Delhi District Court
Shiv Nath @ Surya Nath vs Neeraj on 8 October, 2018
IN THE COURT OF DR. HARDEEP KAUR, ADJ
02(SHAHDARA)KKD COURTS/DELHI.
CS No. 379/2016
(Old CS no.20/13)
In the matter of:
Shiv Nath @ Surya Nath,
S/o Sh. Firai
R/o C2/417418,
Harsh Vihar, Delhi - 110093. ...Plaintiff
Vs.
Neeraj
S/o Sh. Firai
R/o C2/417418,
Harsh Vihar, Delhi - 110093. ....Defendant
Date of Institution :16.03.2013
Date of Judgment : 08.10.2018
Decision: Dismissed.
[Suit for Partition, Declaration and Permanent
Injunction & Mandatory Injunction]
J U D G M E N T
1.Plaintiff instituted the present suit for Partition, Declaration and Permanent & Mandatory injunction against the defendant.
CS-379/16 Shiv Nath @ Surya Nath vs Neeraj Page no. 1
2. Brief facts of the case are that the defendant is the elder brother of plaintiff. Plaintiff and defendant with their own hard earned money and with the assistance of their father purchased property bearing no.C2/418, Harsh Vihar, Delhi - 110093 measuring 50 sq. yards in the year 1992 for a sale consideration of Rs.15,000/. Both plaintiff and defendant equally contributed in the sale consideration and constructed the property and started living in the said property jointly. Defendant being the elder brother, the property was purchased in the name of defendant and plaintiff did not raise any objection to it. It has been further stated that in the year 1995, plaintiff and defendant also purchased the adjacent property no.C2/417, Harsh Vihar, Delhi - 110093 measuring 30 sq. yards jointly with their savings and earnings and with the assistance of their father for Rs.9,000/. Both plaintiff and defendant are residing in the said properties along with their families.
Defendant with malafide intention to grab the entire property started adopting various tactics. In order to harass the plaintiff and his family, defendant disconnected the water and electricity supply of plaintiff. When plaintiff requested to restore the water and electricity supply, defendant refused to do same and threatened to vacate the suit property otherwise his CS-379/16 Shiv Nath @ Surya Nath vs Neeraj Page no. 2 household articles shall be thrown out.
The defendant further told the plaintiff that he is sole owner of entire property measuring 80 Sq.Yds. On this the plaintiff told the defendant that the property measuring 30 Sq. yds. was purchased in his name then the defendant told the plaintiff that he made fool to the plaintiff and the property measuring 30 Sq.yds. was also purchased in the name of defendant and now the plaintiff has no right, title or interest over the suit property.
Thereafter, the plaintiff received a letter from D.L.S.A, Delhi on dated 30.01.2013 and the plaintiff appeared there and officials of the DLSA tried to resolve the matter between the parties but all in vain and the plaintiff has stated that he is coowner of the suit property and then the officials of the DLSA advised the parties to file their respective cases before the court in respect of suit property.
Then on 28.02.2013, the defendant brought some property dealers at the suit property with intent to dispose off the suit property and when the plaintiff raised objection then the defendant told the plaintiff to vacate the suit property within 15 days otherwise his house hold articles shall be thrown on the road. The defendant is also putting pressure upon the plaintiff by local police as the police officials also visited the suit property and compelled CS-379/16 Shiv Nath @ Surya Nath vs Neeraj Page no. 3 the plaintiff to vacate the suit property.
Plaintiff has grave apprehension in his mind that the defendant may dispossess him forcefully from the suit property and thereafter dispose off the same and keep the entire consideration amount with him alone. The plaintiff has also apprehension that the defendant might have executed any document, in respect of suit property in favour of any person. The plaintiff has no other efficacious remedy except to file the present suit.
