Delhi District Court
Suman Kumar Aneja vs Rajeev Aneja on 6 September, 2016
Suman Kumar Aneja & Anr. v. Rajeev Aneja & Anr.
IN THE COURT OF SH. V.K. JHA, LD. CIVIL JUDGE - 11 (CENTRAL), ROOM
No.366, TIS HAZARI COURTS, DELHI
SUIT No.97111/ 16 (OLD No.496/16)
In the matter of :
1.Suman Kumar Aneja S/o Sh. Sohan Lal Aneja R/o CC114A, Shalimar Bagh, Delhi 110 088.
2. Sohan Lal Aneja S/o Late Bal Kishan Das R/o CC119A, Shalimar Bagh, Delhi 110 088. ...PLAINTIFFS VERSUS
1. Rajeev Aneja S/o Sh. Sohan Lal Aneja R/o Flat No.6, Jamna Apartments, SectorIX, Rohini, Delhi.
2. Anil Aneja S/o Sh. Sohan Lal Aneja R/o CC119A, Shalimar Bagh, Delhi 110 088. ...DEFENDANTS Date of institution : 01.04.2006 Date of judgment : 06.09.2016 SUIT FOR PERMANENT INJUNCTION AND CANCELLATION OF DOCUMENTS J U D G M E N T
1. By this judgment I shall dispose of the suit filed on behalf of the Plaintiffs for SUIT No.97111/16 (OLD No.496/16) pg 1 of 15 Suman Kumar Aneja & Anr. v. Rajeev Aneja & Anr.
permanent injunction and cancellation of documents.
2. It is averred in the plaint that the plaintiff No.1, defendant No.1 and defendant No. 2 are real brothers and plaintiff No.2 is the father of the plaintiff No.1 and both the defendants. Shrimati Asha Rani Aneja was the mother of the plaintiff No.1 and both the defendants who expired on 30 th August, 2005. The dispute between the parties is with respect to Flat No.6, Second Floor, Jamna Apartments, Sector - IX, Rohini, Delhi (hereinafter referred to as the suit property). It is the contention of the plaintiffs that the suit property was purchased from the funds of both the plaintiffs and Shrimati Asha Rani Aneja, though the suit property was purchased in the name of Shrimati Asha Rani Aneja. It is the case of the plaintiffs that after the death of Shrimati Asha Rani Aneja both the plaintiffs and both the defendants have share and write in the suit property. No one alone of the parties to the present suit has individual right to sell the suit property. It is further averred in the plaint that defendant No. 1 is residing in the suit property and the intentions of defendant No.1 has become dishonest. And, the defendant No.11 to sell the suit property without the permission and the consent of the other coowners. It is also alleged that in the year 2000 to the defendant No.1 also attempted to sell the suit property without the consent and permission of the other coowners. But, with the immediate efforts from the plaintiffs the defendant No.1 could not sell the suit property. The grievance of SUIT No.97111/16 (OLD No.496/16) pg 2 of 15 Suman Kumar Aneja & Anr. v. Rajeev Aneja & Anr.
the plaintiffs is that now the defendant No.1 is trying to sell the suit property without the consent and permission of the plaintiffs. On 22 nd March, 2006 the plaintiff No.1 asked the defendant No.1 whether the defendant No.1 was planning to sell the suit property. The defendant No.1 replied that nobody could stop the defendant No.1 from selling the suit property as the defendant No.1 had prepared documents of the suit property. The plaintiffs have expressed their apprehension in the plaint that the defendant No.1 might have forged some documents with respect to the suit property. On 30 th March, 2006, it is averred in the plaint that one person came to the plaintiff No.1 and asked about the suit property. The said person did not disclose his identity and from the conversation, the plaintiff No.1 came to conclusion that defendant No.1 might have made up his mind to sell the suit property. It is also stated in the plaint that defendant No.2 has been impleaded in the present suit as proforma party and no relief is claimed against the defendant No.2. In these facts and circumstances the plaintiff has filed the present suit for the following reliefs:
1. Defendant No.1, his agents, heirs, attorneys, associates, assigns etc., be restrained from selling, alienating or creating any third party interest in the suit property bearing flat No.6, 2nd Floor, Jamna Apartments, Sector IX, Rohini, Delhi.
