Delhi District Court
Shri Radha Krishan vs Shri Sri Krishan on 26 March, 2025
In the Court of Shri Naresh Kumar Laka
District Judge - 07, Central,
Tis Hazari Courts, Delhi
CS DJ 611266/16
CNR No. DLCT01- 000034-1999
In the matter of:
AMENDED MEMO OF PARTIES
Bal Kishan Gupta
S/o Late Sh. Raghubar Dayal
R/o G-5/326, Sector-16
Delhi-110089
..... Plaintiff
versus
1. Radha Kishan Gupta (Deceased)
through LRs :
(a) Saurabh Gupta (son)
(b) Ankur Gupta (son)
Both R/o H. No. 510. Chhota Bazar,
Shahdara, Delhi-110032
2. Sh. Kishan @ Ram Kishore
S/o Late Sh. Raghubar Dayal,
R/o H. No. C-9/B, Gali No.1,
Near Manish Salon, Main Road
Kanti Nagr Extension, Delhi-110051
3. Smt. Indu Gupta
W/o Late Sh. Ghanshyam Dass
4. Sh. Deepak Gupta,
S/o Late Sh. Ghanshyam Dass
_________________________________________________________________________________
CS DJ 611266/16, CS DJ 611389/16 and CS DJ 12459/16 Page No. 1 of 23
5. Sh. Nitin Gupta,
S/o Late Sh. Ghanshyam Dass
All R/o 560, Gali Jain Mandir,
Chhota Bazar, Shahdara, Delhi-110032
..... Defendants
Date of Institution : 19.05.1999
Arguments concluded on : 07.03.2025
Date of decision : 18.03.2025
Result : Partly Decreed
SUIT FOR DECLARATION, PERMANENT & MANDATORY
INJUNCTION, RECOVERY OF POSSESSION AND RENDITION
OF ACCOUNTS
______________________________________________________
CS DJ 611389/16
CNR No. DLCT01- 000030-1997
In the matter of:
AMENDED MEMO OF PARTIES
Radha Kishan Gupta (Deceased)
through LRs (a) Saurabh Gupta (son) & (b) Ankur Gupta (son)
..... Plaintiff
versus
Bal Kishan Gupta
........ Defendant
Date of Institution : 04.03.1997
Arguments concluded on : 07.03.2025
Date of decision : 18.03.2025
Result : Dismissed
SUIT FOR MANDATORY INJUNCTION AND DAMAGES
_________________________________________________
_________________________________________________________________________________
CS DJ 611266/16, CS DJ 611389/16 and CS DJ 12459/16 Page No. 2 of 23
CS DJ 12459/16
CNR NO. DLCT01-000032-1996
In the matter of:
AMENDED MEMO OF PARTIES
Shri Radha Krishan
through LRs (a) Saurabh Gupta (son) & (b) Ankur Gupta (son)
..... Plaintiff
vs.
Shri Sri Kishan
....... Defendant
Date of Institution : 15.07.1996
Arguments concluded on : 07.03.2025
Date of decision : 18.03.2025
Result : Dismissed
SUIT FOR MANDATORY INJUNCTION AND DAMAGES
________________________________________________
COMMON JUDGMENT
CS DJ 611266/16 (Plaint in brief) The plaintiff claimed that the property bearing Municipal No. 505-511 (Old No.109 and 110) situated at Gali Chatta Hingamal, Chotta Bazar, Shahadra, Delhi (in short, 'suit property') was originally owned by Late Lala Bulaqui Dass and he died leaving behind a Will dated 18.08.1914 in favour of his son Raghubar Dayal. Shri Raghubar Dayal also died by leaving behind a Will dated 28.01.1948 and a codicil dated 10.05.1958 thereby bequeathing the suit property in favour of his _________________________________________________________________________________ CS DJ 611266/16, CS DJ 611389/16 and CS DJ 12459/16 Page No. 3 of 23 three sons, i.e. the plaintiff and defendant no. 1 & 2. In 1932, the property was semi built and was let out to one Mohd. Sayeed s/o Hafiz Mohd. Umar, the then resident of Kucha Rehman, Chandni Chowk, Delhi at the rent of Rs.18/- per month for a period of 98 years with a right of raising construction on the vacant land. However, when Mohd. Sayeed failed to pay arrears of rent, the structure which was built by him was purchased through govt. auction by Lala Raghubar Dayal in the name of his wife Smt. Ratan Devi Rani as a benami transaction at a consideration amount of Rs.600 (arrears of rent) and the whole property was taken back from the tenant. An agreement to this effect was executed by Mohd. Sayeed on 03.10.1935. The plaintiff claimed that the ownership always remained with Raghubar Dayal and not with Ratan Devi. The suit property comprises of three storeys, each co-owned equally by the plaintiff and defendants no. 1 and 2.
