Delhi District Court
Om Prakash vs Shiv Narayan Gupta on 31 May, 2013
IN THE COURT OF SH. ACHAL TYAGI, CIVIL JUDGE:
EAST, KARKARDOOMA COURTS, DELHI
Suit no. : 137/10
Om Prakash
S/o. Sh. Siya Ram
R/o. 9/4929L/1A, Gali No.3,
Sartaj Mohalla, East Seelampur,
Kanti Nagar, Krishna Nagar, Delhi. ........ Plaintiff
Versus
Shiv Narayan Gupta
S/o. Sh. Tikka Ram Gupta
R/o. 9/4929B, 7A, East,
Old Seelampur, Shahdara,
Delhi. ........ Defendant
Date of institution : 28.08.08
Date on which reserved for order : 27.05.13
Date of decision : 31.05.13
JUDGMENT:
1. Vide this judgment I shall dispose of the present suit filed by the plaintiff against the defendant for declaration, cancellation and permanent injunction.
2. Brief facts of the case, relevant for the adjudication of the present dispute are as follows. It has been stated that the plaintiff is the occupant and in possession of house no. 9/4929L/1A, Gali No.3, Sartaj Mohalla, East Seelampur, Kanti Nagar, Delhi since 1990. It has Suit no.137/10 Page no. 1 of 14 been stated that the suit property consist of one room toilet and bathroom and open courtyard as shown in the attached site plan. It has been stated that in the year 1990 the plaintiff had started his business in the suit property in the name of 'O.P. Yadav Plastics' and is still continuing the said business. That the defendant was also working with the plaintiff as a partner in the sale and purchase of the property till December 2007. It has been stated that during this period a number of documents were executed between both the parties . It has also been stated that the plaintiff has bank account, PAN card, Election ID card, gas connection etc at the suit property and has been making the payment of house tax, water tax, electricity charge and other charges in respect of the suit property.
3. It has been stated that in the month of January 2008 the defendant threatened the plaintiff to vacate the suit property. That the defendant also issued a false legal notice dated 8.4.2008 to the plaintiff for the termination of the tenancy of the plaintiff in the suit property w.e.f. 9.4.2008. It has been submitted that in another suit filed by the plaintiff the defendant has filed a forged and fabricated registered rent deed dated 25.8.2006 executed between the plaintiff and the defendant. It has been submitted that the said rent deed is a manipulated document and has been prepared with a malafide intent. It has been stated that since the plaintiff and defendant were working together in the sale and purchase of property the plaintiff had signed on various documents which have been misused by the defendant. It has also been submitted that the plaintiff has never paid any rent to the Suit no.137/10 Page no. 2 of 14 defendant and accordingly the rent deed dated 25.8.2006 was never acted upon.
4. The plaintiff has accordingly filed the present suit praying for a decree of cancellation/declaration of the rent deed dated 25.8.2006 in respect of the suit property as null & void. The plaintiff has also prayed for a decree of permanent injunction restraining the defendant from using the rent deed dated 25.8.2006 in any manner whatsoever.
5. The defendant has filed his reply to the present suit. The defendant has taken the preliminary objection that the suit of the plaintiff is without any cause of action and same is liable to be dismissed. It has also been stated that the suit of the plaintiff has been filed in retaliation of the suit filed by the defendant against the plaintiff bearing no. 310/2008 seeking a decree of eviction and recovery of arrears of rent and mesne profits. It has been stated that the suit of the plaintiff is not maintainable as the plaintiff had himself signed the rent agreement dated 25.8.2004 and 25.8.2006 in the presence of marginal witnesses and the said rent deed has been duly registered with the Sub Registrar. It has also been stated that the suit of the plaintiff is barred under Order 2 Rule 2 as the plaintiff has already filed a suit for declaration and permanent injunction bearing no. 1323/2008 against the defendant on the same cause of action.
6. Replying on merits the defendant has stated that the plaintiff is the tenant of the defendant since the year 1999 and the initial rate of Suit no.137/10 Page no. 3 of 14 rent of the suit property was Rs. 2000/ p.m. It has also been stated that the said rate of rent was subsequently increased to Rs. 2200/, 2500/, 3000/, 3500/ and then to Rs. 3800/ p.m. It has been stated that the rent agreement dated 25.8.2006 clearly shows the rate of rent as Rs. 3800/ p.m. It has also been stated that the defendant has terminated the tenancy of the plaintiff vide legal notice dated 9.4.2008 as the plaintiff stopped paying the rent to the defendant from November 2006. The defendant has denied the other averments made by the plaintiff in his plaint and has prayed for dismissal of the present suit with heavy cost.
