Delhi District Court
Ms. Suman Sabharwal vs Smt. Ravel Kaur on 6 July, 2018
IN THE COURT OF Ms. RICHA SHARMA, CIVIL JUDGE
01 (WEST), TIS HAZARI COURTS, DELHI
SCJ No. 610747/2016
Date of Institution : 20.11.2004
Date of reservation of judgment : 05.07.2018
Date of pronouncement of Judgment : 06.07.2018
Ms. Suman Sabharwal
W/o Late Shri Ravinder Singh
R/o 20A/2B, Tilak Nagar, New Delhi .....Plaintiff
Versus
1. Smt. Ravel Kaur
W/o Late Shri Satpal Singh
2. Ms. Jagjeet Kaur
W/o Sh. Navneet Kumar
3. Ms. Neelam Sabharwal
W/o Shri Narender Singh Jolly
4. Shri Harvinder Singh
S/o Late Satpal Singh
(All defendants No. 1 to 4 residents
of 24/53A, Tilak Nagar,
New Delhi - 110 018)
5. Ms. Surjeet Kaur
W/o Sardar Jagdish Singh
D/o Late Satpal Singh
R/o WZ 139 B/2,
New Mahaveer Nagar,
Gali No. 11,
New Delhi110018
Suit No. 610747/2016 Suman Sabharwal Vs. Raval Kaur and Ors. Page Nos. 1/16
6. Sh. Manjeet Singh
S/o Late Satpal Singh
R/o WZ157, Gali No. 2,
Lajwanti Garden,
New Delhi110046
7. Shri Gurcharan Singh
S/o Late Satpal Singh
R/o M180, Letter Box Wali Gali,
Hari Nagar,
New Delhi ....Defendants
SUIT FOR RECOVERY OF POSSESSION AND
PERMANENT INJUNCTION
JUDGMENT
1. Brief facts of the present case are that, the fatherinlaw of plaintiff, deceased Satpal Singh owned a property / plot measuring 90 Sq Yds bearing No. 24/53A, Tilak Nagar, New Delhi18. The deceased Satpal Singh is survived by the husband of plaintiff and the defendants as his legal heirs. After the death of deceased Satpal Singh, defendant No. 1 sold the part of the plot (without roof right) measuring 40 Sq. Yds situated adjacent (in the east side) to the suit property/plot. After some time, defendant No. 1 further sold part of the plot measuring 16' x 9' (8'x9') each in two equal portions to Gurvinder Singh and Joginder Singh and retained the entire consideration of these sales with her.
2. It is submitted that on 22.12.2000, defendant No. 1 sold for valuable consideration the remaining portion of the plot (without roof right) Suit No. 610747/2016 Suman Sabharwal Vs. Raval Kaur and Ors. Page Nos. 2/16 to Shri Ravinder Singh (since deceased). The possession of the plot after sale was handed over to deceased Ravinder Singh by the defendant No. 1. Further that the deceased Ravinder Singh during his life time sold part of the plot marked as "A1", "B1", "C" to owners of property marked as "A", "B" in the site plan and to one Shri Narender Kumar respectively, in his own right as owner in possession for valuable consideration and further handed over the physical possession of the same to the respective buyers. The sale of the part of the plot by deceased Ravinder Singh was without roof right. After these sales deceased Ravinder Singh remained owner in possession of part of property which comprises of a shop and stair case. The stair case are being used by the other family members residing on the first, second & third floor of the house built on the plot No. 24/53A, Tilak Nagar, New Delhi 18.
3. Plaintiff further states that defendant No. 1 has evil eye on the property owned and possessed by the plaintiff as widow and legal heir of Late Ravinder Singh. That defendant No. 1 has no right, whatsoever to sell the said part of the property to any other person as the same is owned and occupied by the plaintiff.
4. Plaintiff states that on 16.11.2004, defendant No. 1 made an attempt to remove the lock of the plaintiff with malafide intention to take the possession of property by illegal and wrongful means. The plaintiff happen to see the misdeeds of defendant No. 1 and her accomplices of their attempt to remove the lock of plaintiff from the property and therefore, plaintiff strongly objected to it but the Suit No. 610747/2016 Suman Sabharwal Vs. Raval Kaur and Ors. Page Nos. 3/16 objections did not yield any result and, finally, at about 11.30 PM at midnight in the intervening night of 1516.11.2004, police control room was informed telephoning at No. 100, and the illegal and wrongful act of defendant No. 1 in removing the lock, could be averted by the intervention of police only.