3. Defendant contested the suit by filing his written statement. It has been stated by defendant in his written statement that the present suit is not maintainable as the plaintiff has not come before this Hon'ble Court with clean hands and suppressed the material facts from this Hon'ble Court, hence the present suit is liable to be dismissed; present suit of the plaintiff is malafide, arbitrary, unjustified and against the principles of natural justice, therefore, the suit is liable to be dismissed; no cause of action arose to file the present suit against the answering defendant and, therefore, the same is not maintainable and is liable to be dismissed on this ground alone; the suit of the plaintiff is not maintainable as the suit of the plaintiff is an abuse to the process of law and the same has been filed by the plaintiff in order to harass and humiliate the innocent answering defendant with malafide intention, therefor, the same is CS-379/16 Shiv Nath @ Surya Nath vs Neeraj Page no. 4 liable to be dismissed; the suit of the plaintiff is not maintainable as the same is counterblast to the suit of the defendant which is pending in the concerned Court, Karkardooma Court, Delhi and the brief facts of the case as per the defendant is as under: The defendant is the sole and absolute owner of the suit property i.e. C2/417418, Gali No.13,. Khasra No. 23/5/2, Harsh Vihar, Delhi110093, area measuring 80 sq. yds vide General Power of Attorney, agreement to sell, affidavit, registered will dated 21.11.1995 and Receipt (pertaining to area measuring 30 sq.yds. ) executed by Sh. Raj Kumar in favour of the defendant and also vide General Power of Attorney, Agreement Deed, registered Will and Receipt dated 13.01.1992 executed by Sh. Gianender Singh in favour of the defendant. It has been stated that the defendant owns and had builtup the suit property with his own hard earned money and had been residing there since then. It has been further stated that plaintiff has no right, title or interest in the suit property. It is further stated that since the plaintiff and his family are licensee in one room on first floor alongwith common latrine and bathroom in the portion of the premises bearing No.C2/417, Gali No.13, Harsh Vihar, Delhi110093 as they were allowed to live in the portion of the said property by the defendant.
CS-379/16 Shiv Nath @ Surya Nath vs Neeraj Page no. 5 The defendant is living at the suit property with his wife and an infant baby since 1995. Plaintiff and defendant are real brothers. Plaintiff and his wife alongwith their children came to the house of the defendant, in the month of October,2010. Plaintiff had come to Delhi from his village in Uttar Pradesh, in order to get some medical treatment done in Delhi as he was suffering from some ailment and the defendant initially showed his inability to allow the plaintiff and his wife to live in the suit property as the defendant had only two rooms constructed on the ground floor, where the defendant himself was residing with his family and had constructed a temporary structure consisting two rooms with the help of asbestos sheets on the first floor.
Plaintiff and his wife somehow convinced the defendant to allow them to reside in one room on the first floor of the property bearing No.C2/417, Gali No.13, Harsh Vihar, Delhi93 and had told the defendant that they will soon go back to their village in Uttar Pradesh after getting done the treatment of the plaintiff.
Defendant being the real brother of the plaintiff, and moreover, the plaintiff had come to Delhi for his medical treatment could not refuse to allow him and his family to stay at his house. Due to love and affection, defendant allowed the plaintiff and his wife alongwith their CS-379/16 Shiv Nath @ Surya Nath vs Neeraj Page no. 6 three children to live/stay on the first floor of the property bearing No. C2/417, Gali No.13, Harsh Vihar, Delhi93.
Further, in the month of December, 2010 the plaintiff and his wife again approached the defendant with a request to allow them to stay in the premises for some more time as they wanted to settle in Delhi and wanted to setup business and further on the request of the plaintiff and his wife,. The defendant agreed for an oral tenancy on a monthly rent of Rs. 3,000/ per month, excluding the electricity charges.
After some time, when the defendant asked the plaintiff and his wife to vacate the said occupied portion of the first floor of the suit property, the plaintiff and his wife, to the utmost shock of the defendant, flatly refused to vacate the said premises. Plaintiff and his wife have no right, title or interest in the property in question and when the plaintiff stopped to pay the rent to the defendant and had only tendered/ paid the rent of the said premises upto January,2012 and since, thereafter, the plaintiff stopped to tender/pay the rent as well as the electricity charges to the defendant intentionally and deliberately even after repeated requests of the defendant to vacate the said premises and had also refused to pay the arrears of rent. It has been stated that in this regard, the defendant had also sent a legal notice through his counsel on 08.10.2012 which CS-379/16 Shiv Nath @ Surya Nath vs Neeraj Page no. 7 was duly served upon the plaintiff but the plaintiff failed to reply the same. Furthermore, the defendant has been paying the electricity and water consumption out of his own pocket, in default of the payment against the consumption of the electricity and water charges by the plaintiff.
