Delhi District Court
Rama Devi W/O Sh Madan Lal vs Smt Kamlesh W/O Late Dal Chand on 21 April, 2015
IN THE COURT OF CIVIL JUDGE 07,
CENTRAL DISTT.,TIS HAZARI COURTS,DELHI
Presiding Officer: Ms. AANCHAL, DJS
Civil Suit No. 94/13/06
Rama Devi w/o Sh Madan Lal
R/o House no. 305, main road,
Nehru Nagar, Anand Parbat,
New Delhi. .......Plaintiff
vs.
1. Smt Kamlesh W/o late Dal Chand
R/o Ranjit Nagar, N. Delhi
2. Smt Poonam w/o late Prem Chand
R/o Nehru Nagar, Anand Parbat,
New Delhi.
3. Ashok Kumar S/o late Ranjit Singh
4. Smt Vimla Devi W/o Sh Ashok Kumar
All residing at
House No. 305, main road,
Nehru Nagar, Anand Parbat,
New Delhi. .....Defendants
Date of Institution of suit : 18.09.2006
Date on which reserved for judgment : 09.04.2015
Date of Judgment : 21.04.2015
Rama Devi vs Kamlesh CS No. 94/13/06 Page 1 of 15
JUDGMENT
1. In brief the facts as pleaded in the plaint are that :-
The plaintiff is the owner of the property bearing House No. 305, main road, Nehru Nagar, Anand Parbat, New Delhi, ad-measuring 125 sq. yards ( hereinafter called as suit property) which consists of in total 8 rooms at ground and first floor, excluding kitchen, bathroom etc. and three rooms and kitchen out of these 8 rooms are in possession of the plaintiff and other rooms in possession of defendants. Plaintiff also has another house at Sultanpuri. Plaintiff and her husband used to leave in suit property as well as at Sultanpuri. In the last week of June 2006, when plaintiff alongwith her husband went to Sultanpuri for their stay with her family members, the defendant No. 1 in conspiracy with defendant No. 2 to 4 broke open the lock of one of the room of plaintiff and illegally trespassed into one room on 01.07.2006. On getting information, plaintiff came to the suit property where she found that defendants have occupied the room of plaintiff and removed all the articles.
Plaintiff asked defendants about this but all the defendants started quarreling with the plaintiff and beaten and thrown out her from the suit property and did not allow her to enter into the same. The plaintiff called at number 100 on which PCR and local police visited the spot but the defendants did not allow plaintiff to enter the suit property. No action was taken at PS Anand Parbat despite 3-4 Rama Devi vs Kamlesh CS No. 94/13/06 Page 2 of 15 visits made by her and plaintiff sent written complaint to Commissioner of police and SHO through registered post on 15.07.2006 and thereafter also filed criminal complaint on 09.02.2006 u/s 448/380/323/506/120 B IPC. Defendants neither vacated the room of plaintiff nor returned the articles nor they are allowing plaintiff and her family to enter the suit property and it is stated that she has apprehension that defendants may trespass into other rooms o the plaintiff situated in the suit property shown in green colour in site plan attached with the plaint. With these averments, the plaintiff has filed the present suit seeking permanent injunction against the defendants thereby restraining them from interfering in the entrance and peaceful possession of the plaintiff in the property shown in green colour in the suit property and restraining them from creating third party interest, selling, transferring, alienating and parting with the possession in any manner in respect of the suit property and further mandatory injunction thereby directing them to return all the articles, documents to the plaintiff which were removed from the room and also hand over vacant possession of the room shown in red colour.
2. Defendants have filed common written statement wherein it is categorically denied that plaintiff is owner of whole of the suit property or any construction was made by the plaintiffs or plaintiff had been in the possession of three rooms, kitchen out of total 8 rooms in the suit property or the plaintiff or her family ever lived in the suit property or Rama Devi vs Kamlesh CS No. 94/13/06 Page 3 of 15 any lock was put by the plaintiff in three rooms or the plaintiff ever come to see the property or the possession of any room was taken or any room was unlocked and taken in possession by the defendants or defendants trespassed into any room of the property forcibly or any article was removed by the defendants or plaintiff ever came to the defendants where any quarrel took place or lock was found broken or articles were found removed by the defendants or any threat to kill to plaintiff was caused. It is not denied that plaintiff's husband had given call to 100 number due to which police came at the spot. It is also denied that plaintiff was not allowed to enter into her room which is locked. It is further submitted that there are six co-owners of the property and plaintiff has only 1/6th share in the suit property and one room and one kitchen is in possession of the plaintiff which remained locked and the lock in that part is intact till date and the husband of the plaintiff was debarred by his father and without visiting to any of the part of the suit property, the possession is kept by the plaintiff in respect of one room and one kitchen which remained locked and plaintiff intends to usurp share of defendants and implicating them into false and wrong litigations and called police at 100 number and complaint was made by the plaintiff in order to harass defendants to make grounds to file the present suit to harass the defendants without any reason. Further, correctness of the site plan is denied and the suit is prayed to be dismissed.
