Delhi District Court
Smt. Madhu Kapoor vs Smt. Shanti Arora @ Shanta on 1 September, 2016
In The Court of Virender Kumar Goyal
Additional District Judge01 (East)
Karkardooma Courts, Delhi
Suit No.1250/16/11
Unique Case ID No.02402C0 35148 2011
In the matter of :
Smt. Madhu Kapoor
W/o Late Sh. Tilak Raj Kapoor
R/o B245, Jhilmil Colony, Shahdara, Delhi
Also At :
C247, Jhilmil Colony, Shahdara, Delhi .....Plaintiff
Versus
1. Smt. Shanti Arora @ Shanta
W/o Sh. Sri Nath Arora
R/o House No. Not Known,
Tila Jamalpura, Bhopal (MP)
Now as tenant at House No.B62,
Jhilmil Colony, Shahdara, Delhi
2. Smt. Sushila Sharma
W/o Late Sh. Bal Kishan Sharma
R/o House No. Not Known,
Shastri Nagar, Delhi
Now as tenant at House No.B62,
Jhilmil Colony, Shahdara, Delhi
3. Smt. Veena Kohli
W/o Sh. Raman Kohli
R/o House No.B62,
Jhilmil Colony, Shahdara, Delhi
4. Smt. Shashi Suneja
W/o Sh. Ravinder Suneja
R/o House No.B169170,
Jhilmil Colony, Shahdara, Delhi
5. Sh. Raj Kumar Kapoor @ Girisham Giri (Saint)
Kesri Mata Mandir, Patel Marg, Exchange Road,
Ghaziabad, (U.P.) .....Defendants
Date of institution : 02.12.2009
Arguments heard on : 17.08.2016
Judgment announced on : 01.09.2016
Suit No.1250/16/11 Page No.1 of 21
JUDGMENT
1. Brief facts of the case, relevant for the disposal of the present suit, are that the plaintiff has filed the suit for declaration & permanent injunction against the defendants, on the averments that deceased Sh. Hari Chand Kapoor, son of late Sh. Panju Ram Kapoor, father in law of the plaintiff was the allottee of property No.B245, Jhilmil Colony, Shahdara, Delhi by the Slum & J.J.Department. Sh. Hari Chand Kapoor expired on 15.07.1996 leaving behind his following LR's as under :
i) Smt. Kesra Deviwife (expired on 10.12.1999)
ii) Sh. Tilak Raj Kapoor (husband of plaintiff)son (expired on 09.04.2001)
iii) Smt. Shanti Arora @ Shantadaughterdefendant No.1
iv) Smt. Sushila Sharmadaughterdefendant No.2
v) Smt. Veena Kohlidaughterdefendant No.3
vi) Smt. Shashi Sunejadaughterdefendant No.4
vii) Sh. Raj Kapoor @ Girisham Giri (Saint)sondefendant No.5
2. The conveyance deed was also executed in the name of Sh. Hari Chand Kapoor. The husband of the plaintiff had deposited Rs.5177/ with the Slum Department. He had also spent Rs.70000/ on the construction of the said property in the year 1988. During the lifetime of father in law and mother in law of plaintiff, husband of plaintiff and plaintiff, both used to serve the deceased Sh. Hari Chand and his wife till they were alive. Plaintiff and her husband always gave sufficient respect and regard to the other daughters of deceased Sh. Hari Chand, who being Nanads of plaintiff used to meet to plaintiff and their parents. As such, plaintiff and her husband used to give and celebrate the festivals, as per Hindu religion from time to time Suit No.1250/16/11 Page No.2 of 21 with the defendants. Defendant No.5 became saint, so, he has no concern with the social life of the world, as such, he never came and tried to meet with his parents during their lifetime and now he has threatened the plaintiff that he will return back.
3. Daughter of the plaintiff namely Gunjan has been married, who used to come to meet the plaintiff with her husband. The Nanad of the plaintiff namely Sushila Sharma i.e. defendant No.1 used to quarrel with the plaintiff and her married daughter, then, husband of the plaintiff had purchased another house No.C247, Jhilmil Colony, Shahdara, Delhi by selling his own house No.F10/12, Krishna Nagar, Delhi, where he used to live with his family. In the last time of his father Sh. Hari Chand, plaintiff and her husband served him better and he expired in the same house on 15.07.1996. Sh. Hari Chand asked the plaintiff and her husband only to allow to live defendant No.2 in his house during her lifetime, but, she shall have no right, title or interest in his property and shall not create any hindrance or dispute in the said property. As such, later on defendant No.2 with her adverse intention tried to call other sisters to live for the time being, who started quarreling with the plaintiff to grab the property.
