Delhi District Court
Kavita Kumar vs Rajesh Kunal Keshri on 11 November, 2024
THE COURT OF SHIV KUMAR :
DISTRICT JUDGE, (WEST)-02,
TIS HAZARI COURTS:DELHI.
RCA DJ No. 16/2010
New RCA NO. 61157/2016
CNR No. DLWT01-000397-2010
DLWT010003972010
Smt. Kavita Kumar
W/o Shri Praveen Kumar
R/o G-38/B 2nd floor ( front portion)
East of Kailash, New Delhi-110065
.....Appellant
Versus
Sh. Rajesh Kunal Keshri
S/o Shri B.N. Keshri
R/o G-38/B, 2nd floor, ( back portion)
East of Kailash, New Delhi-110065
... Respondent
Date of institution of the appeal : 22.05.2010
Date on which reserved for judgment : 15.10.2024
Date of pronouncement of judgment : 11.11.2024
Digitally signed by SHIV KUMAR
SHIV KUMAR Date:
+0530
2024.11.11 17:39:01
RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 1/29
JUDGMENT
APPEAL UNDER SECTION 96 OF CPC R/W SECTION 151 CPC AGAINST THE JUDGMENT AND DECREE DATED 27.11.2009 PASSED BY SH. RAJINDER KUMAR, LD. CIVIL JUDGE, IN THE SUIT NO. 098/2008, TITLED AS " MS KAVITA KUMAR VS SH. RAJESH KUNAL KESHRI".
1. The present appeal has been preferred by the appellant/plaintiff for setting aside the judgment dated 27.11.2009 passed by the ld. Trial Court of Sh. Rajinder Kumar, ld. Civil Judge, Tis Hazari Courts, Delhi in suit no.098/2008, titled as Ms Kavita Kumar Vs Sh. Rajesh Kunal Keshri whereby the suit of the appellant/plaintiff has been dismissed by the Ld. Trial Court.
Brief facts of the case as per plaint of the plaintiff :
2. A suit had initially been filed by the appellant herein i.e. plaintiff before the Trial Court for seeking possession, declaration, mandatory and permanent injunction and recovery of mesne profit against the defendant/respondent.
3. The appellant/plaintiff has alleged in the plaint that plaintiff was the resident of C-147, East of Kaailash, New Delhi alongwith the defendant, who is the real brother of the plaintiff. It is further alleged in the plaint that appellant/plaintiff and respondent/defendant had agreed jointly to contribute the money to purchase the second floor of Digitally signed by SHIV KUMAR SHIV KUMAR Date: 2024.11.11 17:39:37 +0530 RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 2/29 the property bearing no. G-38/B, East of Kailash, New Delhi measuring 334.46 Sq. Mtrs comprises of three bedrooms, one drawing cum dinning room, one lobby, two kitchens, three toilets ( hereinafter referred to as 'suit property') for a consideration of Rs. 17 lacs, wherein the appellant/plaintiff contributed Rs. 7.50 lacs and the defendant/respondent contributed Rs. 9.50 lacs for their 44% and 56% respective shares and accordingly two sale deeds dated 15.04.1997 were executed in their favour with following mutually agreed terms:-
a) The plaintiff would take the 46% of the front portion comprising of one bed room, one drawing cum dining room, one kitchen, one toilet as shown as marked ABSC shown Red in Site plan attached.
b) The defendant would take 54% of the rear portion comprising of two bed rooms, one Lobby, one kitchen, two toilets, shown as marked ESDE as shown Green in site plan.
c) The defendant would be permitted to use the entrance marked XY in order to reach to his rear portion marked CSED through passage marked PU, till the defendants get married and/or till any dispute arises between the plaintiff and defendant.
4. It is further averred in the plaint that as per the oral terms and conditions, both the parties shifted to their respective portions as mentioned in the sale deeds and defendant continued to use the common entrance Marked-XY in order to reach to his rear portion marked CSED through passage marked PU. It is further averred in Digitally signed by SHIV KUMAR SHIV KUMAR Date: 2024.11.11 17:40:31 +0530 RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 3/29 the plaint by appellant/plaintiff that in year 2000, the respondent/defendant started raising disputes on the ownership of the plaintiff of the entrance marked XY and the portion marked QRSP and started claiming his ownership on the portion marked QRSP and started pressurizing the appellant to hand over the possession of the drawing room and the servant quarter to the respondent. The appellant requested the respondent to abide by the terms and conditions agreed between them but respondent instead of abiding by the terms and condition, started harassing the appellant, her husband and her mentally retarded daughter who is fully dependent on her mother for her daily activities with threat to dire consequences. The respondent in order to show his strength, forcefully took the illegal possession of the servant quarter of the appellant and refused to vacate the same and threatening to throw the appellant out of her portion illegally and to sell off the entire house in an illegal manner.
