Delhi District Court
Smt. Santosh Kumari vs Smt. Sumitra Devi on 15 October, 2016
IN THE COURT OF ACJCCJARC, SHAHDARA, KARKARDOOMA COURTS,
DELHI
Presided By : Sh. Jay Thareja, DJS
Civil Suit No:739/2009
Smt. Santosh Kumari
W/o Sh. H.C. Chawla,
R/o H.No.12401241,
Gali Kaitwali, Mohalla Sangatrashan,
Paharganj, Delhi110055. ... Plaintiff
Versus
1. Smt. Sumitra Devi
W/o Sh. Deshraj (since deceased)
Through LRs
Sh. Harish Mohan Ahuja (son)
S/o Sh. Deshraj,
R/o 33/37, 1st Floor,
Old Rajinder Nagar, Delhi.
2. Dhanwan Singh Sokhi
S/o Sh. Narain Singh Sokhi,
R/o H.No.3, Gagan Vihar Extension,
Delhi110092.
3. Jaswinder Kaur
W/o Sh. Dhanwan Singh Sokhi (since deceased)
Through LRs
(I) Sh. Dhanwant Singh Sokhi (husband)
(ii) Sh. Gurvinder Singh (son)
(iii) Sh. Satender Pal Singh (son)
All resident of H.No.3 & 4, Gagan Vihar Extension,
Delhi110092.
(iv) Smt. Jasbir Kaur (daughter)
R/o H.No.1/3188, Gali No.17,
Ram Nagar, Mandoli Road,
Civil Suit No.739/09
Smt. Santosh Kumari v Smt. Sumitra Devi & Ors.
Page No. 1 of 12
Delhi110031.
4. Sh. Kanhaiya Lal,
S/o Sh. Uppal Mal,
R/o H.No. 6871, Quila Kadam Sharif,
Nabi Karim, Paharganj,
Delhi110055. ... Defendants
SUIT FOR DECLARATION AND
PERMANENT INJUNCTION
DATE OF INSTITUTION : 12.08.2004
DATE OF FINAL ARGUMENTS : 21.09.2016
DATE OF DECISION : 15.10.2016
JUDGMENT
1. The plaintiff has filed the present suit against the defendants seeking the reliefs of declarations and injunctions. The exact prayer made by the plaintiff, in the plaint, is reproduced below: "It is,therefore, most respectfully prayed that this Hon'ble court may be pleased to pass:
(a) a decree for declaration be passed in favour of the plaintiff and against defendants 2 & 3 thereby declaring/holding that:
(i) the plaintiff is the lawful tenant under the previous owner Shri Des Raj in respect of the portion of the first floor in property no.1240, Gali Kaitwali, Mohalla Sangtarashan, Paharganj, New Delhi as duly shown in red colour in the site plan and duly protected under the Delhi Rent Control Act.
(ii) A decree for possession passed by the court of Sh. D.S. Civil Suit No.739/09 Smt. Santosh Kumari v Smt. Sumitra Devi & Ors.Page No. 2 of 12
Pawariya, ADJ, Delhi in R.C.A. No.27/2002, titled Smt. Jasvinder Kaur,..vs..Smt. Santosh Kumari on 26.4.2003 is nullity, void, unenforceable qua the tenanted premises of the plaintiff, without jurisdiction and not binding upon her in any manner whatsoever and the defendants No.3 has no right or locus standi to execute the said decree.
(iii) the sale deed dated 19.7.1983 executed by Shri Kharaiti Lal in favour of the defendant no.3 Smt. Jaswinder Kaur in respect of the portion of the first floor of the property bearing No.1240, Gali Kaitwali, Mohalla Sangtarashan, Paharganj, New Delhi is a forged, fabricated, null and void document and it does not confer any right to the defendant No.3 qua the tenanted premises of the plaintiff.
(iv) the sale of the suit property No.1240, Gali Kaitwali, Mohalla Sangtarashan, Paharganj, New Delhi by said Shri Kharaiti Lal and others, to the defendant No.3 Smt. Jasvinder Kaur cannot be enforceable as neither he was having any title in the suit property nor he was competent to enter into contract of sale of the suit property or let out the property to any one else.
(v) the defendant No.3 was having no locus standi to file the suit for possession on the basis of the sale deed dated 19.7.1983 alleged to have been executed by Shri Kharaiti Lal who was neither competent nor having any right to sell the suit property or execute the said sale deed in her favour.
Civil Suit No.739/09Smt. Santosh Kumari v Smt. Sumitra Devi & Ors.
