Delhi District Court
Shri Surinder Singh vs Sh. Parveen Kumar on 6 June, 2022
IN THE COURT OF SENIOR CIVIL JUDGE CUM RENT
CONTROLLER (WEST), TIS HAZARI COURTS, DELHI
Presided by : Ms. Mahima Rai Singh
CS SCJ 607854/2016
CNR Number: DLWT030003702014
Shri Surinder Singh,
S/o Sh. Sumber Singh
R/o H. No. 6, Gali No.3,
Tilak Enclave, Mohan Garden,
Uttam Nagar, New Delhi110059. ......Plaintiff
Versus
Sh. Parveen Kumar,
S/o Sh. Sumber Singh,
R/o H.No. 16A,
Tilak Enclave, Mohan Garden,
Uttam Nagar, NewDelhi59. ......Defendant
Date of Institution : 31.03.2014
Date on which judgment was reserved : 31.05.2022
Date of pronouncing judgment : 06.06.2022
SUIT FOR PERMANENT INJUNCTION
JUDGMENT
Brief facts of the case
1. The plaintiff is residing at the ground floor and first floor of property no. 6, Gali no.3, Tilak Enclave, Mohan Garden, Uttam Nagar, New Delhi 59 i.e. the suit property as shown in red color in the site plan. In fact, the defendant was in occupation of entire property mentioned above till 09.03.2014 when the defendant alongwith his wife and motherinlaw and some goonda elements illegally dispossessed the plaintiff from the first CS SCJ 607854/16 Surender Singh v. Parveen Kumar Page No. 1 of 13 floor of the property. The suit property is built on plot admeasuring 33 sq. yards and is built upto second floor.
2. The plaintiff and the defendant in the year 2000 borrowed a sum of money from their father and purchased one plot in the area of Mohan Garden and from there both of them started the business of property dealing and started earning for their livelihood. It is also important to note that the plaintiff also got himself employed and he always contributed from his salary in the business of property dealing with his brother. He used to give money to the defendant. It is submitted that till the year 2004, the business of property dealing did not yield much profit and till that time, the defendant was even dependent on the plaintiff for his livelihood. Since there were cordial relations between the plaintiff and the defendant and therefore, the plaintiff was having absolute faith in his brother and allowed him to deal in the properties independently believing that he will also secure the interest of the plaintiff.
3. Since the plaintiff was employed and has to go for his work and thus, the defendant continued to purchase some properties in his name with assurances that he will get the half of the properties transferred in his name as and when the plaintiff requires. Keeping in view this arrangement with the defendant, the plaint electricity meter in the suit property is installed in the name of the plaintiff and he has also received his telephone bills at this address. The plaintiff is also having his bank account at the address of the suit property and he has also got gas connection issued at this address. On 06112012, the defendant sent his wife Smt. Mamta to the house of the CS SCJ 607854/16 Surender Singh v. Parveen Kumar Page No. 2 of 13 plaintiff and in the absence of the plaintiff gave beating to his wife and tried to dispossess her from the suit property. After reaching home, the plaintiff lodged a complaint at PS Ranhola, Delhi vide DD No. 50B, dated 16112012. Thereafter, the defendant continued to pressurize and harass the defendant and his family by exercising his local influence and links with the police till the first week of March, 2014 but the plaintiff kept on bearing the same under the impression that with the passage of time, the plaintiff would understand his responsibilities and would mend his ways and would agree to transfer the suit property in his name.
4. On 09032014, the defendant along with his wife, motherinlaw and fatherinlaw barged into the house of the plaintiff and tried to dispossess him by illegal and unlawful means. When the plaintiff objected to it, he hit him in his hand and stomach by sharp edged weapon.
5. The police was duly intimated about this incident and one FIR bearing no. 166 under Section 324 was registered at PS Ranhola. It is important to note that police did not investigate this case fairly and properly and under the influence of the defendant levied only minor offences against the defendant. Since then till the date, the defendant has made the life of the plaintiff and his family a living hell. The defendant on 09032014 forcefully entered the second floor portion of the house and since then till date the wife and motherinlaw of the defendant are sleeping there in order to retain the possession thereof.