5. It is further averred in the plaint that as a result, the appellant had to file various complaints including the complaints dated 03.06.2000, 30.06.2000, 01.07.2000, 15.07.2000 to the police, but no action was taken due to the influence of the respondent. It is further averred that the defendant has been a man of political influence and therefore, is adamant to fulfill his illegal design of garbing the entire portion marked QRSP.
Therefore, appellant had no other alternative but to file the suit for decree of possession of the servant quarter and permanent and mandatory injunction not to dispossess the appellant from the Digitally signed by SHIV KUMAR SHIV KUMAR Date: 2024.11.11 17:40:40 +0530 RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 4/29 drawing room against the respondent and also return the original sale deed dated 15.04.1997.
Brief facts of the case of the respondent, as per his written statement.
6. The defendant in the suit, filed written statement and contended that plaintiff has not come to the court with clean hands and has no locus standi to file the suit. It is further contended by the respondent/defendant that the plaintiff and defendant did not contribute for the percentage shares in the property but in fact both paid for the respective areas purchased by them. It is further contended that plaintiff has no cause of action to file the present suit. It is further contended by the defendant that the suit by the plaintiff is false and fabricated. It is further contended that plaintiff is not the owner of the area QRSP. It is further contended that as the rooms in the flat were already in place, the plaintiff and defendant agreed on the rooms each one of them would take, Having decided that it was agreed that plaintiff would pay Rs. 7,50,000/- for area she had to take & the defendant would pay Rs. 9,50,000/- towards the area that he had agreed to take.
7. It is further contended that the area ABSC includes the area marked as Mark-QRSP which is owned and possessed by the defendant. Both the parties are in possession of respective portions as per their respective sale deeds. It is further contended that defendant has never threatened the plaintiff nor ever tried to sell her portion and SHIV Digitally signed by SHIV KUMAR KUMAR Date: 2024.11.11 17:47:24 +0530 RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 5/29 the suit filed by the plaintiff is false, frivolous and fictitious. It is denied by defendant that the defendant ever agreed that plaintiff would take the area marked ABSE in the plan attached to the plaint or defendant would take the area marked ESDE.
8. On merit most of the contents of the plaint are denied.
9. Replication has been filed by the appellant/plaintiff in the abovesaid suit,wherein she denied the averments made in the written statement and reiterated the averments of her plaint.
10. On 03.10.2002, the following issues were framed by Ld. Trial Court:
(i) Whether the plaintiff has no locus standi to file the present suit as alleged?
OPD
(ii) Whether the suit is devoid of cause of action as alleged and hence, not maintainable as alleged? OPD
(iii)Whether the plaintiff has approached to the court with unclean hands and hence, not entitled to any relief as alleged ?
OPD-1
(iv)Whether the plaintiff is entitled to the relief of possession as prayed for ? OPP
(v)Whether the plaintiff is entitled to the relief of declaration as prayed for ? OPP SHIV Digitally signed by SHIV KUMAR KUMAR Date: 2024.11.11 17:47:49 +0530 RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 6/29
(vi)Whether the plaintiff is entitled to the relief of permanent injunction as prayed for ? OPP
(vii) Whether the plaintiff is entitled to the relief of mandatory as prayed for ? OPP
(viii)Whether the plaintiff is entitled to the relief of mesne profits as prayed for ? OPP
(ix) Relief.
EVIDENCE OF THE PLAINTIFF IN THE SUIT
11. In order to prove the case, appellant/plaintiff examined only one witness i.e. appellant/plaintiff herself as PW-1. The appellant/plaintiff tendered her affidavit in evidence as Ex. PW1/A and relied upon the following documents:
(i) Ex. PW 1/1: Sale Deed dated 15.04.1997.
(ii) Ex. PW 1/2 : Site Plan
12. Appellant/ plaintiff was cross-examined by Ld counsel for the respondent/defendant. Thereafter vide statement made by the ld. Counsel for the plaintiff on 12.02.2004, PE was closed and the matter was listed for DE.
EVIDENCE OF THE DEFENDANT IN THE SUIT Digitally signed by SHIV KUMAR SHIV KUMAR Date:
+0530 2024.11.11 17:43:51 RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 7/29
13. In order to prove the case, respondent /defendant examined two witnesses i.e. defendant, Sh. Rajesh Kunal as DW-1 and Sh. M.K. Verma, as DW-2. The defendant/DW-1 tendered his affidavit in evidence as Ex. DW-1 and relied upon the following documents:
(i) Ex. DW 1/1: Site Plan
(ii) DW-1/A: True copy of the plan submitted to the MCD by the plaintiff.
DW-1 has been cross-examined by Ld. counsel for plaintiff.
