Delhi District Court
Rajesh Chandra Sharma & Another vs . Prem Chand Sharma & Others on 26 February, 2016
Rajesh Chandra Sharma & Another vs. Prem Chand Sharma & Others
IN THE COURT OF DR. AJAY GULATI, ADDL. DISTRICT
JUDGE, ROOM NO. 606, SAKET COURTS, SOUTH DISTRICT,
NEW DELHI
In the matter of
Suit No.74/16
Rajesh Chand Sharma & Another
................Plaintiffs
Versus
Prem Chand Sharma & Others
.............Defendants
ORDER
1. Plaintiffs filed the present suit claiming to be the legal owners of the built up property bearing H. No. 29A & 29B, situated at Gautam Nagar New Delhi. The plaintiffs claim that the suit property was taken on lease by their late father Sh. B. C. Sharma in the year 1950 through a registered lease deed dated 25.02.1950. The said lease deed was executed by Sh. Prabhu Dayal (S/o Sh. Har Narayan) and Sh. Bhadar Sain (S/o Ch. Hari Singh). Sh. Prabhu Dayal and Sh. Bhadar Sain had also taken the property on lease from Sh. Mani Lal and Sh. Risal Singh vide a registered lease deed dated 17.12.1948. Later on the Suit No.74/16 Page 1 of 8 Rajesh Chandra Sharma & Another vs. Prem Chand Sharma & Others plaintiffs' father had purchased the suit property from its previous owner Sh. Vinod Kumar, who is defendant No.3 in the present suit through General Power of Attorney, registered Will, receipt, affidavit and agreement to sell (all dated 28.12.1978). Sh. Vinod Kumar is the son of Late Sh. Risal Singh.
2. The plaintiffs further contend that their father Sh. B. C. Sharma expired on 06.08.1991 and their mother expired on 17.02.2003 as a result of which both the plaintiffs became absolute owners of the suit properties. It is the case of the plaintiffs that their father allowed defendants No.1 & 2 to use some portion of the suit property temporarily on the assurance that they would vacate the same after some time. However, their intentions became dishonest as a result of which defendant No.1 filed a suit for declaration and permanent injunction against the plaintiffs and their mother Smt. Kailashwati but which was dismissed by the court of Civil Judge, Delhi vide order dated 22.01.1997. In much the same fashion, defendant No.2 also filed a suit for declaration and permanent injunction which was also dismissed on merits by the then Civil Judge, Delhi vide judgment dated 29.04.1997. the plaintiffs have further averred in the plaint that the defendants who were temporarily inducted into the suit property as licencees Suit No.74/16 Page 2 of 8 Rajesh Chandra Sharma & Another vs. Prem Chand Sharma & Others have become absolutely dishonest and have been trying to usurp the suit property. Accordingly, they cancelled the licence of defendant No.1 & 2 and filed a suit for permanent and mandatory injunction against them, which is pending before the court of Civil Judge, Saket Court Complex New Delhi bearing number C.S. No. 353/2014.
3. The plaintiffs submit that when the defendant No.1 & 2 filed their written statement in the above mentioned suit, they disclosed that they have registered sale deeds in their favour in respect of the suit property i.e sale deed dated 18.11.2010 in respect of suit property No. 29A, Gautam Nagar, New Delhi in favour of defendant No.1, and sale deed dated 24.06.2011 in respect of the suit property No. 29B, Gautam Nagar, New Delhi in favour of defendant No.2. The said sale deeds were allegedly executed by defendant No.3. Consequently, the plaintiffs filed the present suit for declaring the said sale deeds as null and void since the suit property had been purchased by the father of the plaintiffs from the father of defendant No.3 leaving no title with defendant No.3.
4. Upon notice, the defendant No. 1, 2 & 3 entered their appearance and filed their written statements. Written statement was filed jointly on behalf of defendant No. 1 & 2. In the written statement filed by defendant No.1 Suit No.74/16 Page 3 of 8 Rajesh Chandra Sharma & Another vs. Prem Chand Sharma & Others & 2, number of preliminary objections were taken regarding the maintainability of the suit. The defendants contended that a suit simply for declaration and mandatory injunction regarding the sale deeds dated 18.11.2010 and 24.06.2011 without seeking any consequential relief is not maintainable. The defendants also contended that since the plaintiffs have already filed a suit for permanent and mandatory injunction pending in the court of Civil Judge, Delhi regarding the same suit property, filing and institution of the present suit is barred in view of the provisions of Order II Rule 2 CPC. In addition, the defendants also raised preliminary objections regarding the valuation of the suit and the title to the suit property of the plaintiffs, which they were claiming through their late father Sh. B. C. Sharma. Defendant No.3 also filed written statement largely on the lines of written statement filed by defendant No.1 & 2. An additional objection taken by the defendant No.3 was that a composite suit has been filed for two different properties i.e. House No.29A and House No.29B, Gautam Nagar, New Delhi, even though relief sought qua the said properties is not against a common defendant.