2. The documents (if any) lying with the defendant No.1 be declared as null and void and be cancelled.
SUIT No.97111/16 (OLD No.496/16) pg 3 of 15 Suman Kumar Aneja & Anr. v. Rajeev Aneja & Anr.
3. In the amended written statement filed by the defendant No. 1 all the material averments in the plaint have been denied. The case of the defendant No. 1 is that Shrimati Asha Rani Aneja became member of Jamna Bazar Coop, GHS Ltd. and Shrimati Asha Rani Aneja was allotted the suit property by the DDA. Shrimati Asha Rani Aneja was a housewife and had no source of income except savings and funds provided by defendant No.1 that is her youngest son. In 1992, a loan was raised by the Said Society for members who wanted Loan Facility for Acquiring the Flat from Delhi Corporative Housing Finance Corporation Limited. Shrimati Asha Rani Aneja wanted to avail the loan facility and loan of Rs.89,000/ was sanctioned in her name which was repaid by defendant No. 1 for which society issued the receipts to the defendant No. 1 in the name of the mother Shrimati Asha Rani Aneja. Shrimati Asha Rani Aneja had paid a sum of Rs.1,89,000/ to the society towards part payment of the suit property from her savings and from the funds provided by defendant No. 1 to her from time to time over the last 15 years. By July, 1997 Shrimati Asha Rani Aneja was unable to make payment of the future demands made by the society from her with respect to the suit property. Shrimati Asha Rani Aneja offered to sell the suit property to the defendant No.1 without asking for extra money other than the amount she had already paid to the society. Shrimati Asha Rani Aneja did not make any offer to plaintiff No.1 as he was already having a separate flat SUIT No.97111/16 (OLD No.496/16) pg 4 of 15 Suman Kumar Aneja & Anr. v. Rajeev Aneja & Anr.
in Delhi while in the year 1997 the defendant No.1 did not have any flat. On 29 th August, 1997 Shrimati Asha Rani Aneja voluntarily executed an agreement to sell and purchase, receipt, Will, General power of attorney etc. with respect to the suit property and at that time Shrimati Asha Rani Aneja was perfectly hale and hearty and was not suffering from any ailment. The symbolic possession of the suit property was also handed to the defendant No.1 as the suit property was already in the possession of the defendant No.1. The specific case of the defendant No.1 is that the defendant No.1 is the owner of the suit property and has all the rights to deal with the suit property in the manner the defendant No.1 deems fit and the plaintiffs have no right to interfere in it.
4. In the written statement of the defendant No.2 it is stated that Shrimati Asha Rani Aneja was a housewife and had no source of any income. The plaintiff No.2 out of love and affection and in good faith got the membership of co operative group housing Society in the name of Shrimati Asha Rani Aneja with the clear understanding that the suit property would be allotted would be the joint family property. The funds required by the society towards the cost and construction and value of the land was contributed by the parties to the suit. The suit property was allotted in the name of Shrimati Asha Rani Aneja and the suit property is a joint family property of the plaintiffs and the defendants each having 1/4th undivided share in the suit property. In the year 1987 Shrimati SUIT No.97111/16 (OLD No.496/16) pg 5 of 15 Suman Kumar Aneja & Anr. v. Rajeev Aneja & Anr.
Asha Rani Aneja started behaving in very abnormal manner and became very confused and lost her memory. Shrimati Asha Rani Aneja also used to get agitated and started experiencing hallucinations and remained under the treatment of psychiatric but there was no improvement. The condition of Shrimati Asha Rani Aneja from the year 1987 started turning from bad to worse. Few months before the death of Shrimati Asha Rani Aneja it was diagnosed that she was suffering from a disease dementia and expired on the 30 th August, 2005 after a prolonged illness. It is also the case of defendant No.2 that the suit property is liable to be partition by meets and bounds and in alternative liable to be sold if partition is not possible.
5. Plaintiffs filed replication to the written statement of the defendant of the Defendant No.1 denying the case of the defendants; reiterating and reaffirming the case as set up by the plaintiffs in the plaint.
