Delhi District Court
Smt. Inderjit Chhabra vs Shri Bijender Singh on 13 August, 2014
IN THE COURT OF SH. AJAY GUPTA ADDITIONAL DISTRICT
JUDGE-2 : (SHAHDARA) : KKD COURTS : DELHI
CS No. 295/14
IN THE MATTER OF:-
Smt. Inderjit Chhabra ..... Plaintiff
Versus
Shri Bijender Singh .....Defendant
ORDER
1. This order shall dispose off an application filed by the plaintiff under Order 39 Rule 1 and 2 CPC. For the appropriate disposal of the present application the pleadings of both the parties are required to be considered.
2. The brief facts of the present case as stated in the plaint are that :
(a) that mother in law of the plaintiff Late Smt. Shib Devi w/o Late Sh. Gian Singh Chhabra was the owner of the property bearing plot no. 25, Anand Vihar, Delhi (hereinafter to be referred as the suit property) having purchased the same from one Sh.
S.D Chawla who was the original allottee of the suit property vide perpetual sub lease dated 14.03.1978. Smt. Shib Devi purchased the suit property from Sh. S.D Chawla by virtue of an agreement to sell dated 24.08.91 for a consideration of Rs. 6,95,000/-. The possession of the suit property was also handed over to Smt. Shib Devi. At the time of purchase the suit property was a single storied house and was also having a 1 servant room with bathroom detached from the main building.
(b) that the suit property was converted from lease hold to free hold and was transferred in the name of Shib Devi on 25.09.96 by virtue of a conveyance deed. Smt. Shib Devi had expired on 15.08.2000 and she has left a WILL dated 30.03.95 in respect to the suit property in favour of the plaintiff. Thus, after demise of Smt Shib Devi, plaintiff has become owner of the suit property.
(c) that the husband of plaintiff/son of Smt. Shib Devi namely Sh. Amarjeet Singh Chhabra was holding a transferable job and was posted out station, thus, to look after the suit property, he appointed a care taker Mr. Girbahadur, who was allowed to use the servant room. After retirement the plaintiff alongwith her husband visited the suit property in the month of February 2012 and found that the said caretaker had trespassed into the main building of the suit property, thus, an FIR no.
165/12 dated 1.06.2012 u/s 420/419/468/471/448/34 IPC was registered
against him. The said care taker filed a suit for permanent injunction against the plaintiff claiming his possession and his interim application was allowed, however, during appeal he surrendered the physical and vacant possession of the suit property to the plaintiff and the suit filed by the Girbahadur was disposed of as compromised. After taking over possession from Mr. Girbahadur, 2 plaintiff engaged a security guard from Doberman Security Service.
(d) that subsequently, in May-June 2013, the plaintiff demolished the old structure of the suit property except boundary wall and the room of the guard. While, the plaintiff was in the process of getting approval for the sanction plan for raising new construction, she was surprised to receive a water bill on 17.05.2013 and electricity bill on 20.06.13 in the name of defendant. Plaintiff made a complaint with Delhi Jal Board and BSES to ascertain the reasons for the change of the name of the consumer from the original allottee Mr. S.D Chawla to the name of defendant.
(e) that plaintiff came to know that defendant was instrumental in getting the name of electricity and water connection changed into his name. Defendant with a view to trespass into the suit property had brought certain building materials. Thus, plaintiff lodged an FIR against the defendant which was registered as FIR No. 51/14 u/s 420/467/468/471 IPC. The anticipatory bail application of the defendant was dismissed by Ld. ASJ vide order dated 15.03.2014.
(f) that defendant was relying upon a sale deed dated 22.11.1996 allegedly executed by Smt. Shib Devi, Sh. Balwant Singh and the plaintiff in favour of the defendant. It is stated that Ld. ASJ in his order dated 15.03.2014 has referred that the sale deed claimed by the defendant was not available in 3 record of office of Sub Registrar -IV Seelampur. It was intimated to the court of Ld. ASJ that, in fact with the registration no. 6094, a document has been executed by Smt. Harbhajan Kaur in favour of Sh. S.K Ahuja.
(g) that the defendant has forged and fabricated the document bearing reg. no. 6094 dated 22.11.96 and has also committed cheating and forgery and forged the alleged sale deed and has fraudulently got transferred the water and electricity connection in his name.
(h) that plaintiff has been in continuous possession of the suit property and has deployed the security guard to prevent trespassing into the suit property. Defendant has never been in possession of the suit property and has made a false claim in this regard. Thus, in the main suit plaintiff has sought declaration against the sale deed claimed by defendant besides relief of mandatory and permanent injunction.
(i) that in the interim application, plaintiff has prayed that defendant be restrained from trespassing into the suit property and creating third party interest in respect to the suit property.
3. Plaintiff has resisted the suit and interim application mainly on the following grounds.
(a) that in the preliminary objection it is stated that plaintiff has not valued the present suit properly for the purpose of court fees and jurisdiction.
4(b) that plaintiff can not seek declaration on the basis of a WILL unless it is probated.
(c) that plaintiff has made a false story and plaintiff is neither in possession nor owner of the suit property.
