Delhi District Court
Purshottam Dass vs Sh. Tara Chand on 20 December, 2016
IN THE COURT OF MS. NEHA, CIVIL JUDGE09,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Suit No. 116/2016 (97949/16)
Purshottam Dass,
S/o Late Sh. Khem Chand,
R/o House No. 3994,
Gali Barna, Sadar Bazar,
Delhi - 110006. .............Plaintiff.
Versus
1. Sh. Tara Chand,
S/o Late Sh. Khem Chand
2. Sh. Ativ,
S/o Sh. Tara Chand
Both R/o 3994, Ground Floor,
Gali Barna, Sadar Bazar,
New Delhi - 110006. ............Defendants.
SUIT FOR PERMANENT INJUNCTION.
Date of Institution : 04.11.2008
Date of reserving Judgment : 24.11.2016
Date of pronouncement : 20.12.2016
Suit No : 116/16 Purshottam Dass Vs. Tara Chand & Anr. Page 1 of 15.
JUDGMENT
1. Vide this Judgment, I shall dispose of the suit for permanent injunction.
2. Brief facts as stated in the plaint are as follows : 2.1. Smt. Shanti Devi, wife of Late Khem Chand, the mother of the parties was the owner of property no. 3994, Gali Barna, Sadar Bazar, Delhi110006 (hereinafter referred to as 'suit property') and the plaintiff, being the son of Smt. Shanti Devi, had throughout been in possession of the first floor with roof of the property. He had got constructed the second and third floor on the said property and also carried out major repairs on the first floor out of his own funds and savings.
2.2. Smt. Shanti Devi sold the first, second and third floor with roof rights of the suit property to the plaintiff for a total sale consideration of Rs.1,25,000/ vide registered sale deed dated 17.02.2004 and since then, plaintiff is enjoying the said portions of the property as exclusive owner in possession thereof.
2.3. Smt. Shanti Devi had allowed the defendant to use the ground floor as a licensee as the defendant was her youngest son. The plaintiff allowed Smt. Shanti Devi to live on the first floor in a half portion of the big room which was divided into two portions by a wooden Suit No : 116/16 Purshottam Dass Vs. Tara Chand & Anr. Page 2 of 15. partition. The plaintiff was also looking after his mother and maintaining her and providing all other necessities of life and medical treatment etc. to her.
2.4. Smt. Shanti Devi died on 25/10/2008 leaving behind the ground floor portion of the suit property under her ownership. After her death, the plaintiff occupied the said half portion of the big room on the first floor of the property.
2.5. On Diwali festival, the defendant wanted to make whitewash and painting to the ground floor portion under his possession and requested the plaintiff to allow him to place some goods temporarily in the verandah on the first floor. The plaintiff, being his brother, allowed the defendant to place his goods in the verandah of the first floor of the property. Defendant had placed two gas cylinders, one empty drum, computer table, empty trunk, one tin box, one stove and two darries in the verandah of the first floor for temporary period. 2.6. On 30.10.2008, to the surprise of the plaintiff, the defendant wanted to take forcible possession of the abovesaid half room on the first floor. The defendant could not succeed in his illegal motives due to the resistance made by the plaintiff and his family members. The matter was also reported to the police. The police did not take any action against the defendant and advised the plaintiff to approach the civil court for his grievances. The plaintiff asked the defendant not to take law in his own hands, but the defendant was adamant in his illegal Suit No : 116/16 Purshottam Dass Vs. Tara Chand & Anr. Page 3 of 15. designs to take forcible possession of the said half portion of the room. 2.7. On 31.10.2008, the defendant again came along with three more goonda elements and tried to take forcible possession by throwing the goods of the plaintiff and wanted to place his goods on the said portion. The defendant could not succeed due to intervention of the plaintiff, his family members and other locality persons. The defendant has no right, title or interest in the said portion of the property. Therefore, the present suit has been filed seeking following relief : Pass a decree for permanent injunction in favour of the plaintiff and against the defendant thereby restraining the defendant, his agents and representatives, family members etc. from entering into, interfering and taking forcible possession of the ½ room portion shown red in the site plan on the first floor of the property bearing no. 3994, Gali Barna, Sadar Bazar, Delhi - 6 owned and possessed by the plaintiff.