Rama Devi vs Kamlesh CS No. 94/13/06 Page 4 of 153. Plaintiff filed the replication where all the averments made by the defendants in the written statement are denied and averments made by her into the plaint are reiterated.
4. Vide order dt. 28.03.2007 passed by the Ld. Predecessor of this Court, following issues were framed :-
1. Whether plaintiff is entitled to a decree of permanent injunction as prayed? OPP
2. Whether plaintiff is entitled to a decree of mandatory injunction as prayed? OPP
3. Relief.
5. Plaintiff examined Sohan lal, Jagdish and herself as PW1, PW2 and PW3 respectively and relied upon the following documents :-
1. Site plan Ex PW3/1.
2. List of articles as mark A, complaint to police Commissioner as mark B, complaint to SHO as mark C, tax receipt issued in the name of plaintiff as mark D. Besides this, Dulare Singh one officer from BSES was also examined as PW4 who produced the application for connection supported with self attested copy of identity card as Ex PW4/A, attested copy of death certificate of Renjeet Singh as Ex PW4/B and indemnity bond as Ex PW4/C. Rama Devi vs Kamlesh CS No. 94/13/06 Page 5 of 15 On the other hand, defendant no. 3, 1 and 2 are examined as DW1, DW2 and DW3 respectively on behalf of defendants and they relied upon the following documents :-
1. Public notice published in Vir Arjun on 15.06.2003 EX DW1/1.
2. Site plan as Ex DW1/2.
3. Election I. card as EX DW1/3.
6. Final arguments heard and record is perused carefully. Now the issue-
wise findings of this court are as under :
ISSUE No. 1The onus to prove this issue lies upon the plaintiff. Plaintiff is seeking the relief of permanent injunction in two respects:
Firstly, restraining defendants from interfering in the entrance in peaceful possession of premises shown in green color in the suit property.
Secondly, restraining defendants from creating third party interest, selling, transferring, alienating, letting or parting with the possession of the suit property.
In order to seek first part of this prayer of permanent injunction, the plaintiff has to prove her possession in the premises shown Rama Devi vs Kamlesh CS No. 94/13/06 Page 6 of 15 in green colour of the suit property and for the second part, she has to prove that she has a legal and valid right, title and interest in the suit property.
In para no. 7 of the plaint filed by the plaintiff, it is pleaded that " they (defendants) did not allow her to enter in to the suit property. The defendants also threating the plaintiff to kill her if she came back or seen near to the suit property." Further in para no. 8 of the plaint it is pleaded that " the defendants then also did not allow the plaintiff to enter her house/suit property" Further para no. 10 of the plaints reads that " the defendants are also not allowing the plaintiff and her family members to enter into the suit property ......" . This fact is also deposed by the plaintiff in para no. 8, 9 and 11 (incorrectly numbered as 10) of the affidavit Ex. PW3/A filed in evidence. Thus there is an admission on the part of the plaintiff that she has been dispossessed from the suit property. Once it is admitted by plaintiff, she can not be granted the relief of permanent injunction restraining defendants from interfering into her possession till she regains the possession. It proves that the efficacious remedy for the plaintiff is to seek its possession and due to the availability of this alternate efficacious remedy with the plaintiff, the permanent injunction restraining interference in the entrance and peaceful possession as sought can not be granted under Sec. 41h of Specific Relief Act.
