Delhi District Court
Sh. Vasudev Vaid vs Sh. Sukhdev Vaid on 30 January, 2020
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR, ADDITIONAL
DISTRICT JUDGE-04, CENTRAL, TIS HAZARI COURTS, DELHI
Suit No. 616958/16
1. SH. VASUDEV VAID
S/O LATE SH. JAI RAM (SINCE DECEASED)
THROUGH LRS.
(i) SMT. AVINASH VAID
WIDOW OF LATE SH. VASUDEV VAID
2. SH. SUKANT VAID
S/O LATE SH. VASUDEV VAID
3. SMT. RUPAM
D/O LATE SH. VASUDEV VAID
W/O SH. RAKESH
4. SMT. GUNATIKA
D/O LATE SH. VASUDEV VAID
W/O SH. PRAVEEN
ALL R/O 380, PART-II, BAGH KARE KHAN
KISHAN GANJ, DELHI
5. SMT. DIMPAL
D/O LATE SH. VASUDEV VAID
W/O SH. RAKESH
R/O H.NO. 72, SECTOR-15
PANCHKULA, HARYANA .....Plaintiffs
VERSUS
1. SH. SUKHDEV VAID
S/O LATE SH. JAI RAM
2. SH. VIPUL VAID
S/O SH. SUKHDEV VAID
BOTH R/O 32, STATE BANK VIHAR
PITAMPURA, NEW DELHI
3. SMT. NIRMALA SINGH
W/O SH. AKHILESH KUMAR
R/O 577, KATRA NEEL
CHANDNI CHOWK
DELHI-6 ...... Defendants
Date of Institution : 25.08.2009
Date of judgment reserved on : 30.01.2020
Date of Judgment : 30.01.2020
JUDGMENT
SUIT FOR DECLARATION AND PERMANENT INJUNCTION BRIEF FACTS AND REASONS FOR DECISION :-
1. The plaintiff has filed the present suit for declaration and permanent injunction submitting that property no. 380, Part IV, at Bagh Kare Khan, Kishan, Delhi admeasuring 120 sq. yds. constructed ground floor, first floor and second floor was purchased by Ms. Motia Devi vide sale deed dated 25.09.1971 shown in yellow colour in site plan (hereinafter referred as suit property). Ms. Motia Devi has expired on 18.08.1975 leaving behind LR plaintiff no. 1 and defendant no. 1 among others Sh. Arjun Dev Vaid and Sh. Baldev Vaid. The suit property is joint undivided property. Therefore plaintiff no. 2 and defendant no. 2 being grandson of late Ms. Motia Devi has co-ownership in the joint property and therefore the suit property has devolved by virtue of law after such intestate death of Ms. Motia Devi. Sh. Baldev Vaid had also expired and his widow Ms. Kamlesh Vaid had sold 1/4th share out of the suit property without partition as shown in black colour in site plan.
2. The ground floor and first floor are in possession of defendants as shown in green colour in the site plan and second floor is in possession of plaintiffs as shown in red colour in the site plan. On 13.01.2008 plaintiffs came to know that defendant no. 1 and 2 are trying to sell the suit property including the property in possession of plaintiffs. Hence a civil suit was filed by the plaintiffs in which defendant no. 1 had deposed that he has disposed off the property vide registered sale deed dated 15.02.2008 to defendant no. 3 with giving of the possession. It is further deposed that vide relinquishment deed dated 25.10.2001 in favour of defendant no. 1/he had acquired ownership rights in the suit property. The said suit was dismissed as withdrawn by the plaintiff.
3. It is submitted by the plaintiffs that defendant no. 1 therein could not have sold the suit property which belong to Hindu undivided family which is in joint ownership. The defendants have obstructed approach of plaintiffs in the suit property on 18.08.2009 and threatened with dire consequences. The fact of disclosure of sale was made out only on 28.07.2009. It is prayed by the plaintiffs that the sale deed dated 15.02.2008 in favour of defendant no. 3 be declared as null and void.
Permanent injunction is prayed against all the defendants and their agents from creating any hindrance or any third party interest in the suit property as shown in green and red colour in the site plan.
4. In the written statement filed jointly by defendant no. 1 and 2 that the suit property was purchased by Ms. Chanchal Vaid, wife of defendant no. 1 vide registered sale deed on 27.12.1991 from Ms. Kamlesh vide registered document. Ms. Chanchal Vaid has expired on 14.06.1999 leaving behind LR as defendant no.1 and 2 and Ms. Bindu Bajaj and Ms. Vipra Kohli. On 25.10.2001 the remaining LR had relinquished their rights in favour of defendant no. 1 vide registered document dated 30.10.2001. Defendant no. 1 had become absolute owner. On 15.02.2008 defendant no. 1 has sold the suit property in favour of Ms. Nirmala Singh and handed over possession of the same. Plaintiff was never in possession of the suit premises who is staying next to next of the suit property. Photographs are taken by plaintiff only from outside the premises making illegally entry through roofs. On receipt of information on 15.02.2008 the defendant reached at the suit property with Mr. Akhilesh and found that plaintiff has illegally locked the second floor from the roof and also placed lock over one room in which labour of defendant namely Sh. Mohan Kumar and Sh. Sanjay were residing. Police was also called. Plaintiffs similarly file false complaints against other person to illegally grab their property and to extort money. Against plaintiff complaint was also filed by Ms. Narayani Devi, Ms. Suman and Ms. Chando Devi.