6. After the completion of the pleadings, vide order dated 29.07.2009 following issues were framed for trial:
1. Whether the present suit has been filed without any cause of action? OPD1.
2. Whether the present suit is not maintainable in its present form? OPD1.
3. Whether the plaintiff is entitled to the injunction as prayed for against the defendant No.1? OPP.
SUIT No.97111/16 (OLD No.496/16) pg 6 of 15 Suman Kumar Aneja & Anr. v. Rajeev Aneja & Anr.
4. Whether the plaintiff is entitled for getting the relief of declaration as prayed for? OPP.
5. Whether the defendant No.1 is the lawful owner of the suit property? OPD1.
6. Relief.
7. Plaintiffs in order to prove their case, examined Sh. Suman Kumar Aneja, plaintiff No.1 as PW1 by way of his affidavit Ex.PW1/A. He relied on receipts marked as MarkA (colly.).
8. Plaintiff No.2 Sh. Sohan Lal Aneja was examined as PW2 who is the father of plaintiff No.1 by way of his affidavit Ex.PW2/A.
9. On the other hand, defendants to prove their case examined defendant No.1 as DW1 by way of his affidavit Ex.DW1/A. He relied on following documents:
1. Ex.DW1/1 (colly.) agreement dated 18.03.1993.
2. Ex.DW1/2 possession letter.
3. Ex.DW1/3 agreement to sell witnesseth.
4. Ex.PW1/4 certified copy GPA.
5. Ex.DW1/5 affidavit.
6. Ex.DW1/6 receipt.
7. Ex.DW1/7 Will.
8. Ex.DW1/8 receipt issued by Jamna Bazar Cooperative Group Housing Society Ltd.
SUIT No.97111/16 (OLD No.496/16) pg 7 of 15 Suman Kumar Aneja & Anr. v. Rajeev Aneja & Anr.
9. Ex.DW1/9 letter of loan repayment.
10. Ex.DW1/10 to Ex.DW1/56 (47 receipts) receipts issued by Jamna Bazar Cooperative Group Housing Society Ltd.
10. I have heard the arguments of the counsel for the Defendant No.1and perused the record. None on behalf of the Plaintiff were appearing for the last two dates of hearing and the matter was at the stage of final arguments. The court did not deem it fit to adjourn the matter. The court can only provide the opportunity of being heard, and when today the matter was taken up, the requirement of opportunity of being heard was satisfied and by the lapsed/default of the Plaintiff the court was constrained to decide the matter without hearing the Plaintiffs and without being assisted by the counsel for the Plaintiffs.
11. The issues wise opinion of the court are as follows: ISSUES NO.1 & 2 Whether the present suit has been filed without any cause of action? OPD1. Whether the present suit is not maintainable in its present form? OPD1.
12. Both these issues are taken up together as both are interconnected.
13. Stated simply, "cause of action" means a right to sue. It consists of material facts which are imperative for the plaintiff to allege and prove. It, however, will not include facts which may be proved by evidence. Similarly, it has no relation which the defendant might be required to prove. Though the expression "cause SUIT No.97111/16 (OLD No.496/16) pg 8 of 15 Suman Kumar Aneja & Anr. v. Rajeev Aneja & Anr.
of action" has not been defined in the Code, it may be described as ''a bundle of essential facts, which it is necessary for the plaintiff to prove before he can succeed'', or ''which gives the plaintiff right to relief against the defendant''. (Ref. State of Madras v. C. P. Agencies, AIR 1960 SC 1309; A. K. Gupta v. Damodar Valley Corpn., AIR 1967 SC 96).
14. The Plaintiff had the present suit for permanent injunction and cancellation of documents. In para 22 of the plaint it is averred by the plaintiff that the cause of action firstly arose on the date when the suit property was purchased. It also arose in the year 2002 when the defendant No.1 attempted to sell the suit property without the consent and permission of other coowners. It also arose on 30th August, 2005 when the mother of the plaintiff No.1 died. It also arose on 22nd March, 2006 when the plaintiff No.1 asked the defendant No.1 whether the defendant No.1 was planning to sell the property. It also arose on 30 th March, 2006 when one person came to the plaintiff No.1 and asked about the suit property.
