Delhi District Court
Sh. Anil Mahajan vs Smt. Sushma Mahajan on 3 May, 2010
IN THE COURT OF SURESH KUMAR GUPTA,
ADDITIONAL DISTRICT JUDGE03 (EAST),
KARKARDOOMA COURT, DELHI
RCA No.36/2008
In the matter of :
Sh. Anil Mahajan,
S/o Late Sh. Puran Chand,
R/o H. No.125, Gali No.3,
Shankar Nagar, Delhi - 110 051 .....Appellant / Plaintiff
Versus
Smt. Sushma Mahajan,
W/o Sh. Anil Mahajan,
R/o X1669, Gali No.15,
Rajgarh Colony, Delhi .....Respondent / Defendant
ID No. : 02402C0808012007
Date of Institution : 22.12.2007
Date of arguments heard : 17.04.2010
Date of order : 03.05.2010
RCA No.36/2008 Page 1 of 12
J U D G M E N T
1. The appellant / plaintiff has preferred an appeal against judgment and decree dated 07.11.07 passed by Ld. Trial Court vide which his suit was dismissed.
2. The appellant has filed an application U/s 5 of Limitation Act with the avermentst that he has changed his counsel for the purpose of filing an appeal and engaged new counsel on 17.12.07. The appeal was filed on 20.12.07. The certified copy of the judgment and decree was applied on 14.11.07. The copies were supplied on 29.11.07. The application is bonafide and delay in filing the appeal be condoned. The application is supported by an affidavit.
3. The appeal is filed on the grounds that the findings given by Ld. Trial Court is totally against the law and facts of the case. He has filed photographs with newspaper dated 17.02.05 thereby showing his possession over the suit property. The written statement nowhere shows that he is not in possession of the suit property. No issue was framed by Ld. Trial Court with respect to issue of possession. The findings to the effect that he is not in possession of the suit property and therefore the suit is not maintainable as no relief with respect to the possession is claimed is against the facts and evidence on record. Ld. Trial Court has not properly appreciated the oral evidence on record as defence of the respondent is full of contradiction, improbabilities and is unworthy of credit. Ld. Trial Court has wrongly concluded that there is no evidence on record to displace the presumption of ownership of the respondent with respect to suit property especially when he has produced cogent and credible evidence to base RCA No.36/2008 Page 2 of 12 his claim.
4. The notice of the appeal and application was given to the respondent / defendant who addressed the oral submissions.
5. The plaintiff (herein appellant) filed a suit for declaration and permanent injunction against the defendant with the averments that he is husband of the defendant. He has been residing at 125, Gali No.3, Shanker Nagar, Delhi (hereinafter referred to as suit property). He is the only earning member of his family. He purchased the suit property on 16.10.00 in the name of his wife due to love and affection out of his own funds. He has three children. He constructed the suit property from his own funds. The defendant has no source of income as she is house wife and depending upon him.
6. The defendant started maligning him on one pretext or other at the instigation of her family members and created mental agony for him. On 10.02.05 brother of the defendant along with bad elements, at the behest of the defendant, came to the suit property and forced him to leave the suit property forever. He refused to do so. They threatened him to forcibly remove and dispossess him from the suit property. He has purchased and constructed the suit property from his own funds and also taking loan from close friends and relatives. He has strong apprehension that defendant might sell the suit property. He had made complaints to the police against the illegal act of defendant but in vain. Hence, this suit.
7. The defendant (herein respondent) contested the suit and filed the written statement wherein preliminary objections qua maintainability, locus standi, RCA No.36/2008 Page 3 of 12 suppression of material facts, cause of action are raised. On merits, it is admitted that plaintiff is her husband and resides at the address of suit property. It is denied that plaintiff resides in peaceful manner. It is wrong that plaintiff is the only earning member of the family. The plaintiff has not been doing any work for the last three years and her brother has been maintaining her family. It is wrong that suit property was purchased by the plaintiff on 16.10.00 in her name out of love and affection. In fact, suit property was purchased by her with the help of her mother and other relatives and from her Istridhan. It is wrong that plaintiff constructed the suit property from his own funds. The matter of fact is that she constructed the suit property from her own money with the help of her relatives. The plaintiff is levelling false accusations against her. It is wrong that she started misbehaving with the plaintiff. It is wrong that on 10.02.05 her brother at her behest forced the plaintiff to leave the suit property and dispossessed him from the suit property. No such incident took place. She never wanted to sell the suit property.