5. It is submitted by defendant no. 1 and 2 that the plaintiff has not challenged the sale deed dated 27.12.1991 in favour of defendant no. 1 and therefore the relief for declaration alone is not maintainable under law. The joint ownership is denied. It is submitted that the suit property was transferred by Ms. Motia Devi vide Will in favour of Ms. Kamlesh. The wife of defendant no. 1 has purchased from Ms. Kamlesh. The defendants are running their business from the suit property till its sale. Plaintiff was never in possession of second floor of suit property. No cause of action has ever arose in favour of plaintiffs and against the defendants. The allegations of plaintiffs are generally denied and it is prayed that the suit of the plaintiff may be dismissed with costs.
6. In the written statement filed by defendant no. 3 it is submitted that the suit of the plaintiff is barred u/Sec. 41(h) of Specific Relief Act as equally efficacious remedy for partition and declaration is not availed by the plaintiffs. It is submitted that defendant no. 3 has validly purchased the suit property built up on freehold land measuring 60 sq. yds. approx. 50.18 sq. mtrs. The sale consideration is Rs.9,50,000/-. Defendant no. 3 has supported the case of defendant no. 1 and 2. The defendant no. 1 kept the premises locked and residing in property no. 577, Gali Ghanteshwar, Katra Neel, Chandni Chowk, Delhi. It is submitted that the second floor is illegally occupied by the plaintiffs by putting lock after entering from second floor/roof through adjacent property no. 380, Part-III which belongs to Sh. Prem Chaudhary. Plaintiffs are already residing at property no. 18/380, Part II. The plaintiff no. 1 and 2 has trespassed in property no. 18/380, Part IV which is suit property under dispute. The main staircase belongs to the defendant and there is no separate entrance available to the plaintiff to enter the disputed property. There are five independent house bearing same municipal no. 380. The defendant has already filed police complaint on 09.03.2008 for illegal trespass. The possession of plaintiff of second floor is denied. No cause of action has arose in favour of plaintiff. Accordingly defendant no. 3 has prayed for dismissal of the suit of the plaintiffs.
7. From the pleadings of the parties and averments made, following issues were framed on 02.02.2012 and which are reproduced as under:
1. Whether the plaintiff is entitled to decree of declaration in favour of plaintiff and against the defendant for declaration of sale deed dated 15.02.2008 executed by defendant no. 1 in favour of defendant no. 3 as illegal null and void as alleged? OPP
2. Whether the plaintiff is entitled to permanent injunction against defendant in respect of the suit property as shown in green and red colour as per site plan as alleged? OPP
3. Whether the suit is not maintainable as alleged? OPD
4. Whether there is no cause of action in favour of plaintiff and against the defendant as alleged? OPD
5. Whether the plaintiff has not approached with clean hands and has concealed material facts from the Court as alleged, if so, to what effect?
OPD
6. Whether the suit is liable to be rejected under Section 41(h) of Specific Relief Act as alleged? OPD3
7. Whether the suit is bad for non-joinder of necessary parties as alleged? OPD3
8. Relief.
8. Plaintiff has got examined PW-1 Insp. Raj Kumar from PS Moti Nagar with DD no. 22A dated 24.02.2008 Ex.PW1/A accompanied with DD no. 30A of same date from PS Sarai Rohilla on which Kalandra Mark A was prepared. PW-2 is Sh. Sukant Vaid/plaintiff no. 2. PE was closed vide separate statement of ld. counsel for plaintiff on 08.11.2013. Defendant has got examined DW-1 Sh. Sukhdev Vaid who has tendered his evidence by way of affidavit vide Ex.DW1/A. DW-2 is Ct. Subodh Kumar from PS Sarai Rohilla who has deposed that the summon record has been destroyed vide order dated 01.04.2015. DW-3 is Ms. Chanderkanta, daughter of Ms. Motia Devi. DW-4 is Sh. Pradeep Vaid, son of Sh. Baldev Raj who is grandson of Ms. Motia Devi. DW-5 is Sh. Laxmi Sharma who worked in the suit property. DW-6 is Sh. Mohan Kumar who resided in the said property and employee of Vipul Industrial Product. DW-7 is Ms. Nirmala Singh/defendant no. 3. DE was closed vide separate statement of ld. counsel for defendant no. 3 on 24.07.2018. There are separate statement available on record of Ms. Dimple and Ms. Gunatika both dated 05.07.2013 to the effect that they are daughter of plaintiff no. 1 and sister of plaintiff no. 2 who have relinquished their share in respect of suit property in favour of plaintiff no. 2.