Page No. 3 of 12(b) a decree for permanent injunction be passed in favour of the plaintiff and against the defendants 2 & 3, their agents, family members, associates, employees and representatives :
(i) from executing the said decree for possession dated 26.4.2003 passed by the learned ADJ, Delhi in respect of the portion of the first floor of the suit property against the plaintiff in any manner.
(ii) thereby also restraining them from taking forcible possession or interfering in the peaceful possession of the tenanted premises of the plaintiff as duly shown in red colour in the plan attached without any due process of law.
(c) Costs of the suit and
(d) Such other and further relief deemed fit and proper in the circumstances of the case may also be passed in favour of the plaintiff and against the defendants."
2. In order to justify the grant of the aforesaid prayer/reliefs, the plaintiff has interalia pleaded in the plaint that property no(s).1240 and 1241, Gali Kaitwali, Mohalla Sangtarashan, Paharganj, New Delhi are adjoining properties which were owned by Sh. Des Raj S/o Sh. Sohan Lal; that there are no independent stairs to go to the first floor/terrace of property no.1240, Gali Kaitwali, Mohalla Sangtarashan, Paharganj, New Delhi (henceforth 'property no.1240') but there is a stair case through property no.1241, Gali Kaitwali, Mohalla Sangtarashan, Paharganj, New Delhi (henceforth 'property no.1241') to go to the first floor/terrace of property no.1240; that in February 1961, Sh. Des Raj had sold property no.1241 to his wife, Smt. Sumitra Devi (defendant no.1) vide Civil Suit No.739/09 Smt. Santosh Kumari v Smt. Sumitra Devi & Ors.
Page No. 4 of 12registered sale deed dated 14.02.1961; that Sh. Kanhiya Lal (defendant no.4) was a tenant in respect of one shop on the ground floor of property no.1240 and he was illegally evicted in May/June 1983; that in January 1971, the plaintiff was inducted as a tenant by Sh. Des Raj in respect of portions of first floors of property no(s). 1240 and 1241 at monthly rent of Rs.110/ except electricity charges; that the tenanted premises comprised of one room over the roof of the shop on the ground floor of property no.1241 and one bathroom, latrine and open space over the roof of shop on the ground floor of property no.1240; that the entire tenanted premises was one unit; that after being inducted as a tenant by Sh. Des Raj, Smt. Sumitra Devi (defendant no.1) had started harassing the plaintiff; that having failed in her design to evict the plaintiff from the tenanted premises, she had sold property no.1241 to the plaintiff vide registered sale deed dated 29.07.1974; that after sale of property no.1241, the plaintiff and Smt. Sumitra Devi (defendant no.1) agreed that in respect of remaining portion of the tenanted premises i.e. the bathroom, latrine and open space over the roof of shop on the ground floor of property no.1240, the plaintiff shall pay rent of Rs.70/ per month to Smt. Sumitra Devi (defendant no.1); that in the second week of May 1988, Sh. Dhanwant Singh Sokhi (defendant no.2) had tried to forcibly dispossess the plaintiff from the bathroom, latrine and open space over the roof of shop on the ground floor of property no.1240 by proclaiming that his wife, Smt. Jaswinder Kaur (defendant no.3) had become the owner of property no.1240 by virtue of registered sale deed dated 19.07.1983; that in order to restrain Sh. Dhanwant Singh Sokhi (defendant no.2) from forcibly dispossessing the plaintiff from the bathroom, latrine and open space over the roof of shop on the ground floor of property no.1240, the plaintiff had filed a suit for permanent injunction against Sh. Dhanwant Singh Sokhi (defendant no.2) and obtained interim relief; that as a counter blast to the said suit, the Smt. Jaswinder Kaur Civil Suit No.739/09 Smt. Santosh Kumari v Smt. Sumitra Devi & Ors.
