Delhi District Court
Raheesh Ahmad And Ors vs Ms. Hansa And Ors on 1 April, 2024
IN THE COURT OF MS. SHAIL JAIN
PRINCIPAL DISTRICT & SESSIONS JUDGE
EAST: KARKARDOOMA COURTS, DELHI.
RCA NO.05/2023
1. Rahees Ahmad
S/o Fakeer Mohd.
2. Akil Ahmad
C/o Abdul Hakim
S/o Fakeer Mohd. (Biological Father)
3. Salman
S/o Fakeer Mohd.
4. Aleem Ahmad
S/o Fakeer Mohd.
All R/o A-188, Gali No. 11,
Chander Vihar, Madhu Vihar,
Delhi-110092.
... Appellants
VERSUS
1. Hansa
W/o Sh. Abdul Hakim
All R/o A-188, Gali No. 11,
Chander Vihar, Madhu Vihar,
Delhi-110092.
2. Nasreen
W/o Shakeel
R/o A-188, Gali No. 11,
Chander Vihar, Madhu Vihar,
Delhi-110092.
And also At :
Mohalla Aazizaba,
Village Aurangabad,
District Bulandshahar (U.P.)
RCA No. 05/2023 Page 1 of 13
Rahees Ahmad & Ors. vs. Hansa & Ors.
3. Abdul Hakim
S/o Abdul Kayum
R/o A-188, Gali No. 11,
Chander Vihar, Madhu Vihar,
Delhi-110092.
4. Abdul Raheem
S/o Abdul Kayum
R/o H-47, Sunder Nagari,
Delhi-110093.
5. Tyabba
D/o Abdul Raheem
R/o H-47, Sunder Nagari,
Delhi-110093.
6. Amjad
S/o Saleem
R/o A-188, Gali No. 11,
Chander Vihar, Madhu Vihar,
Delhi-110092.
And also At :
Mohalla Aazizaba,
Village Aurangabad,
District Bulandshahar (U.P.)
7. Pappu
S/o Noor Mohd.
R/o A-188, Gali No. 11,
Chander Vihar, Madhu Vihar,
Delhi-110092.
...Respondents
Date of Institution : 18.01.2023
Arguments Heard : 16.02.2024
Date of Decision : 01.04.2024
RCA No. 05/2023 Page 2 of 13
Rahees Ahmad & Ors. vs. Hansa & Ors.
JUDGMENT
1. Appellants, by way of present appeal, have assailed judgment and decree dated 19.12.2022, passed by Sh. Anubhav Jain, the then Ld. ASCJ-cum-JSCC-cum-GJ, East District, Karkardooma Courts, Delhi, whereby suit of the appellants/plaintiffs was dismissed under Order XII Rule 6 CPC.
2. Notice of the present appeal was issued to respondents. Respondent no. 1 & 3 put in appearance. A detailed reply to appeal has been filed on behalf of respondents, wherein it is stated that there is no illegality in the impugned order and appeal is liable to be dismissed.
3. Facts leading to the present appeal are that appellants/ plaintiffs had filed Suit for Permanent and Mandatory Injunction alongwith Damages of Rs.1,70,000/- inter alia stating that plaintiff no. 2 Akeel Ahmad is adopted son of Late Ms. Shyada Begum and defendant no. 3 Abdul Hakeem. Ms. Shyada Begum was owner of suit property bearing no. A-188, Gali No. 11, Chander Vihar, Mandawali, Madhu Vihar, Delhi-110092 and she had executed a Will qua said property in favour of plaintiff no. 2 Akeel Ahmad. All other appellants/plaintiffs are real brothers of appellant no. 2 and all other respondents/defendants are relatives of defendant no. 3. Appellant no. 2 has been residing in the suit property since he was 7 years old and defendants are forcibly trying to dispossess him from the suit property. It is averred that defendants had thrown away goods of appellant/plaintiff no. 2 from the rooms at first floor of suit property and caused him loss of Rs.1,27,300/-. Respondents/ RCA No. 05/2023 Page 3 of 13 Rahees Ahmad & Ors. vs. Hansa & Ors.
defendants filed written statement averring therein that plaintiff no.2 is claiming ownership of suit property on the basis of Adoption Deed and Will allegedly executed by Ms. Sayada Begum, which are forged and fabricated documents. The validity of aforesaid Adoption Deed and Will is under challenge before different Courts. Plaintiffs have no right/title or interest in the suit property, however, it was admitted that defendant no. 3 was married to Shyada Begum, who was owner of the suit property. During illness of Shyada Begum, plaintiff no. 2 (being brother of Shyada Begum) was allowed to stay in one room at first floor of the suit property as licensee to look after Shyada Begum, step sister of plaintiff no. 2. After death of Shyada Begum, plaintiff no. 2 trespassed into two rooms on first floor and three rooms on ground floor and when he was asked to vacate the suit property, he filed a civil suit claiming himself to be owner of the suit property on the basis of forged and fabricated Will dated 04.07.2012 and Adoption Deed dated 19.01.1998. The license of appellant no. 2 was terminated vide legal notice dated 16.01.2013. Issues were framed.