15. The plaintiff on the basis of the cause of action which have been given in the plaint has sought the relief that defendant No.1, agents etc. be restrained from selling, emulating or creating any thirdparty interest in the suit property. From the averments in the plaint it is very much clear that the plaintiffs are not SUIT No.97111/16 (OLD No.496/16) pg 9 of 15 Suman Kumar Aneja & Anr. v. Rajeev Aneja & Anr.
residing in the suit property. In paragraph 6 of the plaint it has been averred, "that defendant No.1 is residing in suit property". From the memo of parties which has been filed it is very much evident that the addresses of the plaintiffs are very much different from the address of the suit property. In the affidavit of evidence of both the Plaintiffs it have been mentioned (Ex.PW1/A and Ex.PW 2/A) that the Plaintiffs do not have any objection if the Defendant No.1 lives in the suit property.
16. The Hon'ble Supreme Court in Anathula Sudhakar v. P. Buchi Reddy (Dead) By LRs 2008(4) SCC 594 with respect to the maintainability of the suit for injunction simplictor it has been observed that, "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 simplicitor will lie." It has also been observed in the said judgment that, "A person out of possession, cannot seek the relief of injunction simplicitor, without claiming the relief of possession." In the present suit, whether or not the Plaintiffs were or were not in the possession of the suit property was a material fact and a part of cause of action which was necessary to be proved to get the relief of injunction as has been prayed for in prayer (i) of the plaint. In the absence of such an averment of the material fact in the plaint the court is of the opinion that the suit of the Plaintiffs is without any cause of SUIT No.97111/16 (OLD No.496/16) pg 10 of 15 Suman Kumar Aneja & Anr. v. Rajeev Aneja & Anr.
action.
17. The Hon'ble Supreme Court in Azhar Hussain v. Rajiv Gandhi, 1986 (Supp) SCC
315. Referring to earlier judgment in Samant N. Balkrishna (supra) and Udhav Singh v. Madhav Rao Scindia, (1977)1 SCC 511 has observed that, "the omission of a single material fact would lead to incomplete cause of action and that an election petition without the material facts is not an election petition at all, the Bench held that all the facts which are essential to clothe the petition with complete cause of action must be pleaded and omission of even a single material fact would amount to disobedience of the mandate of Section 83(1)(a) of the Act and an election petition can be and must be dismissed if it suffers from any such vice." What has been observed with respect to the election petition, the court is of the opinion that the said observation of the Hon'ble Supreme Court is mutatis mutandis is applicable in the present suit also where the plaint is completely silent about the possession of the suit property by the Plaintiffs. In fact from the plaint it appears that it is the Defendant No.1 who is in the possession of the suit property.
18. The fact that the Plaintiffs are not in possession of the suit property make the whole suit of the Plaintiffs without cause of action as the right to relief of injunction as prayed for could have only been granted (if the other relevant facts were in favour of the Plaintiffs) had the Plaintiffs been in possession of the suit property.
SUIT No.97111/16 (OLD No.496/16) pg 11 of 15 Suman Kumar Aneja & Anr. v. Rajeev Aneja & Anr.
19. It may be mentioned that Plaintiffs are claiming to be coowners of the suit property, but at the same time it is the admitted case of the Plaintiffs that the suit property was in the name of Smt. Asha Rani Aneja. If it is assumed that Smt. Asha Rani Aneja died intestate then all the parties to the suit would have been having the rights in the suit property, and it such a situation the relief of injunction as prayed for by the Plaintiffs could only be given with respect to their share that is it would have been imperative for the Plaintiffs to ask for the relief of partition as well. In fact in the written statement of the Defendant No. 2, it has been stated that the suit property is the joint family property of the Plaintiffs and the Defendants and each is having 1/4 th share in the suit property. Be that as it may, in view of the provisions of The Benami Transactions (Prohibition) Act, 1988 even if it is assumed to be true that the suit property was purchased from the funds of both the Plaintiffs and Shrimati Asha Rani Aneja on the strength of this fact itself the Plaintiffs would not have any right in the suit property unless with the averments of the relevant facts the Plaintiffs would have brought the case in the present suit with the provisions of section 4(3) of The Benami Transactions (Prohibition) Act, 1988 (See judgment of Hon'ble Delhi High Court in Baljeet Kaur Kalra v. Surjeet Singh in CS (OS) No.2113 of 2010, dated 27.04.2016 & J.N. Kohli v. Madan Mohan Sahni & Anr. In RFA No.207/2012 decided on 07.05.2012.