4. Except plaintiff, defendants No.1 to 4 have no right, title or interest in the property of the plaintiff. Defendant No.5 has already became saint, so, he has no concern with the world. Plaintiff never prevented defendant No.2 to live in the property and she may live therein through the life, but, she has no right, title or interest in the same.
Suit No.1250/16/11 Page No.3 of 215. On 11.11.2009, defendants No.1 to 4 held a meeting with the plaintiff, wherein it was decided between plaintiff and defendants No.1 to 4 that defendants No.1 to 4 will renovate the property of the plaintiff only upto first floor and it was also assured by them that the property upto ground floor is already constructed by the plaintiff and her husband and they spent Rs.70000/ in the construction of the ground floor, which now became insufficient. The relatives of defendants No.1 to 4 used to come to meet with plaintiff and her family, who assured that they will not charge single penny from her, as she has already spent Rs.70000/ in the construction of the ground floor, one room only on first floor and defendant No.2 shall live in the same premises at first floor and shall use the same for herself and for other sisters, as and when they will come to see her or to the plaintiff time to time or at the time of festivals.
6. On the assurance given by defendants No.1 to 4, plaintiff allowed them to renovate the old property at ground floor and later on she feels that intention of these defendants was not clear, who without consent removed her household articles such as furniture, almirah etc. and on asking the plaintiff, they did not reply. Defendants started quarreling with the plaintiff on the pretext that they will construct the building upto second floor for their own use i.e. three storeyed building consisting of ground, first and second floors. They further threatened the plaintiff that if she shall raise any demand or dispute, they will not return her household articles. They further demanded Rs.1 lacs, otherwise, plaintiff will have no right, title or interest in the Suit No.1250/16/11 Page No.4 of 21 property. In fact, all the original documents of the property were handed over by the deceased Sh. Hari Chand to the husband of plaintiff, as such, defendants No.1 to 4 have adverse interest to grab the property.
7. On 20.11.2009 defendants No.1 to 4 started demolishing the property of the plaintiff with the assurance that they will return all her household goods and having faith upon them, plaintiff allowed them to get renovated and demolished part property, as per their requirements. They also demolished the property with a view to raise the construction, as decided between plaintiff and defendants No.1 to 4. Defendants started demanding Rs.1 lac from the plaintiff otherwise, they will not permit her to live in the property and threatened that they will construct the premises upto three storeyed.
8. On 24.11.2009 plaintiff was present on the site, who demanded her household goods from defendants No.1 to 4, on which, they started quarreling with the plaintiff, as such, plaintiff made complaint to different authorities, but, in vain.
9. On 28.11.2009 defendants No.1 to 4 with some builder, brought mixergrinder, labour and other building material, started putting linter on the objections raised by the plaintiff, so, she made a call at No.100. Police and PCR came at the spot. Defendants No.3&4 again started quarreling with the plaintiff and her daughter namely Gunjan. Police interfered in the matter and asked to check the documents of ownership of the property, site plan, permission of MCD of other Govt., but, defendants failed to produce the same and they gave assurance to the police Suit No.1250/16/11 Page No.5 of 21 that without prior permission and written consent of the plaintiff, they will not raise the construction or renovate the property in any manner. Accordingly, police and PCR left the spot and thereafter defendants immediately started quarreling with the plaintiff and they threatened her and prayed for passing a decree of declaration, declaring the plaintiff as absolute and exclusive owner of suit property No.B245, Jhilmil Colony, Shahdara, Delhi, shown green colour in site plan and passing a decree of permanent injunction, restraining the defendants, their agents, associates, attorney, representatives etc. from raising any illegal and unauthorized construction in the above mentioned suit property.
