Delhi District Court
Cs No. 05/15/12 Mr. Arun Kumar vs . Mohit And Ors. Dod: 30.07.2016 on 30 July, 2016
CS No. 05/15/12 Mr. Arun Kumar Vs. Mohit and Ors. DOD: 30.07.2016
IN THE COURT OF ADDL. DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS: NEW DELHI
PRESIDED BY :MS. PINKI
Civil Suit No. 05/15/12
In the matter of:
Mr. Arun Kumar,
S/o Mr. Phool Singh,
R/o 148A/9,
Village Kishangarh,
New Delhi.
.....Plaintiff
(Through Mr. Harish K. Malhotra, Advocate)
Versus
1.Mr. Mohit, S/o Mr. Mahinder Singh, R/o House no. 50/9, Kishan Garh, New Delhi.
2. Mr. Dharambir, S/o Mr. Jai Kishan, R/o 138A/9, Village Kishangarh, New Delhi.
Suit for permanent injunction and declaration "Dismissed" Page 1 of 19CS No. 05/15/12 Mr. Arun Kumar Vs. Mohit and Ors. DOD: 30.07.2016
3. Mr. Phool Singh, S/o Mr. Ami Chand, R/o Presently not know.
Permanent resident of 148/9, Village Kishangarh, New Delhi.
.....Defendant no. 1 to 3 (proceeded exparte vide order dated 13.08.2012)
4. Delhi Development Authority Through its Vice Chairman, Vikas Sadan, I. N. A. Colony, New Delhi.
.....Defendants
(Through Mr. Arvind Gupta, Advocate)
Date of Institution of Suit : 16.02.2012
Date of reserving judgment : 25.07.2016
Date of pronouncement : 30.07.2016
SUIT FOR PERMANENT INJUNCTION AND DECLARATION
1. By way of present suit, the plaintiff has prayed as follows: "a. pass orders/decrees against all the defendants joint and severally; and to b. Pass a decree in the nature of permanent injunction whereby directing all the defendants their servants, Suit for permanent injunction and declaration "Dismissed" Page 2 of 19 CS No. 05/15/12 Mr. Arun Kumar Vs. Mohit and Ors. DOD: 30.07.2016 agents and assigns to stop the ongoing construction and to vacate and hand over the property bearing no. 148/9, Village Kishangarh, New Delhi to the plaintiff having removed the unauthorized construction carried out by the defendant in the suit property and having restored two its original status consisting of five rooms and bathroom and latrine and kitchen in 100 sq. yards and remaining 50 sq. yards consisting four rooms in two story constructions to the plaintiff i.e. as it was prior to the demolition carried out by the defendants no. 1 and 2 as shown red colour in the site plan attached;
c. a declaration be made to the effect that the plaintiff is the legal owner of the above said property bearing no. 148/9, Village Kishangarh on the strength of Will dated 08.09.1998 left behind by Smt. Samoti W/o Shri Ami Chand along with Shri Bhanu the beneficiary and no other person has got any right in the said property.
d. ......."
Plaintiff's case
2. The facts of the case as borne out from the record are that the plaintiff is the son of defendant no. 3 Mr. Phool Singh from his first wife Mrs. Maya who died due to burns seventeen years ago and thereafter, defendant no. 3 Mr. Phool Singh got re married with Mrs. Madhu. Mrs. Maya had left behind two male Suit for permanent injunction and declaration "Dismissed" Page 3 of 19 CS No. 05/15/12 Mr. Arun Kumar Vs. Mohit and Ors. DOD: 30.07.2016 children i.e. the plaintiff and one Mr. Bhanu.
3. It has been averred that the property bearing no. 148A/9, Village Kishangarh, New Delhi was acquired by late Mr. Amit Chand S/o Mr. Ramjas, R/o Village Kishangarh, Mehrauli, New Delhi which he had purchased from the Delhi Development Authority/defendant no. 4 under a registered Lease Deed dated 04.09.1973. Mr. Ami Chand expired prior to the death of mother of the plaintiff in the year 19921993 and subsequent to his death, the four sons of Late Mr. Amit Chand divided the said property in equal share and had not given any share to the married daughters of Late Mr. Ami Chand. During the said partition, a plot measuring 150 square yards came in the share of grandmother of the plaintiff, namely, Mrs. Samoti wife of Late Mr. Ami Chand. Mrs. Samoti expired on 18.02.2010 and during her life time she exeduted a regitered WILL dated 08.09.1998 vide Document No. 6989 Volume No. III Book No. 96, Pages 7879 and bequeathed her share along with construction upon her grandsons, namley, Mr. Arun Kumar, the plaintiff herein and his younger brother Mr. Bhanu.