14. The defendant/DW-2, Sh. M.K. Verma, appeared in the court and relied upon the following documents:
(i) Ex. DW 2/1: Copy of order dated 27.06.200 passed by Deputy Assessor and Collector in respect of property in question.
(ii) DW-2/2 to Ex. DW2/4: Copy of the record of application for mutation filed by Smt. Kavita Kumar including indemnity bond and affidavit.
(iii) DW-2/5: the true copy of the site plan filed by Smt. Kavita Kumar with the aforesaid application for mutation.Digitally signed
SHIV by SHIV KUMAR KUMAR Date: 2024.11.11 17:48:21 +0530 RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 8/29 DW-2 has been cross-examined by ld. Counsel for the plaintiff.
Thereafter vide separate statement of ld. Counsel for the defendant given on 28.11.2006, DE was closed.
15. Thereafter the matter was listed for final arguments and after hearing the final arguments, Ld Trial court dismissed the suit of the plaintiff.
GROUNDS TAKEN BY THE
APPELLANT FOR CHALLENGING
THE IMPUGNED JUDGMENT:
16. The appellant has filed the present appeal by taking ground that the ld. Trial court has erred in deciding the issues against the appellant and not properly appreciated the evidence on record. It is further contended that ld. Trial court while deciding the case, has not looked into the conduct of the respondent and the judgment and decree suffers from material irregularity and the same is vitiated by a grave error of law.
17. It is further contended that the ld. Trial Court has erred and failed to appreciate that the sale deed filed by the respondent shows him to be owner of 2 bad rooms, 2 bathrooms, 1 kitchen and 1 lobby and the drawing room shown is extra which belongs to the appellant. It is further contended that the ld. Trial Court has not SHIV Digitally signed by SHIV KUMAR KUMAR Date: 2024.11.11 17:48:31 +0530 RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 9/29 appreciated the controversy involved between the parties and failed to correctly appreciate the law on the subject.
18. It is further contended that the present suit was for permanent and mandatory injunction with secondary relief of possession of a servant quarter on the terrace and was not related to area wise partition and in the present matter the question being of injunction against the respondent to allow the appellant peaceful possession of her part of the property. The sale deeds with respect to suit property and report of the local Commissioner amply demonstrate the case of appellant but was ignored by the Ld. Trial Court which clearly demonstrate that room no. 1 or the drawing area is the matter of dispute between the parties.
19. It is further contended that ld. Trial court erred in not appreciating the fact that as per the sale deeds, there are total six rooms in the property and the drawing and dining area belongs to the appellant but the ld. Trial Court has totally relied upon only the disputed area PQRS which was shown as illustrative purpose to mark the disputed area from where the appellant was being dispossessed and was being prevented from the free and peaceful use of her part of the premises. It is further contended that ld. Trial court erred in not appreciating the facts that as per Sale deeds, there are total six rooms in the property and the drawing and dining area belongs to the appellant. On the other hand, the ld. Trial Court has totally relied upon only the disputed area PQRS which was shown as illustrative purpose to mark the disputed areas from where the appellant was SHIV Digitally signed by SHIV KUMAR KUMAR Date: 2024.11.11 17:48:38 +0530 RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 10/29 being dispossessed and was being prevented from the free and peaceful use of her part of the premises. It is further contended that the ld. Trial court fell in error that the area PQRS was not mentioned in the Sale Deed when the perusal of the two Sale deeds show that there are six rooms in the property and as per that the entire drawing room belongs to the appellant.
20. It is further contended that ld. Trial court has not appreciated the several complaints dated 03.06.2000, 30.06,2000, 1.07.2000 & 15.07.2000, filed by him but has placed reliance only on one particular date and a question asked to the appellant in cross- examination " Whether she was present in Delhi on 17.08.2000"
whereon the appellant stated that she did not remember, this answer does not amount to a denial in the eyes of the law and the matter in dispute was not related one particular date but to a continuing dispute and the said answer does not prove or disprove the dispute between the parties. The cause of action in the present matter was of a continuing and subsisting nature and not relates to a single incident or date.
21. It is further contended that ld. Trial Court erred in ignoring the report of the Local Commissioner wherein it was mentioned that the respondent was in possession of the servant quarter and after the report of the Local Commissioner was filed in apprehension and to mislead the court removed himself from the servant quarter and handed over the possession to the appellant. The Digitally signed by SHIV KUMAR SHIV KUMAR Date: 2024.11.11 17:48:59 +0530 RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 11/29 ld. Trial court further erred in holding that the question of mesne profits of illegal occupation of the servant quarter was infructuous as the same was in possession of the appellant now.
22. It is further contended that ld. Trial Court erred in holding that there was no cause of action in the matter. It is further contended that ld. Trial court has ignored the report of the Local Commissioner or that the question of mesne profits of illegal occupation of the servant quarter was infructuous as the same was in possession of the appellant now.
