Delhi District Court
Sh. Johri Lal Jain vs Sh. Ram Prakash on 2 January, 2013
1
In the court of Sh. Vivek Kumar Gulia
Commercial Civil Judge cum ARC (North District)
Tis Hazari Courts, Delhi.
Suit No.569/02
Unique I.D. No. 02401C0252972002
In the matter of :
Sh. Johri Lal Jain
S/o Sh. Sunder Lal Jain,
R/o 4, School Market Lane,
Nirankari Colony, Delhi. .......... Plaintiff
Versus
1. Sh. Ram Prakash
S/o Sh. Maya Ram,
R/o H.No. 1630, Krishan Gali,
Sohan Ganj, Old Subzimandi, Delhi.
Second Address:
Proof Reader, Parliament Street,
New Delhi (Annexe Building).
2. Sh. Vijay Kumar
S/o Sh. Kewal Ram,
R/o H.No. 1630, Krishna Gali,
Sohan Ganj, Old Subzimandi, Delhi.
Page 1 of 12 Suit No.569/02
2
3. Sh. Pritam Singh (since deceased) through L.Rs:
a) Smt. Santosh W/o Sh. Pritam Singh.
b) Smt. Inder Kaur Wd/o Sh. Amar Singh (Mother).
c) Sh. Deepak S/o Late Sh. Pritam Singh.
d) Ms. Jyoti (unmarried) D/o Sh. Pritam Singh.
e) Ms. Mona (unmarried) D/o Sh. Pritam Singh.
All R/o H.No. 1630, Krishan Gali,
Sohan Ganj, Old Subzimandi, Delhi.
4. Sh. Viresh Arora S/o Sh. Dhan Raj,
R/o H.No. 1630, Krishan Gali,
Sohan Ganj, Old Subzimandi, Delhi.
Second address:
38, Rajdhani Enclave,
Pitampura, Delhi110034.
5. Sh. K.K. Arora S/o Sh. Dhan Raj,
R/o H.No. 1630, Krishan Gali,
Sohan Ganj, Old Subzimandi, Delhi.
6. Smt. Gyatri Devi,
Wd/o Sh. Roop Kishore
(since deceased) through her L.R.
Sh. Prem @ Pappu S/o Smt. Gayatri Devi,
R/o H.No. 1630, Krishan Gali,
Sohan Ganj, Old Subzimandi, Delhi.
7. Sh. Mohan Singh S/o Sh. Dayal Singh,
R/o H.No. 1630, Krishna Gali,
Sohan Ganj, Old Subzimandi, Delhi.
Second Address:
Page 2 of 12 Suit No.569/02
3
B53, Old Gupta Colony,
Delhi.
8. Sh. Vijay Kumar Girdhar
S/o Sh. Kotu Ram Girdhar,
R/o 1630, Krishna Gali,
Sohan Ganj, Old Subzimandi,
Delhi110007.
Second Address:
105, SFS, Mall Road, Delhi110007. ......... Defendants
SUIT FOR POSSESSION AND PERMANANT
INJUNCTION
Date of Institution: 08.07.1991
Final arguments heard/case reserved for Judgment: 06.11.2012
Date of Judgment: 02.01.2013
Decision: Partly Decreed
JUDGMENT:
1. Initially present suit for permanent injunction was filed against defendant no.1 to 7 claiming that Smt. Lajjawanti Yamdagni was the absolute owner of house no. 1630, Krishna Gali, Sohan Ganj, Page 3 of 12 Suit No.569/02 4 Subzi Mandi, Delhi [in short 'suit property'] and the said defendants except defendant no.2 were tenants under her in respect of portions marked by words A to F in the site plan annexed with the plaint. Further it is mentioned that defendant no.2 is at present in possession of portion Mark B as caretaker and earlier he had surrendered his tenancy in respect of portion Mark G in the year 1985. Further it is mentioned that Smt. Lajjawanti Yamdagni had transferred the ownership of suit property in favour of plaintiff by way of registered sale deed dt. 31.08.1982 and therefore all the defendants became tenants under plaintiff by operation of law. Further it is mentioned that on 23.04.1991, plaintiff found defendant no.8 standing at the suit property and on seeing him, he went away and when he inquired from tenants, he came to know that defendant no.8 had represented them that he had acquired the suit property and he wants to get the possession of their respective portion. Further it is mentioned that some days back, plaintiff came to know from reliable sources that at the instance of defendant no.1 to 7, defendant no.8 is trying to sublet, alienate, transfer, dispose off or part with the suit premises.