2. It is further claimed that the defendant no. 1 fraudulently obtained a Gift Deed dated 18.11.1988 from their mother, Smt. Ratan Devi, claiming himself to be the sole owner of the said property. The Gift Deed was undervalued at Rs.68,450 instead of its real worth of Rs.3,00,0000 to evade higher stamp duty. The defendant no. 1 mutated the property in his name and the plaintiff seeks its cancellation by obtaining a decree from this court. It is alleged that the plaintiff came to know about the said Gift Deed only on 21.07.1999 when he appeared in another suit which was filed by the defendant no.1 against the plaintiff (i.e. Suit No. 569/97 titled as Radha Kishan versus B.K. Gupta). The _________________________________________________________________________________ CS DJ 611266/16, CS DJ 611389/16 and CS DJ 12459/16 Page No. 4 of 23 plaintiff also averred that the aforesaid Gift Deed is a forged document as Smt. Ratan Devi had no ownership right and the Will dated 28.01.1948 and its codicil dated 27.05.1958 granted her a lifetime residence right.
3. The plaintiff also stated that the defendant no. 1 in collusion with defendant no. 2, has been collecting rents from the tenants of the suit property but he has not been paying the share of the plaintiff nor disclosing financial records. It is also claimed that the defendant no. 1 had sold Shop No. 505 to the defendant no. 3 on 29.01.1997 at a very low amount of Rs.30,000 without the consent of the plaintiff, therefore, said sale is also sought to be declared as void. Hence, the present suit.
Defence in brief
4. The defendants filed their separate written statements (WS) wherein it is alleged that the plaintiff is only a licensee in some portion of the suit property and the ownership was transferred vide a Gift deed. The suit is also challenged for misjoinder of parties and improper valuation of court fees, lack of jurisdiction due to property's market value. It is claimed that the suit is liable to be dismissed as the same is barred by time.
Replication, issues and trial
5. The plaintiff filed replication to the WS wherein contents of the plaint were reiterated and the allegations of the defendants were _________________________________________________________________________________ CS DJ 611266/16, CS DJ 611389/16 and CS DJ 12459/16 Page No. 5 of 23 controverted. From the pleadings of the parties, following issues were framed on 23.07.2002:
Issues in CS DJ 611266/161. Whether the suit is bad for mis-joinder of defendant no.2 & 3 and also bad for mis-joinder of cause of action as alleged in preliminary objection No. 2 by the defendant no.1?