9. Parties are heard and record perused.
9.1 Plaintiff has relied on following citations:
(i) Anathula Sudhakar v. P.Buchi Reddy (dead) by LRs & Ors. (2008) 4 SCC 594 9.2 Ld. Counsel for defendant no. 1 and 2 has relied on following citations:
(i) UOI v. Ibrahim Uddin & Anr. 2012(4) RCR (Civil)
(ii) Venkataraja & Ors. v. Vidyane Doureradjaperuman (D) Thr. LRs. & Ors. 2013 V AD (SC) 596
(iii) Dinesh Gupta & Ors. v. Rajesh Gupta & Ors. Manu/DE/4220/2018
(iv) Appadurai Pillai & Ors. v. Kootha Pillai Family Estate Charity in SA No. 992 of 2000
10. Issue-wise findings are as follows:-
11. ISSUE NO. 11. Whether the plaintiff is entitled to decree of declaration in favour of plaintiff and against the defendant for declaration of sale deed dated 15.02.2008 executed by defendant no. 1 in favour of defendant no. 3 as illegal null and void as alleged? OPP
11.1 The burden of proof of the present issue is upon the plaintiff. It is admitted case of both the parties that Ms. Motia Devi had purchased the suit property vide sale deed dated 25.09.1971. Ms. Motia Devi was mother in law of Ms. Kamlesh Vaid who has claimed a Will in her favour from Ms. Motia Devi on the basis of which she had sold the suit property vide sale deed/Mark A dated 27.12.1991. Ms. Kamlesh Vaid is widow of Sh. Baldev Vaid brother of initial plaintiff no. 1. She has sold 1/4th share out of the said property as shown in black colour in site plan. Ms. Kamlesh Vaid sold the property to Ms. Chanchal Vaid on 27.12.1991. Ms. Chanchal Vaid had expired on 14.06.1999 who was survived by her husband defendant no. 1, her son/defendant no. 2 and two daughters namely Ms. Bindu Bajaj and Ms. Vipra Kohli. The defendant no. 2, Ms. Bindu Bajaj and Ms. Vipra Kohli had executed a relinquishment deed/Ex.DW7/2 dated 25.10.2001 in favour of defendant no. 1 who is husband of late Ms. Chanchal Vaid. Hence defendant no.1 has become absolute owner and sold the suit property on 15.02.2008 vide sale deed/Ex.DW7/1 in favour of defendant no. 3 which is under challenge in the present suit by the plaintiff. The plaintiff has claimed that suit property cannot be sold without partition and without giving him due share.
11.2 The sale deed in favour of Ms. Motia Devi dated 23.09.1991 is Ex.PW2/3 on record. Plaintiff has knowledge that the factory was operated there from since the year 1991. The second sale to defendant no. 3 is vide registered sale deed dated 15.02.2008 is a subsequent sale in continuation of previous sale dated 27.12.1991. Other than this relinquishment deed dated 25.10.2001 was also executed by defendant no. 2 being son of Ms. Chanchal Vaid, Ms. Bindu Bajaj, Ms. Vipra Kohli in favour of defendant no. 1 who is their father. On the basis of this relinquishment deed the suit property was sold by defendant no. 1 and 2 on 15.02.2008 which is under challenge. The relinquishment deed is a registered document. Vide registered sale deed dated 27.12.1991 Ms. Chanchal Vaid had declared herself as registered owner of suit property and she had discussed about ownership on the basis of Will of Ms. Motia Devi dated 17.02.1975. Though this Will is not now existing on record nor any of the parties had produced the same. However this deed Ex.DW7/4 dated 27.12.1991 is not challenged by the plaintiff herein but only the deed dated 15.02.2008 Ex.DW7/1. Without challenging the main document/previous document Ex.DW7/4 the plaintiff could not have challenged the subsequent document. When the prior documents remains unchallenged then such documents also stands against the plaintiff. Plaintiff has not challenged prior sale deed executed by Ms. Kamlesh Vaid in favour of Ms. Chanchal Vaid and therefore the plaintiff admits this document. Hence knowledge of the sale is imputed to the plaintiff on 27.12.1991 vide Ex.DW7/4 when the sale deed was executed by Ms. Kamlesh in favour Ms. Chanchal Vaid. The same has remained unchallenged continuously for a period of three years.
11.3 The plea of the plaintiff that with challenge to sale deed Ex.DW1/4=Ex.DW7/4 there is automatic challenge to the sale deed Ex.DW7/4 dated 27.12.1991 cannot be accepted in view of the fact that both of the documents are separate documents of contract though deriving the same title initially sold by Ms. Kamlesh Vaid on 27.12.1991. The limitation has to begin to run when the first right of the plaintiff was breached. The first right of the plaintiff was breached only on execution of Ex.DW7/4. The issue of limitation is decided under issue no. 3 below wherein knowledge of sale dated 27.12.1991 vide Ex.DW7/4 is imputed to the plaintiff which could have been ascertained by him. The argument of the plaintiff is that had there been no second sale by defendant no. 1 and 2 then knowledge of ownership of Chanchal Vaid would not have come to the plaintiff. This argument cannot be accepted as it is duty of the plaintiff to take upkeep of his rights and property and what could be ascertained by him are imputable to him when plaintiffs are residing in the adjacent house. Hence by not challenging sale deed Ex.DW7/4 the plaintiff cannot set aside the subsequent sale which has happened on much later date after about 17 years. The original document Ex.DW7/4 remains registered and stands against the plaintiff. In absence for asking of setting aside of previous registered document the setting aside of subsequent document is of no value which derives its authority from the previous document. Hence on this ground alone it is held that plaintiff is not entitled to declaration against the defendants to set aside sale deed dated 15.02.2008 executed by defendant no. 1 in favour of defendant no. 3 as illegal, null and void.