Suit for permanent injunction and declaration "Dismissed" Page 4 of 19CS No. 05/15/12 Mr. Arun Kumar Vs. Mohit and Ors. DOD: 30.07.2016
4. It has further been submitted that on 05.10.2011, defendant no.3 (father of the plaintiff) asked plaintiff to go to Gurgaon and when he returned from Gurgaon on 06.10.2010 (should have been 06.10.2011), he was turned out of the house by defendant no. 2 and his wife along with some other persons and on enquiry, defendant no. 2 told that he has purchased the said property from defendant no. 3 Mr. Phool Singh. A call at 100 number was made. Police officials from police station Vasant Kunj came and took defendant no. 2 and his wife to the police station where the defendant no. 2 Mr. Dharambir sought time to produce defendant no. 3 to support his claim of purchasing the property from defendant no. 3, however, he did not produce any document to claim his ownership in respect of the suit property. The police officials of police station Vasant Kunj did not take any action against defendant no. 2 and 3, rather they permitted defendant no. 1/Mr. Mohit and defendant no. 2/Mr. Dharmabir to demolish the building/property belonging to the plaintiff and to construct the same on day/night basis. Plaintiff was threatened by defendant no. 2 not to pressurize the police to register his complaint, otherwise he and his aunt (MAUSI) Mrs. Bala would be arrested. The police officails of police station Vasant Kunj in connivance with Suit for permanent injunction and declaration "Dismissed" Page 5 of 19 CS No. 05/15/12 Mr. Arun Kumar Vs. Mohit and Ors. DOD: 30.07.2016 defendants no. 1 and 2 also obtained the signatures of plaintiff on some blank papers in order to deter him from not taking any action against them.
5. It has further been submitted that despite complaint having been made by the plaintiff to the Commissioner of Police, Headquarter, IP Estate, New Delhi, no action was taken against the defendants. It has been averred that the property has also been sealed by defendant no. 4/DDA under their seal on the main gate and despite that construction was being carried out by defendants no. 1 and 2 on day/night basis in collusion with the local police.
6. In the replication the plaintiff has denied the averments made in the written statement and has reiterated the ones made by him in the plaint.
Defendant no.4's Case
7. As per the defendant no.4, the Delhi Development Authority, the plaintiff has filed the present suit with malafide intentions and has concealed various material facts from the court. It has further been submitted that the plaintiff has no cause of Suit for permanent injunction and declaration "Dismissed" Page 6 of 19 CS No. 05/15/12 Mr. Arun Kumar Vs. Mohit and Ors. DOD: 30.07.2016 action against defendant no. 4 and therefore, the present suit is liable to be dismissed. It has been added that the plaintiff vide his letter dated 13.10.2006 had applied for mutation of the property in question in his favour and furnished the required documents including death certificate of late Mr. Ami Chand along with Indemnity Bond and other required doucments. In the said Indemnity Bond, the plaintiff had submitted that late Mr. Amit Chand had three legal heirs i.e. Mrs. Samoti Devi (Wife), Mr. Amar Singh (Son) and Mr. Phool Singh (Son), however, since he had not furnished the complete documents for the purpose of mutation, defendant no. 4/DDA vide its letters daed 14.11.2006, 21.02.2007 and 24.10.2007 requested the plaintiff to furnish the same along with relinquishment deed duly registered with Sub Registrar by all the legal heirs. Since the plaintiff failed to furnish the required documents, the mutation of the plot was not done by the defendant no. 4/DDA.
8. It has been submitted that as per Survey Report of 1972, Mr. Ami Chand was in occupatin of the plot no. 103, Village Kishan Garh and since no individual file was traceable in DDA record, vide letter dated 15.09.2006, he was requested to provide Suit for permanent injunction and declaration "Dismissed" Page 7 of 19 CS No. 05/15/12 Mr. Arun Kumar Vs. Mohit and Ors. DOD: 30.07.2016 authenticated copies of all documetns available with him in respect of plot which was in his occupation as per survey of 1972 duly authenticated by an Architect for verification of the same before execution of lease deed, for reconstruction of part file and to execute the lease deed in his favour.