5. Plaintiff states that plot No. 24/53A, Tilak Nagar, New Delhi has been built up to first and second floor complete and third floor partially. The property from first floor onwards is joint family property of the legal heirs of deceased Satpal Singh and plaintiff as widow and legal heir of Late Ravinder Singh reserves her right to demand the partition by metes and bounds by appropriate suit.
6. After the death of Shri Satpal Singh, defendant No. 1 with the connivance of defendant No. 2, 3 & 4 misappropriated the sale proceeds of the major portion of the plot for their exclusive use and did not part with the sale proceed with any of the remaining legal heirs of Late Shri Satpal Singh.
7. Plaintiff further states that on 18.11.2004, at about 11 AM, defendant No. 1 accompanied by defendant No. 2 to 4 came to plaintiff and asked her to handover the possession of property and further threatened to forcible and wrongfully take the possession from her. Plaintiff further states that she has repeatedly reported to the local Police in this regard, but all in vain.
8. It is submitted that plaintiff had put her lock on the shop and there were goods worth Rs.1,50,000/ in the shop. During the pendency of the suit on 15.02.2005, defendant Nos. 1, 2, 3 & 4 removed the Suit No. 610747/2016 Suman Sabharwal Vs. Raval Kaur and Ors. Page Nos. 4/16 lock of plaintiff and trespassed into the shop and removed the goods worth Rs. 1,50,000/ from there and now defendant No. 1 is in the illegal possession of the shop / property. Hence, the present suit.
9. Vide present suit, plaintiff has prayed as under :
(a) A decree for possession of the suit property No. 24/53A, Tilak Nagar, New Delhi18, shown in red in the site plan (excluding the stair case) in favour of plaintiff and against the defendant Nos. 1, 2, 3 & 4.
(b) Restrain defendant Nos. 1, 2, 3 & 4 from creating any third party interest in the suit property during the pendency of suit.
(c) Any other or further relief as deemed fit and proper in the facts and circumstances of the case may also be granted.
10. Written statement filed by the defendant Nos. 1 to 4, wherein they state that the suit of the plaintiff is liable to be dismissed as per provisions of Order 7 Rule 11 of CPC. Admittedly, the plaintiff has been residing at 20A/2B, Tilak Nagar. The plaintiff is not in possession of any of the portion of the suit property nor is she having any right, interest or title in the said property. The suit has not been properly valued for the purpose of court fee and jurisdiction. The value of the suit property is more than 6,00,000/.
11. Defendants further submitted that the plaintiff is aware of the facts that the defendant Nos. 2 and 3 have not been residing at the addresses given in the title of the plaint. The plaintiff is well aware of this fact that the defendant No. 2 has been residing in Krishna Suit No. 610747/2016 Suman Sabharwal Vs. Raval Kaur and Ors. Page Nos. 5/16 Puri and the defendant No. 3 has been residing in Vikas Puri, Delhi. It is admitted that the father in law of the plaintiff owned the property No. 24/53A, Tilak Nagar, New Delhi.
12. Defendants are not appearing since 26.07.2017, hence vide order dated 09.11.2017, defendants were proceeded exparte.
13. Vide Order dated 16.01.2007, the following issues were framed on the basis of pleadings of the parties by the Ld. transferee court:
(i) Whether the suit has been properly valued for the purpose of court fee and jurisdiction? OPP.
(ii) Whether plaintiff is entitled to the relief of possession as prayed for? OPP.
(iii) Whether plaintiff is entitled to the relief of permanent injunction as
prayed for? OPP
(iv) Relief.
14. In order to prove her case, the plaintiff examined herself as PW1 and adopted the affidavit tendered by her as Ex.PW1/A on 21.08.2008. PW2, Mr. Sunil Sehgal is also examined as a witness by plaintiff to prove her case. In whose testimony, the following documents were exhibited :
The Affidavit in Evidence Ex. PW2/A
Site plan Ex. PW1/1
certified copy of GPA dated 22.12.2000 Ex. PW1/2
Copy of agreement, Will and receipt mark A
Vide order dated 30.11.2007, exparte plaintiff's evidence was Suit No. 610747/2016 Suman Sabharwal Vs. Raval Kaur and Ors. Page Nos. 6/16 closed.