23. There was delay in filing the present appeal but the said delay has been condoned by ld. Predecessor of this court vide order dated 09.09.2013.
FINAL ARGUMENTS
24. I have heard final arguments advanced by ld. counsel for parties and perused the Trial Court record, written submissions and case file of the present appeal.
(1) On 17.02.2017, Ld. Trial Court had framed nine issues, in the suit, which are mentioned hereinabove.
(2) Out of the above-said issues, issue no. 1, 4 have been decided in favour of the Digitally signed by SHIV KUMAR SHIV KUMAR Date: 2024.11.11 17:46:09 +0530 RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 12/29 appellant/plaintiff and all the remaining issues have been decided in favour of the defendant by the Ld. Trial Court.
25. After perusing the trial court record as well as case file of the present appeal, written submissions filed by the parties and arguments addressed by the parties, the following points for determination are required to be made for deciding the present appeal.
1. Whether the appellant/plaintiff is the owner of the portion of the suit property, shown as QRSP, in the site plan Ex PW-1/2 filed with the plaint by the appellant/plaintiff?
2. Whether the appellant/plaintiff is in possession of above-said portion QRSP of suit property?
3. Whether the appellant/plaintiff is entitled for decree of declaration in respect of above-said portion QRSP of suit property?
4. Whether any oral agreement for division of portion QRSP of suit property, has ever been taken place between appellant and respondent?
5. Whether the appellant/plaintiff had handed over her original sale deed of her portion of suit property to respondent?
6. Whether the appellant/plaintiff is entitled to recover mesne profits from the respondent for using servant quarter of the appellant?
Digitally signed by SHIV KUMARSHIV KUMAR +0530 Date: 2024.11.11 17:49:26 RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 13/29
7. Whether the appellant/plaintiff had no cause of action to file the present suit?
8. Whether the appellant/plaintiff approached to the court with unclean hands and not entitled to any relief?
26. This court has taken point no. 1 to 4 together being interconnected and having mutal bearing upon one another.
27. Plaintiff/PW-1 has deposed before the ld. Trial Court by way of affidavit in evidence that she and defendant agreed to purchase the second floor in question with separate registry on the condition that the said floor would be divisible in the ratio of price of consideration paid and she contributed amount of Rs. 7,50,000/- ( 44 % share) and defendant contributed Rs. 9,50,000 ( 56% share) and two sale deeds dated 15.4.1997 were executed in favour of plaintiff and defendant separately.
28. PW-1 has further deposed in her evidence by way of affidavit that she and defendant divided the second floor with the following terms:-
a) The plaintiff would take the 44% of the front portion comprising of one bed room, one drawing cum dining room, one kitchen, one toilet as shown as marked ABSC shown Red in Site plan Ex. PW-1/2.
SHIV Digitally signed by SHIV
KUMAR
KUMAR Date: 2024.11.11 17:49:41
+0530
RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 14/29
b) The defendant would take 56% of the rear portion comprising
of two bed rooms, one Lobby, one kitchen, two toilets, shown as marked ESDE as shown Green in site plan.
c) The defendant would be permitted to use the entrance marked XY in order to reach to his rear portion marked CSED through passage marked PU, till the defendants get married and/or till any dispute arises between the plaintiff and defendant.
d) (ii) The drawing room of the plaintiff marked QRSP would be divided by a partition wall marked YZ and accordingly the defendant would have YRSZ under his ownership and the plaintiff would have QYZP under her ownership.
29. The above said testimony of PW-1/Plaintiff reveals that plaintiff is not claiming exclusive ownership of portion QRSP rather she has claimed that the portion QRSP have been agreed to be divided between plaintiff and defendant by a partition wall and plaintiff would have QYZP portion under her ownership. In the plaint, the plaintiff is seeking declaration of ownership of entire portion QRSP in her favour and not of portion QYZP. This fact establishes that the plaintiff herself is not sure about her ownership over the portion QRSP.
30. Plaintiff is alleging that oral agreement has taken place between them for partition of QRSP, before execution of sale deeds. The plaintiff has not led any evidence to prove the said oral agreement. No witness has been examined by the plaintiff to prove SHIV Digitally signed by SHIV KUMAR KUMAR Date: 2024.11.11 17:45:58 +0530 RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 15/29 the oral agreement. Had there been any oral agreement between the parties, then terms of that agreement would have been incorporated in the sale deeds executed in favour of plaintiff as well as in favour of defendant. Plaintiff has failed to prove that there was oral agreement regarding partition of suit property, executed between her and the defendant. Plaintiff has also failed to prove that the suit property has been purchased jointly by the plaintiff and defendant.