6. The defendant is out to dispossess the plaintiff by illegal and unauthorized means. On the other hand, the defendant earlier was in CS SCJ 607854/16 Surender Singh v. Parveen Kumar Page No. 3 of 13 occupation of the entire suit property but now he is in possession of ground and second floor of the property and is apprehending his dispossession from the suit property by the defendant and his henchmen, as he has threatened the plaintiff that he will not let the plaintiff live in this house. On 28032014, the defendant alongwith some goonda elements, his wife, motherinlaw and fatherinlaw came to the house of the plaintiff at about 10:00 AM in the morning. The defendant openly asked the plaintiff to vacate the house within three days and in case, he failed to do so, he threatened " Tujhe Jaan se hath Dhona Padega".
7. The plaintiff is in lawful and peaceful possession of the suit property and wants to live in peace there. On the other hand defendant is having no right or title to dispossess the plaintiff in any manner. The plaintiff has prayed for a decree of permanent injunction against the defendant, thereby restraining the defendant, his agents, servants, associates etc from dispossessing the plaintiff from the suit property bearing no. H.No. 6, Gali No.3, Tilak Enclave, Mohan Garden, Uttam Nagar, New Delhi59 more clearly shown in the site plan annexed with the plaint. Written statement by the defendant.
8. The defendant has objected to contents of the plaint filed by the plaintiff in the present suit on the grounds that the present suit is not maintainable because the plaintiff is neither the owner of the suit premises nor has any concern with the suit premises and the documents filed by the plaintiff alleged to be executed by the defendant are totally, false, fabricated and vague because the defendant never executed any document CS SCJ 607854/16 Surender Singh v. Parveen Kumar Page No. 4 of 13 in favor of the plaintiff and signatures of the defendant are forged and fabricated. The suit of the plaintiff is also liable to be dismissed because the plaintiff has not come to the court with clean hands. The true facts are that plaintiff is real younger brother of the defendant and is driver by profession and used to come to the house of the defendant. The plaintiff used to stay some times and being brothers, the defendant allowed him, but he by fraudulent means he prepared forged documents and is trying to grab the property of the defendant and complaint to this effect were also lodged to the police, as such the present suit is not maintainable.
9. The plaintiff has no locus standi to file the present suit, as such the suit of the plaintiff is not maintainable and is liable to be dismissed. No cause of action for filing the present suit ever accrued in favor of the plaintiff and against the defendant, hence the present suit is liable to be dismissed. It is submitted that the defendant is the absolute owner of entire property bearing no. 6, gali no. 3, Tilak Enclave, Mohan Garden, Uttam Nagar, New Delhi and plaintiff has no concern with the premises of the plaintiff and defendant is still in occupation of suit property.
10. It is submitted that the plaintiff started visiting the defendant since 2009 and being a brother, the plaintiff allowed him to live in the house. It is submitted that the intention of the plaintiff become malafide and he just wants to grab the property of the plaintiff prepared forged and fabricated documents allegedly executed by the defendant in favor of the plaintiff. Replication of Plaintiff CS SCJ 607854/16 Surender Singh v. Parveen Kumar Page No. 5 of 13
11. Replication to the written statement of the defendant was filed by the plaintiff, wherein the plaintiff has denied all the averments made by the defendant in his written statement, reaverring what was averred by him in the original plaint. Further, the plaintiff has denied all the contentions made in the WS of the defendant and has objected to all documents filed by the defendant with the submission that they are false, fabricated and vague. Issues
12. On the basis of pleadings, the following issues were framed by the Ld. Predecessor on 23.07.2014:
1. Whether the plaintiff is entitled to the relief of injunction as prayed for? OPP
2. Whether the plaintiff has left the suit property on his own free will?
OPD
3. Relief, if any.
No other issue arises or pressed upon by the plaintiff. Plaintiff Evidence(PW1)
13. During evidence, the plaintiff himself has examined as PW1. He tendered his evidence affidavit Ex. PW1/A and relied upon the following documents:
(i) Ex. PW1/B is the site plan.