2. Whether the suit is properly valued for the purpose of court fee and jurisdiction?
3. Whether the suit is barred by the time? OPD1
4. Whether the transaction between Smt. Ratan Devi and Sh. Mohd. Sayeed was benami transaction?
5. Whether the plaintiff is entitled to relief of declaration?
6. Whether the plaintiff is entitled to a decree of permanent and mandatory injunction?
7. Whether the plaintiff is entitled to rendition of accounts?
6. The two other suits were filed by the defendant no.1 for the relief of mandatory injunction and damages by claiming that the defendant no.1 is the owner of the suit property and the plaintiff and defendant no.2 are licensees and after termination of their licence, they may be directed to remove themselves from the portions in their possession and that they may be directed to damages/user charges for unauthorized occupation. The following issues were framed in the said two cases:
Issues in CS DJ 611389/16_________________________________________________________________________________ CS DJ 611266/16, CS DJ 611389/16 and CS DJ 12459/16 Page No. 6 of 23
1. Whether the gift-deed dated 18.11.1988 was validly executed by Smt. Ratan Devi in favour of plaintiff and if yes, its effect? OPP
2. Whether the defendant is a licensee in the disputed premises as alleged by plaintiff? OPP
3. Whether the suit has been properly valued for the purpose of court fee and jurisdiction? OPP
4. Whether the plaintiff is entitled for recovery of damages as claimed? If so, at what rate and for which period? OPP Issues in CS No. 612459/16
1. Whether the suit is not maintainable in view of preliminary objection No. 1 of the WS ? OPD.
2. Whether the suit has been properly valued for the purpose of court fees and jurisdiction? OPP.
3. Whether the suit is bad for non-joinder and mis-joinder of parties in view of preliminary objection No. 4 ? OPD.
4. Whether the plaintiff has no locus standi to file the present suit against the defendant? OPD
5. Whether Smt. Rattan Devi was the owner of the suit property ? OPP.
6. Whether the gift-deed executed by Smt. Rattan Devi in favour of plaintiff with respect to the suit property on 18.11.88 and registered on 22.11.88 is genuine ? OPP.
7. Whether the defendant was permitted to reside in the suit property as a licencee by Smt. Rattan Devi? OPP.
8. Whether the plaintiff is entitled to claim damages from the defendant? If so, at what rate and for which period? OPP
9. Whether the plaintiff is entitled for the relief of mandatory injunction as prayed? OPP.
Reasons for decision _________________________________________________________________________________ CS DJ 611266/16, CS DJ 611389/16 and CS DJ 12459/16 Page No. 7 of 23 Issue No. 1. Whether the suit is bad for mis-joinder of defendant no.2 & 3 and also bad for mis-joinder of cause of action as alleged in preliminary objection No. 2 by the defendant no.1?
7. In the instant case, a relief of declaration has been claimed besides other reliefs by claiming that the plaintiff and the defendant no.1 and 2 are the beneficiaries of a Will left behind by their father. Therefore, this court is of the considered opinion that the parties were duly impleaded in the present case and even there is no misjoinder of cause of action as alleged. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
Issue No. 2. Whether the suit is properly valued for the purpose of court fee and jurisdiction?
8. In the plaint, the value of the relief of declaration for declaring the gift deed has been done at Rs. 4 lakhs, the value for the relief of recovery of possession of the share/portion of the suit property has been done at Rs. 1 lakh and value for the relief of rendition of account has been done at Rs. 20.
9. On the other hand, Ld. Counsel for the defendant no.1 argued that suit was not properly valued for the purpose of court fee and jurisdiction.
10. It is the admitted case that the plaintiff is not a executant of the gift deed executed his mother in favour of the defendant no.1 and he is _________________________________________________________________________________ CS DJ 611266/16, CS DJ 611389/16 and CS DJ 12459/16 Page No. 8 of 23 also not executant of the sale deed which was executed by the defendant no.1 in favour of the defendant no.3. Therefore, the plaintiff is not required to value the suit as per the value of the subject property of the said documents. As regards the relief of declaration, the plaintiff is admittedly in physical possession of some portion of the property and he claimed his joint possession in the entire suit property, therefore, as per law, he is only required to attach only the fix court fee. Therefore, the valuation of the suit for the purpose of court fee is correct. As far as the jurisdiction of this court is concerned, the same is upto Rs. 2 crore, therefore, this court has jurisdiction to try the present suit. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
Issue no. 3. Whether the suit is barred by the time? OPD1
11. In the instant case, the main relief is for declaration of share in the suit property and as per law, the period of limitation starts when the said share has been denied by the other joint owners. The defendant did not lead any evidence as to when the such demand was made in the past by the plaintiff prior to 12 years of filing of the present suit which was denied by the defendant no.1. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
Issue No. 4. Whether the transaction between Smt. Ratan Devi and Sh. Mohd. Sayeed was benami transaction?
