday Ram Sharma
R/o H. No. 300, Sector-31,
Faridabad, Haryana ......Plaintiff
Versus
Sh. Pankaj Sharma
S/o Sh. Dharam Vir Sharma,
R/o Flat no.05, Pocket-06, Sector-23
Rohini, Delhi ......Defendant
Date of institution : 01.07.2021
Date of reserving of order : 05.10.2023
Date of pronouncing Order : 23.12.2023
SUIT FOR PERMANENT INJUNCTION
EX-PARTE JUDGEMENT
1.The brief facts of the case are as follows:-
a) The plaintiff is residing with her parents in Faridabad, Haryana. The defendant is the maternal uncle (real mama) of the plaintiff. There is a lack of cordial relations between the plaintiff's family members and the defendant's family members.
b) Sh. Ved Prakash Sharma was the sole, absolute, exclusive, rightful owner and possessor of suit property i.e H-26B, measuring 41.66 Sq. Yds., situated in the unauthorized regularized colony known CS SCJ No. 887/2021 Jyotsna Sharma Vs. Pankaj Sharma 1/8 as Budh Vihar Phase-II, Sharma Colony, Delhi-110086.
c) Sh. Ved Prakash Sharma approached the plaintiff as he wanted to sell his portion of the suit property for a consideration of Rs. 4,00,000/-. The plaintiff accepted the offer and paid the amount to Ved Prakash. Upon receiving the full consideration of Rs. 4,00,000/-, Sh.
Ved Prakash Sharma executed General Power of Attorney, Agreement to Sell, Affidavit, Will and a receipt regarding his share in the property.
d) The possession of the suit property was handed over to the plaintiff by Sh. Ved Prakash Sharma on the same day, and since then, the plaintiff has maintained physical possession and ownership rights over the suit property.
e) The plaintiff has purchased a specific portion of the property, H-26B, measures 41.66 Sq. Yds. This portion is part of a plot covering 100 Sq. Yds., situated in Khasra No. 73/6, Village Rithala. The entire 100 sq. yds. of land has already been partitioned. The plaintiff holds ownership and is in possession of 41.66 Sq. Yds designated as part -1 in the site plan. Similarly, Ms. Aparna Sharma owns and occupies 41.67 Sq. Yds as part -2. On the other hand, the defendant is the owner and in possession of 16.67 Sq. Yds as part -3 of the suit property. Original documents executed by Basant Lal and Dharamvir Sharma are in possession of the CS SCJ No. 887/2021 Jyotsna Sharma Vs. Pankaj Sharma 2/8 defendant.
f) The plaintiff has visited the suit property multiple times after purchasing it from Sh. Ved Prakash Sharma, with the intention of constructing a house. On 04.04.2021, the plaintiff commenced the construction of a boundary wall on her part of the suit property.
g) On 08.04.2021, when the plaintiff visited the suit property, the defendant along with four other unknown individuals, reached there and threatened the plaintiff with dire consequences.
h) The defendant claimed that on 31.12.1982, original documents were signed by the landlord, Sh. Basant Lal, in favor of his father, Sh. D.V. Sharma and threatened to create false and fabricated documents at any time with an intention to sell, alienate, or create third-party interest in the suit property with the help of previous owners.
i) On the same day, the plaintiff filed a written complaint with the SHO, PS Budh Vihar against the defendant but no action was taken by the police against the defendant.
j) On 24.06.2021, the plaintiff again visited the suit property with a contractor for further construction. However, the defendant and his wife arrived there and CS SCJ No. 887/2021 Jyotsna Sharma Vs. Pankaj Sharma 3/8 started abusing the plaintiff and her family members.
k) The defendant wants to grab the suit property and is not letting the plaintiff to do any construction therein.
2. Hence, the plaintiff has filed the present suit seeking the relief of permanent injunction thereby restraining the defendant, his wife, his family members, his attorney, assignee, representative or any other person working on his behalf from selling, alienating ,creating third party interest with the help of previous owners in respect of suit property and for restraining the defendant from interfering in raising construction by the plaintiff in her part of the property as shown in red colour in site plan.
3. The defendant was duly served with the summons through WhatsApp but he failed to appear before the court. Accordingly, the matter was directed to be proceeded with ex-parte qua the Defendant vide order dated 28.05.2022.
4. The plaintiff examined herself as PW-1. She tendered her evidence by way of an affidavit Ex.PW-1/A and relied upon various documents. After her examination as sole witness, the plaintiff chose to close ex-parte PE. During proceedings, Ld. Counsel for plaintiff withdrew prayer clause A i.e. permanent injunction to restrain the defendant from creating third party in respect of suit property. In view of the same, the said prayer was disposed of as withdrawn vide order dated 04.01.2023.
5. The Court has heard the arguments of Ld. Counsel for the CS SCJ No. 887/2021 Jyotsna Sharma Vs. Pankaj Sharma 4/8 plaintiff and also has gone through the evidence on record including documentary evidence.
