Delhi District Court
Shri Krishan Kumar Saini vs Smt. Krishna Saini on 13 December, 2011
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IN THE COURT OF Ms. AMBIKA SINGH
CIVIL JUDGE : CENTRAL03 : ROOM No. 346 : THC : DELHI.
Suit No. 267/2005
Shri Krishan Kumar Saini, S/o Late Shri Man Singh,
R/o C391, Palam Extension,
New Delhi110045. ..................................Plaintiff
Vs.
1. Smt. Krishna Saini, Widow of Late Shri Nathu Singh Saini,
2. Ms. Nidhi D/o Late Shri Nathu Singh Saini,
3. Ms. Nisha, D/o Late Shri Nathu Singh Saini,
4. Ms. Shalini, D/o Late Shri Nathu Singh Saini,
5. Master Rahul, Minor S/o Late Shri Nathu Singh Saini,
[ Through his next friend and natural guardian Smt. Krishna Saini
being her mother,
All R/o ZF/110/22, Gali No. 38, Sadh Nagar, Palam Colony,
New Delhi110045.
6. Shri Mool Chand, S/o Late Shri Man Singh,
R/o WZ146B, Palam Village, New Delhi110045.
7. Shri Raj Kumar Saini, S/o Late Shri Man Singh,
R/o WZ146B, Palam Village, New Delhi110045.
Suit No. 267/2005 Krishan Kumar Saini Vs. Krishna Saini & Others
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8. Shri Satyawan Saini, S/o Late Shri Man Singh,
R/o WZ146B, Palam Village, New Delhi110045.
9. Smt. Dhapa Devi, Widow of Late Shri Man Singh,
R/o C391, Palam Extension, PartI, Sector7, Dwarka,
New Delhi110045.
10. Smt. Raj Bala, W/o Shri Subhash Chand,
R/o 3864/10, Kanhaiya Nagar, Tri Nagar,
New Delhi110035.
11. Smt. Rajwati, W/o Shri Vijay Anand Saini,
R/o House No. 52, Village Hastal, Near Shubh Nursing Home,
New Delhi110059. .....................................................Defendants
Date of Institution : 07.09.2005.
Date of Decision : 13.12.2011.
Suit for Permanent Prohibitory Injunction
J U D G M E N T
1. Vide this Judgment, I shall decide the suit for permanent prohibitory injunction filed by the plaintiffs against the defendants. Suit No. 267/2005 Krishan Kumar Saini Vs. Krishna Saini & Others 3
2. Briefly stated, the plaintiff is an employee of Airport Authority of India and residing at Palam alongwith his mother Smt. Dhapa Devi. The defendant No. 1 is the widow of late Shri Nathu Singh Saini, brother of the plaintiff. The defendants No. 2 to 5 are the daughters and sons of late Shri Nathu Singh Saini. The defendants No. 6 to 8 are the brother of plaintiff and defendant No. 9 is his mother. The defendants No. 10 & 11 are the married sisters of plaintiff.
3. It is averred by the plaintiff that the land measuring 100 square yards situated in Khasra No. 70/14/3, Palam Village, New Delhi110045 is jointly in possession of family of late Shri Man Singh Saini after internal division between brothers of Late Shri Man Singh Saini which is bounded by wall up to 8 feet and a door fixed on it. The said piece of land is un constructed and boundary wall has been constructed to avoid any encroachment or trespassing on the said piece of land. The plaintiff has put his lock on the main gate on behalf of all the defendants with their consent and at no stage he has claimed to be the exclusive owner of the land. The Suit No. 267/2005 Krishan Kumar Saini Vs. Krishna Saini & Others 4 plaintiff has raised boundary wall on the land about three years back with the consent of all the defendants out of his own funds. The plot of land was totally open having no roof or any other construction whatsoever and it is away from the village.
4. It is averred that on 10.08.2005, the plaintiff was shocked and surprised to know from the villagers that construction activities are going on the said plot of land on the behest of defendant No. 1 claiming herself to be the exclusive owner of the said plot of land. Accordingly, the matter was reported to the police. At that time, the defendant No. 1 promised not to make any exclusive claim or raise any construction on the land.
5. It is further averred that on 13.08.2005, defendant No. 1 broke opened the lock of the main door and entered the plot and started work again with the material lying in the plot in question itself which belonged to the plaintiff. The plaintiff further reported the matter to the police. On the intervention of police, the defendant No. 1 stopped the work but she threatened the plaintiff that she will start the work very soon and will not Suit No. 267/2005 Krishan Kumar Saini Vs. Krishna Saini & Others 5 allow anybody to enter the plot in question.