10. Summons of the suit were issued to the defendants and on completion of service, defendants No.1 to 4 had put their appearance before the court through counsel, who has filed written statement on their behalf on the grounds inter alia that suit is an abuse of process of law, as plaintiff has concealed the particulars and has misrepresented before the court and has made false and frivolous allegations and has concocted the stories. In the preliminary objections, it is averred that suit is not maintainable, as plaintiff has not come to the court with clean hands and has suppressed the material facts from the court. Plaintiff has never resided at B245 and has malafidely mentioned the said address, being her residence in the plaint. Plaintiff wants to throw out the defendants from the property in question without any justification and deprive them from their rightful ownership of the same, wherein defendants No.1 to 3 Suit No.1250/16/11 Page No.6 of 21 have been residing for last several years of lifetime of their father late Sh. Hari Chand. The property in question has been given by late Sh. Hari Chand to all the defendants, as defendants No.2&3 are widow daughters, whereas, defendant No.1 is having disturbed matrimonial life, so, all of them have been residing together in the suit property with free will of their father, so, plaintiff has no right in the suit property. Late Sh. Hari Chand had given suit property to the defendants, who had stated about his last will and intentions in front of the relatives, friends etc. on several occasions. Late Sh. Hari Chand had purchased the property No.F10/12, Krishna Nagar, Delhi from his own funds in the name of late Sh. Tilak Raj Kapoor, who was husband of the plaintiff, which was later on sold and from the consideration of said property, another properties No.C247, Jhilmil Colony, Shahdara, Delhi and property at Gaur Plaza, Shalimar Garden, Ghaziabad, UP were purchased for the daughter of the plaintiff. Late Sh. Hari Chand had given share to the husband of plaintiff during his lifetime and property in question was devolved upon all the defendants with his free will. The site plan filed by the plaintiff is not proper. There is no such first floor in the suit property. The plaintiff has no locus standi to file the suit. The suit is malafide, arbitrary, unjustified and against the principles of natural justice. No cause of action arose to file the suit. The suit has been undervalued and valuation of the property is not proper, as per law. The suit is liable to be dismissed U/o 7 rule 11 CPC. Plaintiff with malafide intention with her daughter Gunjan and Suit No.1250/16/11 Page No.7 of 21 her husband Amit Kaushik want to grab the property. The suit premises was divided by deceased Hari Chand during his lifetime in presence of relatives and neighbourers. Earlier, suit No.458/2009 was filed by the plaintiff, which was returned back by the court of Sh. Ajay Gupta, Ld. Civil Judge, KKD Courts, Delhi, thereafter, present plaint has been filed, wherein facts have been molded with malafide intention. In earlier plaint, it was stated by the plaintiff that construction was carried out in the year 1988, but, in the present plaint, the year of construction has been changed to 1998 and certain other modifications have been done without permission of the court. After denying other averments, defendants have sought rejection of the suit.
11. The plaintiff has filed the replication to the written statement and reiterated the contents of the plaint therein and denied the averments made in the written statement.
12. During pendency of the suit, an application U/o 1 rule 10 CPC was filed by the plaintiff for dropping the defendant No.5 from the array of defendants, as it was informed that he had expired. Vide order dated 04.04.2011, the said application was allowed and defendant No.5 was deleted from the array of defendants.
13. From the pleadings of the parties, following issues were framed vide order dated 21.11.2011 as under :
(i) Whether late Sh. Hari Chand had already divided the suit property during his life time and had given the same to the defendants ? OPD
(ii) Whether late Sh. Hari Chand had already given the share of the plaintiff to her husband during his life time ?
Suit No.1250/16/11 Page No.8 of 21OPD
(iii) Whether the plaintiff has no locus standi and cause of action to file the present suit ? OPD
(iv) Whether the suit has not been properly valued for the purpose of court fee and jurisdiction and the plaintiff has not paid the court fee on the same ? OP Parties
(v) Whether the plaintiff is entitled to the relief of declaration as prayed for ? OPP
(vi) Whether the plaintiff is entitled to equitable relief of injunction ? OPP
(vii) Relief.
14. In order to prove her case, the plaintiff has examined herself as PW1, vide her affidavit Ex.PW1/A. She has reiterated the contents of plaint, in her affidavit. She has relied upon the documents viz. Copy of demand notice dated 20.01.1987 Ex.PW1/1, copy of deposit receipt Ex.PW1/2, copy of conveyance deed dated 21.01.1988 Ex.PW1/3(colly), copy of death certificate of Sh. Hari Chand Kapoor Ex.PW1/4, copy of death certificate of Tilak Raj Kapoor Ex.PW1/5(OSR), copy of complaint made to SHO, PS, Vivek Vihar Ex.PW1/6, copy of complaint dated 25.11.2009 Ex.PW1/7. She has been cross examined at length by the ld. Counsel for the defendant.
