Delhi District Court
Sh. Manohar Lal vs Sh. Janak Singh on 22 March, 2011
Suit No. 140/01 -1- Dated: 22/03/2011
IN THE COURT OF SH. ABHILASH MALHOTRA,
CIVIL JUDGE, CENTRAL-02, TIS HAZARI COURTS, DELHI
Suit No. 140/01
Sh. Manohar Lal
s/o. Sh. Ramji Lal,
r/o. 27/341, Banjara Camp,
Khanpur, New Delhi-62.
.........plaintiff
Versus
1. Sh. Janak Singh,
s/o. Late Sh. Nekshi Ram,
r/o. A-125, J.J. Colony, Khanpur,
(near DTC Bus Depot Khanpur),
New Delhi-110062.
2. Smt. Somati,
w/o. Late Sh. Nekshi Ram,
r/o. A-125, J.J. Colony, Khanpur,
(near DTC Bus Depot Khanpur),
New Delhi-110062.
.........defendants
Date of Institution:29.06.01
Date of reserve of Judgment:26.02.11
Date of pronouncement of Judgment:22.03.11
JUDGMENT
1. The present suit has been filed by plaintiff seeking relief of permanent injunction restraining the defendant from selling, transferring or parting the possession of shop bearing no. 19, Banjara Camp, M.B. Road, Khanpur, New Delhi-110062. (shown as red in site plan Ex. PW1/5).
Pages 1/12Suit No. 140/01 -2- Dated: 22/03/2011
2. It is stated in the plaint that defendant no. 1 is brother-in-law and defendant no. 2 is mother-in-law of the plaintiff. It is stated that late Sh. Nekshi Ram was father-in-law of the plaintiff. Late Sh. Nekshi Ram created tenancy of suit premises in favour of Sh. Shafique for the monthly rent of Rs. 1500/-. It is stated that Sh. Nekshi Ram was neglected by defendants during his life time. It is only his daughter Smt. Ramwati (wife of plaintiff) who served Sh. Nekshi Ram during his life time and being happy from her Sh. Nekshi Ram executed a will on 14.10.98 in favour of Smt. Ramwati. It is stated that after death of Sh. Nekshi Ram on 18.10.2000 Smt. Ramwati has become the owner of the suit property. It is further stated that Smt. Ramwati had executed General power of attorney, agreement to sell, affidavit and receipt transferring the ownership right in favour of plaintiff on 31.01.2001. It is stated that after execution of aforesaid documents plaintiff become entitled to receive the rent from Sh. Shafique. It is stated that plaintiff had issued notice dated 01.05.2001 to Sh. Shafique directing him not to give rent to any other person except plaintiff. It is also stated that notice was also issued to defendant no. 1 directing him not to interfere in peaceful possession of Sh. Shafique and not to collect the rent from him.
3. It is stated that defendant no. 1 and 2 influenced the tenant Sh. Shafique for not giving rent to plaintiff. It is stated that plaintiff has come to know from property dealer of the locality that both Pages 2/12 Suit No. 140/01 -3- Dated: 22/03/2011 defendants want to sell the suit property i.e. shop bearing no. 19, Banjara Camp, M.B. Road, Khanpur, New Delhi-110062. It is stated that defendants cannot sell the suit property/shop as they have no interest title in the said shop. Aggrieved from the aforesaid circumstances plaintiff has filed the present case.
4. Defendant no. 2 in their joint written statement has stated that plaintiff is neither the owner nor landlord of the suit property. It is stated that Sh. Nekshi Ram died intestate on 18.10.2000 and defendants are only legal heirs of late Sh. Nekshi Ram. It is stated that tenancy in respect of suit property i.e. shop bearing no. 19, Banjara Camp, M.B. Road, Khanpur, New Delhi-110062 was created on 19.01.01 by defendant no. 2 after death of her husband Sh. Nekshi Ram. It is stated that tenancy was created in favour of Sh. Shafique for 11 months but he could run shop only for 03 months and left thereafter. It is denied that the tenancy of the said shop was created by late Sh. Nekshi Ram. It is also denied that Sh. Nekshi Ram has executed any will in favour of Smt. Ramwati in respect of the suit property. It is admitted that plaintiff issued legal notice to the tenant Sh. Shafique. It is denied that defendant no. 1 tried to sell the suit property or has approached any property dealer.