8. The plaintiff filed the replication wherein averments of the written statement were controverted and stand taken in the plaint was reiterated.
9. Following issues were framed from trial on 25.07.05 by Ld. Trial Court which are like this :
1) Whether the plaintiff is entitled for relief of declaration as he prayed for ?
OPP
2) Whether the plaintiff is entitled for the permanent injunction as he prayed for ? OPP RCA No.36/2008 Page 4 of 12
3) Relief.
10. The plaintiff and defendant have examined two witnesses each including themselves as PW2 & DW2 besides producing documentary evidence. Ld. Trial Court after considering entire evidence on record dismissed the suit of the plaintiff.
11. I have heard Ld. counsel for the parties and perused the entire record of the case.
12. There is delay in filing the appeal. The delay is of less than one month in filing the appeal. To my mind, the dispute between the parties to the suit must be decided on merits. I am satisfied with the reasons given for delay in filing the appeal. Hence, the delay is condoned.
13. Findings on issue No.1 :
The appellant has examined two witnesses in support of his case including himself as PW1. He has tendered his own affidavit Ex.P1 wherein he has repeated the version of the plaint and proved documents. Ex.PW1/1 is the site plan of the suit property. Ex.PW1/2 is the copy of bank pass book. Ex.PW1/3 to 6 are the complaints made to the police. Ex.PW1/7 is the missing report. Ex.PW1/9 is the medical record from GTB Hospital. Ex.PW1/10 is the discharge certificate of the appellant from the hospital. Ex.PW1/11 is the copy of the Election Card of the appellant. Ex.PW1/12 are the four photographs. Ex.PW1/13 to 32 are the bills with respect to the material used for the construction of the suit property. Ex.PW1/33 to 40 are the delivery challans with respect to the construction material. In the cross examination he admitted that he appeared in the court of Sh. RCA No.36/2008 Page 5 of 12 M C Garg, the then Ld. ASJ on 05.11.04 in a bail matter pertaining to FIR No.190/04, U/s 308 IPC and his interim bail application was rejected. He was sent to J.C. in a case U/s 107/151 Cr.P.C. He cannot tell in which class his children are studying since the day of gun shot injury in March, 2005. It is correct that there was dispute between him and his wife prior to this litigation and they have been residing together by the court orders. He has been residing in Punjab since March, 2005. The suggestion is denied that there is no entry of more than Rs.15000/ in the year 2000 in his Pass Book Ex.PW1/2. He took Rs.2 lacs from his uncle Satish Mahajan. He took Rs.65,000/ in two installments from his friend Mahender Pal. The suit property was purchased for Rs.4 lacs but the documents were executed for Rs.70,000/. He spent a sum of Rs.2,70,000/ on the construction of the suit property. The suggestion is denied that the suit property was purchased by the defendant with the help of her mother and relatives. The suggestion is denied that he was in debt for Rs.22.50 lacs and wanted to sell the suit property. He admitted that he has not been residing in the suit property since 04.03.05. The suggestion is denied that he has levelled false allegations against the defendant. He cannot recollect the dates when brother of the defendant along with associates came to the suit property. The suggestion is denied that accused have been discharged in FIR No.74/05.
14. PW2 Mahender Pal has tendered his affidavit Ex.P2 to the effect that he paid Rs.65,000/ to the plaintiff in two installments of Rs.25,000/ & Rs.40,000/ for the purchase of suit property. In the cross examination he stated that his annual income was around Rs.70,00080,000/ in the year 2000. He has RCA No.36/2008 Page 6 of 12 no documentary proof that plaintiff has borrowed Rs.65,000/ in year 2000. He paid Rs.25,000/ on 15/16.10.00 and Rs.40,000/ after few days.