7. The plaintiff has filed the replication and has reiterated the contents as mentioned in the plaint while denying the averments as made in the WS.
8. After the completion of the pleadings , the following issues are framed by the predecessor court on 23.3.2010:
1) Whether the plaintiff is entitled to a decree of declaration as prayed for ? OPP.
2) Whether the plaintiff is entitled for a decree of cancellation of rent deed as prayed for ? OPP
3) Whether the plaintiff is entitled for relief of permanent injunction as prayed for? OPP
4) Whether the suit is barred u/O 2 Rule 2 CPC? OPD
5) Relief if any.
Suit no.137/10 Page no. 4 of 14
9. The matter then proceeded for plaintiff's evidence. In order to substantiate his claims, plaintiff examined himself as PW1, and filed his affidavit as Ex.PW1/A. PW1 in his testimony relied upon the following documents .
i. Ex.PW1/1 is site plan of the suit property.
ii. Ex.PW1/2 is joint bank account of plaintiff.
iii. Ex.PW1/3 is PAN card of plaintiff.
iv. Ex.PW1/4 is house tax of the suit property.
v. Ex.PW1/7 is certified copy of rent deed dated 25.8.2006.
vi. Ex.PW1/8 is copy of plaint.
vii. Mark A copy of legal notice dated 9.4.2008.
viii. Mark B
10. PW1 was duly cross examined and discharged. Plaintiff also examined his wife as PW2 and she filed her affidavit which is Ex.PW2/A. PW2 was duly cross examined and discharged. Vide separate statement of the Ld. counsel for the plaintiff PE stood closed on 05/06/2012.
11. The matter then proceeded for defendants evidence. The defendant examined himself as DW1 and his evidence affidavit is Ex.DW1/1 and in his testimony DW1 has relied upon the following documents.
Ex.DW1/A The certified copy of judgment dated 25.01.12 Mark D2 Agreement to sell, GPA receipt dated 14.02.1984 Mark D3 Rent Deeds dated 25.08.04, 25.09.03 and 25.08.06, Mark D4 House Tax receipt dated 23.09.2002, Suit no.137/10 Page no. 5 of 14 Mark D5 Electricity bill dated July 2007 Mark D6 Legal Notice of defendant dated 09.04.08 Mark D7 Complaint dated 08.04.06 respectively. Vide a separate statement of the counsel for defendant, DE stood closed on 16/4/2013. Matter then proceeded for final arguments.
13. I have heard ld. Counsel for both the parties and carefully perused the record and my issuewise findings are as follows: I shall deal with issue no.1 & 2 together.
14. Issues No. 1 & 2.
Whether the plaintiff is entitled to a decree of declaration as prayed for ? OPP Whether the plaintiff is entitled for a decree of cancellation of rent deed as prayed for ? OPP The onus to prove these issues rests on the plaintiff. The plaintiff by way of the present suit has sought a declaration that rent deed dated 25.08.2006 in respect of the suit property be declared as null and avoid. The plaintiff has also prayed for decree of cancellation of rend deed dated 25.08.2006. The plaintiff in his plaint has stated that the plaintiff and defendant were doing property business together and during this period a number of documents were executed by the parties and got registered before the SubRegistrar. It has been sated that rent deed dated 25.08.2006 was got prepared by the defendant with malafide intent and without the knowledge of the Suit no.137/10 Page no. 6 of 14 plaintiff. The plaintiff has also stated that the said rent deed dated 25.08.2006 is null and avoid on the ground of fraud and undue influence. It has been stated that the defendant was in a position to dominate the will of the plaintiff and accordingly, the rent deed has been prepared by taking unfair advantage over the plaintiff. It is pertinent to note that for seeking the declaration of a document as null and void, the ground for seeking the declaration has to be clearly made out . In the present case, the plaintiff has not clearly stated as to on which ground the plaintiff has sought the declaration of the alleged rent deed as null and void . The plaintiff at one place has stated that alleged rent deed has been prepared without the knowledge of the plaintiff. The plaintiff however at other places has alleged that the rent deed in question was got prepared by exercising undue influence on the plaintiff. It is important to note that for undue influence there has to be a relationship between the parties of such a nature where one party is in a position to dominate the will of the other party and uses that position to obtain unfair advantage over the other.