12. Defendant no.1 denied that Smt. Rattan Devi was benami purchaser of the suit property. It was further stated that the plaintiff has no _________________________________________________________________________________ CS DJ 611266/16, CS DJ 611389/16 and CS DJ 12459/16 Page No. 9 of 23 right to say that Smt. Rattan Devi was benami in view of provisions of Benami Transaction (Prohibition) Act 1988. The onus to prove a benami transaction is on the person who asserts the fact. In the instant case, the plaintiff did not prove that Sh. Raghubar Dayal purchased the structure of the property from a tenant in the name of his wife Smt. Rattan Devi without conferring any right on Smt. Rattan Devi. Moreover, the said structure was purchased through a government auction process and therefore, it cannot be said that it was done in the name of Smt. Rattan Devi as a casual transaction.
13. In view of the aforesaid discussion, this issue is decided against the plaintiff but the right of Smt. Rattan Devi is confined here towards the purchase of constructed structure only.
Issue No. 5. Whether the plaintiff is entitled to relief of declaration?
14. From the pleadings of the parties, it is evident that both the parties are claiming the origin of title of the suit property from their grandfather Shri Bulaqui Dass. The plaintiff claimed that Shri Bulaqui Dass left behind a Will in favour of his son (father of the plaintiff and defendant no.1 and 2). However, the defendant no.1 claimed his exclusive ownership in the said property on the basis of claim of exclusive ownership of Smt. Rattan Devi, mother of the aforesaid parties and execution of gift deed by her in favour of defendant no.1.
_________________________________________________________________________________ CS DJ 611266/16, CS DJ 611389/16 and CS DJ 12459/16 Page No. 10 of 23
15. The Ld. Counsel for the defendant no.1 submitted that in the year 1932, the suit property was given on lease to Mohd. Sayeed for a period of 98 years at the rent of Rs. 18 per month and the said tenant was authorised to make construction after demolishing the construction which existed there at his own costs and there was a condition that in case the said tenant failed to pay rent for three consecutive months, then the landlord was entitled to take possession of the entire construction without making any payment for the same. It was further mentioned in the said deed that the lessee was entitled to sell the construction existed on the said property as well as the tenancy rights qua the said property. It was further stated that since the tenant was unable to pay rent, the said property alongwith tenancy rights were purchased by Late Smt. Rattan Devi from Mohd. Sayeed in the year 1935 vide deed dated 3-10-1935 for a sum of Rs.600.
16. In the considered opinion of this court, a tenant can never become an owner of a leasehold property unless he acquires ownership rights as per the recognized registered documents and applicable laws. An interest in an immovable property does not transfer unless valid documents are executed and got registered as per Section 17 of the Indian Registration Act, 1908 after payment of requisite stamp duty/charges as per Indian Stamp Act. No such document has been pleaded or proved on record in favour of tenant. It is also a settled position of law that a person cannot transfer a title better than he or she has. This principle is derived from Section 7 and 8 of the Transfer of Property Act, 1882. Therefore, Smt. Rattan Devi did not acquire any ownership from Mohd. Sayeed. _________________________________________________________________________________ CS DJ 611266/16, CS DJ 611389/16 and CS DJ 12459/16 Page No. 11 of 23 Defendant no.1 had further stated that after purchase of the tenancy rights as well as superstructure existing thereon Smt. Rattan Devi had surrendered the tenancy rights and thereafter she claimed herself to be the owner of the said property, both of land and construction, existed thereon and she was treated as owner of the same not only by Late Sh. Raghubar Dayal till he was alive but also by the plaintiff and defendant no.2 and other persons of the locality and as such Late Smt. Rattan Devi had also become the owner of the suit property by way of adverse possession after the expiry of 12 years from 1-2-1936 as the tenancy of the said property had come to an end on that day. It was further stated that Late Smt. Rattan Devi had neither paid any rent of the suit property till her death to anybody.