(ii) Ex. PW1/B is the copy of visiting card in the name of the plaintiff is
deexhibited and marked as Mark A.
(iii) Ex. PW1/C is the copy of Aadhar Card.
CS SCJ 607854/16 Surender Singh v. Parveen Kumar Page No. 6 of 13
(iv) Ex. PW1/D is the copy of passbook of Oriental Bank of Commerce
is deexhibited and marked as Mark B.
(v) Ex. PW1/E is the copy of gas connection issued from Sharma Gas
Company is deexhibited and marked as Mark C.
(vi) Ex PW1/F is the copy of gas passbook is deexhibited and marked as
Mark D.
(vii) Ex PW1/G and Ex PW1/H is the copy of demand note for new connection and receipt issued from BSES are deexhibited and marked as Mark E(colly 3 pages).
(viii) Ex PW1/I is the electricity bill dated 16.11.2012 is deexhibited and marked as Mark F.
(ix) Ex PW1/J and Ex PW1/K is the copy of complaint dated 16.11.2012 and 06.03.2014 are deexhibited and marked as Mark G(colly 2 pages).
(x) Ex PW1/L is the copy of FIR bearing no. 166/14 PS Ranhola is de exhibited and marked as Mark H. After cross examination, plaintiff evidence was closed. Defendant Evidence
14. During evidence, the defendant examined himself as DW1. He tendered his evidence affidavit Ex. DW1/A and relied upon the following documents: a. Ex. DW1/1 is the copy of GPA, agreement to sell, affidavit, receipt, possession and will of the suit property which is deexhibited and marked CS SCJ 607854/16 Surender Singh v. Parveen Kumar Page No. 7 of 13 as Mark A. b. Ex DW1/2 is the copy of the complaint dated 20.05.2014 vide DD No. 32A which is deexhibited and marked as Mark B. c. Ex. DW1/3(OSR) is the copy of the complaint dated 02.04.2014 vide DD No. 46B.
After cross examination, defendant evidence was closed. Arguments
15. Arguments as addressed by Shri A.K. Mishra, Ld. Counsel for defendant heard. Despite time being given, the plaintiff has not addressed oral final arguments. The plaintiff has filed written synopsis of his arguments.
Court Observations: The Section 38 and 39 of the Specific Relief Act is quoted as under :
16. "38. Perpetual injunction when granted (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases, namely CS SCJ 607854/16 Surender Singh v. Parveen Kumar Page No. 8 of 13
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion in such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
39. Mandatory injunctions - When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts."
My issue wise findings are as under :
Issue no. 1. Whether the plaintiff is entitled to the relief of injunction, as prayed?OPP
17. The onus to prove this issue was on the plaintiff. The plaintiff has failed to put any documents to show that he is owner of the property or at present in possession of the same in order to seek the relief of mandatory and permanent injunction against the defendant. Also during the cross examination of plaintiff, he admitted to the fact that the property was in the name of the defendant and he unaware about the previous owner of the property. He also admitted that he has not signed any title documents of the CS SCJ 607854/16 Surender Singh v. Parveen Kumar Page No. 9 of 13 suit property and admitted to be the fact that he has not put on record any documents to show that he was in possession of the suit premises at present.
He has also stated that he installed electricity meter in the suit property in his name on the basis of document executed by the defendant in his name and that he has not filed those documents which were executed by the defendant in his favour. The plaintiff also stated that has given six lakhs to the defendant for the purchase of the suit property and that the said money was arranged by him after selling his plot situated at Pandit Niwas, Sainik Vihar. He failed to remember the name of the owner of the said plot and also did not place any documents regarding sale and purchase of the said plot on record.
18. The above mentioned statement of the plaintiff was in contradiction with para no. 3 of his affidavit Ex. PW1/1 as well as para no. 3 of his plaint wherein it was submitted that the plaintiff and the defendant in the year 2000 borrowed some money from the their father to purchase the plot (suit premises). Plaintiff and defendant have also stated that they never took any financial help from his family members or any other person from the locality which is again in contradiction with para no. 3 to his affidavit and as well as his plaint.