5. Plaintiff in his replication has reaffirmed the averments made in the plaint and has stated that he has become owner/landlord by virtue of Pages 3/12 Suit No. 140/01 -4- Dated: 22/03/2011 General power of attorney, agreement to sell executed in his favour. It is admitted that Sh. Shafique has already vacated the premises. It is stated that during the illness of Sh. Nekshi Ram, defendant never come forward to help him and it is only plaintiff and his wife who served him in the need. After completion of the pleadings the following issues were framed by my Ld. Predecessor by order dated 24.05.02 :
(i) Whether the plaintiff is entitled for relief of permanent injunction as prayed for? OPP.
(ii) Relief.
However, thereafter by order dated 27.03.03 following additional issue was also framed :
(I) Whether the plaintiff has no Locus Standi to file the present suit? OPD.
6. Plaintiff in order to discharge his onus has examined PW1 Sh. Manohar Lal and PW2 Smt. Ramwati. Defendant has examined Sh. Janak Singh as DW1 and Smt. Some Devi as DW2. Plaintiff has examined Sh. Ram Das as RW1 in his rebuttal evidence. The issue wise findings in the present case are as follows:
7. ISSUE NO. 17a. The onus to prove this issue was on plaintiff. Plaintiff has examined himself as PW1 and Smt. Ramwati as PW2. Plaintiff has Pages 4/12 Suit No. 140/01 -5- Dated: 22/03/2011 brought on record document Ex. PW1/1 to Ex. PW1/5. In his testimony PW1 has reaffirmed the averments made in the plaint. It is stated that Sh. Nekshi Ram had executed will dated 14.10.98 in favour of his wife Smt. Ramwati i.e. Ex. PW1/1. It is stated that Smt. Ramwati has executed General power of attorney, affidavit and agreement to sell which are Ex. PW1/2, Ex. PW1/3 and Ex. PW1/4 respectively. It is stated that shop has been let out to firstly Sh. Shafique Ahmed thereafter to Sh. Kanwal Jain and presently is let out to Sh. Raj Kumar Prajapati. PW1 has further stated that his wife Smt. Ramwati was living alongwith her father for about 14 years. It is stated that his father-in-law executed Will on 14.10.98 in Tis Hazari Courts in his presence, in presence of his wife, Sh. Ram Dass and Sh. Ram Swaroop. It is stated that Will was also attested at Tis Hazari Courts. It is stated that his wife Smt. Ramwati was living in Jhuggi nearby the Jhuggi of his father-in-law. It is stated that suit property had always remained in physical possession of the defendants but plaintiff has been giving legal notices to the tenants kept by defendants in the suit property.
7b. PW2 Smt. Ramwati has also deposed in consonance with PW1 and has also relied upon the documents brought on record by PW1. PW2 has admitted the execution of Will in her favour and subsequent execution of document by her in favour of PW1/plaintiff Sh. Manohar Lal. She has further stated that her father late Pages 5/12 Suit No. 140/01 -6- Dated: 22/03/2011 Sh. Nekshi Ram remained seriously ill before his death and due to his illness he had died. It is stated that her father late Sh. Nekshi Ram was living with her at the time of his death and she used to provide food to him. Witness has also stated that she has purchased the stamp paper for the transfer of the property in the name of her husband and has also admitted that the documents were registered. Witness has expressed her ignorance concerning the persons in whose presence the Will was signed by Sh. Nekshi Ram. Witness has also expressed her ignorance to the fact that her father had purchased shop bearing no. 19, Banjara Camp, M.B. Road, Khanpur, New Delhi-110062 i.e. suit property or not. Witness has stated that Will was prepared and notarised in Tis Hazari Courts. Witness has admitted the sale of property to her husband Sh. Manohar Lal for Rs. 45,000/-
7c. RW1 Sh. Ram Dass has stated that the Will Ex. PW1/1 was executed in Tis Hazari Courts on 14.10.98. He has also identified that Will bears thumb impression of executant late Sh. Nekshi Ram. He has identified his signatures at point 'C' on Ex. PW1/1. It is stated that other witness Sh. Ram Swaroop has also signed at point 'B' on the Will. The witness has also identified the photograph of late Sh. Nekshi Ram on the Will and has stated that the Will was notarised by Sh. G.D. Dahiya, Notary Public in his presence and also in the presence of other witness and executant. It is stated that the Pages 6/12 Suit No. 140/01 -7- Dated: 22/03/2011 Will has been executed in favour of Smt. Ramwati who is wife of plaintiff. Witness has also stated that before execution of Will, late Sh. Nekshi Ram has met him two three times for execution of Will. It is stated that for executing the Will late Sh. Nekshi Ram came to his residence in three Wheeler and thereafter he alongwith Sh. Nekshi Ram went to house of Sh. Ram Swaroop and from the residence of Sh. Ram Swaroop they came to Tis Hazari Courts.