17. The aforesaid argument is also not tenable in law because even Shri Rattan Devi had acquired any tenancy right, as claimed, after surrender of such tenancy rights, the property reverted back to the owner of the property. As regards the claim of adverse possession, the defendant no.1 was specifically required to plead and prove the continuous uninterrupted and hostile possession of Smt. Rattan Devi. The parties were related to each other and in that sense, the ostensible acceptance of ownership of Smt. Rattan Devi being mother of the parties can be the usual phenomenon but there is nothing brought on record that the said acceptance of ownership was because of hostile claim of Smt. Rattan Devi. For proving the claim of adverse possession, the claimant is required to prove the adverse and hostile claim from the true owner who _________________________________________________________________________________ CS DJ 611266/16, CS DJ 611389/16 and CS DJ 12459/16 Page No. 12 of 23 was either Bulaqui Dass or his son Raghubar Dayal. But noting came on record in this regard. Accordingly, the aforesaid plea of adverse possession stands not proved.
18. It was further contended by the Ld. Counsel for the defendant no.1 that a suit was filed in the Hon'ble High Court of Delhi by Smt. Sheela Devi against the plaintiff, his sister Smt. Rajeshwari Devi, Smt Rattan Devi and defendants no.1 and 2 and in that suit, defendant no.2 had appeared as a witness and stated that Smt Rattan Devi was the absolute owner of the suit property and that the same was purchased by Smt. Rattan Devi from Mohd. Sayeed for Rs.600 vide Sale Deed dated 3- 10-1935 and that she had raised construction over the same. Similar stands were taken with regard to plaintiff.
19. Even if it is presumed that in a previous suit, the plaintiff and defendant no.2 had stated that Smt. Rattan Devi was the owner of the suit property, in that case also, by said admission of fact, Smt. Rattan Devi cannot be treated as owner unless specific acquisition of ownership by way of registered document is claimed. When plaintiff has proved on record the ownership documents and also the relevant Wills whereby the suit property was bequeathed to Shri Raghubar Dayal, the mere admission of fact in another suit which was on a different footing, will not be sufficient to make Smt. Rattan Devi as owner of the suit property.
_________________________________________________________________________________ CS DJ 611266/16, CS DJ 611389/16 and CS DJ 12459/16 Page No. 13 of 23
20. Defendant no.1 denied that Smt. Rattan Devi was a benami purchaser of the suit property. The said question has been decided in the issue no. 4. In the instant case, no sale document was executed in favour of Smt. Rattan Devi for transferring the suit property by way of sale deed, conveyance deed etc. Therefore, it is held that Smt. Rattan Devi had acquired the structure only from the previous tenant and to that extent, it can be said that Smt. Rattan Devi became owner of the structure which was built on the suit property.
21. The defendant no.2 claimed his exclusive ownership right on the basis of a gift deed dated 18.11.1998 which was executed by Smt. Rattan Devi. In the considered opinion of this court, by mere execution of a document a person does not transfer a right unless he or she has such right. It has already been held in the preceding paragraphs that Smt. Rattan Devi did not acquire any ownership in the suit property, therefore, she had no authority to transfer any right by way of aforesaid gift deed. As such, the said gift deed is of no relevance in respect of rights in the suit property. However, the said gift deed can be said to be valid to the extent of transferring the ownership right of the structure/construction on the land of suit property. Therefore, the defendant no.1 can be said to be the owner of the built up structure on the suit property only.