3. Initially, the suit was only filed against defendant No. 1, Sh. Tara Chand. Defendant No. 2, Ativ filed an application under Order 1 Rule 10 CPC which was allowed vide order dated 15.12.2009 and he was arrayed as a party in the suit.
4. The defendants have filed joint written statement taking following defence : 4.1. The defendants have taken preliminary objections that the Suit No : 116/16 Purshottam Dass Vs. Tara Chand & Anr. Page 4 of 15. defendants are residing in the first and ground floor of the suit property. Smt. Shanti Devi was the owner of the suit property and she had bequeathed her all immovable and movable property to her grandson Atib. The plaintiff has suppressed the material facts from this Court. Vide Will dated 9.4.1990, Smt. Shanti Devi bequeathed the suit property in favour of her two sons namely Sh. Beni Prasad and the defendant and there was no mention of plaintiff in the said Will due to constrained relationship between Smt. Shanti Devi and plaintiff. 4.2. Smt. Shanti Devi registered a police complaint dated 29.06.2004 against the plaintiff for alleged beating and abusing. The plaintiff, being her son, did not provide food, medicine and clothing and also used to threaten her that he would kill her and sell off her property. On 1.7.2004, Smt. Shanti Devi agreed not to take any action on the complaint on a written undertaking by the plaintiff before the SHO that he would vacate the first floor of the house.
4.3. Smt. Shanti Devi had sold the ground floor of the property ad measuring to Smt. Bronika, wife of the defendant, for a consideration of Rs. 50,000/ vide sale deed dated 16.07.2007. Vide her last Will dated 16.07.2007, Late Smt. Shanti Devi nullified the previous will dated 09.04.1990 and bequeathed the first floor of the suit property along with her stridhan and all other movable properties to her grandson namely Sh. Atib. Smt. Shanti Devi has mentioned in said Will that she Suit No : 116/16 Purshottam Dass Vs. Tara Chand & Anr. Page 5 of 15. had sold the second and third floors of the suit property to the plaintiff and the ground floor to the wife of the defendant and she was only in possession of first floor of the suit property.
4.4. Smt. Shanti Devi died on 25.10.2008 and the rites were performed by the defendant and her son Ativ. After the death of Smt. Shanti Devi, the family of the defendant, particularly his son Sh. Ativ took the possession of the first floor of the suit property and continue to be in possession. The ground floor was sold to the wife of the defendant vide sale deed dated 16.07.2007.
4.5. The factum of family of defendant having taken possession of the first floor of the suit property in pursuance of the Will did not go down well with the plaintiff and he started to create hindrances in the ingress and egress of the defendant and his family by putting locks at the door of the first floor during odd hours. The wife of the defendant was also constrained to file a complaint with the police on 12.11.2008. The activities of the plaintiff did not end there and with the motive to further harass the defendant and his family, the plaintiff also disconnected the electricity of the first and ground floor.
4.6. The plaintiff was never in possession of the first floor of the suit property and no repairs were ever made in the first floor. The suit is bad for misjoinder of parties. The defendant No. 1, Ativ is the rightful owner of the first floor of the suit property and is also in possession of the same. Rest of the averments made in the plaint are denied in the Suit No : 116/16 Purshottam Dass Vs. Tara Chand & Anr. Page 6 of 15. written statement.
5. The plaintiff has filed replication to the written statement of the defendant wherein he has reiterated the averments made in the plaint and denied the allegations made in the written statement.
6. On completion of pleadings, following issues were framed by the Ld. Predecessor of this Court on 29.03.2012 for consideration :
1. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for ? OPP.
2. Relief.
7. The parties were then called upon to lead their respective evidence. The plaintiff examined himself as PW1 and tendered his evidence by way of affidavit Ex. PW1/A wherein he has reiterated the averments of the plaint. PW1 relied upon the following documents : i. Certified copy of the sale deed as Ex. PW1/1.
ii. Site plan as Ex. PW1/2.
iii. Photographs as Ex. PW1/3 to Ex. PW1/5.
iv. Newspaper showing the date in photograph as Ex. PW1/6.
v. Certified copy of proceedings under Section 107/151 Cr. P.C as Ex. PW1/7 (colly).
vi. Photocopy of injunction order passed by Sh. Rakesh Kumar, Ld. ADJ, Tis Hazari Court, Delhi as Mark A. Suit No : 116/16 Purshottam Dass Vs. Tara Chand & Anr. Page 7 of 15.