Right to transfer the right, title and interest in the immovable property is one of the right existing in a person being its owner. The plaintiff is claiming herself to be the owner of the suit property as pleaded Rama Devi vs Kamlesh CS No. 94/13/06 Page 7 of 15 in para no. 1 of the plaint. This fact is deposed by the plaintiff as PW-3 but no document to substantiate this fact of ownership has been produced on record. But it is contended that these documents have been tempered with or destroyed by defendant no. 1 and reliance is placed upon Mark B. This court has given thoughtful consideration to this contention. As per section-91 of Indian Evidence Act, the ownership of the plaintiff in respect of the suit property can be proved by the document of title in favour of the plaintiff. Section 61 if Indian Evidence Act provides that the contents of the documents may be proved either by primary evidence or by secondary evidence. Original title document is the primary evidence. If the original document is lost or destroyed, the contents of the document should be proved by secondary evidence but in order to lead secondary evidence, the plaintiff should first prove that the document in original has either been lost or destroyed. The plaintiff has neither summoned the record from the Office of Commissioner of Police to produce the original complaint Mark B nor produced the original postal receipts to prove the fact that this complaint wherein loss or damage to the title documents by Kamlesh is stated, was sent to the Commissioner of Police. Thus this complaint is not proved as per law. Further, as per the case of the plaintiff her goods alongwith these documents were removed on 01.07.2006 but Mark B is dt. 15.07.2006. The plaintiff has not explained the lapse of about 14 days in reporting the loss of these documents to the police. She has deposed that the police visited the suit property on 01.07.2006 and later on she filed the criminal complaint u/s 448/380/323/506/120B IPC against defendants. But she had not filed on record anything to substantiate this fact or to show the Rama Devi vs Kamlesh CS No. 94/13/06 Page 8 of 15 status of same. PW-1 Sohanlal stated in his cross examination that he had visited the suit property on the death of mother-in-law of plaintiff which is not the date of the quarrel i.e. 01.07.2006. Similarly PW-2 Jagdish stated that he visited the suit premises in May, 2006. Therefore, it is proved that neither PW-1 nor PW-2 was present on 01.07.2006 when quarrel is stated by the plaintiff to have taken place and police was called. Thus the cause of quarrel as deposed by plaintiff remain uncorroborated and it is held not prove, hence, it can not be said that the defendants trespassed into any of the room under the possession of plaintiff on 01.07.2006 whereby damage allegedly caused to the documents by defendant no. 1 is plausible.
Further, the list of articles and documents allegedly removed from the suit property i.e. Mark A mentions a few utensils and one folding cot besides property documents relating to property and court case. It is the natural course that if one resides into a property, one would have all the essential daily articles i.e clothes, almirah, cooler or fan, bed sheet, slippers, few boxes, some money and jewellery etc. but none of such article is stated to have been removed. It proves that the property was not used by the plaintiff for residing therein. As a course of practice and common knowledge, the listed articles are more likely to be kept as scrap or out dated one for disposal and it is utmost unlikely that property documents which is the valuable security, would be kept with articles to be disposed off by a reasonable person. Therefore, this fact remains unproved that the property documents were removed/destroyed by the defendants and the plaintiff can not be permitted to lead the secondary evidence to prove the ownership of the suit property and the testimonies of plaintiff as PW1 and Rama Devi vs Kamlesh CS No. 94/13/06 Page 9 of 15 other witnesses PW2 and PW3 are inadmissible to prove the ownership of the plaintiff in respect of the suit property.
Besides this, analysis of examination of plaintiff and two PWs Sh. Sohan Lal and Sh. Jagdish and record reveals that :
(a) During her cross examination, the plaintiff deposed that " .... I do not know when the suit property was constructed as the same belong to my parents in law..." . This deposition is the admission on the part of the plaintiff that she does not own the suit property and it is just opposite to the claim of ownership of the suit property made by the plaintiff in plaint and other part of deposition.
(b) She continued that " .. At the time of filing the suit, some tenant was residing in the room mark A in Ex.PW3/1. I do not remember the name of the tenant in the said room. Husband and wife were residing in room Mark A. I was residing in room B. Some tenants were residing in rooms C & D. I do not know the names and addresses of the tenants in room C & D. I was residing in room E. One Brij Lal was running a shop in the shop Mark F in Ex.PW3/1. I do not know who was running the shop Mark G. Two rooms and one Baithak were constructed on first floor of the suit property. The two rooms were lying vacant and we used to use the Baithak at times...." . This proves that the plaintiff is not even aware about the names of the persons occupying the part of the suit property being tenant. This conduct of the plaintiff is inconsistent to the fact that she is the owner of the suit property as by any stretch of imagination, it would not be prudent to expect an owner to be unaware about the persons holding tenancy rights under her which is more unlikely when tenants are Rama Devi vs Kamlesh CS No. 94/13/06 Page 10 of 15 occupying the rooms/shops adjacent to the room claimed to be occupied by the plaintiff.
(c) Not only this, the plaintiff has also deposed further that Ashok Kumar and Kamla Devi (defendant no. 3 and 4) were residing in the suit property at that time in room Mark A. If it is assumed correct then who were the tenants residing in room Mark A as deposed by her in earlier part of her cross examination.
(d) The plaintiff also deposed in her cross-examination that she went to Sultanpuri in June 2006 where she remained for 15-20 days and returned in the end of June, 2006 and she does not remember where she was on 01.07.2006 whereas the case of the plaintiff as per plaint has been that she went to Sultanpuri in last week of June, 2006 and she came back on being informed about breaking of lock of her room which took place on 01.07.2006. This amounts to the contradiction affecting the basis of the suit.
(e)It is provided by the plaintiff in plaint and supporting affidavit and thereafter in affidavit for her evidence Ex. PW3/A that she is resident of Anand Parbat. But she admitted in her cross examination that she is residing/ staying at Sultanpuri since last about 50-52 years and she has a ration card issued from this address. She casts her vote at Sultanpuri.