15. I have heard the final arguments advanced on behalf of the plaintiff and perused the record carefully.
16. At the outset, it is pertinent to note that the present suit is preferred by plaintiff, who is the daughterinlaw of defendant No. 1 and is related to all the other defendants in capacity of they being her in laws. Further an important aspect which needs to be taken note of is that, the defendants in the present case were proceeded exparte on 11.09.2017, implying that the testimony of the plaintiff and the witness examined and on behalf of the plaintiff has gone unrebutted and unchallenged. Nevertheless, court cannot be unmindful of the fact that even if the defendants are proceeded exparte, it is for the plaintiff to discharge the burden of proving the case on the principle of preponderance of probabilities as enumerated and engulfed u/s 101 of Indian Evidence Act. It is a settled proposition of law that the case of the plaintiff must stand on its own legs, irrespective of the defence of the defendant.
17. At this stage, it become relevant to quote Sec. 101 of Indian Evidence Act which states that "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 exists."
It is a settled principle of law and has been reiterated by the Hon'ble Supreme Court in Rangammal vs Kuppuswami (2011) 12 SCC 220 that the onus is on the plaintiff to positively establish Suit No. 610747/2016 Suman Sabharwal Vs. Raval Kaur and Ors. Page Nos. 7/16 his case and not rely on the weakness in the case of defendant.
18. In the light of the law as above, coming to the facts of case in hand.
It is to be seen by this court that, whether the plaintiff has been able to discharge the onus placed upon her to prove that she is entitled to the relief of possession qua the suit property as well as the relief of permanent injunction qua the suit property.
19. Admittedly, it is the case of the plaintiff as per her plaint and also as per the averments of her affidavit that the property / plot measuring 90 sq. yds bearing No. 24/53A, Tilak Nagar, New Delhi - 110 018 was the property of her father in law i.e. deceased Satpal Singh and the said fact is also averred to by defendant No. 1 in her WS. It is further averred by the plaintiff in her plaint as well as in her affidavit that after the death of her fatherinlaw i.e. deceased Sat Pal Singh, defendant No. 1 sold the part of the plot measuring 40 sq. yards and thereafter further sold part of the plot measuring 16' x 9' each into equal portion, mark as A and B shown in the site plan to Gurvinder Singh and Joginder Singh respectively. The said fact of sales by defendant No. 1 is duly admitted. Further defendant No. 1 in her WS has averred herself to be the absolute owner of the property in question and had further stated that she had rightfully sold the portion of the said property. Thus from the submissions of the plaintiff as well as the defendant in their plaint and WS respectively, it cannot be simply inferred that the suit property as stated to be owned by deceased Satpal Singh, who was the father inlaw of the plaintiff and husband of defendant No. 1, was actually Suit No. 610747/2016 Suman Sabharwal Vs. Raval Kaur and Ors. Page Nos. 8/16 owned by him. But, the important aspect which needs to be taken into consideration at this stage is that, plaintiff has not placed on record any document in the first place to show that the said property belong to the deceased Satpal Singh. Further, nothing has been placed on record to show as to how defendant No. 1 after the death of the deceased Satpal Singh got the right to dispose of the portions of the suit property which as per the admitted versions of plaintiff and defendant No. 1 belonged to deceased Satpal Singh. Even if for the sake of arguments, in the absence of any document it is believed that the suit property actually was owned by deceased Satpal Singh, in that eventuality also the property after the death of Satpal Singh would have devolved upon of his legal heirs and the capacity of defendant No. 1 alone to sell of the portions of the suit property does not stand established. It was imperative upon the plaintiff to have putforth before this court, the entire factual matrix pertaining to the deceased Satpal Singh being the owner of the suit property and thereafter devolution of rights exclusively on defendant No. 1 to dispose of the suit property, in the absence of the property actually being devolved upon defendant No. 1 through partition or in accordance with Hindu Succession Rights. Thus, in the absence of complete disclosure of facts this court in the first place is of the considered opinion that the right of defendant No. 1 to dispose of the property which belonged to the deceased Satpal Singh per se comes under scanner.