11.4 The defendants have pleaded that Ms. Chanchal Vaid had received the property from Ms. Kamlesh on the basis of Will dated 17.02.1975 which find mention in Ex.DW7/4. However there is no mention of Will in Ex.DW7/1. Hence the Will in question is not under challenge in the present suit. It was incumbent upon the plaintiff to challenge Will on the basis of which Ex.DW7/4 was executed. In absence to the challenge of said Will in favour of Ms. Chanchal Vaid the suit of the plaintiff is held not maintainable against the defendants herein as complete relief is not claimed. Plaintiff has argued that it is duty of the defendants to bring on record the said Will. It is noted that when the plaintiff himself has not challenged Ex.DW7/4 which was executed on the basis of Will dated 17.02.1975 and when the said Will is not challenged by the plaintiff in the suit then the said Will of Ms. Motia Devi is not under issue in the present suit. Plaintiff has claimed that he has inspected the record of Sub-Registrar and then found execution of sale deed dated 27.12.1991. The plaintiff has inspected the record of Sub-Registrar when he come to know in Civil Suit 63/08 dated 07.04.2008 about sale deed dated 27.12.1991 about ownership of the defendants. However in the cause of action clause at para no. 7 in the plaint initially filed by the plaintiffs it is pleaded that on 28.07.2009 in the Civil suit defendant no. 1 had disclosed that he had sold the undivided suit property. However it is noted that the plaintiff could have ascertained the ownership of the defendants when the suit property was not in possession of any of the LRs. Moreso when plaintiff was residing in the neighbourhood. Hence the cause of action was available with the plaintiff much before when the possession was handed over to defendant no.1 in the year 1991 from where factory was also being operated. Plaintiff has knowledge of operation of this factory. Hence cause of action had arisen with the plaintiff in the year 1991 itself and not when claimed by the plaintiff in the suit. When plaintiff is resident of neighbourhood then he cannot feign ignorance to what is happening to his property in the neighbourhood and to pick and choose cause of action of the period of his choice. In such view of the matter it is held that plaintiff is not entitled to declaration against the defendant to cancel sale deed dated 15.02.2008 as prayed for not only on the basis of stale claim but also that the plaintiff has not challenged the initial document of sale Ex.DW7/4 executed by Ms. Kamlesh in favour of Ms. Chanchal on the basis of Will dated 17.02.1975. The burden of proof is on the plaintiff to disprove this document Ex.DW7/4 and to challenge the Will therein dated 17.02.1975 as it is the plaintiff who wants to set aside this sale deed and thereby the Will dated 17.02.1975. The plaintiff must discharge initial burden of proof then only onus will shift on the defendants. The relevant citation is reproduced hereasunder:
In case titled Anil Rishi Vs. Gurbaksh Singh from Hon'ble Supreme Court of India in Appeal (Civil) No.2413/2006. The relevant para are reproduced hereasunder:
"xxxxxxxxxxxxxxx In the impugned judgment, the High Court proceeded on the basis that although generally it is for the plaintiff to prove such fraud, undue influence or misrepresentation, but when a person is in a fiduciary relationship with another and the latter is in a position of active confidence, the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position.
The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, which reads as under:-
"Sec. 101. Burden of proof. Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be exception thereto. The learned trial Court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint.
Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.
The learned trial Judge has misdirected himself in proceeding on the premise "it is always difficult to prove the same in negative a person/party in the suit."
Difficulties which may be faced by a party to the lis can never be determinative of the question as to upon whom the burden of proof would lie. The learned Trial Judge, therefore, posed unto himself a wrong question and arrived at a wrong answer. The High Court also, in our considered view, committed a serious error of law in misreading and misinterpreting Section 101 of the Indian Evidence Act. With a view to prove forgery or fabrication in a document, possession of the original sale deed by the defendant, would not change the legal position. A party in possession of a document can always be directed to produce the same. The plaintiff could file an application calling for the said document from the defendant and the defendant could have been directed by the learned Trial Judge to produce the same.
There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.
In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Anr. [JT 2004 (6) SC 442], the law is stated in the following terms :
"29. In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma v. A. Chenchamma there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff's title."
There is no challenge to Will of Ms. Motia Devi nor to sale deed dated 27.12.1991 executed by Ms. Kamlesh in favour of Ms. Chanchal. In view of above the present issue is decided against the plaintiffs and in favour of defendants.
12. ISSUE NO. 22. Whether the plaintiff is entitled to permanent injunction against defendant in respect of the suit property as shown in green and red colour as per site plan as alleged? OPP 12.1 The burden of proof of the present issue is upon the plaintiff. The findings under issue no. 1 above, are equally applicable under the present issue and be read as part and parcel of the present issue. The same are not repeated herein for the sake of brevity.
12.2 Since it is held under issue no. 1 above that plaintiff is held not entitled to declaration for cancellation of sale deed dated 15.02.2008 and therefore on the same ground and facts discussed above plaintiff is held not entitled to permanent injunction to restrain them from creating third party interest in the suit property as shown in green and red colour in the site plan. Accordingly present issue is decided against the plaintiffs and in favour of defendants.