15. No other witness has been examined by the plaintiff.
16. Whereas, defendant No.1 Mrs. Shanti Arora @ Shanta has examined herself as DW1, vide her affidavit Ex.DW1/A. Her further chief was deferred on 15.05.2014, thereafter, she was not examined.
17. Defendant No.3 Ms. Veena Kohli has been examined as DW1 vide her affidavit Ex.DW1/A. She has relied upon the documents i.e. copy of letter dated 09.03.2010 passed by SHO, Suit No.1250/16/11 Page No.9 of 21 Vivek Vihar Ex.DW1/1, copy of complaint Ex.DW1/2, copy of ration card of Sushila Devi Ex.DW1/3, copy of voter identity card of Sushila Devi Ex.DW1/4, copy of house tax receipt Ex.DW1/5, copy of passbook issued by Central Bank of India Ex.DW1/6, copy of passbook of Sushila Devi issued by Central Bank of India Ex.DW1/7, copy of letter dated 27.11.2000 issued by MTNL Ex.DW1/8, copy of certificate issued in the name of Veena Kohli Ex.DW1/9, copy of complaint given by Veena Kohli mark DW1/A. She has been cross examined at length by the ld. Counsel for the plaintiff.
18. Defendant No.4 Ms. Shashi Suneja has been examined as DW2 vide her affidavit Ex.DW2/A. She has been cross examined at length by the ld. Counsel for the plaintiff.
19. No other witness has been examined by the defendants.
20. I have heard the ld. counsels for the parties and perused the record. Issue wise findings are as under : Findings on issue No.1
(i) Whether late Sh. Hari Chand had already divided the suit property during his life time and had given the same to the defendants ? OPD
21. In the suit, the plaintiff is claiming the right, title or interest in the suit property No.B245, Jhilmil Colony, Shahdara, Delhi on the basis that although the conveyance deed of the suit property was executed in the name of late Sh. Hari Chand Kapoor i.e. her father in law, but, husband of the defendant had deposited Rs.5177/ in slum department and had also spent Rs.70000/, so, none other LR has any right, title of the suit Suit No.1250/16/11 Page No.10 of 21 property, hence, she be declared sole owner of the suit property.
22. On the other hand, in the WS, the defendants have claimed that according to the last will and intention of late Sh. Hari Chand Kapoor pronounced in front of relatives and friends, the suit property was given to the defendants. It is also claimed that one another property No.F10/12, Krishna Nagar, Delhi was purchased by late Sh. Hari Chand Kapoor, but, it was purchased in the name of husband of the plaintiff. Later on, it was sold and from the consideration of the said property, another property No.C247, Jhilmil Colony, Shahdara, Delhi and one property at Gaur Plaza, Shalimar Garden, Ghaziabad, UP was purchased for the daughter of the plaintiff and late Sh. Hari Chand Kapoor had given the share to the plaintiff's husband during his lifetime, so, during the lifetime of late Sh. Hari Chand Kapoor, the property was divided among the LR's.
23. To prove these facts as claimed in the suit and WS, plaintiff has examined herself as PW1. She has stated in the cross examination that house No.B245, Jhilmil Colony, Delhi i.e. suit property was purchased in the name of father in law in 1988 and payment was made by her husband of Rs.5700/, but, she does not have proof of any payment. Similarly, she has admitted that out of the sale proceeds of FBlock, they had purchased two houses i.e. C247, Jhilmil Colony, Shahdara, Delhi and one flat at Gaur Plaza, Shalimar Garden, Ghaziabad, UP. She has not filed any proof of her residence of house No.B245, Jhilmil Colony i.e. suit property and thereafter suggestions have been given. PW1 has denied that her father in law had made oral Suit No.1250/16/11 Page No.11 of 21 settlement, according to which, B245, Jhilmil Colony was given to the sisters in laws and house No.F10/12, Krishna Nagar, Delhi was given to her husband.