20. Further, it is averred by the plaintiff in the plaint as well as in her Suit No. 610747/2016 Suman Sabharwal Vs. Raval Kaur and Ors. Page Nos. 9/16 affidavit that a portion of the property / plot measuring 90 sq. yds bearing No. 24/53A, Tilak Nagar, New Delhi - 110 018 was sold by defendant No. 1 to the husband of the plaintiff. It is further averred that the portion of the suit property sold by defendant No. 1 to husband of the plaintiff measures 34 Sq. Yards and the same is shown in green and red colours in the site plan which is exhibited as Ex. PW 1/1. It is further averred by the plaintiff that the said sale took place by virtue of registered GPA which is exhibited as Ex. PW 1/2. Perusal of the said GPA shows that the same was executed with respect to the property bearing one shop measuring 9'x9' ft and back side of the shop one hall measuring 9'x25', total area 34 sq. yards without roof rights of the property bearing No. 24/53A, situated at Tilak Nagar, New Delhi. Implying that the plaintiff is asserting her title over the suit property on the basis of GPA which was executed by defendant No. 1 in favour of the husband of the plaintiff. It is settled proposition of law that through GPA transfer's a person does not become the absolute owner of the suit property and the plaintiff has neither placed on record any sale deed subsequently executed to the GPA nor has the plaintiff been able to adduce any evidence on record to show that the husband of the plaintiff has been declared as an absolute owner with respect of the said property in question. It is further averred by the plaintiff that, on the basis of the said GPA, the husband of the plaintiff had sold of plot marked as Mark A1, B1 and C to the owners of the property Mark A, B in the site plan and to one Shri Narender Suit No. 610747/2016 Suman Sabharwal Vs. Raval Kaur and Ors. Page Nos. 10/16 Kumar respectively in his own rights as owner in possession for valuable consideration. At this stage, it is noteworthy to mention that the plaintiff has asserted that her husband is the owner of the suit property merely on the basis of GPA and has further averred that on the basis of the said GPA her husband further sold of certain portion of the suit property i.e. 21A to the owners of the suit property marked as A, B in the site plan and to one Shri Narender Kumar. This per se leads to a logical corollary that, when husband of the plaintiff himself was not declared an absolute owner of the suit property, then in what capacity he further sold of the property to the owners of the property marked as mark A and B in the site plan. It is also pertinent to mention that neither the owner of the property of A nor of property B are made a party to the present suit and in the considered opinion of this court such persons were required to be impleaded as proper parties if not necessary parties for ensuring effective adjudication of the present matter. The only document that the plaintiff has exhibited in her testimony is death certificate of her husband, which is exhibited as Ex. PW 1/3 and on the basis of the said document it cannot be culled out that plaintiff's husband was either the owner of the suit property or that plaintiff's husband was in possession of the suit property.
21. Further, plaintiff got examined another witness, PW2 i.e. Shri Sunil Sehgal and he in his evidence tendered site plan which is exhibited as Ex. PW1/1, certified copy of GPA dated 22.12.2000, exhibited as Ex. PW 1/2 and copy of agreement, Will and receipt Suit No. 610747/2016 Suman Sabharwal Vs. Raval Kaur and Ors. Page Nos. 11/16 marked as Mark A.
22. Perusal of the site plan per se shows that the site plan is pertaining to the entire property / plot measuring 90 sq. yds bearing No. 24/53A, Tilak Nagar, New Delhi - 110 018, initially belonging to the fatherinlaw of the plaintiff and the husband of defendant No.
1. From the bare perusal of the site plan, it can be infer that the description of the property as depicted in the GPA, exhibited as Ex. PW 1/2 is not explicit and clear from the site plan because as per the averment of the plaintiff the property which was sold by the defendant No. 1 to the husband of the plaintiff was a shop and a hall adjacent to the shop. But such is not the case as per the site plan. The identification of the property from bare perusal of the site plan cannot be done. It is difficult to infer from the site plan as to what are the exact measurements of the property highlighted in green and red portions. Moreover, the hall which the plaintiff is talking about in the site plan is not the one which is adjacent to the shop as the shop is on one corner and there are two structures bifurcated in green portion lying on 2 side of the said shop. Therefore, the site plan is also not self explanatory in context to the description of the property given in the GPA as well as in the averments made in the plaint. Further the said site plan is not proved as no draftsman was examined as a witness.
23. Further, PW2 in his evidence relied upon documents marked as Mark A. Perusal of the document shows that, Mark A is only a receipt which was issued for the property comprising of one shop Suit No. 610747/2016 Suman Sabharwal Vs. Raval Kaur and Ors. Page Nos. 12/16 bearing private No. 1 measuring 9' x 9' and back side of shop one hall measuring 9' x 25' and totalling 34 square yards as a full and final settlement for the said property but even the said receipt remains unproved as the original of the same was not produced before this court. Further perusal of the document marked as Mark A, shows that there was a person Manjeet Singh who was a witness to the said receipt and he has not been brought forth and examined as one of the witness to prove the document mark A.