19. As per plaint of the plaintiff, the plaintiff himself has submitted that he has been dispossessed from the first floor of the suit property. The documents tendered by the plaintiff in his evidence i.e. Mark A to Mark H were not proved by the plaintiff by summoning any witnesses from the concerned department to show that the plaintiff was currently in possession CS SCJ 607854/16 Surender Singh v. Parveen Kumar Page No. 10 of 13 of the said premises. Only documents which were exhibited during the plaintiff evidence is the site plan i.e. Ex. PW1/B and copy of his aadhar i.e. Ex. PW1/C which can neither be said to be conclusive proof of his title or of his possession. It is the contention of the plaintiff that the defendant has fraudulently got prepared the title document in the said property in his name. Till date plaintiff has not taken any remedy for cancellation of the said documents since the year 2000 as per record. No independent witnesses/ neighbour was examined by the plaintiff to show that the plaintiff was in possession of the suit premises or at present residing in the same. The Ld. Counsel for the plaintiff has relied upon the testimony of the defendant on the point that he has mentioned a different address in his evidence then that of the suit premises therefore it can be held that he is not in possession of the suit premises does not bear any ground and does not effect the merits of the case. No bills or documents have been placed on record by the plaintiff in support of the arguments on the plaintiff that he has raised construction on the suit premises. In plaintiff's written arguments, the plaintiff has also relied upon the written statement of the defendant where he has written that "plaintiff started visiting the defendant since 2009 and being brother the plaintiff allowed him to live in the house" as an admission that the plaintiff is in possession of the suit premises. However, the same has to be seen in the entirety of the case as well as the complete WS where the defendant claimed himself to be the owner of the suit premises and that he allowed the plaintiff to live in the suit premises for some times. Also that the onus was upon the plaintiff to proof that he was in CS SCJ 607854/16 Surender Singh v. Parveen Kumar Page No. 11 of 13 possession of the suit premises at present which has not been discharged by him at all. The case of the plaintiff has to stand upon its own legs.
20. Further, the plaintiff has argued that the defendant has failed to bring the title documents of the suit premises however, the plaintiff himself has stated the defendant to be the owner of the suit premises and that title document are in the name of the defendant in his evidence before the Court as well as in his plaint. Thus, the plaintiff has completely failed to prove that he is currently in possession of the suit premises or that the same belongs to him. It is settle principle of law that permanent and mandatory injunction cannot be passed against the true owner taking into consideration plethora of judgments by the Hon'ble Supreme Court including the judgment Anathula Sudhakar vs. P Buchi Reddy [AIR 2008 SC 2033], wherein it was held that :
"injunction cannot be granted in favour of a person/plaintiff to protect her possession if such person is in wrongful possession, and therefore, injunction cannot be granted to a person in unlawful possession, and this is because injunction is a discretionary relief and cannot be granted to an illegal occupant. Therefore, once plaintiff has failed to prove her title to the suit land, she is not entitled to any injunctive relief by declaring that the plaintiff is the owner of the suit property. So far as the aspect of injunction being granted to the plaintiff against the defendants from dispossessing the plaintiff from the suit property is concerned, it is seen that as per para 15 of the judgment in Anathula Sudhakar's case (supra), plaintiff will have to be CS SCJ 607854/16 Surender Singh v. Parveen Kumar Page No. 12 of 13 in lawful possession of the suit property on the date of the suit before being entitled to grant of injunction against dispossession".
21. In view of the above discussion, it is the considered view of the Court that the plaintiff is not entitled to the relief of permanent and mandatory injunction having failed to prove his possession or ownership of the suit premises. Thus this issue is accordingly decided in favour of the defendant and against the plaintiff.
Issue no. 2. Whether the plaintiff is left the suit property on his own free will? OPD
22. The onus to prove this issue was on the defendant. No evidence has been led by the defendant in this regard. Hence, this issue is decided in favour of the plaintiff and against the defendant.
Relief.
23. In view of the above discussions, the suit of the plaintiff is dismissed. No order as to costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in open Court (Mahima Rai Singh)
on 06th Day June of 2022 SCJ cum RC (West)
Tis Hazari Courts, Delhi.
(This judgment contains 13 pages.)
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