4. The Ld. Trial Court heard arguments of Ld. Counsels for the parties on the question, whether the Suit for Injunction, as filed by the plaintiffs could be allowed in view of order dated 23.07.2018 passed by Hon'ble High Court of Delhi, wherein plaintiff no.2/appellant no.2 has admitted that he has been dispossessed from two rooms on the first floor of the suit property after 29.05.2017.
5. It was also observed by Ld. Trial Court that Hon'ble High Court of Delhi had directed the plaintiff that he shall file claim for possession of two rooms on first floor in accordance with law in the RCA No. 05/2023 Page 4 of 13 Rahees Ahmad & Ors. vs. Hansa & Ors.
suit filed by respondents/defendants herein. However, plaintiffs instead of filing a suit for possession in compliance of order dated 23.07.2018 passed by Hon'ble High Court of Delhi, have filed present suit seeking to protect their possession over two rooms on the first floor. Ld. Trial Court also observed that since they were not in possession of the two rooms at first floor at the time of filing of present suit, relief of injunction at serial nos. 1 & 2 of the prayer clause cannot be granted to the plaintiffs. It is further observed that since possession of the plaintiffs over two rooms on or before 29.05.2017 is yet to be determined, the relief of compensation of Rs.1,70,000/- can only be granted once it is established that plaintiffs were in possession of said two rooms on the first floor.
6. On the basis of admission made by the plaintiffs before Hon'ble High Court of Delhi, Ld. Trial Court dismissed the suit of the plaintiffs under Order XII Rule 6 CPC. Being aggrieved with impugned order dated 19.12.2022, present appeal has been filed by the appellants/plaintiffs.
7. Ld. Counsel for the appellants has submitted that Suit of present appellants has been dismissed by Ld. Trial Court only on the ground that certain observations were made by Hon'ble High Court. It is further submitted that after stay, respondents tried to dispossess the appellants and Kalandara was prepared due to dispute in the family. It is further submitted that appellant have filed contempt petition before Hon'ble High Court and notice thereof was issued to IO/SHO and order dated 23.07.2018 was passed by Hon'ble High Court. It is further submitted that issues were framed in this case and thus, suit of the plaintiffs should not have been RCA No. 05/2023 Page 5 of 13 Rahees Ahmad & Ors. vs. Hansa & Ors.
dismissed without allowing parties to adduce their evidence. It is prayed that impugned order may be set-aside. Reliance has been placed on the following judgments :
(i) Himani Alloys Ltd. vs. Tata Steel Ltd., 2011 (11) JT 222.
(ii) State Bank of India vs. Midland Industries & Ors, 1988 AIR (Del) 153.
(iii) Maharaji Educational Trust & Anr. vs. Punjab & Sind Bank & Anr., 129 (2006) DLT 332 (D.B), and
(iv) Sajjan Singh Jasvir Kaur & Ors., (Civil Appeal No. 4221 if 2023) decided by Hon'ble Supreme Court of India on 06.07.2023.
8. On the other hand, Ld. Counsel for the respondents has submitted that appellant no. 2 is claiming ownership on the basis of Adoption Deed and Will allegedly executed in his favour by Ms. Shyada Begum and Adoption is not allowed in Muslim Law. It is further argued that Will for more than one third share is not valid under Muslim Law and thus, the appellant no. 2 cannot derive any benefit from the Will, being for more than one third share. It is further argued that several litigations challenging the Adoption and Will are pending between the parties. It is further argued that as per Section 34 of the Specific Relief Act, if a party is not in possession of property, he/she cannot seek injunction in respect thereto.
9. I have considered submissions made on behalf of the appellants and respondents and perused Trial Court record.
10. Appellants/plaintiffs have filed suit against defendants/ respondent herein for permanent and mandatory injunction apart RCA No. 05/2023 Page 6 of 13 Rahees Ahmad & Ors. vs. Hansa & Ors.
from seeking damages of Rs.1,70,000/- i.e. the appellants have sought four reliefs, as stated herein:-
(i) Restraining defendants for entering forcefully into two rooms at first floor and three shops at ground floor of the suit property i.e. A-188, Gali No. 11, Chander Vihar, Mandawali, Madhu Vihar, Delhi-110092 and from throwing away household items and other valuable belonging from the same or for dispossessing the plaintiffs from the suit property;
(ii) Directing defendants to open entry gate of main upstairs and allow plaintiffs to enter into the rooms
(iii) Directing defendants to either return the items and belongings of plaintiffs in the same condition or in alternate to pay damages/ compensation to the tune of Rs.1,70,000/-.