These facts are also inconsistent to the fact that she is/has been residing at Anand Parbat.
(f) PW-1 Sh. Sohan Lal deposed in his affidavit that plaintiff has been residing at Anand Parbat for last more than 25 years and she had constructed the same with her own fund but in his cross examination dt.
Rama Devi vs Kamlesh CS No. 94/13/06 Page 11 of 1515.09.2007 he admitted that he is himself living at Sultanpuri since 1976. Which infers that he has not been residing at Anand Parbat for last 31 years. It is improbable for a person to have personal knowledge about the other person who starts living there once the first person has already left. Therefore deposition of this PW to this extent is untrustworthy.
(g) PW-1 Sohan lal and PW-2 Jagdish have also not disclosed there source of knowledge about the payment of house tax of shit property made by plaintiff as deposed by them in their affidavits filed for evidence. Therefore their depositions to this extent are not worthy to credit.
(h)PW-1 and 2 stated in their affidavits that plaintiff had raised the construction with her own funds but plaintiff deposed as PW-3 in her cross examination that she is a house wife and run her house hold from the income of her husband. It proves that the plaintiff had no source of income to raise the construction from her own funds.
(i) PW-1 and 2 are affirmed to be known to plaintiff being her neighbors for last 30 years by the plaintiff in her cross examination. Further PW-2 as admitted that plaintiff is her relative (Samdhan) in his cross examination. It proves that all the three PWs are related to each other and deposition of PW1 and 2 is not independent and therefore not trustworthy.
Thus the depositions of plaintiff and Sh. Sohan Lal and Sh. Jagdish examined as PW-1 and PW-2 are proved as full of stark inconsistencies, contradictions and improbabilities and lacking truthfulness Rama Devi vs Kamlesh CS No. 94/13/06 Page 12 of 15 therefore these are not reliable and worthy to credit.
Hence it is held that the plaintiff has failed to prove that she is the owner of the suit property and thereby she is not proved to have any personal interest in the matter and the plaintiff can not be granted permanent injunction against the defendants restraining them from creating third party interest, selling, transferring, alienating and parting with the possession in of the suit property as per section 41(j) of Specific Relief Act.
Consequently, in view of the above discussion, the issue no.1 is decided against the plaintiff and in favour of the defendants.
ISSUE No. 2The onus to prove this issue lies upon the plaintiff. The plaintiff is seeking mandatory injunction thereby directing defendants to return all the articles, documents to the plaintiff which were removed from the room and also hand over vacant possession of the room shown in red colour. In order to get the decision of this issue in her favour, the plaintiff has to prove essentially the two facts; firstly, the documents and articles as mentioned in the list were removed on 01-07-2006 and secondly, she has any right, title or interest in the rooms part of the suit property.
It is the case of the plaintiff that documents and articles were removed on 01.07.2006 whereas defendants have pleaded that she had not Rama Devi vs Kamlesh CS No. 94/13/06 Page 13 of 15 been the possession of the room from which documents and articles are alleged to be removed by the defendants. The plaintiff and two PWs Sh. Jagdish PW-2 and Sohan lal PW-1 have deposed that plaintiff has been residing in the suit property. While the deciding the issue no. 1, this court has elaborately discussed and reached to the conclusion that testimonies of plaintiff and Sh. Sohan Lal and Sh. Jagdish examined as PW-1 and PW-2 are proved as full of stark inconsistencies and contradictions and these are not reliable and worthy to credit and it is also held that this fact remains unproved that the property documents were removed/destroyed by the defendants and that the plaintiff has failed to prove that she is the owner of the suit property. Thus both the foremost facts required to prove this issue under consideration are held as unproved and this issue is accordingly decided against the plaintiff and in favour of the defendants.
RELIEF In view of the decision of issue no. 1 and 2, plaintiff is held not entitled for any relief and the suit of the plaintiff is dismissed. No order as to cost.
Decree Sheet be prepared accordingly. Thereafter file be consigned to Record Room.
Announced in Open Court on 21.04.15 at 3:30 pm AANCHAL CIVIL JUDGE-07(CENTRAL) DELHI/21.04.2015 Rama Devi vs Kamlesh CS No. 94/13/06 Page 14 of 15 CS No. 94/13 Rama Devi vs Kamlesh 21.04.2015 Present : Plaintiff in person.
None for defendants.
Vide separate judgment passed on even date, the suit of the plaintiff is dismissed. No order as to cost.
Decree Sheet be prepared accordingly. Thereafter file be consigned to Record Room.
AANCHAL Civil Judge-07 Delhi/ 21.04.15 Rama Devi vs Kamlesh CS No. 94/13/06 Page 15 of 15