13. ISSUE NO. 33. Whether the suit is not maintainable as alleged? OPD 13.1 The burden of proof of the present issue is upon the defendants. Ld. Counsel for defendants have submitted that the suit for declaration, permanent injunction alone is not maintainable in absence of relief of partition. Ld. Counsel for defendants has relied on citation titled Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs & Ors. dated 25.03.2008 in Appeal (civil) 6191 of 2001 from Hon'ble Supreme Court of India at para no. 11 where principles are laid down in respect of suit for permanent injunction that when it is necessary to file a suit for declaration and of possession with injunction as consequential relief. The relevant para is reproduced hereasunder:
11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
13.2 In the facts of the said case relied by the defendants the defendant therein had claimed having purchased the suit property from K.V. Damodar Rao who had put him in possession in which the plaintiff had claimed possession contrary to title of defendants and filed suit for permanent injunction. The plaintiffs have purchased the same site from Ms. Rukmini Bai. Hence there was purchase by plaintiff and defendant from two different person of the same site. The said citation is not applicable in the present case as the present suit is not in respect of contest of separate title between both the parties but a suit basing rights of partition available with the plaintiff. Plaintiff is claiming his share in the suit property with the plea that the suit property is ancestral property belonging to Ms. Motia Devi of which plaintiff no. 1 is one of the son and defendant no. 1 is husband of independent purchaser.
Plaintiff no. 2 is son of plaintiff no. 1. Defendant no. 2 is son of defendant no. 1. Ms. Motia Devi had expired on 18.08.1975. It is settled law that a suit for declaration and permanent injunction can be filed without filing suit for partition in view of citation referred below in relevant para which are reproduced hereasunder:
In case titled as Karelal & Ors. vs Gyanbai & Ors. from Hon'ble Madhya Pradesh High Court on 19 April, 2018 in S.A. Nos. 436/2002 & 434/2002 (13) If the facts of the case are considered in the light of the pleadings of the parties, then it would be clear that the defendants have not disputed, that Kesari Singh, the husband of the respondent no.1 was the son of the defendant no.
2/appellant no.1. The appellants have failed to prove that Kesari Singh had separated after taking his share in the property. Thus, it is clear that the parties are the co-sharer in the property. It is well established principle of law that possession of one co-sharer is possession of all co-sharers in the property. The question for determination is that whether a suit for declaration and permanent injunction is maintainable without seeking the relief of partition or not? The Supreme Court in the case of C. Mohd. Yunus Vs. Syed Unnissa reported in (1962) 1 SCR 67 has held as under:-
"6. In our view, the suit as framed was maintainable. The management of the institution is vested in the trustees. The four families, it is true, are by tradition entitled to perform and officiate at certain ceremonies and also to share in the income. A suit for declaration with a consequential relief for injunction, is not a suit for declaration simpliciter: it is a suit for declaration with further relief. Whether the further relief claimed in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. In Kunj Behari Prasadji Purshottam Prasadji v. Keshavlal Hiralal it was held that Section 42 of the Specific Relief Act does not empower the court to dismiss a suit for a declaration and injunction and that an injunction is a further relief within the meaning of Section 42 of the Specific Relief Act."
6. A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. "Separation of share" is a species of "partition". When all co-owners get separated, it is a partition. Separation of share(s) refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother.
(17) Thus, it is clear that even in a suit for partition, the rights of the parties are to be determined and thereafter, the property has to be separated by metes and bounds. Unless and until the entitlement of a party is not declared, no further steps can be taken. However, one thing is clear that right to seek partition is a recurring cause of action and a person may file another suit for partition even after having withdrawn the first suit without any liberty as the principle of res judicata would not apply as the subsequent suit shall be based on the different cause of action. Similarly, if a co-sharer who is denied his title as a co- sharer, if files a suit for declaration of title and permanent injunction with no intention to get the property separated, he may file the suit for declaration of title and permanent injunction without seeking further relief for partition. A co-sharer cannot be compelled to file a suit for partition even if he is not interested in separation of the property by metes and bounds.
(19) Thus, where the question of title is not involved, the revenue authorities may partition the agricultural land amongst the co- sharers. Section 178(2) Explanation- I of M.P. Land Revenue Code, clearly provides that for the purposes of this Section, any co-sharer of the holding of a Bhumiswami who has obtained a declaration of his title in such holding from a competent Civil Court shall be deemed to be a co-tenure holder of such holding. Thus, even after obtaining the declaratory decree, the plaintiff may file an application under Section 178 of M.P. Land Revenue Code, for partition of the land. Even otherwise, in a case of partition, if the property in dispute is agricultural land, then the matter has to be referred to the revenue authorities for actual partition of the property by metes and bounds (Kindly see Judgment of the Supreme Court in the case of Shub Karan Bubna (Supra). Thus, in any eventuality, the actual partition has to be done by the revenue authorities. Further, when the principle of res judicata does not apply to the suit for partition, then, it cannot be said that unless and until, the actual partition by metes and bounds is claimed, the suit for declaration of title and permanent injunction is not maintainable. If the plaintiff is not interested in actual separation of the property, then he can not be non-suited only for the reasons, that he had not sought the relief for partition. Thus, in view of Section 178 of the M.P. Land Revenue Code, this Court is of the considered opinion, that the suit for declaration of title and permanent injunction by a co- sharer against the other co-sharers without seeking the further relief of partition, would be maintainable and cannot be dismissed in view of Section 34 and 42 of Specific Relief Act.