7d. DW1 has not brought any document on record. It is stated that in suit property i.e. shop bearing no. 19, Banjara Camp, M.B. Road, Khanpur, New Delhi-110062 his late father was living and also working. It is stated that mother after the death of father has become possessor as well as owner of the suit shop. It is admitted in para 6 of affidavit in chief that a Will was executed on 14.10.98 in the name of Smt. Ramwati but said fact was kept secret during life time of Sh. Nekshi Ram and even after his death. It is stated that execution of Will is manipulated act of plaintiff and his wife. It is deposed by DW1 in his affidavit in chief. Ex. D1 was not attested in his presence by oath commissioner. It is stated that Sh. Nekshi Ram was illiterate and could not sign even in Hindi and he used to put thumb impression on paper of every type. It is admitted that Smt. Ramwati is the daughter of Sh. Nekshi Ram and one of the legal heir. It is admitted that Sh. Nekshi Ram used to live in shop bearing no. 19, Banjara Camp, M.B. Road, Khanpur, New Delhi-110062 i.e. suit Pages 7/12 Suit No. 140/01 -8- Dated: 22/03/2011 property. It is stated that there was Jhuggi behind the said shop where the Sh. Nekshi Ram used to live alongwith his mother (wife of Sh. Nekshi Ram) and said Jhuggi was belonging to Sh. Nekshi Ram. It is stated that his mother had cordial relations with Sh. Nekshi Ram. It is denied that Smt. Ramwati used to serve food to Sh. Nekshi Ram as he was neglected by the mother. It is admitted that sister Smt. Ramwati used to live near Jhuggi and shop in dispute. It is also admitted that during his life time Sh. Nekshi Ram married both the brothers with pomp and show and they were alloted DDA flats. It is admitted that neither his elder brother nor his wife used to visit late Sh. Nekshi Ram when he was ill before his death. However, it is stated the he and his wife were used to attend his father prior to his death. It is denied that Sh. Nekshi Ram has executed any will in favour of Smt. Ramwati i.e. sister. It is also denied that Smt. Ramwati helped and served the father when he was ill and being happy from her services Sh. Nekshi Ram executed Will in her favour. It is admitted that after the death of his father the suit shop is on rent and four tenants i.e. Sh. Shafique Ahmed, Sh. Kaver Saind, Sh. Raj Kumar Prajapati and Sh. Atray were inducted. It is denied that he has collecting the rent after the death of his father and Smt. Ramwati is rightful owner entitled to collect rent from the tenants. It is admitted that Smt. Ramwati has executed General power of attorney Ex. PW1/2 in favour of Sh. Manohal Lal i.e. plaintiff in the present case. It is also admitted that Sh. Manohar Lal has Pages 8/12 Suit No. 140/01 -9- Dated: 22/03/2011 served notice under section 106 Transfer of Property Act for payment of rent to tenant Sh. Safique Ahmed, Sh. Kaver Saind and also to Sh. Atray which was duly replied.