15. DW1 Sushma Mahajan is the defendant. She has tendered her own affidavit Ex.D1 wherein she has corroborated the version of written statement and she has proved documents namely Ex.DW1/A (collectively) which are GPA, Agreement to Sell and Receipt executed by Sardar Bahadur Singh with respect to suit property in her favour. Ex.DW1/B is the copy of Pass Book. Mark X & Y are the cheques pertaining to the withdrawal of Rs.25,000/ & Rs.40,000/ from the bank. In the cross examination the suggestion is denied that she is a house wife. Her brother is doing the composing work with the help of computer. She had withdrawn Rs.25,000/ & Rs.65,000/ on 05.05.00 & 13.06.00. The suit property was purchased in October, 2000 from Sardar Bahadur Singh. She doesn't know the documents were executed for the purchase of suit property. The documents were executed on 15/16.10.00. The stamp paper was brought by her husband. Her signatures were not obtained on any of the documents. Ex.DW1/A bears the signature of seller and her husband at point A & B. The suggestion is denied that amount was given to her by her husband which was deposited by her in the bank. The suggestion is denied that a sum of Rs.25,000/ & Rs.65,000/ was given by her husband after selling the Jhulas. She took Rs.10,000/ from her uncle Vijay Kumar Mahajan and Rs.5.000/ from cousin Vinod Mahajan for construction of suit property. She took some money from her mother for the purchase of suit property. The suit property was a kachcha room at the time of purchase. The suggestion is denied RCA No.36/2008 Page 7 of 12 that suit property was purchased for a sum of Rs.4 lacs and seller was compelled to show Rs.70,000/ in the documents. She has been residing in the suit property. The suggestion is denied that electricity bills are paid by her husband. The suggestion is denied that her brother along with Sanju and Saurabh attempted to kill the plaintiff. It is correct that FIR U/s 307 IPC was registered against them. The suggestion is denied that entire amount was paid by the plaintiff for the purchase of the suit property and thereafter on the construction.
16. DW2 Raj Rani is the mother of DW1 and tendered her affidavit Ex.D2 wherein she averred that she gave a sum of Rs.50,000/ to the defendant in February, 2000 for the purchase of house in future which was arranged after selling lead (sikka) used for composing or printing of books. In the cross examination she stated that she doesn't know English. She has not filed any evidence in writing or any affidavit in the court. She doesn't know whether she has submitted any document signed by her in the court or not.
17. The onus is on the appellant to prove that he had purchased and constructed the suit property from his own funds. To prove this, he has examined two witnesses. The appellant has stressed that the suit property was actually purchased for a sum of Rs.4 lacs but a sum of Rs.70,000/ is shown in the documents. DW1 has denied this fact. The suit property was purchased from Sardar Bahadur Singh. He was the best person to clear the clouds whether he sold the suit property for a sum of Rs.4 lacs or Rs.70,000/. His examination was essential and his non examination on the part of appellant calls for adverse RCA No.36/2008 Page 8 of 12 inference against the appellant. The documents collectively Ex.DW1/A (GPA, Agreement to Sell and Receipt) reveal that consideration amount was Rs.70,000/. The documents have to be believed in the absence of any convincing evidence to the contrary.
18. The appellant has alleged that he arranged the money from his friends and relatives for the construction and purchase of suit property. His cross examination shows that he had taken a sum of Rs.2 lacs from his uncle Sh. Satish Mahajan and Rs.65,000/ from his friend Mahender Pal who has been examined as PW2. The respondent has alleged that she had taken the money from her mother as well as withdrew the money from the bank. Her mother gave her Rs.50,000/. A sum of Rs.25,000/ & Rs.65,000/ were withdrawn from the bank on 05.05.00 & 13.06.00 against cheques mark X & Y. She has categorically denied that her husband had given her Rs.25,000/ and Rs.65,000/ after selling the Jhulas. She had taken Rs.15,000/ from Vijay Kumar Mahajan and Vinod Mahajan.