24. Certain documents have been placed on record. These are in respect of the suit property only. Ex.PW1/2 is a challan of Rs.5177/, but, it is in the name of late Sh. Hari Chand. Ex.PW1/1 is also issued in the name of late Sh. Hari Chand. Conveyance deed has also been issued in the name of late Sh. Hari Chand in respect of the suit property. Death certificates of late Sh. Hari Chand Kapoor and Sh. Tilak Raj Kapoor have also been placed on record as Ex.PW1/4 & PW1/5. So, from these documents, it is clear that suit property was allotted to late Sh. Hari Chand and conveyance deed was also executed in favour of late Sh. Hari Chand.
25. On the other hand, the plaintiff examined herself as PW1, but, she has not been able to bring on record any document to the extent that Rs.5177/ were paid by her husband and also that Rs.70000/ were spent on the construction of the house.
26. In support of their claims, the defendants have examined themselves. DW1 is Smt. Veena Kohli i.e. defendant No.3. She has denied that she trespass in the suit property. She does not have title documents of the suit property as same have been stolen from the house. No FIR has been lodged in this respect. According to her further examination, defendant No.1 Shanti Arora, defendant No.2 Sushila and she herself are residing in the suit property. Whereas, plaintiff is residing at C247, Jhilmil Colony.
Suit No.1250/16/11 Page No.12 of 2127. DW1 has not been cross examined on the aspect that Rs.5177/ were given by the husband of the plaintiff at the time of allotment of the property and also that Rs.70000/ were spent in the construction of the suit property.
28. DW2 is Ms. Shashi Suneja i.e. defendant No.4. According to her cross examination, plaintiff and her daughter Gunjan are LR's of late Sh. Tilak Raj Kapoor. Again, this witness has also not been cross examined on both facts of payment of Rs.5177/ and Rs.70000/ spent on the construction of the house.
29. So, from the pleadings of the parties and evidence brought on record, it is clear that suit property No.B245, Jhilmil Colony, Shahdara, Delhi was in the name of late Sh. Hari Chand Kapoor, who died intestate and another property No.F10/12, Krishna Nagar, Delhi was in the name of late Sh. Tilak Raj Kapoor. No document of this property has been placed on record. It is claimed by the defendants that this property was purchased in the name of late Sh. Tilak Raj Kapoor by late Sh. Hari Chand Kapoor from his own funds. But, in my view, the Benami transaction cannot be pleaded in any manner, being barred by law. Moreover, documents of this property No.F 10/12, Krishna Nagar, Delhi have not been placed on record and even if it is presumed that same was in the name of late Sh. Tilak Raj Kapoor, then, he was having every right, title or interest to sell the same and to purchase any property from the sale consideration of the same and it cannot be taken that during his lifetime, late Sh. Hari Chand Kapoor had partitioned the properties and suit property was given to the defendants and Suit No.1250/16/11 Page No.13 of 21 plaintiff's husband was given property No.F10/12, Krishna Nagar, Delhi.
30. In the WS, it has been claimed by the defendants that according to the last will and intentions of late Sh. Hari Chand Kapoor, he had given the suit property to the defendants and had stated these facts on several occasions in front of relatives and friends. None of the relative and friend has been examined to prove the fact that late Sh. Hari Chand Kapoor had made any oral will in respect of the suit property to be given to the defendants barring the plaintiff to inherit from the same. So, the defendants have not been able to prove the fact that late Sh. Hari Chand had already divided the suit properties during his lifetime. Accordingly, this issue is decided against the defendants and in favour of the plaintiff.
Findings on issue No.2
(ii) Whether late Sh. Hari Chand had already given the share of the plaintiff to her husband during his life time ? OPD
31. From the pleadings and evidence brought on record, it is admitted fact that no share has been given by late Sh. Hari Chand Kapoor in the suit property No.B245, Jhilmil Colony, Shahdara, Delhi and another property No.F10/12, Krishna Nagar, Delhi was already registered in the name of late Sh. Tilak Raj Kapoor i.e. husband of the plaintiff, so, he was having every right, title or interest to dispose off the same, according to his wishes. In view of findings of issue No.1, the defendants have not been able to prove the fact that the suit property and other Suit No.1250/16/11 Page No.14 of 21 properties were orally partitioned by late Sh. Hari Chand Kapoor during his lifetime. Neither there is any document to support the said partition nor any independent witness has been examined in whose presence such oral partition had taken place.