Page No. 5 of 12(defendant no.3) had filed a suit for possession against the plaintiff in respect of bathroom, latrine and open space over the roof of shop on the ground floor of property no.1240; that the said suit of Smt. Jaswinder Kaur (defendant no.3) was contested by the plaintiff and was dismissed by the Court of Smt. Kaveri Baweja, the then Ld. Civil Judge, Delhi vide Order dated 08.03.2002; that Smt. Jaswinder Kaur (defendant no.3) had filed an appeal against the judgment and decree passed by the Court of Smt. Kaveri Baweja, the then Ld. Civil Judge, Delhi; that in appeal, the judgment and decree passed by the Court of Smt. Kaveri Baweja, the then Ld. Civil Judge, Delhi was set aside by the Court of Sh. D.S. Pawariya, the then Ld. ADJ, Delhi and the decree for possession was granted to Smt. Jaswinder Kaur (defendant no.3); that the plaintiff had challenged the judgment and decree passed by Sh. D.S. Pawariya, the then Ld. ADJ, Delhi before the Hon'ble High Court of Delhi by way of RSA No.115/2003, but the same was dismissed by Hon'ble Mr. Justice R.S. Sodhi vide Order dated 14.07.2003; that the decree of possession passed by the Court of Sh. D.S. Pawariya, the then Ld. ADJ, Delhi is a nullity because it was passed without jurisdiction and has been obtained by Smt. Jaswinder Kaur (defendant no.3) by committing fraud upon Courts and that after passing of said decree, the defendants no.2 and 3 have been threatening the plaintiff with illegal dispossession.
3. Upon service of summons for settlement of issues of the this suit, all the defendants have contested this suit by filing written statements. In the written statement of the defendant no.1, it is interalia pleaded that the plaintiff was a tenant qua the first floor of property no.1240 and 1241 and that after selling both the said properties, she has no concern with the said properties. In the written statement of the defendants no.2 & 3, it is interalia pleaded that the suit of the plaintiff is barred under the provisions of Civil Suit No.739/09 Smt. Santosh Kumari v Smt. Sumitra Devi & Ors.
Page No. 6 of 12CPC, 1908; that the issues raised in this suit have already been decided by the Court of Sh. D.S. Pawariya, the then Ld. ADJ, Delhi vide judgment dated 26.04.2003; that pursuant to the said judgment, the occupation of the plaintiff qua the roof of property no.1240 is illegal; that the defendants had never threatened the plaintiff with illegal dispossession from the roof of property no.1240 and that the plaintiff was never a tenant in respect of the roof of property no.1240. In the written statement of the defendant no.4, it is interalia pleaded that he has been wrongly impleaded in this suit and that he has no association with the property no.1240 after being illegally evicted from the shop on the ground floor of property no.1240 in May 1983.
4. In the replications qua the written statements of the defendants no.1, 2 and 3, the plaintiff has traversed the contents of the written statements of the defendants no.1, 2 and 3, made the necessary denials and reiterated the contents of the plaint.1
5. On the aforesaid pleadings of the parties, the following issues were framed by the Ld. Predecessor Judge on 19.05.2009: "1. Whether the plaintiff has no cause of action for filing the present suit? OPD
2. Whether the suit is bad for misjoinder of the defendant no.4? (OPD4)
3. Whether the plaintiff is entitled for the relief of declaration as prayed for? (OPP)
4. Whether the plaintiff is entitled for the relief of permanent 1 The plaintiff has not filed any replication qua the written statement of the defendant no.4.
Civil Suit No.739/09Smt. Santosh Kumari v Smt. Sumitra Devi & Ors.
Page No. 7 of 12injunction as prayed for? OPP
5. Relief."
6. During trial, conducted before Ld. Predecessor Judges, none of the parties had led any evidence. The right of the plaintiff to lead evidence was closed vide Order dated 09.05.2011. Since the plaintiff had not led any evidence, the defendants no. 2 and 3 had chosen not lead any evidence. The defendants no. 1 and 4 had stopped appearing in this case before the framing of issues on 19.05.2009. However, they were not formally proceeded exparte.
7. I had heard A.Y. Khan, Ld. Advocate for the plaintiff and Ms. Ira Gupta, Ld. Advocate for the defendants no. 2 and 3 on 21.09.2016. The issue wise findings in this case are as follows:
ISSUE NO.1
8. In respect of this issue, none of the parties have led evidence. In my view, the plaintiff has no cause of action for filing of the present suit because all the issues raised by the plaintiff, by way of the present suit have already been decided in the judgment dated 26.04.2003 passed by D.S. Pawariya, the then Ld. ADJ, Delhi, because the plaintiff has not pleaded as to how the judgment and decree dated 26.04.2003 passed by D.S. Pawariya, the then Ld. ADJ, Delhi is a nullity and because the plaintiff has not led any evidence to prove that after passing of the judgment and decree dated 26.04.2003 by D.S. Pawariya, the then Ld. ADJ, Delhi, the defendants no. 2 and 3 have threatened to illegally dispossess the plaintiff from the roof of property Civil Suit No.739/09 Smt. Santosh Kumari v Smt. Sumitra Devi & Ors.