31. I have perused the sale deeds Ex PW-1/1 and Ex DW-1/PA. By way said sale deeds, specific portion of second floor has been sold to appellant and respondent.
32. As per sale deed Ex PW-1/1, the previous owner Smt Urmila Bansal has sold following front portion of suit property to the appellant.
a. one bed room.
b. one drawing cum dining.
c. one kitchen d. one latrine bathroom e. one servant room at the roof.
33. As per sale deed Ex DW-1/DA, the previous owner Smt Urmila Bansal has sold following rear portion of suit property to the respondent.
a. Two bedrooms b. one lobby c. one kitchen d. two latrine bathrooms.
Digitally signed by SHIV KUMARSHIV KUMAR Date: 2024.11.11 17:42:24 +0530 RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 16/29
34. As per sale deed Ex PW-1/1, appellant is the owner of the two rooms constructed on the second floor i.e. one bed room & one drawing cum dining.
Plaintiff has also deposed in court by way of affidavit in evidence that she has purchased front portion of second floor consisting one bed room and one drawing-cum-dining room.
35. On the application of appellant, Local Commissioner, Sh. P.N. Mishra was appointed by the trial court on 29.08.2000 for visiting the suit property for ascertaining the existing position of suit property. Ld Local Commissioner inspected the suit property, in presence of both parties and prepared the site plan Ex DW-1/1. Preparation of above said site plan by the Local Commissioner is admitted by both parties. Report of Ld. Local Commissioner is also not disputed by the parties.
36. As per report of Local Commissioner, there are total seven rooms in the suit property. The Ld. Local Commissioner has given numbers to these rooms in his report as Room no. 1 to Room no. 7.
37. As per Ld. Local Commissioner, room no. 1 to 4 are in possession of respondent and room no. 5 to 7 are in possession of appellant and there is dispute regarding room no. 1 between the parties. Room no. 1 is shown as portion QRSP in the site plan attached by appellant in the original suit and the same is Ex PW-1/2. In the said plan the portion QRSP is mentioned as drawing room.
Digitally signed by SHIV KUMARSHIV KUMAR +0530 Date: 2024.11.11 17:50:43 RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 17/29
38. Room no. 5 is shown as dining room in site plan Ex PW-1/2. The room no. 6 & 7 are shown as bed room in the site plan Ex PW-1/2.
39. As per sale deed Ex. PW-1/1, two rooms on the second floor have been sold to the appellant i.e. a. one bed room.
b. one dining-cum-drawing room.
40. In plaint as well as in evidence by way of affidavit, the plaintiff is claiming that one bed room and one drawing cum dining room was sold to her by Smt. Urmila Bansal. The above-said site plan of Local Commissioner, clearly, proves that the appellant is in possession of her portion and not in possession of disputed portion QRSP.
41. PW-1 has deposed during her cross-examination that " it is correct that the portion shown as QPRS shown in site plan Ex. PW-1/2 was not mentioned in the sale deed executed in my favour. Ld. Counsel for the appellant has argued that the plaintiff got confused during cross-examination and also did not know what is QPRS portion so she sated so. The entire case of the plaintiff is that she is owner of QPRS portion so it is not believable that she was not aware about QPRS portion or she got confused during her cross- examination.
Digitally signed by SHIV KUMARSHIV KUMAR Date: 2024.11.11 17:42:36 +0530 RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 18/29
42. The burden of proof is upon the appellant to prove that the room no. 1, which is portion QRSP was also sold to appellant. But, the appellant has not attached site plan, prepared at the time of execution of sale deed Ex PW-1/1 and has also not examined previous owner to prove this fact. The appellant has also not examined any witness of sale deed Ex PW-1/1 to prove that QRSP portion was sold to the appellant.
43. As per sale deed Ex. PW-1/1, two rooms i.e. one bed room and one drawing cum dining room were sold to appellant and appellant has also deposed before ld. Trial Court about purchasing one bed room and one drawing-cum-dining room. In view of the above said facts, it is proved that drawing and dining room are not separate rooms rather one common room is described as drawing- cum-dining and this drawing-cum-dining room has been shown as room no. 6 in the report as well as in the site plan of ld. Local Commissioner. In view of the above said facts and testimony, it is held that the appellant has been not able to prove that she has purchased portion QRSP from Smt. Urmila Bansal by way of sale deed Ex. PW-1/1.
44. In view of the facts and observations, it is held that the Ld. Trial Court has rightly held that the perusal of sale deed Ex PW-1/1 reveals that there is not mentioning of QRSP portion in the sale deed of the plaintiff and has failed to prove that she is the owner of the portion of QRSP.