The defendant had always given a congenial and favourable environment to the plaintiff but plaintiff and his wife started taunting and threatening the defendant and his wife on one or the other pretext and the plaintiff and his wife never hesitate to harass and never left any stone unturned to insult the defendant and his wife. They created a scene on the pretext that they need partition in the suit property and when the defendant tried to make them understand that it is his self earned property, the plaintiff and his wife became enraged and abused the defendant and his wife in a filthy language. The plaintiff and his wife want to dispossess the defendant from the suit property which has been owned by the defendant and has been constructed by the defendant by his own hard earned money when the cruelties crossed all limits and it became unbearable for the defendant, then having no other option, the defendant approached for his safety and that of his moveable and immovable property to the concerned P.S. on 05.02.2013 but the police officials of the CS-379/16 Shiv Nath @ Surya Nath vs Neeraj Page no. 8 concerned P.S did not take any action against the plaintiff and his wife in this regard.
Since then the plaintiff and his wife have become more and more quarrelsome and aggressive and are harassing the defendant so that he may create partition or leave the suit property and are adamant to their demands and are not ready to leave or vacate the property of the defendant and are constantly giving threats to the defendant and his wife that if they tried to get the said occupied portion vacated, then they shall give beating to the defendant and implicate him in a false and frivolous case.
The defendant had made numerous requests to the plaintiff and his wife to vacate the portion of the premises occupied by them illegally and unlawfully. But, the plaintiff failed to comply with the request made by the defendant. Therefore, the plaintiff is liable to handover the vacant and peaceful possession of the first floor of the said property, owned by the defendant, to the defendant.
That the suit of the plaintiff is not maintainable as the relief claimed by the plaintiff in the present suit is illegal, unwarranted and uncalled for, therefore, the suit of the plaintiff is liable to be dismissed with heavy costs.
4. On the basis of pleadings of the parties, the following issues were framed by Ld. Predecessor of this CS-379/16 Shiv Nath @ Surya Nath vs Neeraj Page no. 9 Court on 17.07.2014:
1.Whether the plaintiff proves that the suit property is purchased by him and the defendant jointly in the year 1992 and 1995? OPP
2.Whether the plaintiff further proves that he is entitled to seek partition in the suit property as coowner? Opp
3. Whether the plaintiff is entitled for other reliefs urged in the suit? Opp
4. What relief.
5. In order to prove his claim plaintiff examined himself as PW1 and another witness i.e. his father Sh. Firai as PW2. Plaintiff/PW1 tendered his evidence by way of affidavit ( Ex. PW 1/A) and relied upon copy of the Aadhar Card as EX PW 1/A. Thereafter plaintiff closed his evidence.
Defendant no. 1 examined himself as DW1 and tendered his affidavit of evidence as Ex. DW1/A. DW1 has relied upon the documents i.e . GPA dated 13.01.1992 (Ex. DW 1/B), Agreement deed (Ex DW 1/C), WILL dated 13.01.1992 (Ex. DW 1/D), receipt of Rs. 30,000/ of property bearing Khasra no. 23/5/2 measuring 50 sq. yards (Ex. DW 1/F), Agreement to sell dated 21.11.1995 measuring 30 sq. yards as Ex DW 1/G, WILL deed dated 21.11.1995 for the area measuring 30 sq. yards as Ex DW 1/I, receipt of Rs. 20,000/ dated 21.11.1995 for area measuring 30 sq. yards CS-379/16 Shiv Nath @ Surya Nath vs Neeraj Page no. 10 as Ex DW 1/J. He also examined Sh. Briju as DW2 and Record clerk Sh. Gopal Dutt as DW3. Thereafter defendant closed his evidence.
6. This Court has heard the arguments on behalf of the parties and gone through the material available on record.
Findings on issues:
7. As all the issues are inter connected, hence taken together. Onus to prove all the issues was on the plaintiff.
Plaintiff has filed the present suit for Partition, Declaration and Permanent & Mandatory injunction against the defendant. Plaintiff /PW1 has deposed in his evidence by way of affidavit (Ex PW 1/A) that p laintiff and defendant with their own hard earned money and with the assistance of their father purchased property bearing no.C 2/418, Harsh Vihar, Delhi - 110093 measuring 50 sq. yards in the year 1992 for a sale consideration of Rs.15,000/ and both plaintiff and defendant equally contributed in the sale consideration and constructed the property and started living in the said property jointly. He further deposed that defendant being the elder brother, the property was purchased in the name of defendant and plaintiff did not raise any objection to it.
CS-379/16 Shiv Nath @ Surya Nath vs Neeraj Page no. 11 Record further shows that except EX PW 1/A i.e. Aadhar Card, no other documents has been filed on behalf plaintiff to prove his case. Plaintiff has simplicitor stated in his cross examination that he is the owner of the suit property and stated that no question arises of arrears of rent. Further, he admitted in his cross examination that he has no documentary proof regarding ownership of the suit property.