19. The appellant has allegedly taken substantial amount from Sh. Satish Mahajan. He is the real uncle of the appellant. The appellant should have examined Sh. Satish Mahajan to show that in fact he gave a sum of Rs.2 lacs to the appellant for the purchase of suit property. His examination would have strengthen the plea of the appellant. His non examination calls for adverse inference against the appellant. The testimony of PW2 doesn't inspire confidence on the ground that his annual income in the year 2000 was around Rs.70,00080,000/ and it is not possible to hand over a sum of Rs.65,000/ to RCA No.36/2008 Page 9 of 12 any person out of the annual income which is not more than Rs.80,000/. The appellant has placed on record cash / credit memo Ex.PW1/13 to 32 with respect to the purchase of building material. The said documents don't inspire confidence as the cash memos don't bear the name of the shop or person who have issued the same. No support can be drawn from the delivery challan Ex.PW1/33 to 40 as there is nothing discernible as to who has actually issued the same. Mere putting an exhibit is not sufficient. The documents have to be proved and these documents are not duly proved so no reliance can be placed on this. The appellant has also placed reliance on the entries in the Pass Book Ex.PW1/2. The entries pertain to the period after 19.02.02. To my mind, no support can be drawn from the Pass Book to show that any amount was withdrawn from the Bank in order to purchase the suit property. The appellant has failed to show that he had purchased the suit property from his own funds in the name of respondent. The evidence adduced by the respondent shows that she had withdrawn a sum of Rs.90,000/ from the bank and some amount was paid by her relatives. The testimony of DW2 doesn't inspire confidence for the reason that she has categorically stated in the cross examination that she has not filed any affidavit in the court in the form of evidence. The suit property was allegedly purchased for Rs.70,000/. The testimony of DW1 seems to be more probable that she has arranged such amount in purchasing the suit property. The appellant has failed to prove by convincing evidence that he purchased the suit property by arranging funds from his own resources including finance from his relatives and friends.
RCA No.36/2008 Page 10 of 12
20. Further, PW1 has admitted that there was dispute between him and his wife prior to this litigation and they have been residing together by the court orders. To my mind, the appellant should have been more cautious when there was litigation with the respondent. It doesn't appeal to common sense that appellant will pay the consideration amount and will agree for the execution of documents in the name of the respondent. No explanation is forthcoming on the record why the documents were got prepared in name of respondent when litigation was going on. There is nothing on the record that appellant had paid the consideration amount of the suit property. The documents raise a strong presumption in the favour of respondent to the effect that consideration amount was paid by the respondent. The evidence adduced by the appellant is not enough to substantiate his averments and as such he is not entitled for any declaration to the effect that he is owner of the suit property.
21. The appellant has failed to show that he is owner of the suit property. The documents stand in the name of the respondent. The appellant was residing in the suit property on the day of filing of the suit. His possession on the day of filing of the suit stands admitted by the respondent in written statement. The incident dated 10.02.05 is denied by the respondent in the written statement. Ld. Trial Court has held that appellant is out of possession so a suit for declaration of title would not be not maintainable unless the relief of possession is prayed for. Ld. Trial Court has committed an error while giving such a finding as respondent has admitted in the written statement that appellant resides in the suit property. It is specifically denied that appellant resides in RCA No.36/2008 Page 11 of 12 peaceful manner. The possession of the appellant on the day of filing of the suit is clear from the pleadings of the parties so his suit U/s 34 of Specific Relief Act is maintainable.
22. The question arises whether injunction can be granted against a true owner or not. To my mind, no injunction can be granted against the owner of the suit property as owner is at liberty to deal with the property in any manner. No injunction can be granted against the true owner so appellant is not entitled for injunction against the respondent.
23. Ld. Trial Court has properly appreciated the facts as well as evidence on record. I do not find any infirmity in the judgment and decree dated 07.11.07 passed by Ld. Trial Court and accordingly the appeal filed by the appellant is dismissed with no order as to the cost. Decree sheet be prepared. TCR be sent back along with copy of this judgment. File be consigned to record room. Announced in the open Court on 03.05.2010 (Suresh Kumar Gupta) Additional District Judge03 (East), Karkardooma Court, Delhi / 03.05.2010 RCA No.36/2008 Page 12 of 12