22. The defendant no.1 had sold shop no.505 to defendant no.3 by executing a Sale Deed dated 29.01.1997. The defendant no.1 is held above to be owner of the structure/building only and not of land beneath _________________________________________________________________________________ CS DJ 611266/16, CS DJ 611389/16 and CS DJ 12459/16 Page No. 14 of 23 the said structure. A question arises whether a structure/constructed portion alone can be sold without selling the land on which said construction was made. The Transfer of Property Act, 1882 provides certain restrictions with regard to some specific rights which cannot be transferred but this court does not find any such restriction with regard to sale of constructed portion only. Therefore, this court holds that the said sale deed executed in favour of defendant no.3 by the defendant no.1 is valid to the extent of structure of shop no.5 only (now in the hands of defendant no.3 to 4 being LRs of deceased defendant no.3). A further question arises as to how to deal with or harmonize the rights of the owner of the land (plaintiff no.1, defendant no.1 and 2) and the owner of the structure (defendant no.3/his LRs) when there is no time period has been prescribed for using the said structure. In this regard, this court can take benefit from Section 51 of the Transfer of Property Act, 1882 which is reproduced as under:
"51. Improvements made by bona fide holders under defective titles.
--
When the transferee of immoveable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted there from by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market value thereof, irrespective of the value of such improvement.
The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction.
_________________________________________________________________________________ CS DJ 611266/16, CS DJ 611389/16 and CS DJ 12459/16 Page No. 15 of 23 When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them."
23. The Ld. Counsel for the defendant no.1 further argued that Smt. Rattan Devi made construction in the suit property after getting necessary permission from Municipal Authorities and after the execution of the gift deed by Smt. Rattan Devi in favour defendant no.1, he had been dealing with the suit property as owner thereof to the knowledge of plaintiff and defendant no.2. It was further stated that defendant no.1 has been recovering rent from the tenants of the suit property in his own name and has also recovered possession of shops no. 507 and 509 and also sold shop no.505 to defendant no.3 as owner thereof. It is further contended that defendant no.1 had never paid any rent to the plaintiff or defendant no.2. It was denied that Gift Deed dated 19-11-1988 was got executed fraudulently by defendant no.1 from his mother.
24. All the aforesaid actions of Smt. Rattan Devi and the defendant no.1 cannot be said to be covered within the range of recognized mode of transfer of ownership and moreover when the parties were into relationship being mother and sons, implied or express authority for doing aforesaid acts is presumed to have been given by siblings. But by virtue of said acts, a person cannot acquire ownership in the absence of execution of registered documents or proving the plea of adverse possession.
_________________________________________________________________________________ CS DJ 611266/16, CS DJ 611389/16 and CS DJ 12459/16 Page No. 16 of 23
25. In view of the aforesaid evidence and facts, this issue is decided in favour of the plaintiff and against the defendant no.1 and defendant no. 3 (including his LRs).
Issue no. 6. Whether the plaintiff is entitled to a decree of permanent and mandatory injunction?
26. In view of my finding on issue no.5, this issue is decided in favour of the plaintiff and the relief will be mentioned in the concluding paragraph.
Issue no. 7. Whether the plaintiff is entitled to rendition of accounts?
27. In view of my finding on issue no.5 holding the defendant no.1 to be the owner of the building and the defendant no.3 to be the owner of structure of shop no.5, the plaintiff has no right to claim any profit/rent of the said property which is the outcome of the said structure. Accordingly, this issue is decided against the plaintiff.
Finding on the issues of CS DJ 611389/16 Issue No. 1. Whether the gift-deed dated 18.11.1988 was validly executed by Smt. Ratan Devi in favour of plaintiff and if yes, its effect? OPP
28. This issue has already been decided in the issue no.5 of CS DJ No. 611266/16.
_________________________________________________________________________________ CS DJ 611266/16, CS DJ 611389/16 and CS DJ 12459/16 Page No. 17 of 23 Issue no. 2. Whether the defendant is a licensee in the disputed premises as alleged by plaintiff? OPP
29. The defendant (plaintiff in CS NO. 611266/16) has been held to be the joint owner of the suit property having 1/3rd share (excluding the construction/building) in the issue no.5 of CS DJ No. 611266/16. Therefore, he cannot be termed to be a licencee. Accordingly, this issue is decided against the plaintiff of this case (defendant no.1 in CS DJ No. 611266/16).