(d) that while replying on merits defendant has admitted that Mr. S.D Chawla was the allottee of the suit property and he sold the suit property to Smt. Shib Devi. It is also admitted that Mr. S.D Chawla has delivered the title document as well as possession of the suit property to Smt Shib Devi.
(e) that it is denied that plaintiff employed a caretaker to take care of the property. It is stated that a false FIR has been registered against the defendant, however, It is admitted that since 29.5.2014 defendant is in police custody.
(f) that it is stated that the sale deed registered with the registration number of 6094 is a registered documents and is required to be acted upon and the erstwhile Registrar has verified the document, however, the present Registrar has denied that the sale deed was registered with the said number.
(g) that defendant has denied that plaintiff is in possession of the suit property, however, it is stated that after registration of the FIR the defendant is not available at the suit land and therefore, anybody can trespass and depute a security guard and can state that he is in possession of the suit land, however the same can 5 not be permitted by law. Thus on the basis of these averments defendant has sough dismissal.
4. For succeeding in the present application plaintiff was required to prima facie establish on record that she is the owner and in possession of the suit property. Now let us see that whether she has established a prima facie case in the matter.
5. It is admitted position of fact that Late Smt. Shib Devi was the owner of the suit property. It is prima facie clear that Smt. Shib Devi has bequeathed the suit property in favour of plaintiff by virtue of a WILL Dt.30.03.1995. It is further clear that plaintiff had appointed a care taker for the suit property and the care taker had tress passed into the main building for which an FIR no.145/12 was registered against him u/s 420/419/468/471/448/34 and finally on 11.10.2012 he surrendered the possession to the plaintiff in the suit no.165/12 titled as Gir Bahadur Vs Inderjeet Chabra. Mr. Gir Bahadur. It is clear that plaintiff received back the possession from Mr. Gir Bahadur and and w.e.f. November,2012 she appointed a security guard at the suit property hired from'Doberman Security Service". In this regard plaintiff has placed number of bills issued by the said security service w.e.f. November, 2012 to January, 2014. Thus, it prima facie clear that originally Smt. Shib Devi was the owner and in possession and after her demise plaintiff has become the owner of the suit property by virtue of a WILL and she is also having possession of the suit property.
6. Defendant has claimed his ownership qua the suit property by virtue of a Sale Deed, however, nothing has been stated in the written statement as to when this sale deed has been executed and by whom. Original Sale Deed stated to be not available and 6 even certified copy is not filed. It is stated that this document is registered at the office of Sub-Registrar at the serial no. 6094 but this sale deed is even not available in the office of Sub- Registrar. The plaintiff has filed a copy of the sale deed by virtue of which defendant is claiming his rights qua the suit property. This sale deed is stated to have been executed by Smt. Shib Devi, Mr. Balwant Singh and Smt. Inderjit Chhabra on 22.11.96. It is admitted position of fact that Smt. Shib Devi was the sole owner of the suit property, even otherwise, it is prima facie, clear from the record that DDA had transferred the suit property in the name of Smt. Shib Devi by virtue of a Conveyance Deed dt. 25.10.96. It is clear from the copy of death certificate filed by plaintiff that Smt. Shib Devi had passed away on Dt.15.08.2000, as such, it is clear that till 15.08.2000 Smt. Shib Devi was the sole owner of the suit property, however, as per the sale deed dt.22.11.96, the suit property was sold by aforesaid three persons to the defendant which is beyond comprehension. As per this sale deed the said three persons are the owners of the suit property which is contrary to the existing facts. Defendant has neither said anything about the complete chain of the documents nor filed copy thereof to show that he has purchased the suit property from its erstwhile owner.
7. It is further clear from the record that after plaintiff came to know about the forgery of the sale deed and that the suit property has been got fraudulently mutated by the defendant in his name, she lodged an FIR no. 51/14 u/s 420/471/468/471 at the Anand Vihar, police station. After registration of FIR defendant had moved an anticipatory bail application which has been dismissed by the court of Ld. ASJ vide order dt.
715.03.2014. The investigation officer of the case had reported before the court of ld. ASJ that the sale deed claimed by defendant has not been registered in the office of sub registrar and with the serial no. 6094 a sale deed was executed by Smt. Harbhajan Kaur in favour of Mr. S.K. Ahuja. Anticipatory bail application was dismissed and defendant is in custody since 29.05.2014. Ld. counsel for the plaintiff submitted during arguments that defendant has been arrested and running in judicial custody.
8. It is also clear from the record that mutation has been restored in the name of the original allottee of the suit property Sh. S.D.Chawla and the electricity meter has been changed from the name of the defendant to the name of the plaintiff.
9. In view of the aforesaid discussions, it is prima facie clear that plaintiff is the owner and in possession of the suit property, as such, defendant has got no right to have its possession and transferring the same by creating any kind of third party interest. Hence, he is hereby restrained from trespassing into the suit property or creating any kind of third party interest in respect to the suit property. Injunction application is disposed of accordingly. Nothing said herein, shall tantamount to the expression, upon the merits of the case.
(AJAY GUPTA) ADJ-02(SHAH.) KKD/Delhi/13.08.2014 (Announced in the open on 13.08.2014 ) 8