6. It is alleged that the plot in question is joint and in joint possession of all and no one can stop any one to enter the plot as it is a joint family property and remains undivided till date. The defendant No. 1 or any one else has no right to use the material lying on the plot of land. The wife of Shri Raj Kumar Saini & Smt. Krishna Saini, defendant No. 1 are real sisters and as such the defendant No. 7 has a joint interest with the defendants No. 1 to 5. The defendants No. 1 to 5 & 7 are extending threats jointly to the plaintiff for dispossessing them from their joint possession forcibly and to raise unauthorized construction on the suit land without permission or consent of all other coowners. Hence, the plaintiff has no other efficacious remedy except to file the present suit for passing a decree for permanent injunction thereby restraining the defendants No. 1 to 5 & 7 from raising any construction on the said plot of land. The plaintiff has also prayed for restraining them from dispossessing the plaintiff from the said plot of land forcibly otherwise in due course of law. Suit No. 267/2005 Krishan Kumar Saini Vs. Krishna Saini & Others 6
7. The cause of action to file the present suit firstly arose in favour of plaintiff on 10.08.2005 when defendants No. 1 to 5 in connivance with defendant No. 7 started making aforesaid unauthorized construction. It again arose on 14.08.2005 when construction work was started but stopped by the police. It further arose when defendants extended threats to the plaintiff to implement their illegal design. The cause of action is still continuing as the defendants are adamant to their desire.
8. The defendants No. 1 to 5 & 7 & defendants No. 6 & 8 to 11 have filed their joint written statement respectively controverting the allegations levelled against them. It is submitted in the written statement that plaintiff has no right, title or interest in the suit property. The suit has been filed only to harass and blackmail them. The suit is not maintainable as he has filed a simpliciter suit for permanent injunction without claiming any consequential relief of partition, possession etc. The suit is also barred by limitation.
9. It is further averred that defendant No. 1 had purchased the suit Suit No. 267/2005 Krishan Kumar Saini Vs. Krishna Saini & Others 7 land from her motherinlaw Smt. Dhapo vide registered GPA, registered Will, Agreement to Sell, affidavit & receipt of Rs.80,000/ all dated 06.01.1995. The defendant No. 1 alongwith defendants No. 2 to 5 are in possession of the suit land since 06.01.1995 as at that time there was a room and boundary wall with a gate. The present suit has been filed after more than 10 years even though the factum of possession of defendants No. 1 to 5 in the suit property has been in the knowledge of plaintiff and other defendants. The suit is also bad for misjoinder of parties as defendants No. 2 to 11 are not the necessary parties to the present suit. The site plan filed by the plaintiff is totally incorrect as the plaintiff has deliberately not shown the existing old construction at the suit land. Further, the suit property belongs to Gaon Sabha and hence, the plaintiff has no locusstandi to file the present suit. It is denied that plaintiff has put his lock on the main gate of the suit property on behalf of all the defendants. Due to shortage of accommodation, the defendant No. 1 had purchased the suit property from Smt. Dhapo for a sum of Rs.80,000/ and after that she has constructed Suit No. 267/2005 Krishan Kumar Saini Vs. Krishna Saini & Others 8 additional portions consisting of two rooms, two small kitchen, toilet and bath in the beginning of 2005. The defendant No. 1 has not carried out any fresh construction in the suit property. The boundary wall with one room was already in existence when suit property was purchased by defendant No. 1. The defendant No. 1 is the exclusive owner in possession of suit property and the other defendants have no right title or interest in the same. The plaintiff has concocted a story about the incident of 10.08.2005 alleging therein that defendant No. 1 was raising construction at the suit land. The defendant No. 1 was only carrying out minor repairs due to rains around 10.08.2005. The purchase of suit property by defendant No. 1 from her motherinlaw is in the knowledge of plaintiff and other defendants. The intention of plaintiff became malafide after the defendant No. 9 started residing with him.
10. It is averred by defendants No. 6 & 8 to 11 in their joint written statement that the suit has been filed without any cause of action as admittedly the property is joint as stated by plaintiff and all are in joint Suit No. 267/2005 Krishan Kumar Saini Vs. Krishna Saini & Others 9 possession of the suit property. They have never created any law and order problem for the plaintiff. It is submitted that they have made a statement before the police that property in question is joint and defendant Nos. 1 to 5 and defendant No. 7 has no exclusive right over the suit property, hence, the suit is liable to be dismissed.
11. No replication has been filed by the plaintiff despite opportunities, hence, filing of replication was dispensed with vide order dated 22.05.2007.