7e. DW2 in her testimony has admitted that her husband was living and working in the suit property i.e. shop bearing no. 19, Banjara Camp, M.B. Road, Khanpur, New Delhi-110062. It is stated that her husband died on 18.10.2000 but did not executed any document in name of her daughter Smt. Ramwati. It is stated that the will is a false document and has been prepared by plaintiff and her husband after death of Sh. Nekshi Ram. It is also stated that left thumb impression placed on the will is also false and forged. It is stated that after death of her husband Sh. Nekshi Ram she is the possessor of the suit property and is entitled to let out the same. She has admitted that she has two sons namely Sh. Bhishambar and Sh. Janak Singh and one daughter namely Smt. Ramwati. It is admitted that her both sons never worked with her husband in shop and her son-in-law was working with her husband in the shop. It is admitted that after the marriage of both the sons she alongwith her husband was living with her daughter. She has admitted that deceased Sh. Nekshi Ram was unhappy with both the sons including their wives and also with her. Witness has admitted that she is receiving rent of Rs. 1500/- p.m. from the suit shop which she is paying to her son Sh. Janak Singh.Pages 9/12
Suit No. 140/01 -10- Dated: 22/03/2011 7f. Perusal of documents brought on record and testimony of various witnesses shows that defendants have miserably failed to bring into controversy the Will Ex. PW1/1. The attesting witness RW1 has proved this Will and has stated that the Will was executed by Sh. Nekshi Ram in favour of his daughter Smt. Ramwati in his presence. The attesting witness RW1 has also identified his signatures as well the thumb impression and photograph of Sh. Nekshi Ram on Ex. PW1/1. DW2 in her testimony has admitted that Smt. Ramwati was living with them and both the sons were living apart. She has also admitted that Sh. Nekshi Ram was not happy with his sons, their wives and DW2 herself. DW2 has also admitted the execution of General power of attorney Ex. PW1/2 by Smt. Ramwati in favour of her husband. Moreover, the documents Ex. PW1/2, Ex. PW1/3 and Ex. PW1/4 have also remained unrebutted. The Will has been duly proved as per mandate of Section 68 of Indian Evidence Act, 1872. Defendants have failed to lead any evidence to show that Will has been false and forged document.
7g. In view of the circumstances the rule of best evidence as enshrined in Section 91 of Indian Evidence Act is bound to prevail. The documents brought on record shows that plaintiff has acquired the interest in the suit property. It is also admitted position on record that DW2 is receiving rent from tenants. As the suit property is in Pages 10/12 Suit No. 140/01 -11- Dated: 22/03/2011 possession of tenants, plaintiff is in constructive possession of the same. It is clear from the record that in case the injunction is not granted there is a threat to plaintiff's peaceful enjoyment of the property.
In view of the aforesaid discussions this issue is decided in favour of the plaintiff and against the defendants.
8. ADDITIONAL ISSUE NO. I Additional issue no. I was framed on 27.03.03. The onus to prove this issue was on defendants. DW1 in his testimony has admitted that Smt. Ramwati has executed General power of attorney in favour of plaintiff. Moreover, from the testimony of attesting witness RW1 the Will has been duly approved on record. The Will of Sh. Nekshi Ram, documents Ex. PW1/2, PW1/3 and Ex. PW1/4 are no more in dispute.
9. In view of the documentary evidence it is clear that plaintiff has obtained rights and interest in the suit property and have locus standi to file present the present case.
The issue is decided in favour of plaintiff and against the defendants.
10.RELIEF In view of the findings given in issue no. 1 the suit is decreed in favour of plaintiff and against defendant.
Pages 11/12Suit No. 140/01 -12- Dated: 22/03/2011 A decree for permanent injunction is passed in favour of plaintiff and against defendants. Defendants are restrained from selling, transferring or parting the possession of suit property i.e. shop bearing no. 19, Banjara Camp, M.B. Road, Khanpur, New Delhi-110062. (shown as red in site plan Ex. PW1/5). Costs are awarded in favour of plaintiff.
Decree sheet be prepared accordingly.
File be consigned to record room as per rules.
Announced in the open (Abhilash Malhotra)
court on 22/03/2011 Civil Judge, Central-02
Tis Hazari Courts,Delhi
Pages 12/12