24. Another important aspect which needs to be discussed is that, plaintiff in the present case has averred that the said property was sold to her husband by defendant No. 1, implying thereby that she is admittedly averring that the title upon her devolved through her husband and upon her husband it devolved through her motherin law i.e. defendant No. 1. Thus, admittedly the title of the plaintiff is through defendant No. 1 and the present suit is brought by the plaintiff against defendant No. 1 per se and this means that plaintiff is questioning the title of the seller in the first place and if possession and permanent injunction is sought against the seller then it is imperative upon the so called purchaser or the person who is claiming a derivative title through the seller, to show that his or her title is better and over and above the title of the seller. Plaintiff has miserably failed in the first place to prove that the title of the seller was absolute and in the second place has further failed to prove that her title or the title of her husband was absolute with respect to the suit property. Plaintiff has not placed on record any Suit No. 610747/2016 Suman Sabharwal Vs. Raval Kaur and Ors. Page Nos. 13/16 sale deed executed in favour of her husband or any absolute title documents establishing that her husband was the absolute owner of the suit property and therefore, she is not entitled to relief of possession and injunction with respect to the suit property.
25. Interestingly, it is also averred by the plaintiff that she was dispossessed from the suit property in the intervening night of 15th / 16th November 2004, but plaintiff has in the first place failed to prove her possession and her subsequent dispossession from the suit property. No police complaint has been placed on record to establish that plaintiff was forcibly dispossessed from the suit property by the defendant No. 1 and the onus to prove the possession of the suit property and the subsequent dispossession solely was upon the plaintiff and she has miserably failed to discharge the same.
26. Furthermore, plaintiff has averred in her averments that with respect to the first floor and a super structure constructed over and above that in the suit property, the entire property is joint and it is only with respect to the suit property that the same was not joint. This averment also fails to inspire the confidence of the court as all the averment made by the plaintiff in the plaint are mere bald averment and not even a single document is placed on record to show as to who was the original owner of the suit property and how subsequent to that the property devolved upon defendant No. 1 and how and in what capacity did defendant No. 1 further sell of the property to the husband of the plaintiff and how the husband of the plaintiff merely Suit No. 610747/2016 Suman Sabharwal Vs. Raval Kaur and Ors. Page Nos. 14/16 on the basis of the GPA sold of certain portion of the suit property to some third person.
27. On one hand plaintiff herself avers that certain portion except for the suit property is a joint property and on the other hand she aver that she is absolute owner of the suit property. When the suit property admittedly forms a part of the total property / plot measuring 90 Sq Yds, bearing No. 24/53A, Tilak Nagar, New Delhi18, then the question of it being partly joined and partly severed does not arise, specially in circumstances where no evidence to substantiate this averment is led by the plaintiff.
28. Thus, it appears to the court that there are major material concealments and contradictions with respect to the actual ownership of the suit property and from the facts of the plaint as well as from the limited evidence adduced, it cannot be interalia culled out that the partition of the suit property was conducted or that the devolution of the rights in the suit property were done in favour of defendant No. 1 or plaintiff.
29. Thus, on the basis of the above observations and findings, this court is the considered opinion that it cannot be interalia culled out that, husband of the plaintiff was the absolute owner of the suit property on the basis of merely GPA and so being the case plaintiff cannot be stated to be owner of the suit property and thus she cannot be granted the relief of possession qua the suit property. It was for the plaintiff to have either filed a suit for declaration or for that matter a suit for partition, in order to concertize her specific rights in the Suit No. 610747/2016 Suman Sabharwal Vs. Raval Kaur and Ors. Page Nos. 15/16 property / plot measuring 90 Sq Yds bearing No. 24/53A, Tilak Nagar, New Delhi18. In the absence of material evidence in the present case, relief cannot be granted in favour of plaintiff. Therefore, present suit is dismissed. No order as to cost. Decree sheet be prepared accordingly. Digitally signed by RICHA RICHA SHARMA SHARMA Date:
2018.07.06 16:47:35 +0530 Pronounced in the court (Richa Sharma) today on 06.07.2018 Civil Judge 01 (West)/Delhi Suit No. 610747/2016 Suman Sabharwal Vs. Raval Kaur and Ors. Page Nos. 16/16