Digitally signed by SHIV KUMARSHIV KUMAR Date: 2024.11.11 17:42:53 +0530 RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 19/29
45. During arguments, ld. Counsel for the respondent has argued that the respondent is in possession of portion QRSP but the appellant has not filed the suit for the possession of said portion. He further argued that suit seeking declaration of title without seeking relief of possession is bad in law and is not maintainable as per section 34 of the Specific Relief Act.
46. During cross-examination of DW-1, following suggestion have been put to DW-1 by ld. Counsel for the plaintiff, " It is also denied that I pressurizing the plaintiff to hand over the above said portion marked PQRS volunteered there was no such question as the above said portion is under my ownership and possession. It is also wrong to suggest that I had taken illegal possession of the above said portion".
47. As per report and site plan prepared by Local Commissioner , the disputed portion QRSP which is room no. 1 is in the possession of respondent and the said site plan and report is not disputed by the parties.
48. From the above said facts, it is proved that the disputed portion QRSP has been in possession of the respondent but the appellant has not sought relief of possession of said portion QRSP in her suit.
49. In a case titled M/S. Housing & Urban Development Corporation Ltd. v. M/S. M.S. Shoes (East) Ltd. & Ors., 2016 SCC Digitally signed by SHIV KUMAR SHIV KUMAR Date: 2024.11.11 17:41:25 +0530 RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 20/29 online DEL. 3763, the Hon'ble High court of Delhi, on the applicability of section 34 of the Specific Relief Act has held as follows:
"33. In addition to this, the respondent No.
1.plaintiff in the first instance during the pendency of the suit in the High Court had filed another suit before the learned ADJ, Tis Hazari Court, Delhi impleading MCD as well as the appellant/defendant as a party. In this particular suit apart from the challenge to the levy of the property tax/vacant land tax the respondent No. 1.plaintiff had also stated that the cancellation letter dated 02.05.1996 be declared null and void. A mandatory injunction in this suit was also prayed for which was to the effect that the appellant/defendant be directed to hand over the possession of the suit land for the construction of hotel. The learned Judge had opined that by seeking a mandatory injunction with regard to the grant of possession of the suit land in effect the respondent No. 1.plaintiff was claiming possession of the suit land and therefore he was liable to pay court fees on the valuation of the suit land on ad- valorem basis. The valuation of the suit land was shown to be Rs. 1,05,000/- or so while as the Court observed since the suit land was able to garner a bid of Rs. 217 crores from M/ s. Leela Hotels, therefore,respondent No. 1.plaintiff would the market value of the plot of land in question and the advalorem court fees on the said amount is payable. The ad-valorem court fees on Rs. 217 crores calculated roughly @ one per cent according to the Court Fees Act would be come around Rs. 2 crores or so. For want of payment of ad-valorem court fees, the respondent No. 1.plaintiff gave up the relief of possession and the suit was amended and MCD was deleted as a party, the Union of India was impleaded as a party and the relief by the respondent No.
1.plaintiff was confined only to declaration . As a matter of fact the un-amended suit wherein possession was claimed was the correct relief which was sought by the respondent No. 1.plaintiff which could be granted to him under Section 34 of the Specific Relief Act keeping in view his stand. But as relief of possession was given up SHIV Digitally signed by SHIV KUMAR KUMAR Date: 2024.11.11 17:45:05 +0530 RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 21/29 voluntarily or rather abandoned voluntarily and the declaration which is obtained by the respondent No.
1.plaintiff which is not executable independently, therefore, the learned trial Court as well as the first appellate Court ought to have held that the suit itself was not maintainable. Since this was not done, not only the appreciation of facts but the application of law thereof was also totally incorrect rather illegal which has resulted in this perversity of passing a declaration simplicitor in favour of the respondent No. 1.plaintiff which is of no consequence."
"34. I am tempted here to refer to the judgment of the Apex Court in case title Venkataraja v. Vidyane Doureradjaperumal (Dead) Through LRs , (2014) 14 SCC 502, cited by Ms. Arora in support of her contention urged by her that if a party is entitled to a further relief and that relief is not claimed then mere declaration simplicitor cannot be granted and thePrintedsuit in such a contingencies itself is not maintainable.
"35. In view of the aforesaid discussion, I feel that the judgment dated 3.7.2010 confirmed by order dated 18.7.2014 is suffering from perversity because the respondent No. 1. plaintiff ought to have claimed possession of the plot of land in question which he actually did but gave up for want of payment of court fees on ad valorem basis. The mere declaration which has been moved in favour of the respondent No. 1.plaintiff declaring the cancellation letter dated 02.05.1996 as null and void of its own is of no consequence. To that extant the trial court order dated 03.07.2010 is liable to be set aside".