(iv) Awarding the cost of suit to the plaintiff.
11. Plaintiffs/appellants claim to be owner and in possession of two rooms on the first floor and three shops on the ground floor. Defendants did not dispute possession of plaintiffs qua three shops on the ground floor. With regard to possession of two rooms on the first floor, plaintiffs in the plaint averred that several civil and criminal cases have been filed by the parties against each other and defendants/respondents had forcibly entered into two rooms in possession of the plaintiff no. 2 at the first floor on 12.08.2017, threw away household items and other valuable things belonging to the plaintiff no.2/appellant no.2 and took away cash of Rs.5000/- and also attacked the plaintiffs. It is also averred that the defendants have put their locks on those rooms.
12. Plaintiff no. 2 had earlier also filed a Suit against defendant no. 3 seeking declaration as to his ownership over the suit property RCA No. 05/2023 Page 7 of 13 Rahees Ahmad & Ors. vs. Hansa & Ors.
on the basis of Will dated 04.07.2012 and Adoption Deed dated 19.01.1998 allegedly executed by Ms. Shyada Begum.
13. Defendant no. 3 Abdul Hakim had filed a suit against plaintiff no. 2 Akil Ahmad seeking Declaration of Adoption Deed and Will as null and void and Recovery of Possession and Permanent Injunction.
14. Suit filed by the appellant no. 2/plaintiff Akil Ahmad against defendant no. 3 Abdul Hakim for Permanent Injunction was dismissed vide order dated 19.05.2016. The appellant no. 2 preferred an appeal against the said order which was dismissed vide order dated 23.03.2017 and thereafter, the appellant no. 2 herein preferred second appeal before Hon'ble High Court of Delhi and Hon'ble High Court of Delhi vide order dated 23.07.2018, disposed off the second appeal by holding as under:-
"(i) The validity of the Will, if any, of Sayda Begum set-up by the appellant/plaintiff in his favour need not be gone into, in the suit for injunction in which only settled possession is to be protected.
(ii) The respondent/defendant having admitted the respondent/plaintiff to be in possession of three rooms on the ground floor, is restrained by a decree of permanent injunction from forcibly dispossessing the appellant/plaintiff therefrom save by due process of law.
(iii) As far as the claim of the appellant/plaintiff with respect to the two rooms on the first floor is concerned, the appellant/plaintiff is granted liberty to, in the suit for possession aforesaid, agitate the same and if required also make a counterclaim with respect thereto, inasmuch as there is nothing before this Court, to hold that appellant/plaintiff, on RCA No. 05/2023 Page 8 of 13 Rahees Ahmad & Ors. vs. Hansa & Ors.
29th May, 2017, was in possession of two rooms also, on first floor and which will need enquiry by recording evidence.
(iv) The decree for permanent injunction in favour of the appellant/plaintiff is however made conditional on the appellant/plaintiff not trespassing over any other part of the property and making the claim for possession of the two rooms on the first floor or any other portion of the property only in accordance with law."
15. On the basis of observations of Hon'ble High Court as contained in the order dated 23.07.2018, Ld. Trial Court observed that instead of filing a claim in suit for possession (i.e. counter claim), the plaintiff no.2/appellant no.2 along with other plaintiffs/appellants have filed the present suit for injunction seeking to protect their possession over two rooms on the first floor. Ld. Trial Court also observed that plaintiffs were not in possession of two rooms on first floor at the time of filing of the suit, so relief at serial no. 1 and 2 cannot be granted. With regard to relief of damages of Rs.1,70,000/- i.e. relief no. 3, Ld. Trial Court concluded that since possession of the plaintiffs over two rooms on first floor on or before 29.05.2017 is yet to be determined, the said relief could only be granted once it is established that plaintiffs were in possession of said two rooms on the first floor.
16. The appellants in present appeal have challenged the order of Ld. Trial Court on the ground that they should have been given time to lead their evidence regarding relief claimed by them. Instead Ld. Trial Court had dismissed their suit by considering provision of Order XII Rule 6 CPC and hence, they are challenging the impugned order. In the suit filed by plaintiffs/appellants on 19.05.2018, they were seeking relief of permanent injunction that RCA No. 05/2023 Page 9 of 13 Rahees Ahmad & Ors. vs. Hansa & Ors.
they should not be dispossessed from two rooms on the first floor, whereas they themselves had stated in the plaint that defendants had forcibly entered the rooms on first floor occupied by the plaintiffs and threw away the articles and other valuable belongings of the plaintiffs on 12.08.2017 and put their lock on the said rooms as well as at entry gate of main upstairs. Once, it is admitted by the plaintiffs in the plaint that at the time of filing of the plaint, they were not in possession of two rooms on the first floor coupled with order dated 23.07.2018, passed by Hon'ble High Court of Delhi, whereby direction was given to the appellants to raise counter claim qua their possession of two rooms on the first floor in the suit for possession, already filed by the respondents herein, I am of the opinion that plaintiffs have admitted categorically that they were not in possession of two rooms on the first floor at the time of filing of suit, therefore, impugned order has been rightly passed by Ld. Trial Court, dismissing the suit and does not call for any interference by this Court.