9. Defendant no. 4/DDA specifically denied having sealed the suit property on its main gate. It has been submitted that seal, if any, has been put by the Municipal Corporation of Delhi and not by the defendant no.4/DDA as defendant no. 4/DDA has no right to seal the same and stop the construction in terms of Meetings/Decision dated 21.05.2003 held between the Vice Chairman of Delhi Development Authority and Commissioner of Municipal Corporation of Delhi and orders passed by Hon'ble High Court of Delhi in Civil Writ Petition No. 3135/2006 decided on 12.07.2006 and letter dated 19.01.2012.
Court Proceedings
10. Summons for settlement of issues and notice of the interim application were issued to the defendants for 06.03.2012. Vide order dated 17.05.2012 passed by the learned predecessor of this Suit for permanent injunction and declaration "Dismissed" Page 8 of 19 CS No. 05/15/12 Mr. Arun Kumar Vs. Mohit and Ors. DOD: 30.07.2016 court, the defendants no. 1 and 2 were ordered to be servced by way of publication in the newspaper "The Statesman" Delhi Edition. Vide order dated 13.08.2012, defendants no. 1 to 3 were proceeded exparte by the learned predecessor of this court pursuant to their service by way of publication in newspaper "The Statesman" dated 08.06.2012. Defendant no. 4/DDA entered appearance on 13.08.2012. Written Statement on behalf of defendant no. 4/DDA was filed on 25.04.2012. An aplication under Order VI Rule 17 CPC was moved on behalf of the plaintiff on 20.03.2013. Reply to the aplpication under Order VI Rule 17 CPC was filed by defendant no. 4/DDA on 31.05.2013.
11. Vide order dated 06.12.2013, passed by the learned predecessor of this court, the suit was dismissed in default as none had appeared on behalf of the plaintiff on 06.12.2013 as well as on the preceeding date i.e. 23.10.2013. An application under Order IX Rule 9 read with Section 151 CPC for restoration of the suit to its original status was filed on behalf of the plaintiff on 21.07.2014. Vide order dated 09.01.2015 passed by the learned predecessor of this court, the application under Order IX Rule 9 read with Section 151 CPC was allowed and the suit was restored Suit for permanent injunction and declaration "Dismissed" Page 9 of 19 CS No. 05/15/12 Mr. Arun Kumar Vs. Mohit and Ors. DOD: 30.07.2016 to its original number and position.
12. The application under Order VII Rule 11 CPC read with Section 151 CPC filed on behalf of defendant no. 4/DDA was dismissed vide order dated 30.10.2015.
Issues
13. Vide order dated 04.11.2015, the following issues were framed:
1. Whether the plaintiff has no locus standi to file the present suit ? OPD4,
2. Whether the plaintiff has not come to the court with clean hands? OPD4
3. Whether the plaint has not been verified properly ?
OPD4,
4. Whether there is no cause of action against def. no.
4 ? OPD4,
5. Whether the suit is not maintainable, in view of preliminary objection no. 7 of the written statement of def. no. 7 ? OPD4,
6. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for in prayer (b)? OPP,
7. Whether the plaintiff is entitled to the relief of declaration as prayed for in prayer (c)? OPP,
8. Relief ;
Suit for permanent injunction and declaration "Dismissed" Page 10 of 19CS No. 05/15/12 Mr. Arun Kumar Vs. Mohit and Ors. DOD: 30.07.2016 Evidence of Parties
14. The plaintiff failed to lead any evidence despite ample opportunity. Plaintiff's evidence was closed on 31.05.2016 vide detailed order.