(20) Accordingly, under the facts and circumstances of the case, this Court is of the considered opinion that the suit for declaration of title and permanent injunction filed by the plaintiffs, seeking a declaration to the effect that they are the co-sharer in the property in dispute and seeking the relief of permanent injunction against the remaining co-sharers would be maintainable.
13.3 The present suit is filed by plaintiffs for their rights in ancestral property and their rights in the same. Since nature of the suit is different in the present case which is not for title but for declaration of share for rights in partition. Therefore the suit of the plaintiff is held maintainable for not claiming relief of partition. Accordingly present issue is decided in favour of plaintiffs and against the defendants.
14. ISSUE NO. 44. Whether there is no cause of action in favour of plaintiff and against the defendant as alleged? OPD 14.1 The burden of proof of the present issue is upon the defendant. The plaintiff has pleaded cause of action in para no. 7 of the plaint. In reply to the same the defendants have pleaded that plaintiff has knowledge of this fact much earlier. However defendants have failed to specify any date of knowledge with the plaintiff. The defendants have merely denied all the submissions of the plaintiff. A denial simplicitor of the positive averments without any material averments as of the facts does not help the case of the defendants. It is not denied by the defendants that the ownership was with the grandmother of the plaintiff. It is submitted by the defendant that plaintiff has knowledge of the fact of sale since atleast 07.04.2008 when the defendant had filed WS in the civil suit no. 63/08 dated 07.04.2008. Hence as per own averments of the defendants the knowledge is with the plaintiff on 07.04.2008 and therefore the cause of action is available with the plaintiff. However the first cause of action and beginning of cause of action can be different as there can be multiple cause of action in a suit. The same is already discussed under issue no. 1 and 3 above. Hence defendants have failed to discharge burden to prove that plaintiff does not have cause of action. Hence present issue is decided in favour of plaintiff and against the defendants.
15. ISSUE NO. 55. Whether the plaintiff has not approached with clean hands and has concealed material facts from the Court as alleged, if so, to what effect? OPD 15.1 The burden of proof of the present issue is upon the defendant. The defendants in their entire pleadings has not deposed by date, month and year that how the plaintiff has not come before the Court with clean hands. In absence of the same the pleading of the defendants are vague under Rule 4 of Order VI CPC in absence of necessary pleadings in this regard by all the defendants. It is held that no amount of evidence in this respect can be led by the defendants. Hence defendants have failed to discharge burden of proof levied upon them. Accordingly present issue is decided against the defendants and in favour of plaintiff.
16. ISSUE NO. 66. Whether the suit is liable to be rejected under Section 41(h) of Specific Relief Act as alleged? OPD3 16.1 The burden of proof of the present issue is upon the defendants. The defendants have claimed that the suit of the plaintiff is barred by limitation. It is submitted by the defendants that PW-2 has admitted in his cross-examination dated 07.09.2013 at page no. 2 as correct that the suit property was purchased in the year 1991 from Smt. Kamlesh by Smt. Chanchal and defendant has started their factory at ground floor and first floor of the suit property. It is claimed that plaintiff has knowledge of purchase of suit property since the year 1991 and has remained silent till filing of the present suit on 24.08.2009. For cancellation of an instrument Article 59 of Limitation Act, 1963 applies when the said instrument had first become known to the plaintiff. It is admitted as correct by PW-2 that he is residing property next adjacent to the suit property. It is deposed voluntarily that the factory of the defendant was operated at the suit premises at ground floor and first floor. In cross examination dated 10.10.2013 at page 3 it is admitted as correct that defendant no. 1 was running his factory at the suit property and his employee were also living at the said place. In cross-examination of DW-3 dated 17.08.2016 it is admitted as correct that the suit property was sold by sister-in-law of plaintiff Smt. Kamlesh to Ms. Chanchal. It is further deposed that she had further sold only half of the suit property and remaining half is sold to Ms. Chanchal. It is submitted by the defendant that the plaintiff is not residing at the suit property and admittedly he is residing adjacent to the suit property.