12. Following issues were framed in the present suit on 22.05.2007 : (1) Whether the plaintiff is in possession of suit property ? OPP (2) Whether the plaintiff is entitled to the relief of Judgment, as prayed for ? OPP (3) Whether the present suit of injunction is not maintainable on account of reasons stated in para No. 3 of preliminary objections of Suit No. 267/2005 Krishan Kumar Saini Vs. Krishna Saini & Others 10 defendants No. 1 to 5 and 7 ? OPD (4) Whether the suit is without any cause of action ? OPD (5) Whether the suit is bad on account of misjoinder and non joinder of necessary parties ? OPD (6) Relief.
13. The plaintiff has filed his affidavit on record, however, he has failed to tender the same in evidence despite opportunities. Accordingly, P.E was directed to be closed vide order dated 10.05.2011.
14. The defendants have also not led any evidence in support of their defence and consequently, the D.E was directed to be closed vide order dated 11.07.2011.
15. Final arguments were addressed on behalf of defendants No 1, 5 & 7, though none has appeared on behalf of plaintiff & defendant No. 6 to address final arguments despite opportunities. Accordingly, I proceed on to disposeoff the suit on merits.
16. I have already heard the arguments and perused the record Suit No. 267/2005 Krishan Kumar Saini Vs. Krishna Saini & Others 11 carefully.
17. My issuewise findings are as follows : ISSUES No. 1, 2 & 4.
The issues No. 1, 2 & 4 requires common discussion, hence, they are taken up together. The onus to prove the issues No. 1 & 2 was on the plaintiff and the onus to prove the issue No. 4 was on the defendant. It is averred by the plaintiff that present suit relates to the land measuring about 100 square yards which is jointly in possession of family of late Shri Maan Singh Saini. The said piece of land is unconstructed and boundary wall has been constructed to avoid any encroachment or trespassing on the said piece of land. The plaintiff has put his lock on the main gate on behalf of all the defendants with their consent and at no stage he has claimed to be the exclusive owner of the said land and has never utilized the same for his own purpose. The plaintiff since residing at Dwarka and has been visiting the village to meet his brothers and other family members and as such also look after the said plot of land as well. The plaintiff was surprised and Suit No. 267/2005 Krishan Kumar Saini Vs. Krishna Saini & Others 12 shocked to know when he was informed by the villagers that on 10.08.2005, there was a construction activity on the said plot on the behest of defendant No. 1 taking advantage of holidays from 13.08.2005 to 15.08.2005. The defendant No. 1 broke open the lock of the main door and entered the plot. The said plot of land is joint and in joint possession of all. In these circumstances, the plaintiff has filed the present suit praying that the defendants No. 1 to 5 & 7 be restrained from raising any construction on the said plot of land. The plaintiff has also prayed for restraining them from dispossessing the plaintiff from the said plot of land forcibly otherwise in due course of law.
On the other hand, the defendants have controverted the allegations levelled against them and have submitted that the present suit is not maintainable as plaintiff has filed the suit for permanent injunction simlicitor without claiming the consequential relief of partition and possession. Further, the defendant No. 1 had purchased the suit property in her possession from her motherinlaw Smt. Dhapo vide registered GPA, Suit No. 267/2005 Krishan Kumar Saini Vs. Krishna Saini & Others 13 Agreement to Sell etc. The plaintiff has alleged that he is in possession of the suit property, however, the plaintiff has failed to file any evidence to support his claim despite opportunities. He has failed to discharge the onus to prove the issues No. 1 & 2. Consequently, the issues No. 1 & 2 are decided against the plaintiff and in favour of defendants. The issue No. 4 is disposedoff accordingly.
ISSUES No. 3 & 5.
The issues No. 3 & 5 requires common discussion, hence, they are taken up together. The onus to prove these issues was on the defendants, however, the defendants have failed to lead any evidence in support of their defence, hence, they have failed to discharge the onus to prove these issues. The issues No. 3 & 5 are, therefore, decided against the defendants and in favour of plaintiff.
RELIEF.
In view of the above discussion, the Court is convinced that the Suit No. 267/2005 Krishan Kumar Saini Vs. Krishna Saini & Others 14 plaintiff has failed to prove his case. Consequently, the suit of the plaintiff stands dismissed. No orders as to costs.
18. Decreesheet be prepared accordingly.
19. File be consigned to Record Room after necessary compliance.
Announced in the open Court ( AMBIKA SINGH ) on 13th December, 2011. CJ : Central03 : Room No. 346 : THC : Delhi. Suit No. 267/2005 Krishan Kumar Saini Vs. Krishna Saini & Others