"36. Last but not the least the grant of declaration itself under Section 34 of the Specific Relief Act is a matter of discretion with the Court. This discretion has to be exercised judiciously. It is well settled by now that a party who indulges in sharp practices, unfair, unethical stand tries to steal a march over the other, mislead the courts as well as conceal the facts does not deserve to be granted discretionary relief".Digitally signed by SHIV KUMAR
SHIV KUMAR Date: 2024.11.11 17:40:12 +0530 RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 22/29
50. In a case Titled Vasantha (Dead) Thr. Lr. Vs Rajalakshmi @ Rajam (Dead) Thr. Lr., Civil appeal no. 3854 of 2014, Decided on 13.02.2024, the Hon'ble Supreme Court of India has examined the maintainability of suit for declaration simplicitor as per section 34 of the Specific Relief Act and held as follows:
24. We now proceed to examine whether the suit for declaration simpliciter was maintainable in view of Section 34 of the SRA, 1963.
25. Section 34 reads as:
34. Discretion of Court as to declaration of status or right.-
Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
(Emphasis Supplied)
28. We now proceed to examine the law on this issue. As submitted by the learned senior counsel for the Appellant, in Vinay Krishna v. Keshav Chandra (2-Judge Bench), this Court while considering Section 42 of the erstwhile Specific Relief Act, 1877 to be pari materia with Section 34 of SRA, 1963 observed that the plaintiff's not being in possession of the property in that case sought to have amended the plaint for the relief of recovery of possession in view of the bar included by the proviso.
29. This position has been followed by this Court in Union of India v. Ibrahim Uddin (2-Judge Bench)30, Digitally signed by SHIV KUMAR SHIV KUMAR Date: 2024.11.11 17:41:12 +0530 RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 23/29 elaborated the position of a suit filed without the consequential relief. It was observed:
"55. The section provides that courts have discretion as to declaration of status or right, however, it carves out an exception that a court shall not make any such declaration of status or right where the complainant, being able to seek further relief than a mere declaration of title, omits to do so.
"56. In Ram Saran v. Ganga Devi [(1973) 2 SCC 60] this Court had categorically held that the suit seeking for declaration of title of ownership but where possession is not sought, is hit by the proviso of Section 34 of the Specific Relief Act, 1963 and, thus, not maintainable. In Vinay Krishna v. Keshav Chandra [1993 Supp (3) SCC 129] this Court dealt with a similar issue where the plaintiff was not in exclusive possession of property and had filed a suit seeking declaration of title of ownership. Similar view has been reiterated observing that the suit was not maintainable, if barred by the proviso to Section 34 of the Specific Relief Act. (See also Gian Kaur v.Raghubir Singh [(2011) 4 SCC 567)".
"57. In view of the above, the law becomes crystal clear that it is not permissible to claim the relief of declaration without seeking consequential relief".
"58. In the instant case, the suit for declaration of title of ownership had been filed, though Respondent 1-plaintiff was admittedly not in possession of the suit property. Thus, the suit was barred by theprovisions of Section 34 of the Specific Relief Act and, therefore, ought to have been dismissed solely on this ground. The High Court though framed a substantial question on this point but for unknown reasons did not consider it proper to decide the same."
51. The above said judgments reiterate the settled law that simplicitor declaration suit without seeking consequential relief of possession is bad in law and is not maintainable. The appellant/plaintiff had not sought relief of possession with relief of Digitally signed by SHIV KUMAR SHIV KUMAR +0530 Date: 2024.11.11 17:51:24 RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 24/29 declaration of title of portion QRSP. Therefore, the suit of the plaintiff is also bad and not maintainable due to non-seeking of relief of possession as per section 34 of the Specific Relief Act.
In view of the above said facts and observations the findings of ld. Trial court on issues no. 5, that the plaintiff failed to prove issue no. 5 stands affirmed.
52. Now I proceed to decided point no. 5 as to whether appellant had handed over her original sale deed to respondent?
53. No witness has been examined by the appellant to prove that she has handed over the original sale deed to the respondent. There is no evidence on record regarding above said fact. Therefore, it is held that appellant/plaintiff has failed to prove that she has handed over the original sale deed to the respondent.
54. Now this court has taken point no. 7, as to whether plaintiff has no cause of action to file suit ?
55. The plaintiff had filed suit seeking relief of possession of servant quarter alongwith other reliefs. Plaintiff had also claimed relief of mesne profits of Rs. 4,000/- and future mesne profits @ Rs.1000/- per month from the date of filing of the present suit till the handing over of the possession, against the defendant towards uses charges of the servant quarter.
SHIV Digitally signed by SHIV
KUMAR
KUMAR Date: 2024.11.11 17:40:04
+0530
RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 25/29
56. On 05.01.2001, ld counsel for the plaintiff had given statement in the court that he has taken the possession of the servant quarter on 17.12.2000 from the servant of the defendant.