15. Defendant nos. 1 to 3 had been proceeded exparte vide order dated 13.08.2012.
16. Defendant no. 4/Delhi Development Authority examined Mr. Chhatar Pal, Assistant Director, LAB (Residential), Vikas Sadan, INA Colony, New Delhi in its defence. His testimony is unrebutted/unchallengd. Defendant no. 4/Delhi Development Authority has proved on record, the following documents:
1. The copy of letter dated 14.11.2006 with regard to the mutation Ex. D4W1/1,
2. The copy of letter dated 21.02.2007 with regard to the mutation Ex. D4W1/2,
3. The copy of reminder dated 24.10.2007 with regard to the mutation Ex. D4W1/3,
4. Minutes of meeting dated 27.05.2003 Ex. D4W1/4.
5. Copy of the order of Hon'ble High Court dated 12.07.2007 in WP(C) No. 3135 passed by Hon'ble Mr. Justice S. Ravindra Bhat Ex. D4W1/5,
6. The copy of letter dated 19.01.2012 with regard to action against unauthorised construction Ex.
Suit for permanent injunction and declaration "Dismissed" Page 11 of 19CS No. 05/15/12 Mr. Arun Kumar Vs. Mohit and Ors. DOD: 30.07.2016 D4W1/6.
7. The copy of letter dated 02.07.2007 filed by defendant no. 4, DDA Ex. D4W1/7.
FINDINGS
17. The record has been carefully and thoroughly perused.
Submissions of learned counsel for the defendant No. 4/DDA have been heard and considered. Despite opportunity no one has argued on behalf of the plaintiff.
18. The issue wise findings in the matter are as follows:
Issue No. 1. Whether the plaintiff has no locus standi to file the present suit ? OPD4
19. The onus to prove this issue is on defendant no. 4/DDA. It has been submitted on behalf of defendant no. 4/DDA that the plaintiff has no locus standi to file the present suit. The suit property was residential in nature, however, it was being used for commercial purpose which is also supported by the communication dated 14.11.2006, Ex. D4W1/1 and communication dated 02.07.2007, Ex. D4W1/7 and these communications clearly mentions that the premises was being Suit for permanent injunction and declaration "Dismissed" Page 12 of 19 CS No. 05/15/12 Mr. Arun Kumar Vs. Mohit and Ors. DOD: 30.07.2016 used for commercial purposes which was also communicated by the Deputy Director (LA) that the lease of the premises will be executed only if the premises used for residential purpose. As the premises is being used for commercial purpose, the offer given by the DDA for execution of the lease deed was withdrawn and the plaintiff was considered as unauthorised occupant of the premises vide Ex. D4W1/7. In these circumstances, it is clear that the plaintiff has no locus standi to file the present suit. Defendant no. 4/DDA has duly proved this issue in its favour. Issue no. 1 is accordingly decided in favour of defendant no. 4/DDA and against the plaintiff.
20. Issue No. 2. Whether the plaintiff has not come to the court with clean hands? OPD4 Issue no. 5. Whether the suit is not maintainable, in view of preliminary objection no. 7 of the written statement of def. no. 4 ? OPD4
21. The onus to prove these issues is on defendant no. 4/DDA.
It has been submitted on behalf of defendant no. 4/DDA that the plaintiff vide letter dated 13.10.2006 had applied for mutation in Suit for permanent injunction and declaration "Dismissed" Page 13 of 19 CS No. 05/15/12 Mr. Arun Kumar Vs. Mohit and Ors. DOD: 30.07.2016 his favour and furnished the required documents including the death certificate of late Mr. Ami Chand along with indemnity bond and other relevant documents. The Indemnity bond mention that late Mr. Ami Chand had three legal heirs i.e. Mrs. Samoti Devi (Wife), Mr. Amar Singh (son) and Mr. Phool Singh (son), since he had not furnished the complete documents of mutation, therefore, DDA vide letters dated 14.11.2006 (Ex.D4W1/1), letter dated 21.02.2007 (Ex.D4W1/2) and letter dated 24.10.2007 (Ex.D4W1/3) requested him to furnish the same along with relinquishment deed duly registered with Sub - Registrar by all the legal heirs if wanted to do so in his favour. Plaintiff failed to furnish the required documents of mutation due to which the mutation of the plot has not been done by the DDA. The plaintiff has not disclosed the true facts before the court. It has also been submitted that no individual file was traceable in DDA record, therefore, vide letter dated 15.09.2006, the plaintiff was requested to provide the authenticated copies of all the documents available with him in respect of the plot which was in his occupation as per survey of 1972 duly authenticated by an Architect for verification of the same before execution of lease deed, for resconstruction of part file and to execute the lease deed in his favour. It is also Suit for permanent injunction and declaration "Dismissed" Page 14 of 19 CS No. 05/15/12 Mr. Arun Kumar Vs. Mohit and Ors. DOD: 30.07.2016 submitted on behalf of defendant no. 4/DDA that the defendant no. 4/DDA neither sealed the suit property nor involved in any activity of illegal construction. It has been submitted that seal, if any, has been put by the Municipal Corporation of Delhi and not by the defendant no.4/DDA as defendant no. 4/DDA has no right to seal the same and stop the construction in terms of Meetings/Decision dated 27.05.2003 held between the Vice Chairman of Delhi Development Authority and Commissioner of Municipal Corporation of Delhi and orders passed by Hon'ble High Court of Delhi in Criminal Writ Petition No. 3135/2006 and letter dated 19.01.2012.