8. The plaintiff did not examine any other witness and plaintiff's evidence was closed vide order dated 12.01.2016.
9. The defendants examined defendant No. 1 as DW1 who tendered his evidence by way of affidavit as Ex. DW1/A. He has relied upon the following documents : i. Copy of Will dated 16.07.2007 executed by Smt. Shanti Devi in respect to the entire property bearing No. 3994, Gali Barna, Sadar Bazar, Delhi 110006 as Mark DW1/1. ii. Copy of complaint dated 29.06.2004 lodged by Smt. Shanti Devi as Mark DW1/2.
iii. Copy of complaint dated 01.07.2004 as Mark DW1/3.
10. The defendants did not examine any other witness and defendant's evidence was closed vide order dated 26.08.2016.
11. All the witnesses were cross examined by the respective counsels for the opponent. Parties were then called upon to advance their final arguments in the matter.
12. I have heard the arguments on behalf of the parties and have perused the case file. My issuewise findings are as follows :
13. ISSUE NO. 1 : Whether the plaintiff is entitled to the relief of permanent injunction as prayed for ? OPP.
14. The onus to prove this issue was placed upon the plaintiff. Ld. Counsel for the plaintiff has argued that Smt. Shanti Devi had executed Suit No : 116/16 Purshottam Dass Vs. Tara Chand & Anr. Page 8 of 15. a registered sale deed in favour of the plaintiff in respect of first, second and third floor with roof rights of the property and therefore, the defendants have no right on the said portions or to interfere in the possession of the plaintiff in the said portions. Therefore, the plaintiff is entitled to relief of injunction as prayed in the suit.
15. Per Contra, Ld. Counsel for the defendants has argued that Smt. Shanti Devi never sold the first floor portion to the plaintiff. It is argued that Smt. Shanti Devi had executed as Will in respect of first floor in the name of defendant no.2 and the plaintiff has no right or title over the first floor portion. Further, the plaintiff is also not in possession of the first floor of the property and therefore, the plaintiff is not entitled to any relief of injunction.
16. I have considered the submissions of Ld. Counsel for the parties and perused the material on record.
17. The plaintiff has claimed that he is the owner of first, second and third floor of the property with roof rights by virtue of sale deed dated 17.02.2004 executed by Smt. Shanti Devi in his favour. The plaintiff has deposed in his affidavit that on Diwali festival, the defendant wanted to make whitewash and painting of the ground floor portion under his possession and he requested the plaintiff to place some goods in the verandha of the first floor for temporary period. It is alleged that on 30.10.2008, the defendant wanted to take forcible possession of the half room on the first floor. It is also stated in the affidavit that on Suit No : 116/16 Purshottam Dass Vs. Tara Chand & Anr. Page 9 of 15. 31.10.2008, the defendant came along with three gunda elements and wanted to take forcible possession by throwing the goods of the plaintiff lying therein and wanted to place his goods in the said portion.
18. In the case, the property in dispute is a portion of the first floor of the suit premises. The case of the plaintiff is based on the allegations that the defendant had threatened to take forcible possession of one portion on the first floor.
19. The sale deed executed by Smt. Shanti Devi in favour of the plaintiff is Ex. PW1/1. Vide Sale deed 17.02.2004, Smt. Shanti Devi had allegedly sold the first, second and third floor with roof rights up to sky level of the property bearing Municipal bearing no. 3994, Gali Barna, Sadar Bazar, Delhi.
20. Apart from the sale deed, the plaintiff has placed on record copy of Kalandra u/s 107/151 Cr.P.C. In the Kalandara under Section 107/151 Cr.PC, it is stated that on 6.11.2008, Purshottham Dass and Tara Chand were abusing each other and disturbing the public peace. Therefore, they were arrested in the Kalandara. In the said kalandara, the plaintiff as well as defendant No. 1 has given statement to the police. The plaintiff has stated that his wife informed him on phone that Tara Chand was breaking the lock on the first floor and he had kept his belongings in the said room which was kept in the verandah after removing the articles of Purshottam Dass from the said room. Similarly, in the statement, Tara Chand has stated that when he found the door on Suit No : 116/16 Purshottam Dass Vs. Tara Chand & Anr. Page 10 of 15. the first floor open, he kept his belongings in the room of the mother on first floor.