2. By way of amended plaint, plaintiff further added that validity Page 4 of 12 Suit No.569/02 5 of aforesaid registered sale deed dt. 31.08.1982 was challenged by Sh. Chander Prakash Yamdagni in suit no. 19/1988 and that suit was dismissed vide judgment dt. 27.01.1994. After that appeal was also dismissed/abated vide judgment dt. 19.07.1999. Further it is mentioned that vide judgment dt. 02.05.1998, Ld. Rent Controller had passed eviction order against defendant no.4, 5 and 8 in respect of portion in their possession and Civil Revision filed by defendant no.8 against judgment dt. 02.05.1998 was dismissed by High Court of Delhi vide order dt. 15.04.1999 and SLP against order of High Court of Delhi was dismissed by Supreme Court vide order dt. 28.03.2000. Further it is mentioned that during pendency of the present suit, defendant no. 1 to 7 mutually connived and allowed defendant no.8 to occupy almost entire suit property and he also raised illegal construction of second floor. Further it is mentioned that the separate petition for eviction have been filed against the tenants, i.e., defendant no. 1 to 7 and defendant no.8 was also impleaded in those cases because earlier he had alleged in the suit no. 236/1991 that he is tenant in the property.
3. Further it is mentioned that defendant no.4 and 5 had illegally surrendered their tenanted portion to defendant no.8 and Ld. Rent Page 5 of 12 Suit No.569/02 6 Controller passed eviction order dt. 02.05.1998 against them and therefore no further order of eviction in respect of defendant no.4 and 5 are required. Further it is mentioned that during pendency of this case, defendant no.1 has illegally handed over the possession of his tenanted portion Mark A and common facilities to defendant no.8. Further it is mentioned that defendant no.2 was appointed as caretaker in respect of portion Mark B, H and I, which was surrendered by tenant Sh. Bharat Jain, and portion G, which was surrendered by himself, but defendant no.2 unauthorizedly handed over the possession of all portions except portion Mark B to defendant no.8 alongwith common facilities. Further it is mentioned that defendant no.3 and 6 had also handed over the possession of common facilities to defendant no.8 unauthorizedly. Further it is mentioned that defendant no.7 has illegally handed over the possession of his tenanted portion Mark F and common facilities to defendant no.8. Further it is mentioned that defendant no.8 was illegally allowed to occupy the aforesaid different portions of the suit property, though interim injunction order was passed against other defendants. In view of above, it is prayed a decree of permanent injunction be passed against the defendants restraining them from alienating, transferring, disposing off, subletting or parting with possession of Page 6 of 12 Suit No.569/02 7 the portion Mark A to F and portion G, H and I of the property under caretakership of defendant no.2. Further it is prayed that decree for possession be passed against defendant no.8 directing him to handover the suit property including rooms Mark A, F, G, H, I, terraces, common facilities and other unauthorized constructions raised by him and decree for recovery of possession be passed in favour of plaintiff and against defendant no.2 directing him to handover the possession of portion Mark B of the suit premises alongwith terrace and common facilities.
4. The summons were served upon all the defendants. Defendants no.2 to 6 filed written statement to the original plaint admitting that they were tenant under Smt. Lajjawanti Yamdagni in their respective portion. Further it is denied that defendant no.2 had surrendered his tenancy in respect of portion Mark G in 1985. Further the ownership of the plaintiff is also denied. Remaining facts mentioned in the plaint are stated to be wrong and denied.
5. The plaintiff has also filed replication to the written statement filed by the defendant no.2 to 6 whereby he reaffirmed the facts of the plaint and denied those mentioned in written statement. Page 7 of 12 Suit No.569/02 8
6. During trial the defendants were proceeded exparte vide order dt. 28.05.2003.
7. In exparte evidence, plaintiff stepped into witness box as PW1 and deposed on the lines of plaint. Further plaintiff relied upon documents Mark A to Mark M pertaining to the suit property and orders passed by different courts in respect of that. Further he proved following documents:
1) Site plan of suit property Ex.PW1/13A
2) Order dt. 09.02.2005 in the eviction case titled Sh. J.L. Jain Vs. Ram Parkash & Others Ex.PW1/16
3) Order dt.09.02.2005 in the eviction case titled Sh. J.L. Jain Vs. Mohan Singh & Anr Ex.PW1/17
4) Order dt.28.05.2005 dismissing suit no.236/91 of the defendant no.8. Ex.PW1/18
8. I have heard exparte arguments advanced by plaintiff (Advocate). Record is also gone through.
9. It is a case of plaintiff that defendant no. 1 and 7 were tenants in respect of suit property owned by him and after passing of ad interim injunction order dt. 11.06.1991, restraining the defendants from parting with possession of suit premises, they have parted with Page 8 of 12 Suit No.569/02 9 possession of some portion of the suit property in favour of defendant no.8 illegally and unauthorizedly and therefore they are liable to be restrained further from alienating, transferring, disposing off, subletting or parting with possession of the suit property in favour of any other person and to handover the possession of tenanted premises to the plaintiff.