15. It is thus apparent that before the plea of undue influence can be taken, it has to be shown that the defendant was in a position to dominate the will of the plaintiff. I may however, mention that in the present case, there is nothing on record to show that the defendant was in a position to dominate the will of the plaintiff. It is important to mention that the plaintiff in his plaint has stated that plaintiff and defendant were working together in the sale and purchase of property as partners. It cannot be presumed from such a relation that the Suit no.137/10 Page no. 7 of 14 plaintiff was in any inferior position to that of the defendant. It is also important to note that plaintiff and defendant were engaged in the business of property and it cannot be presumed that plaintiff did not understand the import and consequences of executing a registered document. I may also mention that as matter of ordinary prudence also the version of the plaintiff does not inspire much confidence as no one is supposed to execute a registered document without understanding the contents of the same particularly in respect of a property which the person claims as his own property. It is also important to mention that the rent deed in question is a registered document and accordingly it cannot presumed that the said document was executed by the plaintiff without his consent or knowledge unless cogent evidence is put for by the plaintiff in this regard. The plaintiff however has failed to bring on record anything that can prove that the plaintiff had executed the alleged rent deed in question without understanding the contents of the same.
16. It is also pertinent to note that the plaintiff in his plaint has nowhere stated as in what capacity the plaintiff is residing in the suit property. The plaintiff in his plaint has only stated that he is an occupant in possession of the suit property. It relevant to note that the defendant on the other hand has stated in his WS that the defendant is the owner of the suit property and he has given the suit property on rent to the plaintiff in 1999. The defendant has filed on record the General Power of Attorney, Agreement to Sell and Receipt all dated 19.11.1984 to show his title in respect of the suit property. The Suit no.137/10 Page no. 8 of 14 defendant has also file on record the earlier chain of documents i.e. the General Power of Attorney and Agreement to Sell executed in favour of the earlier owner of the suit property. The plaintiff on the other hand has not filed on record any document to show his title in the suit property. The plaintiff has only filed on record the documents like ration card, the election identity card, the driving licence, the electricity bills, the telephone bills and other documents to show his possession in the suit property. It is however to pertinent to note that the said documents only prove the possession of the plaintiff in the suit property which is an admitted fact between the parties. The fact that the plaintiff has not been able to place on record any document with respect to the title of the suit property, further casts a doubt on the version of the plaintiff as it is the rent deed which justifies and explains the possession of the plaintiff in the suit property. It is also important to mention that the plaintiff in his testimony during the crossexamination has stated that he came to reside in suit property in 1987. PW 1 in his crossexamination has also stated that the plaintiff was allowed to reside in the suit property as he was having good relation with defendant. The plaintiff has further stated that the defendant made the plaintiff the owner of the suit property. I may quote the relevant portion of crossexamination "As I was having friendly relation with defendant, that is why I stayed in the suit property as owner. The defendant made me owner by stating that today onwards, your are owner of the suit property". It is also important to note that the plaintiff in his plaint has nowhere stated that he was residing in the suit property as the owner of the suit property.
Suit no.137/10 Page no. 9 of 14 This is an averment that has been taken by the plaintiff during his crossexamination for the first time on 15.07.2011. I shall now to come to the testimony of PW 2 who is the wife of the plaintiff. PW 2 Smt. Meera Devi in her crossexamination has stated that she was married to plaintiff No 1 in 1992 and thereafter, she joined the plaintiff in the suit property. PW 2 in her testimony has also stated that she does not know how her husband came into possession of the suit property and from whom. It thus evident from the testimony of PW 2 that she was not aware as to how the plaintiff became the owner of the suit property.
17. It is also important to mention that the averments of the plaintiff that he had become the owner of the suit property is devoid of any merits. I may mention here that the plaintiff cannot become the owner of the suit property unless relevant documents are executed in favour of the plaintiff by the defendant. In the absence of any such documents, the plaintiff cannot claim any title in respect of the suit property.
18. The plaintiff in the present case has stated the registered rent deed dated 25.08.2006 was got executed by playing fraud on the plaintiff. The plaintiff, however has not brought on record any evidence to show that any fraud was exercised on the plaintiff. The burden of proving the fraud in the present case was on the plaintiff. The plaintiff, however, has not given any details as to how and when the said fraud was exercised on the plaintiff. It is important to Suit no.137/10 Page no. 10 of 14 mention that plaintiff is trying to challenge a registered document which bears the thumb impression and signatures of the plaintiff. The plaintiff has neither denied his signatures nor his thumb impression on rent deed dated 25.08.2006. The question of valid execution of the alleged rent deed is, therefore, not in question in the present case. The plaintiff therefore, can question the rent deed dated 25.08.2006 on limited grounds of fraud, coercion, undue influence and mis representation as provided under the Indian Contract Act, 1872. The plaintiff in the present case has made the averment that fraud was exercised on the plaintiff. The plaintiff, however, has not been able to substantiate the said averment in any manner. It is relevant to note that the plaintiff has not even examined the attesting witnesses of the alleged rent deed in question ie Deepak Raj Sharma and Sh. C.P. Srivastava. The said witnesses could have thrown some light on the circumstances in which the alleged rent deed dated 25.08.2006 was executed. The plaintiff, however, for reason best known to him has not examined the said witnesses.