21. Suggestion has been given to the plaintiff that the defendants are in possession of the first floor portion. Though, the plaintiff has denied the suggestion, however, it is clear from the statement of the plaintiff and defendant No. 1 recorded in the kalandara under Section 107/151 Cr.PC that the defendant had put his belongings in the room on the first floor and the belongings of the plaintiff has been removed. It is also clear that now the defendant is in possession of the said room on the first floor. In the affidavit, the plaintiff has not stated about the factum of the defendant taking possession of the said room on the first floor.
22. The plaintiff has claimed himself to be the owner of the first, second and third floor portion with roof rights. The defendant has categorically denied that Smt. Shanti Devi had executed sale deed in respect of the first floor in favour of the plaintiff. The defendant has claimed that Smt. Shanti Devi had executed a Will in favour of defendant no.2 Ativ in respect of first floor of the suit property. Copy of Will has been placed on record.
23. Perusal of copy of registered Will Mark DW1/1 would show that first floor of the property was bequeathed to Ativ by Smt. Shanti Devi. The said Will also find mention of the fact that Smt. Shanti Devi had sold the second and third floor of the suit property to Sh. Purshottam Dass and ground floor has been sold to Smt. Bronika, wife of Sh. Tara Suit No : 116/16 Purshottam Dass Vs. Tara Chand & Anr. Page 11 of 15. Chand.
24. The plaintiff has stated that he is not aware with regard to execution of Will by his mother in the year 2007. Thereafter, he has admitted, in the crossexamination, that he has filed a suit for cancellation of Will which is pending in the Court of Ld. Civil Judge. The plaintiff has also admitted, in his crossexamination, that he had filed a suit for cancellation of sale deed executed by Smt. Shanti Devi in favour of Smt. Bronika in respect of the ground floor which was dismissed. It is clear from the record that the plaintiff has knowledge of the Will and sale deed executed by Smt. Shanti Devi in favour of Ativ and Bronica respectively.
25. It is also clear from the testimony of the plaintiff that the suit for cancellation of Will executed by Smt. Shanti Devi is still pending adjudication. It is proved on record from the statements made by the plaintiff and defendant No. 1 in the kalandra under Section 107/151 Cr.PC that the defendant No. 1 has placed his articles in the disputed portion of the first floor and he has taken possession of said portion after removing the articles of the plaintiff.
26. In the matter of Anathula Sudhakar Vs. P. Buchi Reddy (dead) by LRs & Ors. reported as 2008 SCC 594, Hon'ble Supreme Court of India has discussed the principles as to when a simple suit for injunction will lie. Hon'ble Court has observed as under:
Suit No : 116/16 Purshottam Dass Vs. Tara Chand & Anr. Page 12 of 15.
"11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in Suit No : 116/16 Purshottam Dass Vs. Tara Chand & Anr. Page 13 of 15.
his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property."
27. It is now settled position of law that where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction.
28. In the case, the defendants have not only raised cloud over the title of the plaintiff on the first floor of the property, but it has also come on record that the plaintiff is not in possession of disputed portion of the first floor. The plaintiff has only sought relief of permanent injunction and he has not sought relief of possession of the disputed portion from the defendants. In the facts and circumstances of the case, the efficacious remedy available to the plaintiff was to seek relief of possession with consequential relief of permanent injunction.
29. In view of discussion hereinabove, this Court holds that the plaintiff has not sought the efficacious remedy available to him under the Law and he cannot be granted injunction in view of provisions of Section 41 (h) of Specific Relief Act. Accordingly, this issue is decided against the plaintiff and in favour of the defendants.
Suit No : 116/16 Purshottam Dass Vs. Tara Chand & Anr. Page 14 of 15.
30. Relief.
31. In view of the findings of this Court on aforesaid issue, this Court holds that the plaintiff is not entitled to any relief. The suit of the plaintiff is therefore dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Pronounced in the open court
on 20th December, 2016 (Neha)
Civil Judge, Central (09)
Tis Hazari Courts, Delhi
Suit No : 116/16 Purshottam Dass Vs. Tara Chand & Anr. Page 15 of 15.