6. The onus to establish the case rested on the plaintiff. PW-1 has relied upon the following documents:-
(i) Photocopy of my Aadhar Card as EX.PW1/1 (OSR)
(ii) Photocopy of my Pan Card as EX.PW1/2 (OSR)
(iii) Photocopy of Receipt of purchase of property as EX.PW1/3 (OSR).
(iv) Photocopy of General Power of Attorney as EX.PW1/4 (OSR).
(v) Photocopy of Agreement to Sell as EX.PW1/5 (OSR).
(vi) Photocopy of Affidavit from the seller as EX.PW1/6 (OSR).
(vii) Original Copy of Site Plan as EX.PW1/7.
(viii) Photocopy of Will as EX.PW1/8 (OSR)
(ix) Photocopy of Possession letter as EX.PW1/9 (OSR).
(x) Copy of complaint dated 08.04.2021 with postal receipt as EX.PW1/10.
(xi) Photocopy of Tracking report of service of the complaint as Mark-A1.
(xii) Copy of Plaint as EX.PW1/11.
(xiii) Photocopy of GPA / Agreement to Sell / Affidavit of Old Chain as Mark- A(Colly).
(xiv) Photocopy of GPA / Agreement to Sell / Affidavit of Old Chain as Mark- B(Colly).
CS SCJ No. 887/2021 Jyotsna Sharma Vs. Pankaj Sharma 5/8
7. The defendant was ex-parte. Even though the averments made in the affidavit of the plaintiff and the explanation made in the affidavit of the plaintiff / PW1 has gone unrebutted, this court is of the considered view that the suit of the plaintiff is liable to be dismissed for the reasons stated herein below:-
a) The plaintiff claims that suit property is a part of 100 sq. yards land which has already been partitioned and the previous owner has sold only a specific portion i.e. 41 sq. yards to the plaintiff. Notably, the plaintiff has nowhere provided the vital information - when the partition has occurred, who were the parties to the said partition, the shares allocated to each party, and the documentation related to the partition. The plaintiff has also not examined any witness to prove that a valid partition had taken place by metes and bound, on account whereof the alleged seller, had acquired title to his share in the suit property and was therefore competent to dispose of his share in favour of the plaintiff. Thus, in the absence of essential details and documentary evidence, it is difficult to believe the assertion of the plaintiff.
b) The plaintiff is seeking an injunction order against the defendant to restrain him from interfering in the construction of the suit property. The plaintiff claims ownership of a specific portion i.e. 41 sq yards, as shown in red colour in the site plan Ex. PW-1/7. However, there is inconsistency in the averments made in that plaint and site plan vis-a-vis the documents Ex.
CS SCJ No. 887/2021 Jyotsna Sharma Vs. Pankaj Sharma 6/8 PW-1/3 to PW-1/6 executed in favour of plaintiff. While the plaint and site plan demonstrate the suit property as a vacant land, the documents Ex. PW-1/3 to PW-1/6 suggest that the suit property is a double-storey built property with a roof. Thus, the description as given in documents, does not tally with site plan. Identity of the property in respect of which relief is being sought in plaint, is therefore, doubtful.
c) It is the case of the plaintiff that she intends to do construction on the suit property, however, the documents on record shows that the construction already exists. The plaintiff has not clarified whether the intention is to undertake new construction or renovation. Additionally, there is no evidence to show that the plaintiff has obtained permission from the competent authority, such as the Municipal Corporation of Delhi, to carry out construction at the suit property.
d) The plaintiff has approached the court seeking the relief as she has allegedly purchased the suit property under the relevant title deeds. Thus, the plaintiff ought to have proved her title in the manner known to law. However, the plaintiff has merely filed GPA, Agreement to Sell, Affidavit, Receipt, Will which do not confer titular rights. She has not adduced the original chain of documents relating to suit property. She has not provided the particulars of the previous owners and has not explained as to how the suit properties has CS SCJ No. 887/2021 Jyotsna Sharma Vs. Pankaj Sharma 7/8 exchanged hands over the years. The plaintiff has not established by way of primary evidence that Ved Prakash, who has executed the said documents in her favour, had possessed the right, title or interest in the suit property.
e) The plaintiff has also not filed any document viz. electricity bill or Aadhar card etc. to show that she is in physical possession of the suit property. Further, there is no document to show that other co-owners i.e. defendant or Aparna Sharma are in possession of their alleged respective shares. Thus, the plaintiff has not proved her title or possession. In such circumstances, the suit for injunction based on title and possession has to be dismissed.
8. Thus, in view of my forgoing discussion, it is concluded that the plaintiff has failed to meet the burden of proof required to establish her entitlement to the relief sought in the suit. Consequently, the relief of permanent injunction sought by the plaintiff, cannot be granted. The suit is disposed off as dismissed. No order as to cost. Decree sheet be prepared forthwith.
9. File be consigned to Record Room after due compliance.
(Announced in the open Court) (PRIYANKA RAJPOOT) rd 23 December, 2023 ACMM-04, RACC, NEW DELHI The Then ASCJ-JSCC-GJ (NORTH-WEST) ROHINI COURTS / DELHI CS SCJ No. 887/2021 Jyotsna Sharma Vs. Pankaj Sharma 8/8