SUIT No.97111/16 (OLD No.496/16) pg 12 of 15 Suman Kumar Aneja & Anr. v. Rajeev Aneja & Anr.
20. The Plaintiff has sought the relief of declaration that the documents (if any) lying with Defendant No.1 be declared as null and void and be cancelled. So far as this particular relief is concerned, the Plaintiffs were obligated to give the details of the documents qua which the relief sought was required as the court does not pass any vague or ambiguous (See M/s Naresh Marble v. Chandigarh Administration 2003 (2) PLJ 162). Be that as it may, as the suit property was in the name of Smt. Asha Rani Aneja, therefore in view of the provisons of The Benami Transactions (Prohibition) Act, 1988 it was incumbent on the Plaintiffs to seek the relief regarding the ownership; that is the relief that it is the Plaintiffs who are the owners or coowners whatever may have been the case and then only the relief of declaration qua the documents relating to suit property in favour of the Defendant No.1.
21. In view of above discussion the court is of the opinion that the present suit which has been filed by the Plaintiffs for the relief of declaration and permanent injunction is without any cause of action. Also, the suit in the present form is not maintainable. Both the issues are decided in favour of the Defendants and against the Plaintiffs.
ISSUE No.3 Whether the plaintiff is entitled to the injunction as prayed for against the defendant No.1? OPP.
SUIT No.97111/16 (OLD No.496/16) pg 13 of 15 Suman Kumar Aneja & Anr. v. Rajeev Aneja & Anr.
22. In view of the discussion on the issues No.1 and 2 and in view of the fact that the Plaintiffs are not in the possession of the suit property, the relief of injunction as prayed for cannot be granted to the Plaintiffs. Accordingly, issue under discussion is decided against the plaintiffs and in favour of defendant No.1. ISSUE No.4 Whether the plaintiff is entitled for getting the relief of declaration as prayed for? OPP.
23. Proviso to Section 34 of the Specific Relief Act provides that the courts will not grant the decree of declaration where the plaintiff is entitled for the consequential relief. In the present suit, the consequential relief would be that of possession which has not been sought by the plaintiff despite the fact that it is not the plaintiffs are not in possession of the suit property. It is the defendant No.1 who is in possession of the suit property. Therefore, plaintiffs are not entitled for the relief of declaration. It may also be mentioned that the relief of declaration as sought cannot be grated for the reasons as discussed while discussing the issues No.1 and 2. This issue is decided against the plaintiffs and in favour of the defendant No.1.
ISSUE NO.5 Whether the defendant No. 1 is the lawful owner of the suit property? OPD1.
SUIT No.97111/16 (OLD No.496/16) pg 14 of 15 Suman Kumar Aneja & Anr. v. Rajeev Aneja & Anr.
24. There is no counterclaim from the sides of the Defendant, decision on the present issue is not required for the proper decision of the present suit. Also, the present suit has not been pressed for by the counsel for the Defendant No.1. The court is of the opinion that the present suit has been wrongly introduced therefore under Order 14 Rule 5(2), the present issued is deleted. RELIEF
25. As the substantive issues No.1, 2, 3 and 4 have been decided in favour of the defendant No.1, the suit of the plaintiffs is liable to be dismissed. Accordingly, suit of the plaintiffs is dismissed with costs in favour of defendant No.1. The costs of the suit is quantified at Rs.15,000/ under Section 35 of CPC in favour of defendant No.1 and against the plaintiffs jointly and severally. Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open court (V.K. Jha) on 06.09.2016 Ld. CJ11 (Central)/Delhi SUIT No.97111/16 (OLD No.496/16) pg 15 of 15