Issue no. 3. Whether the suit has been properly valued for the purpose of court fee and jurisdiction? OPP
30. In the plaint, the value of the relief of mandatory injunction has been done at Rs. 130 and the value for the relief of damages has been done at Rs. 32000 and a total court fee of Rs. 2406 has been paid. The onus to prove this issue was upon the defendant (plaintiff in CS No. 611266/16) but nothing has been brought on record to show that the said valuation is not correct. Accordingly, this issue is decided in favour of the plaintiff of this suit and against the defendant.
Issue No. 4. Whether the plaintiff is entitled for recovery of damages as claimed? If so, at what rate and for which period? OPP
31. In view of my finding on issue no.5 (in CS No. 611266/16) holding the defendant no.1 (Plaintiff in CS No. 611266/16) as joint owner of the suit property, this issue is decided against the plaintiff.
_________________________________________________________________________________ CS DJ 611266/16, CS DJ 611389/16 and CS DJ 12459/16 Page No. 18 of 23 Finding on issues in CS No. 612459/16 Issue No. 1. Whether the suit is not maintainable in view of preliminary objection No. 1 of the WS ? OPD.
32. The present suit was maintainable but when it has been held that Sh. Bal Kishan Gupta, Sh. Radha Kishan and Sh. Kishan are the joint owners of the suit property, there was no cause of action in filing the present suit. Accordingly, this issue is decided against the plaintiff.
Issue No. 2. Whether the suit has been properly valued for the purpose of court fees and jurisdiction? OPP.
33. In the plaint, the value of the relief of mandatory injunction has been done at Rs. 130 and the value for the relief of damages has been done at Rs. 1000 and a total court fee of Rs. 163 has been paid. The onus to prove this issue was upon the defendant (defendant no.2 in CS No. 611266/16) but nothing has been brought on record to show that the said valuation is not correct. Accordingly, this issue is decided in favour of the plaintiff of this suit and against the defendant.
Issue no. 3. Whether the suit is bad for non-joinder and mis-joinder of parties in view of preliminary objection No. 4 ? OPD.
34. In view my previous findings, this issue is decided in favour of the plaintiff and it is held that the suit is not bad for mis-joinder and non-joinder of parties.
_________________________________________________________________________________ CS DJ 611266/16, CS DJ 611389/16 and CS DJ 12459/16 Page No. 19 of 23 Issue no. 4. Whether the plaintiff has no locus standi to file the present suit against the defendant? OPD
35. The plaintiff has no locus standi to file the present suit when Sh. Bal Kishan Gupta, Sh. Radha Kishan and Sh. Kishan are the joint owners of the suit property. Accordingly, this issue is decided against the plaintiff.
Issue No. 5. Whether Smt. Rattan Devi was the owner of the suit property ? OPP.
36. In view of my finding on issue no.5 (in CS No. 611266/16) holding the defendant no.1 (Plaintiff in CS No. 611266/16) as joint owner of the suit property, this issue is decided against the plaintiff.
Issue No. 6. Whether the gift-deed executed by Smt. Rattan Devi in favour of plaintiff with respect to the suit property on 18.11.88 and registered on 22.11.88 is genuine ? OPP.
37. In view of my finding on issue no.5 (in CS No. 611266/16) holding the defendant no.1 (Plaintiff in CS No. 611266/16) as joint owner of the suit property, this issue is decided against the plaintiff. Issue No.7. Whether the defendant was permitted to reside in the suit property as a licencee by Smt. Rattan Devi? OPP.
38. In view of my finding on issue no.5 (in CS No. 611266/16) holding the defendant no.1 (Plaintiff in CS No. 611266/16) as joint owner of the suit property, this issue is decided against the plaintiff.
_________________________________________________________________________________ CS DJ 611266/16, CS DJ 611389/16 and CS DJ 12459/16 Page No. 20 of 23 Issue no. 8. Whether the plaintiff is entitled to claim damages from the defendant? If so, at what rate and for which period? OPP
39. In view of my finding on issue no.5 (in CS No. 611266/16) holding the defendant no.1 (Plaintiff in CS No. 611266/16) as joint owner of the suit property, this issue is decided against the plaintiff.