32. As the property No.F10/12, Krishna Nagar, Delhi was in the name of late Sh. Tilak Raj Kapoor, so, the same could not have been given to the husband of the plaintiff, as his share, because, he was already owner of the said property and out of the suit property No.B245, Jhilmil Colony, Shahdara, Delhi, no share has been given either to the plaintiff or her husband by late Sh. Hari Chand Kapoor during his lifetime. According, the defendants have also not been able to prove this fact in any manner. Hence, this issue is also decided in favour of the plaintiff and against the defendants.
Findings on issue No.3
(iii) Whether the plaintiff has no locus standi and cause of action to file the present suit ? OPD
33. In the pleadings, the plaintiff has claimed her right, title or interest in the suit property on the basis that although the suit property was allotted in the name of late Sh. Hari Chand Kapoor, but, Rs.5177/ were deposited with Slum Department by plaintiff's husband and Rs.70000/ were also spent upon construction in the year 1988, so, she has right, title or interest in the suit property and it is prayed that she be declared absolute and exclusive owner of the suit property No.B245, Jhilmil Colony, Shahdara, Delhi, as shown red in site plan.
34. Firstly, no plea of Benami transaction can be raised, being Suit No.1250/16/11 Page No.15 of 21 barred by law. Secondly, plaintiff in her evidence has not been able to prove on record that Rs.5177/ were paid by her husband and Rs.70000/ were spend by her husband on the construction. Admittedly, the suit property stands in the name of late Sh. Hari Chand Kapoor, as allotted by the Slum & J.J. Department and conveyance deed has also been executed in favour of late Sh. Hari Chand Kapoor, so, plaintiff was not having any cause of action or locus standi for seeking declaration to the extent that she be declared absolute and exclusive owner of suit property No.B245, Jhilmil Colony, Shahdara, Delhi. Accordingly, this issue is decided against the plaintiff and in favour of the defendants.
Findings on issue No.4
(iv) Whether the suit has not been properly valued for the purpose of court fee and jurisdiction and the plaintiff has not paid the court fee on the same ? OP Parties
35. According to para 14 of the plaint, the plaintiff has valued the suit for the purposes of court fee and jurisdiction at Rs.200/ for declaration and Rs.130/ for permanent injunction. None of the parties either plaintiff or defendants has brought in evidence or argue the matter as to in what manner the suit has not been valued properly for the purpose of court fee and jurisdiction. The relief prayed is for declaration and permanent injunction which have been valued at Rs.200/ and Rs.130/ each, as per law.
36. According to the order sheet dated 15.01.2011, the plaint was rejected U/o 7 rule 10 CPC by the Ld. Civil Judge and it Suit No.1250/16/11 Page No.16 of 21 was presented before Ld. ADJ. The suit was amended and valuation of the suit for the purposes of court fee and jurisdiction was fixed at Rs.841400/ for the relief of declaration and for the relief of injunction, the value of the suit has been fixed at Rs.130/, on which, proper court fee has been paid. During evidence, this valuation has not been challenged by the defendants and no evidence has been brought on record that the relief of declaration could not be valued at Rs.841400/ nor ld. Counsel for the defendants has argued on this aspect in any manner. So, in the absence of any material brought before the court, it cannot be said that suit was not properly valued for the purposes of court fee and jurisdiction. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
Findings on issue No.5
(v) Whether the plaintiff is entitled to the relief of declaration as prayed for ? OPP
37. In the suit, the plaintiff has prayed for decree of declaration to the extent that she be declared absolute and exclusive owner of suit property No.B245, Jhilmil Colony and further decree of permanent injunction be passed in her favour and against the defendants, restraining the defendants, their agents, associates, attorney, representatives etc. from raising any illegal and unauthorized construction in the suit property.
38. The plaintiff is seeking declaration and permanent injunction on the basis that suit property No.B245, Jhilmil Colony, Shahdara Delhi was allotted in the name of late Sh. Hari Chand Kapoor, but, Rs.5177/ were deposited by the husband of the Suit No.1250/16/11 Page No.17 of 21 plaintiff and Rs.70000/ were also spent on the construction of the suit property. No such plea of Benami transaction can be raised, being barred by law. The plaintiff at the time of cross examination as PW1, has admitted that she has no documents to show that payment was made by her husband of Rs.5177/, so, being the suit property allotted in the name of late Sh. Hari Chand Kapoor and conveyance deed also executed in the name of late Sh. Hari Chand Kapoor, the plaintiff could not have any right, title or interest in the same except as one of the LR of Sh. Tilak Raj Kapoor, who was one of the LR of late Sh. Hari Chand Kapoor. Hence, the plaintiff has not been able to prove the fact that she is entitled for the relief of declaration, as prayed for. Accordingly, this issue is decided against the plaintiff and in favour of the defendants.