22. In view of the unrebutted and unchallenged testimonies of D4W1 Mr. Chhatar Pal, Assistant Director Delhi Development Authority and above said discussion, defendant no. 4/DDA has proved these two issues in its favour.
23. In view of the aforesaid, issue no. 2 and 5 are accordingly decided in favour of defendant no. 4/DDA and against the plaintiff.
Suit for permanent injunction and declaration "Dismissed" Page 15 of 19CS No. 05/15/12 Mr. Arun Kumar Vs. Mohit and Ors. DOD: 30.07.2016 Issue No. 3. Whether the plaint has not been verified properly ? OPD4, Issue No. 4. Whether there is no cause of action against def.
no. 4 ? OPD4,
24. The onus to prove both these issues is on defendant no.
4/DDA, however, the defendant has not pressed any of these issues. Issue no. 3 and 4 are accordingly disposed off as not pressed.
Issue no. 6. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for in prayer (b)? OPP, Issue no. 7. Whether the plaintiff is entitled to the relief of declaration as prayed for in prayer (c) ? OPP,
25. The onus to prove both these issues is on the plaitniff. As has already been discusssed above, despite ample opportunities having been granted to the plaintiff, he had been highly ignorant in his approach towards the prosecution of the present case. Despite the instant case having been dismissed in default once, Suit for permanent injunction and declaration "Dismissed" Page 16 of 19 CS No. 05/15/12 Mr. Arun Kumar Vs. Mohit and Ors. DOD: 30.07.2016 the plaintiff did not take the case seriously and rather than leading his evidence, preferred stopped appearing in the court. Vide detailed order dated 31.05.2016, plaintiff's evidence was closd in presence of his counsel.
26. Section 101 of the Indian Evidence Act, 1872 reads as follows: "Burden of proof Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
27. Section 102 of the Indian Evidence Act, 1872 reads as follows: "On whom burden of proof lies The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side."
28. The onus to prove issue no. 6 and issue no. 7 is on the Suit for permanent injunction and declaration "Dismissed" Page 17 of 19 CS No. 05/15/12 Mr. Arun Kumar Vs. Mohit and Ors. DOD: 30.07.2016 plaintiff. The plaintiff has not examined even a single witness despite number of opportunities. Vide detailed order dated 31.05.2016, plaintiff's evidence was closed. Defendant no. 4 has examined Mr. Chhatar Pal, Assistant Director, LAB (Residential), Vikas Sadan, INA Colony, New Delhi in his favour. His testimony has remained unrebutted/unchallenged. No one has crossexamined D4W1 despite opportunities.
29. Despite opportunity, no one has argued on behalf of the plaintiff.
30. In view of the provisions of Section 101 and 102 of the Indian Evidence Act, the plaintiff has miserably failed to prove his case. The onus to prove both the issues was on the plaintiff. Plaintiff has failed to discharge his onus.
31. In view of the forgoing reasons, this court is of the considered view that the plaintiff has miserably failed to prove his case. Issue no. 6 and 7 are decided against the plaintiff. The suit is accordingly dismissed.
Suit for permanent injunction and declaration "Dismissed" Page 18 of 19CS No. 05/15/12 Mr. Arun Kumar Vs. Mohit and Ors. DOD: 30.07.2016
32. Parties shall bear their own costs.
33. Decree sheet be prepared accordingly.
34. File be consigned to record room.
Dictated & Announced in the (PINKI)
open Court on 30.07.2016 Addl. District Judge01/SouthWest
Dwarka District Courts: New Delhi
Suit for permanent injunction and declaration "Dismissed" Page 19 of 19