5. Vide order dated 26.11.2015, the Learned Presiding Officer of the Predecessor Court listed the matter for Suit No.74/16 Page 4 of 8 Rajesh Chandra Sharma & Another vs. Prem Chand Sharma & Others arguments on the issue of maintainability as raised by the defendant No.1 & 2.
6. Consequently, the matter was taken up today and arguments were addressed by Learned counsels appearing on behalf of the plaintiffs and defendants.
7. Opening the arguments, Learned counsel appearing for plaintiffs contended that the suit pending in the court of Civil Judge, Saket Courts, Delhi in which the relief of permanent and mandatory injunction has been sought by the plaintiffs with regard to the suit property is an independent relief which does not in any way bar the filing of the present suit for declaration and mandatory injunction. The learned counsel for plaintiffs relied on a judgment delivered by the Hon'ble High Court of Delhi titled as Mulk Raj Khullar vs. Anil Kapur & Ors on 03.10.2013 in CS(OS) No. 1855/2011 to buttress his arguments.
8. On the other hand, Learned counsel for the defendants argued that the present suit is simply not maintainable since it is in fact a suit for declaration simplicitor and the relief of mandatory injunction does not really have any meaning once the declaration is sought to declare the sale deeds dated 18.11.2010 and 24.06.2011 null and void. Even while seeking the decree of mandatory Suit No.74/16 Page 5 of 8 Rajesh Chandra Sharma & Another vs. Prem Chand Sharma & Others injunction, practically same relief is sought as has been sought in the prayer for declaration i.e. directing the defendant No.1 and 2 to surrender the impugned sale deeds. In support of his arguments, Learned counsel for the defendant relied on a judgment delivered by the Hon'ble Supreme Court of India titled as Venkataraja & Ors vs. Vidyane Doureradjaperumal (D) Thr. LRs & Ors 2013 STPL (LE) 47483 SC wherein it has been clearly held that the suit for declaration simplicitor without seeking consequential relief of possession is not maintainable.
9. I have carefully considered the rival submissions. In my considered opinion, the argument advanced by Learned counsel for the defendants holds merit. Section 34 of the Specific Relief Act which deals with declaratory decrees is very clear on the issue of when such a declaration should not be granted. The proviso to Section 34 of the Specific Relief Act clearly lays down that no declaration can be made by any court where the plaintiff being able to seek further relief than a mere declaration of title omits to do so. In the present suit, the plaintiffs have only sought the relief of declaration qua the sale deeds mentioned above without seeking the relief of possession even though as per their own case, the licence of the defendants stands revoked by them. If at all they wanted to seek the Suit No.74/16 Page 6 of 8 Rajesh Chandra Sharma & Another vs. Prem Chand Sharma & Others declaration regarding the above mentioned sale deeds, they could have moved an application for amending the plaint in the suit which is already pending before the court of Civil Judge, Saket Courts, New Delhi. They had a right to move an application for amendment of the plaint after the filing of the written statements by the defendants wherein the factum of sale deeds was disclosed. However, instead they chose to file the present suit which in my understanding is clearly not maintainable. The judgment relied upon by the Learned counsel for the plaintiffs is not relevant to the issue at hand since the said judgment pertains to the maintainability of filing a suit for mandatory injunction against a licencee whose licence has expired even without seeking the consequential relief of possession. In the present suit, the issue of maintainability was whether suit for declaration simplicitor is maintainable or not.
10. In so far as objection to the valuation of the suit for the purpose of pecuniary jurisdiction is concerned, the Learned counsel for the plaintiffs has not been able to satisfy as to why the earlier suit was filed in the court of Civil Judge while the present suit has been filed in the court of Addl. District Judge. It appears that the plaintiffs are either indulging in forum hunting or wanted to avoid Suit No.74/16 Page 7 of 8 Rajesh Chandra Sharma & Another vs. Prem Chand Sharma & Others the limitation put by Order II Rule 2 CPC. However, in view of my finding on the issue of maintainability of the present suit on the ground that simplicitor suit for declaration without seeking consequential relief of possession is not maintainable, the present suit stands dismissed with cost of Rs.1,500/ to be paid to the defendants.
11. File be consigned to the record room after due compliance.
ANNOUNCED IN THE OPEN (DR. AJAY GULATI)
COURT ON 26.02.2016 ADDL. DISTRICT JUDGE06
SOUTH, SAKET COURTS,
NEW DELHI
Suit No.74/16 Page 8 of 8