Findings on issue No.6
(vi) Whether the plaintiff is entitled to equitable relief of injunction ? OPP
39. In the suit, it is claimed that defendants were allowed to renovate the suit property on ground floor, but, defendants without consent of the plaintiff, removed her household articles and kept somewhere and had shown their intention that they will construct the building upto second floor i.e. ground, first and second. Defendants also demanded Rs. One lac from the plaintiff, otherwise, she will not have right, title or interest in the suit property. It is also alleged that on 20.11.2009, the defendants started demolishing the suit property with the assurance that they will return the household articles to the Suit No.1250/16/11 Page No.18 of 21 plaintiff, which were kept somewhere and the suit property was demolished with a view to raise the construction. It is also claimed that again on 24.11.2009 while plaintiff was present at the spot, she demanded her household articles, on which, defendants started quarreling her and her daughter. Again on 28.11.2009 defendants brought some builder with labour and building material. Plaintiff was present there. Defendants started putting linter. Plaintiff raised objection and made a call on 100 number. PCR came there. A quarrel had taken place in the presence of police. The defendants had given assurance that they will not raise any construction without prior permission and without written consent of the plaintiff, so, the police and PCR officials had left the spot.
40. Under such circumstances, the plaintiff is seeking decree of injunction against the defendants, restraining defendants, their agents, associates, attorney, representatives etc. from raising any illegal and unauthorized construction in the suit property No.B 245, Jhilmil Colony, Shahdara, Delhi, as shown red in the site plan.
41. In the WS, it is denied that defendants were having household articles of the plaintiff. The incident of quarrel has been denied.
42. In this respect, the plaintiff during her evidence has exhibited one complaint Ex.PW1/6, but, original of the same has not been summoned for proving the same from the concerned Slum & J.J. Department, so, it is not known whether said complaint was given regarding unauthorized construction in the Suit No.1250/16/11 Page No.19 of 21 suit property by the plaintiff. A complaint to the Director of Slum & J.J. Department was given, but, same has not been summoned for proving the same from the concerned department. Similarly, a complaint Ex.PW1/7 was also given to SDM. The record of same was not summoned, so, the same has not been proved in any manner. The plaintiff has also relied upon two photographs of the suit property Ex.PW1/D1 and PW1/D2. But, the suit property number is not visible in the photographs nor it is disclosed as to who has taken the photographs. No such witness has been examined in this respect. So, the photographs are also not proved in any manner. Even plaintiff has not been able to exhibit and prove the site plan placed on record of the suit property.
43. On the other hand, the defendants have relied upon Ex.DW1/1 photocopy of report of SHO, Vivek Vihar, Ex.DW1/2 photocopy of report of Inspector Rakesh Kumar from PS Vivek Vihar. In this respect, defendants have also not summoned the record to prove these reports and failed to disclose how they came in possession of the said reports and where these were filed, so, these reports cannot be relied upon in any manner.
44. If there is any unauthorized construction in the suit property, being raised by the defendants, then, the concerned MCD can take action and as the plaintiff is neither seeking declaration about her share in the suit property nor seeking possession or partition of her share in the suit property, so, she has no cause of action for seeking decree of permanent injunction against the Suit No.1250/16/11 Page No.20 of 21 defendants, restraining them, their agents, associates, attorney, representatives etc. from raising any illegal and unauthorized construction in the suit property No.B245, Jhilmil Colony, Shahdara, Delhi, as shown red in the site plan and more efficacious remedy is available with the MCD, where the plaintiff can approach, if required. Accordingly, plaintiff is not entitled for this equitable relief of injunction. Hence, this issue is also decided against the plaintiff and in favour of the defendants.
45. Relief : In view of findings on issue Nos.3,5&6, the suit of the plaintiff seeking relief of declaration and permanent injunction is hereby dismissed. Decree sheet be prepared accordingly. The decree shall be executable only on the payment of the deficit court fee, if any. File be consigned to record room.
Announced in the open Court on 01.09.2016 ( Virender Kumar Goyal ) Additional District Judge01 (East)/KKD/Delhi / 01.09.16 Suit No.1250/16/11 Page No.21 of 21