17. It is also important to mention at this stage that there is no allegation of other plaintiffs/appellants except plaintiff no. 2/appellant no. 2, being in possession of said room on first floor at any point of time as earlier suit was filed only by plaintiff no. 2, which was finally decided by Hon'ble High Court of Delhi vide order dated 23.07.2018 holding that plaintiff (appellant no. 2) herein has to seek relief of possession of rooms at first floor, by filing claim in suit already filed by respondent. In that appeal, no other appellant in present appeal, has joined as a contesting party.
RCA No. 05/2023 Page 10 of 13Rahees Ahmad & Ors. vs. Hansa & Ors.
18. As regards relief claimed by plaintiff/appellant by way of prayer nos. 1 & 2, I am of opinion that Ld. Trial Court had rightly held that once it is admitted by plaintiffs in the plaint filed in the present case that they were dispossessed from rooms on first floor by the defendants before filing of present suit, and the defendants have admitted possession of the plaintiff no.2 over three shops on the ground floor before Hon'ble High Court, the relief of permanent injunction was granted by Hon'ble High Court to the appellant no.2 herein. No further relief was required to be passed in the present suit/appeal in respect to prayer nos. 1 & 2. Ld. Trial Court has correctly held that once it is admitted by the plaintiff that they are not in possession of rooms at first floor, the suit can be dismissed under Order XII Rule 6 CPC. It is also important to mention here that once right of the plaintiffs in respect to rooms on the first floor, as per their own admission, was not existing at the time of filing of present suit, alongwith order passed by Hon'ble High Court of Delhi on 23.07.2018, wherein appellant no. 2 herein was categorically directed by Hon'ble High Court to seek relief in the suit for possession filed by defendant no. 3/respondent no. 3 herein which admittedly has not been done by the appellant no. 2 herein. Therefore, I am of the opinion that Ld. Trial Court has rightly rejected the claim of seeking damages, as claimed by the plaintiff no.2 holding that said issue can only be decided after the issue of possession of plaintiff in respect to two rooms on first floor is decided.
19. Coming to the judgments relied upon by the appellants, in Himani Alloys Ltd. vs. Tata Steel Ltd. (supra) and State Bank of RCA No. 05/2023 Page 11 of 13 Rahees Ahmad & Ors. vs. Hansa & Ors.
India vs. Midland Industries & Ors, (supra), it has been held that unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. There is no dispute as to the legal prepositions propounded in the aforesaid judgments, however, these judgments do not help the appellants/ plaintiffs. Firstly, because they are not the defendants and secondly, there is clear cut admission of the appellants/plaintiffs themselves that they were not in possession of two rooms on the first floor at the time of filing plaint and secondly, they have failed to take right steps in pursuance to direction given by Hon'ble High Court of Delhi in its order dated 23.07.2018. Hence, these judgments are of no help to the appellants.
20. Coming to judgment of Maharaji Educational Trust & Anr. vs. Punjab & Sind Bank & Anr. (supra), wherein it has been held that plaintiff is dominus litus and free to chose his remedy, he wants in a suit. This judgment does not apply here because Ld. Trial Court has not asked the plaintiff no.2 to modify relief or choose their remedy as noted in the order passed and other relief claimed by the plaintiff no.2/appellant no.2 cannot be allowed to him as per law.
21. Coming to another judgment in case of Sajjan Singh Jasvir Kaur & Ors., (supra), this judgment is not relevant for the present case, as no application under Order VII rule 11 CPC filed in the present case and impugned order was not on the application under Order VII rule 11 CPC.
RCA No. 05/2023 Page 12 of 13Rahees Ahmad & Ors. vs. Hansa & Ors.
22. In view of my foregoing discussion, I am of the opinion that order passed by Ld. Trial Court does not suffer from any infirmity and it has to be affirmed. Appeal being devoid of any merit, is hereby dismissed.
19. A copy of this judgment along with Trial Court Record be sent back to the learned Trial Court.
File be consigned to Record Room.
Digitally signed by SHAIL JAINSHAIL Date:
JAIN 2024.04.01
16:56:21
Announced in the open court +0530
today on 1st April, 2024 (SHAIL JAIN)
Principal District & Sessions Judge,
East, Karkardooma Courts, Delhi
RCA No. 05/2023 Page 13 of 13
Rahees Ahmad & Ors. vs. Hansa & Ors.