10. Plaintiff has mentioned in his plaint that defendant no.4 and 5 have already surrendered their tenanted portion of suit premises in favour of him and therefore no orders are required to be passed against them. In view of this, suit of the plaintiff against defendant no. 4 and 5 has become infructuous.
11. The plaintiff has categorically mentioned that defendant no.1 and 7 had unauthorizedly handed over the possession of their respective tenanted portion apart from common facilities to defendant no.8 and defendant no.3 and 6 had unauthorizedly handed over the possession of common facilities to defendant no.8. Further it has been mentioned that defendant no.2 had handed over the possession of portion Mark G, H and I to defendant no.8 and he himself is in illegal possession of the portion Mark B, which was the tenanted portion Page 9 of 12 Suit No.569/02 10 surrendered by tenant Sh. Bharat Jain. The plaintiff (PW1) has deposed to the same effect and defendants opted not to contest the case. Since PW1 was not cross examined, his testimony remains un rebutted. In such circumstances, there is nothing on record to disbelieve version of plaintiff.
12. It is admitted case of plaintiff that defendant no.1 to 7 except defendant no.2 are in possession of the suit premises in the capacity of tenants and separate eviction petition has already been filed against them under Delhi Rent Control Act. In such circumstances, this court has no jurisdiction to pass eviction order against defendants 1 to 7 in respect of which Delhi Rent Control Act is applicable.
13. Since plaintiff has been able to show that he is owner of the suit property and defendant no.1 to 7 except defendant no.2 are in possession of different portions 'A' to 'F' of this property in the capacity of tenants and they have already handed over some portion of tenanted premises to defendant no.8 unauthorizedly, they are liable to be restrained from alienating, transferring, disposing off, subletting or parting with possession of the portion A to F of suit Page 10 of 12 Suit No.569/02 11 property in favour of any other person.
14. It is also established on record that defendant no.8 is in possession of different portion of suit property in the capacity of trespasser. Plaintiff has also placed on record certified copy of High Court order dt. 15.04.1999 and eviction order dt. 02.05.1998 passed against def. no.8 observing that he is in possession of a portion of suit property as a tresspasser. Plaintiff has also proved on record that defendant no.2 is in possession of portion Mark B of the suit property in the capacity of caretaker. As far as relief of possession against defendant no.8 is concerned, plaintiff has rightly relied upon decisions in the case referred as AIR 1983 Bombay 442, (1998) 119 PLR 360 and AIR 1990 Andhra Pradesh 161, wherein it was laid down that the suit for injunction can be converted into suit possession and such conversion does not amount to alteration of the nature of the suit and therefore there is no occasion to value the suit all over again for the purpose of court fees. Therefore, defendant no.8 is liable to handover the possession of the suit property including portion Mark A, F, G, H, I, common facilities, terraces and unauthorized portion to the plaintiff. Since defendant no.2 is in possession of the portion of B of suit premises in the capacity of licencee, plaintiff is required to give Page 11 of 12 Suit No.569/02 12 a notice for revoking his licencee to him, which has not been given in this case. Therefore, the relief qua recovery of possession against defendant no.2 cannot be granted.
RELIEF:
15. In light of discussion made above, suit of the plaintiff is partly decreed in favour of plaintiff and against the defendants, whereby defendant no.1 to 3, 6 and 7 are restrained from alienating, transferring, disposing off, subletting or parting with possession of the suit property in favour of any other person. Further decree for recovery of possession is passed in favour of plaintiff and against the defendant no.8, whereby, he is directed to handover the suit premises including portion Mark A, F, G, H, I as shown in site plan marked Ex. 'P' today and terraces, common facilities and other unauthorized construction at second floor to the plaintiff. Suit stands dismissed against def. no. 4 and 5. No order as to costs.
Announced in open Court [VIVEK KUMAR GULIA] on 02nd Day of January, 2013. CCJ/ ARC (North District) (This judgment contains 12 pages) Tis Hazari Courts, Delhi Page 12 of 12 Suit No.569/02