PW2 has deposed in his evidence by way of affidavit (EX PW 1/2) that suit property was purchased by plaintiff and defendant with his financial support and further deposed that both plaintiff and defendant invested the money equally and thereafter they constructed the same with their own earnings and savings and started residing jointly in the suit property. Since the defendant is elder than the plaintiff the suit property was purchased in the name of defendant and plaintiff did not make any objection for the same. During cross examination PW2 deposed that evidence by way of affidavit is not prepared before him and further deposed that he did not remember as to when the suit property was purchased by the defendant.
Record further shows that plaintiff has not filed any documentary proof regarding his savings and investments for the purchase of the suit property.
CS-379/16 Shiv Nath @ Surya Nath vs Neeraj Page no. 12 On the other hand defendant has relied and placed on record the documents i.e. GPA dated 13.01.1992 (Ex. DW 1/B) Agreement deed (Ex DW 1/C), WILL dated 13.01.1992 (Ex. DW 1/D) receipt of Rs. 30,000/ of property bearing Khasra no. 23/5/2 measuring 50 sq. yards (Ex. DW 1/F), Agreement to sell dated 21.11.1995 measuring 30 sq. yards (Ex DW 1/G) WILL deed dated 21.11.1995 for the area measuring 30 sq. yards (Ex DW 1/I) receipt of Rs. 20,000/ dated 21.11.1995 for the measuring area 30 sq. yards (Ex DW 1/J).
During his cross examination defendant has deposed that the property measuring 50 sq. yards and 30 sq. yards are his self acquired property and he denied the suggestion that he had purchased the property measuring 30 sq yards (Ex DW 1/G) in the name of his brother Shiv Nath @ Surya Nath and further denied that agreement to sell (Ex DW 1/G) bears the signatures of plaintiff i.e. Shiv Nath @ Surya Nath. He further denied that agreement to sell (Ex DW 1/G) is false and fabricated document, also denied that the suit property was acquired with the help of his brother and father and deposed that the same was acquired by his own savings.
He further deposed that at the time when the property measuring 50 sq yards was acquired by his own saving, his brother Shiv Nath @ Suraya Nath was residing in CS-379/16 Shiv Nath @ Surya Nath vs Neeraj Page no. 13 the native village for his study. He also deposed that plaintiff had come Delhi in the year 2012 alongwith his wife and children for medical treatment in GTB Hospital and started residing with him on oral permission. He further admitted that the property measuring 50 sq yards (Ex DW 1/C) was purchased in consideration of Rs. 15000/ and property measuring 30 sq yards (Ex.DW 10/G) was purchased in consideration of Rs. 9,000/ Defendant examined his other brother Birju as DW2 and he tendered his evidence by way of affidavit (Ex DW 2/A) and deposed that plaintiff and defendant both are his real brothers and defendant has purchased the suit property by his own funds. No suggestion has been put on behalf of plaintiff regarding the above said fact. During his cross examination DW2 deposed that the plaintiff came at Delhi 34 years back from today for his treatment. In this way, he supported the version of defendant that plaintiff came to Delhi in the month of October 2012 for his medical treatment.
DW3/Gopal Dutt is record keeper Sub Registrar IV, Seelampur, Delhi who brought the summoned record i.e. regd. Deed of WILL dated 13.01.1992 executed by Sh. Gianender Singh s/o Sh. Gopal Chand in favour of Neeraj vide dated 13.01.1992 and deed of WILL dated 22.11.1995 executed by Raj Kumar s/.o Sh. Natthu Ram in CS-379/16 Shiv Nath @ Surya Nath vs Neeraj Page no. 14 favour of defendant vide dated 22.11.1995.
8. In view of the aforesaid discussions, it is clear that plaintiff has failed to prove that suit property was purchased by him and defendant jointly in the year 1992 and 1995 and he further failed to prove that he is co owner of the suit property, hence, plaintiff is not entitled for partition of the suit property as well as other reliefs as sought in the suit. As all the issues are decided against the plaintiff, accordingly, the present suit stands dismissed. No order as to costs.
9. File be consigned to record room.
(Typed to the dictation directly, (Dr. Hardeep Kaur) corrected and pronounced ADJ02(SHD)/KKD/Delhi in the open court on 08.10.2018) (This judgment contains fifteen pages) Digitally signed by HARDEEP HARDEEP KAUR KAUR Date:
2018.10.09 15:10:40 +0530 CS-379/16 Shiv Nath @ Surya Nath vs Neeraj Page no. 15