Page No. 8 of 12no. 1240, Gali Kaitwali, Mohalla Sangtarashan, Paharganj, New Delhi. Therefore, the issue is decided in favour of the defendants and against the plaintiff. It is held that the plaintiff has no cause of action to file the present suit.
ISSUE NO.2
9. In respect of this issue, none of the parties have led evidence. In my view, the suit is bad for misjoinder of defendant no.4 because no relief has been sought by the plaintiff against the defendant no.4 and because per se, the defendant no.4 is neither a necessary nor a proper party to this suit. In my view, the defendant no.4 could have at best, been a witness of the plaintiff to prove her possession qua the roof of property no. 1240, Gali Kaitwali, Mohalla Sangtarashan, Paharganj, New Delhi. Therefore, the issue is decided in favour of the defendants and against the plaintiff. It is held that the suit is bad for misjoinder of defendant no.4.
ISSUE NO.3
10. In respect of this issue, none of the parties have led evidence. In my view, the plaintiff is not entitled to the reliefs of declarations, as prayed for because all the reliefs of declarations sought by the plaintiff, by way of the present suit are hit by the principle of resjudicata. The issues raised herein by the plaintiff qua the reliefs of declarations have already been decided in the judgment dated 26.04.2003 passed by D.S. Pawariya, the then Ld. ADJ, Delhi. Therefore, the issue is decided in favour of the defendants and against the plaintiff. It is held that the plaintiff is not entitled to the relief of declarations, as prayed for.
Civil Suit No.739/09Smt. Santosh Kumari v Smt. Sumitra Devi & Ors.
Page No. 9 of 12ISSUE NO.4
11. In respect of this issue, none of the parties have led evidence. In my view, the plaintiff is not entitled to the reliefs of permanent injunctions, as prayed for because this Court cannot restrain a party from pursuing remedies available in a superior Court of law and because the plaintiff has not led evidence to prove that after passing of the judgment and decree dated 26.04.2003 by D.S. Pawariya, the then Ld. ADJ, Delhi, the defendants no. 2 and 3 have threatened to illegally dispossess the plaintiff from the roof of property no. 1240, Gali Kaitwali, Mohalla Sangtarashan, Paharganj, New Delhi. Therefore, the issue is decided in favour of the defendants and against the plaintiff. It is held that the plaintiff is not entitled to the relief of permanent injunctions, as prayed for.
RELIEF
12. In view of the aforesaid findings, the present suit is dismissed with costs in favor of the defendant no. 2 and LRs of the defendant no.3. In exercise of power under Section 35A of CPC, 1908 another cost of Rs. 3000/ is imposed on the plaintiff. It shall be paid to the defendant no.2, in addition to the costs payable to the defendant no.2 as per Delhi High Court Rules and Orders.
13. Before parting with this judgment, I find it expedient to state that in taking the aforesaid view of this matter, strength has been drawn from the judgment of the Hon'ble High Court of Delhi in CM(M) No.540/2011, Santosh Kumari v Sumitra Devi & Civil Suit No.739/09 Smt. Santosh Kumari v Smt. Sumitra Devi & Ors.
Page No. 10 of 12Ors., decided on 17.11.2014, wherein, the Hon'ble High Court of Delhi, while deciding a revision petition arising from Order dated 11.11.2010, passed in the present suit, has made the following observation:
"It is seen that the petitioner/plaintiff was very much a party to the earlier civil proceedings which culminated in favour of the defendant no.3 in the suit, but, the petitioner/plaintiff only by uttering the mantra of fraud and the decree being without jurisdiction has filed the present suit, and only because of which the petitioner/plaintiff continues to stay illegally in the suit property although the earlier civil proceeding was decided against the petitioner/plaintiff and, the first appeal was dismissed and thereafter the second appeal filed by the petitioner/plaintiff was also dismissed vide order dated
14.07.2003 by a learned Single Judge of this Court in RSA No.115/2003 titled as Smt.Santosh Kumari Vs.Jasvinder Kaur. Obviously, the suit in my opinion prima facie is quite clearly misconceived because if the suit is allowed to be continued, then it will hit at the basic principles of rej judicata..."
14. Upon preparation of the decree sheet by the Reader, the file shall be consigned to the record room.
Announced in open Court (Jay Thareja)
today on 15.10.2016 ACJ/CCJ/ARC/Shahdara
Karkardooma Courts/Delhi
Civil Suit No.739/09
Smt. Santosh Kumari v Smt. Sumitra Devi & Ors.
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Civil Suit No.739/09
Smt. Santosh Kumari v Smt. Sumitra Devi & Ors.
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