57. Plaintiff has averred as well as deposed in court that defendant agreed to divide the second floor of the suit property as per oral agreements took place between plaintiff and defendant. But later on defendant refused to abide by the terms of said oral agreement and started claiming ownership of portion QRSP. Plaintiff has further deposed that the defendant has forcefully taken the illegal possession of the servant quarter of the plaintiff. The above said facts established that plaintiff had cause of action to file the suit . Hence, this court respectfully disagree to the finding of ld. Trial Court that the plaintiff has no cause of action to file the suit.
58. Now two points i.e. point no. 6 & 8 are remained to be decided. The respondent has not led any evidence to prove that the appellant had approached the trial court with unclean hands. So without any evidence on record, it cannot be held that the appellant filed the suit with unclean hands. Now the question remains, whether the appellant is entitled to recover mesne profits from the respondent for using servant quarter of the appellant.
59. As per report of the Local Commissioner, the servant quarter was found in possession of servant of respondent. As per statement of ld. Counsel for the appellant recorded before ld. Trial Court on 05.01.2001, the appellant had taken the possession of the SHIV Digitally signed by SHIV KUMAR KUMAR Date: 2024.11.11 17:45:29 +0530 RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 26/29 servant quarter from the servant of defendant on 17.12.2000 and the said statement has not been challenged by ld. Counsel for the respondent/defendant. On that day, the respondent has also given statement to the effect that he is not owner of servant quarter and he has no concern or connection with the servant quarter constructed on third floor.
60. Plaintiff has deposed by way of her affidavit in evidence that the defendant, in order to show his strength, has forcefully taken the illegal possession of the servant quarter of the plaintiff and refused to vacate the same, on the various humble requests made by her. Ld counsel for the defendant has not cross examined the plaintiff/PW-1, on the abovesaid facts, the abovesaid facts has not been denied by the defendant. The, only, question put to PW-1 to the fact that who is in the possession of servant quarter now and PW-1 replied that servant quarter is in her possession and the possession of the servant quarter was handed over to her by the order of Ld. Predecessor of this court. Therefore, the above-mentioned facts of the testimony of PW-1 are remained unrebutted and unchallenged.
61. As per report of Local Commissioner also, the servant quarter was in possession of servant of defendant. During cross examination, defendant/PW-1 deposed that his servant used to sleep in the servant quarter with the consent of the plaintiff and the possession of the servant quarter has been taken by the plaintiff from the servant.
Digitally signed by SHIV KUMARSHIV KUMAR Date: 2024.11.11 17:41:55 +0530 RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 27/29
62. Defendant has not examined his servant to prove that he used to sleep in the servant quarter with the consent of plaintiff. This fact without any evidence on record is not believable. It is also improbable that the plaintiff will allow the servant of defendant to sleep in the servant quarter despite having dispute with the defendant. In view of the above-mentioned facts, it is proved that the servant quarter was in possession of defendant and its possession was handed over to the plaintiff on 17.12.2000. The plaintiff has not mentioned any date, month and year since when defendant had been in possession of servant quarter. So, it is not possible to as certain on what date & month defendant came into the possession of servant quarter. However, it can be considered that the defendant had been in possession of servant quarter since the date of filing of the suit i.e. 26.08.2000. Therefore, the Appellant/plaintiff is entitled to receive mesne profits from the respondnet/defendant for using servant quarter from 26.08.2000 till 17.12.2000. Therefore, this court respectfully disagree with the finding of ld. Trial Court that issue no. 8 regarding mesne profit has become infructuous in view of the statement made by ld. Counsel for the plaintiff dated 05.01.2001.
63. Appellant/plaintiff is claiming mesne profit @ Rs. 1000/- per month. However, Appellant/plaintiff has not led any evidence to prove the market rent rate of servant quarter. Considering the location of the suit property, amount of Rs. 1000/- per month is considered reasonable for granting mesne profits.
Digitally signed by SHIV KUMARSHIV KUMAR Date: 2024.11.11 17:42:03 +0530 RCA NO DJ 61157/2016 Kavita Kumar Vs Rajesh Kunal Keshri 28/29
64. In view of the above said discussions/reasons and observations, the present appeal is partly allowed to the extent of granting mesne profits @ Rs.1000/- per month to the appellant against respondent for using servant quarter of the appellant w.e.f 26.08.2000 till 17.12.2000. Parties to bear their own costs as the appeal has been partly allowed. TCR alongwith copy of this judgment be sent back. Decree Sheet be prepared accordingly.
Appeal file be consigned to record room after due compliance.
Digitally signed
SHIV by SHIV KUMAR
KUMAR Date: 2024.11.11
17:39:50 +0530
Announced in the open court (SHIV KUMAR)
on 11.11.2024 District Judge-02,
Court no.127,
West District
THC: Delhi
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