Issue no. 9. Whether the plaintiff is entitled for the relief of mandatory injunction as prayed? OPP.
40. In view of my finding on issue no.5 (in CS No. 611266/16) holding the defendant no.1 (Plaintiff in CS No. 611266/16) as joint owner of the suit property, this issue is decided against the plaintiff.
Conclusion/relief
41. In view of my findings on the issues of all the three cases, the suit no. CS 611266/16 is partly decreed and the CS No. 611389/16 and CS No. 612459/16 are dismissed. It is ordered as under:
(1) It is held that Sh. Bal Kishan Gupta, Sh. Radha Kishan and Sh. Kishan are the joint owners of the suit property having 1/3rd share each excluding the constructed structure.
(2) The relief of recovery of possession in favour of the plaintiff and against the defendant no. 3 in respect of shop bearing no. 505 comprising of a portion of the property bearing no. 505-511 situated at Gali Chatta Hingamal, Chotta Bazar, Shahadra, Delhi is rejected.
_________________________________________________________________________________ CS DJ 611266/16, CS DJ 611389/16 and CS DJ 12459/16 Page No. 21 of 23 (3) The Gift Deed executed by Smt. Rattan Devi in favour of Sh. Radha Kishan, registered as document no. 3298, in Additional Book No. 1, Volume no. 2099 at pages 175-180 on 22.11.1988 with the office of the Sub-Registrar IV, Seelampur, Delhi is held valid for the constructed building/ structure. No other rights conferred in favour of Shri Radha Kishan (defendant no.3 in CS No. 611266/16) in the said document are enforceable.
(4) The Sale Deed in respect of the aforesaid shop executed by Sh. Radha Kishan, the defendant no. 1 in favour of the defendant no. 3 and registered with the office of the Sub-Registrar, Seelampur, Shahadra, Delhi on 29.01.1997 vide document no. 468, Addition Book No. I, Volume No. 2928 at pages 78-86 is valid to the extent of sale of structure of shop no.505 of suit property without any right/title in the land beneath the said shop.
(5) The rights of the parties with regard to aforesaid shop no.505 can be decided as per Section 51 of the Transfer of Property Act, 1882, if any of the parties files a suit in this regard.
(6) All the parties of the suits are restrained to create any 3rd party interest in the suit property including the shop no. 505 by way of transfer, sale, gift etc. exceeding their share. Further, Sh. Radha Kishan (defendant no.1) and defendant _________________________________________________________________________________ CS DJ 611266/16, CS DJ 611389/16 and CS DJ 12459/16 Page No. 22 of 23 no.3 (including his LRs) will not claim themselves to be the sole owner of the suit property and shop no.5 excluding the construction/structure erected on the said land. The parties shall be bound by priviosn of Section 44 of the Transfer of Property Act, 1882.
(7) The relief of mandatory injunction with regard to mutation is not granted because the mutation in MCD is for the purpose of house tax only and it does not confer any ownership right/title in the property. However, the parties can get it rectified with consent of all joint owners if it is permissible for separate mutation of land and building under MCD Act.
(8) Since it is already held that Sh. Radha Kishan to be the owner of the entire constructed building and Sh. Ghanshyam Dass (including his LRs) to be the owner of structure of shop no.5, the plaintiff has no right to claim any profit/rent of the said properties. Therefore, the relief of rendition of account is rejected.
42. There is no order as to cost. Decree sheet be drawn accordingly. Separate judgment be placed in the other cases. File be consigned to record room after due compliance.
Announced & dictated in Digitally signed by NARESH NARESH the open court on 26.03.2025 KUMAR KUMAR LAKA Date:
LAKA (Naresh Kumar Laka) 2025.03.27 15:59:55 +0530 District Judge-07, Central District, Tis Hazari Courts, Delhi.
_________________________________________________________________________________ CS DJ 611266/16, CS DJ 611389/16 and CS DJ 12459/16 Page No. 23 of 23