16.2 The questions regarding operation of factory by the defendant at ground and first floor and admission of the same by plaintiff during cross-examination dated 07.09.2013 is an admission of fact that purchase had existed in favour of defendant in the year 1991 and defendant were operating their factory from the said premises. It is admitted as correct that the factory of defendant was being operated from the suit premises till 22.01.2008. The plaintiff in the plaint has claimed that he came to know about ownership of defendant no. 1 in his statement before Ld. ASCJ dated 28.07.2009. The pleading is contrary to deposition of PW-2 as to operation of factory in the suit property in the year 1991 which was closed in the year 2008. It is also admitted that the servants of defendant no. 1 were also staying at the factory premises. The plaintiff has claimed in written rebuttal arguments that he came to know on 13.01.2008 that defendant no. 1 and 2 are trying to sell the suit property on which he has moved a complaint at PS Sarai Rohilla, Delhi vide Mark A. The averment of the defendant that because he was operating from the suit property and his servants were staying there therefore plaintiff must have knowledge of the said sale cannot be imputed until it is shown that plaintiff either directly or impliedly has knowledge of the same. However since the year 1991 and till the year 2008 plaintiff while residing in the neighbourhood had knowledge of the fact that none of the legal heirs are in possession of the suit property. It is in knowledge of the plaintiff that defendants are not LR of late Ms. Motia Devi. It was in knowledge of the plaintiff that Ms. Kamlesh Vaid did not have possession of the suit property. Hence strangers were in possession of the suit property. When the plaintiff is claiming himself in joint ownership on the basis that Ms. Motia Devi has expired intestate who is grandmother of the plaintiff then being one of the co-owner in the suit property the knowledge is therefore imputed to the plaintiff that the defendant residing in the suit property is in the capacity of owner. It could be easily ascertainable on behalf of plaintiff that the defendants are residing in the suit property. It is not the case of the plaintiff that defendants were staying at the suit property as a tenant. Plaintiff has knowledge that defendants were staying there and plaintiff was capable of ascertaining the capacity of such residence of the defendants in the suit property. The defendants who were staying as owners did not pay any rent for their such stay. Other than this when the sale deed initially executed by Ms. Kamlesh Vaid on 27.12.1991 by a registered document in favour of Ms. Chanchal Vaid then this fact could be ascertainable by the plaintiff as the defendants had started operating their factory from the said premises. Plaintiff has knowledge that the factory was operated there from since the year 1991. The second sale to defendant no. 1 and 2 vide registered sale deed dated 15.02.2008 is a subsequent sale in continuation of previous sale dated 27.12.1991. Other than this relinquishment deed dated 25.10.2001 was also executed by defendant no. 2 being son of Ms. Chanchal Vaid, Ms. Bindu Bajaj, Ms. Vipra Kohli in favour of defendant no. 1 who is their father. On the basis of this relinquishment deed the suit property was sold to defendant no. 3 on 15.02.2008 which is under challenge. The relinquishment deed is a registered document. Vide registered sale deed dated 27.12.1991 Ms. Chanchal Vaid had declared herself as registered owner of suit property and she had discussed about ownership on the basis of will of Ms. Motia Devi dated 17.02.1975. Though this Will is not now existing on record nor any of the parties had produced the same. The Will is not under challenge. Ms. Kamlesh and her LR comes in the definition of defendant no. 2(e)(i) of Limitation Act, 1963 through whom defendant no. 1 to 3 derive their title. Hence they were necessary party to present suit.
16.3 At the time of filing of present case the father of PW-1 was alive who had expired on 24.09.2009 whose death certificate is Ex.PW2/1. The father of the plaintiff had initially filed the suit who had expired before leading evidence in the matter. The plaintiff is competent to represent Estate of his father being one of the LR and to continue the suit in view of citation titled Amar Nath & Ors. v. Mul Raj & Ors. AIR 1975 P&H 246 Full Bench. The cause of action must have been arisen only with the father of the plaintiff on 28.07.2009 and 18.08.2009 in respect of which plaintiff could have deposed only on the basis of the record and as per his knowledge. It is case of the plaintiffs that in civil suit vide statement dated 17.01.2008 defendant no. 1 and 2 had stated that they are owner of the property. Therefore on this date plaintiffs came to knowledge that defendants owned the suit property and therefore cause of action could not have arisen with the plaintiffs on 28.07.2009 and 18.08.2009 mentioned in para of cause of action but prior to that. The plaintiff on the one hand claims possession of the part of the suit property at the second floor though this is disputed by the defendants and on the other hand pleads absence of knowledge of title of the defendants. It is admitted as correct by the plaintiff/PW-2 that he is staying just one house away from the property and staying there by birth. Therefore it cannot be believed that plaintiff who was just living adjacent to the suit property he could not know regarding transaction of sale deed between defendants and earlier to that between Ms. Kamlesh and Ms. Chanchal in the year 1991. No cogent evidence is shown by the plaintiff when they came to know regarding the said sale deed. From the circumstances in the present case it can be inferred that the plaintiffs knew execution of sale deed in favour of Ms. Chanchal in the year 1991 itself. Moreso when it is admitted case of PW-2 that factory was running in the said premises since the year 1991. It was held in case titled Dayawati v. Madan Lal Varma AIR 2003 Allahabad 276 which is referred in the Commentary on Law of Limitation Act, 1963 by P. Basu in 9th Edition published by Delhi Law House at page no. 517 and the relevant para is reproduced hereasunder:
In the present case, the sale deed was executed on 30.07.1969 and the suit was filed on 30.07.1982. the explanation submitted is that the appellants came to know about the sale deed on 08.04.1982 when the respondents Nos. 1 and 2 got an ex parte decree of ejectment against Nava Ratan Lal. However, this plea of the appellants cannot be accepted. The bare perusal of the plaint shows that the appellants and defendant no. 1 Nava Ratan Lal were living in the same house No. 473-A. Shahganj, Allahabad. There was one joint family. It cannot be accepted that the wife could not know regarding the transaction of sale deed executed by husband. The plea that the appellants came to know regarding the sale deed on 08.04.1982 when the suit for ejectment was decreed ex parte are false on the face of it . They are also party in the suit for ejectment which was decreed ex parte. Therefore, there is no cogent evidence to show as to when the plaintiffs appellants came to know regarding the sale deed. From the circumstances it is to be inferred that they were knowing regarding the sale deed on the date it was executed. If it is so, the suit is clearly barred by time.