19. It is important to mention that in the present case the defendant has not exhibited the documents relied upon by him. I may however mention that the plaintiff is under an obligation to prove his own case. In the present case the plaintiff has not been able to prove his own case. Accordingly, I am of the view that he cannot derive any advantage from the weakness of the case of the defendant. In this regard I may mention Ravindra Lalbachan Tiwari And vs Smt. Nirmaladevi Vijaynarayan reported as 1997 (4) BomCR 75 wherein Suit no.137/10 Page no. 11 of 14 the court quoting from Lalita James v. Ajit Kumar, has held "It is well settled rule of law that burden of proving his case to obtain a decree from the Court is always on the plaintiff who must adduce reliable and admissible evidence for the said purpose. Section 102 of the Evidence Act contains the broad rule in this behalf and, therefore, provides the legal guidelines in the matter. As a necessary corollary to the aforesaid rule is the rule that the plaintiff must succeed on the strength of his own title and not be sustained by any weakness in the case of defendant."
20. In this regard I may also place reliance on Dhani Ram And Anr. vs Delhi Development Authority reported as 65 (1997) DLT 868, wherein the court has observed as under:
"Having regard to the pleadings of the parties, it is for the plaintiffs to prove the case that they have pleaded in their plaint. In this connection reference may be made to the provisions of Sections 101 and 102 of Evidence Act the said provisions are extracted below :
"101.Burden of proof,Who ever 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. 102. 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."
(10) In terms of the aforesaid provisions it is the obligation of the plaintiff to prove the case that they have pleaded in their plaint. I may also appropriately refer to the following extract from the Phipson's Manual of Evidence :
Suit no.137/10 Page no. 12 of 14 "The general rule is that he who asserts must prove, whether the allegation be an affirmative or a negative one and not he who denies. It is an ancient rule founded on considerations of good sense, and it should not be departed from without strong reasons".
In the light of facts and authorities discussed I am of the view that the plaintiff has not been able to prove his case against the defendant accordingly no relief as prayed for can be granted to the plaintiff in the present case.
This issue is decided in favour of the defendant and against the plaintiff.
21. Issue No 3.
Whether the plaintiff is entitled for relief of permanent injunction as prayed for? OPP The onus to prove this issue rests on the plaintiff. In the light of the findings arrived at in issue No 1 and 2, no ground is made out for the grant of relief as prayed for in the present case.
The said issue is accordingly, decided in favour of the defendant and against the plaintiff.
22. Issue no 4:
Whether the suit is barred u/O 2 Rule 2 CPC? OPD The onus to prove this issue is on the defendant. The defendant has taken the plea that present suit of the plaintiff is barred under Order II Rule 2 of CPC. The defendant in the present Suit no.137/10 Page no. 13 of 14 case has not brought on record anything to show that the present suit of the plaintiff barred under Order II Rule 2 of CPC. The defendant has filed on record the certified copy of judgment of the court of Ld. Senior Civil Judge, where the suit of the defendant for eviction has been decreed against the plaintiff. The defendant has not filed on record the copy of earlier suit filed by the plaintiff against the defendant. In the absence of any such proceedings, the question of application of the provisions of Order II Rule 2 of CPC, does not arise. Accordingly, I am of view of that defendant could not discharge the burden put on him.
This issue is accordingly decided in favour of the plaintiff and the against the defendant.
23. Relief:
In light of the facts and circumstances of the case I am of the opinion no ground is made out for granting the decree of declaration or injunction as prayed for by the plaintiff. The suit filed by the plaintiff is accordingly disposed of as dismissed. Decree sheet be prepared accordingly. File be consigned to Record Room after necessary compliance.
Announced in the open (ACHAL TYAGI)
Court on 31.05.2013 Civil Judge/East
KKD Courts, Delhi
Suit no.137/10 Page no. 14 of 14