16.4 The cause of action consists knowledge of not only father of the plaintiff but also about knowledge of Sh. Arjun Dev Vaid, Sh. Baldev Vaid and Sh. Sukhdev Vaid/defendant no. 1. Therefore in absence of pleading regarding Arjun Dev Vaid and Baldev Vaid on behalf of plaintiff it cannot be said that they did not have knowledge of this sale in the year 1991. In fact knowledge with any of the LR in the year 1991 begins period of limitation under Article 59 of Limitation Act, 1963 against all the remaining LRs in jointness of ownership as the title claimed by the defendants is not through intestate death of Ms. Motia Devi but through alleged Will of Ms. Motia Devi. Hence independent title is claimed by the defendants other than through intestacy. Hence limitation period has to be counted from knowledge of any of the LR about this sale. Since Mr. Sukhdev Vaid/defendant no. 1 has claimed title over the property claiming adverse to the plaintiffs then prior knowledge to Sh. Arjun Dev Vaid and Sh. Baldev Vaid is also important to effect beginning of period of limitation under Article 59 of Limitation Act, 1963. The plaintiff has neither pleaded nor produced this material evidence before the present Court. In view of the above it is found that the suit of the plaintiff is barred by law of limitation under Article 59 of Limitation Act, 1963.
16.5 However this deed Ex.DW7/4 dated 27.12.1991 is not challenged by the plaintiff herein but only the deed dated 15.02.2008 Ex.DW7/1. Without challenging the main document Ex.DW7/4 the plaintiff could not have challenged the subsequent document. When the prior documents remains unchallenged then it also stands against the plaintiff. Plaintiff has not challenged prior sale deed executed by Ms. Kamlesh Vaid in favour of Ms. Chanchal Vaid and therefore the plaintiff admits this document. Hence knowledge of the sale is imputed to the plaintiff on 27.12.1991 vide Ex.DW7/4 when the sale deed was executed by Ms. Kamlesh in favour Ms. Chanchal Vaid. The same has remained unchallenged continuously for a period of three years.
Plaintiff had knowledge that defendants came into suit premises in the year 1991. It is not the case of the plaintiff that defendants came there as tenants. Therefore plaintiff impliedly had knowledge of ownership of defendants in the suit premises which could have been ascertained. Hence limitation period begins to run atleast from 27.12.1991 against the plaintiff which continue to run for a period of three years under Article 59 of Limitation Act, 1963. The suit should have been within a period of three years which is filed only on 24.08.2009. Hence suit of the plaintiff is held barred by limitation. Hence the plea of limitation is decided against the plaintiffs and in favour of defendants. Accordingly present issue is decided in favour of defendants and against the plaintiffs.
17. ISSUE NO. 77. Whether the suit is bad for non-joinder of necessary parties as alleged? OPD-3 17.1 The burden of proof of the present issue is upon the defendant. The defendant no. 3 has challenged para no. 2 that the suit of the plaintiff is bad for non-joinder of necessary party. Defendant no.1 and 2 has joined defendant no. 3 in this argument. It is submitted that if there is joint property then for decision of the present suit the LR of all the four sons of Ms. Motia Devi namely Sh. Arjun Dev Vaid, Sh. Baldev Vaid, Sh. Vasudev Vaid and Sh. Sukhdev Vaid needs to be joined as plaintiff for defendant. On non joining of the same the suit is bad on account of non-joinder of necessary parties to the suit and therefore the suit is not maintainable.
17.2 It is noted that as discussed under issue no. 3 and 6 above in citation titled Karelal and Ors. v. Gyanbai and Ors. (supra) that at para no. 20 which is reproduced hereasunder and held that even without claiming relief of partition the suit for declaration and permanent injunction is maintainable.
(20) Accordingly, under the facts and circumstances of the case, this Court is of the considered opinion that the suit for declaration of title and permanent injunction filed by the plaintiffs, seeking a declaration to the effect that they are the co-sharer in the property in dispute and seeking the relief of permanent injunction against the remaining co-sharers would be maintainable.
17.3 In view of the above when the suit is not filed by the plaintiff for partition then the suit for permanent and mandatory injunction only against the person whose title is under challenge is maintainable and the remaining LR are not necessary party to the suit as plaintiff has not claimed relief for partition nor has challenged their share. Hence it is held that suit of the plaintiff is not bad for non-joinder of necessary parties as alleged by the defendants. Accordingly present issue is decided against the defendants and in favour of plaintiff.
R E LIEF
18. In view of findings under issues above, issue nos. 3, 4, 5 and 7 are decided in favour of plaintiffs and against the defendants and issue nos. 1,2 and 6 are decided in favour of defendants and against the plaintiffs. Hence in view of above findings it is held that suit of the plaintiff is dismissed. Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open Court JOGINDER Digitally signed by
JOGINDER PRAKASH
on 30.01.2020. PRAKASH NAHAR
Date: 2020.02.07
NAHAR 13:55:13 +0530
(JOGINDER PRAKASH NAHAR)
ADDL. DISTRICT JUDGE-04
CENTRAL/TIS HAZARI COURT/DELHI