Delhi District Court
Lala Bahadur Singh Jain vs Lala Mehtab Singh Jain on 29 April, 2024
IN THE COURT OF ADMINISTRATIVE CIVIL JUDGE-
CUM- ADDITIONAL RENT CONTROLLER (CENTRAL) :
DELHI
PRESIDED OVER BY : MEDHA ARYA
Suit No.: CS SCJ/98985/2016
CNR No.: DLCT03-000068-1995
In the matter of:-
1. Bahadur Singh Jain (since deceased)
2. Chaman Kali Jain (since deceased)
now represented by their natural
heirs and legal representatives:
3. Veer Sain Jain,
now represented through his Guardian ad litem
Mayank Jain S/o Shri Veer Sain Jain
(appointed in terms of order dated 10.07.2017)
4. Dharam Veer Jain; and
5. Arhant Veer Jain
The plaintiffs no. 3 to 5, being the sons of late
Sh. Bahadur Singh Jain {and his wife Smt. Chaman Kali
Jain (since deceased)}
All permanent residents of 301, Dariba Kalan,
Delhi-110006.
...Plaintiffs
Versus
1. Mehtab Singh Jain (since deceased)
S/o Late Sh. Mehboob Singh Jain
2. Surinder Kumar Jain (since deceased)
S/o Late Sh. Mehtab Singh Jain
CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 1/29
3. Santosh Kumar Jain,
S/o. Late Sh. Mehtab Singh Jain,
R/o. 279/301, Dariba Kalan,
Delhi-110006.
4. Shri Yashodar Kumar Jain,
S/o. Late Shri Mehtab Singh Jain,
R/o. 221, Kailash Hills, East of Kailash,
New Delhi-110065.
....Defendants
Date of Institution : 25.07.1994
Date of judgment when reserved : 26.03.2024
Date of pronouncement of judgment : 29.04.2024
JUDGMENT:
"Jarndyce and Jarndyce drones on. This scarecrow of a suit, has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes, without coming to total disagreement as to all the premises." - Charles Dickens
1. Five decades ago, in the year 1974, suit instant was born. In its life, it has witnessed the imposition of Emergency in the Country, the computer revolution, the turn of century. It has withstood the celestial departure of the original plaintiffs, and half of the original defendants. Like an heirloom, it has been handed down to their descendants, who have borne the weight of the chequered journey thereof.
CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 2/29 Why the delay?
2. After the suit was instituted on 26.02.1974, defendants were summoned. They duly entered appearance, and filed their written statements. Issues were settled in the suit. By 07.12.1983, proceedings reached the stage of recording of defendant evidence as well. Thereafter, an application under Order 6 Rule 17 CPC seeking amendment in the written statement was filed by defendants No. 1, 3 and 4. The said application was allowed on 29.01.1988. After the same, on account of non-appearance of the plaintiff on several dates of hearing, the suit came to be dismissed in default on 27.07.1988. It so transpired that plaintiff was not appearing in this Court for he had impugned the aforesaid order dated 29.01.1988 in a Revision petition, which was, however, ultimately dismissed. Ironically, directions were passed at the time of disposal of the petition that the trial court shall dispose of the suit within six months. That, clearly, was not to be.
2.1. Upon learning of dismissal of suit in default, an application for restoration of the suit along with an application for condonation of delay came to be filed on 05.12.1988. The said application was also dismissed by this Court vide order dated 20.01.1992. That by no means was the end of the matter, as is evident.
2.2. Aforesaid order was impugned by the plaintiff, and the Ld. Appellate court, vide its order dated 04.01.1994 allowed the appeal, restoring the suit to its original number. This order of the Ld. CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 3/29 Appellate Court was in turn impugned by the defendants before the Hon'ble High Court of Delhi, in Revision Petition bearing No. 71/1994. The Hon'ble High Court of Delhi held that cause of substantial justice deserves to be pursued, and dismissed the appeal of defendants on 07.09.2001.
2.3 Plaintiff chose to not appear in the Court thereafter for over a decade, and proceedings were repeatedly adjourned by this Court under the misconception that proceedings before the Hon'ble High Court of Delhi are still pending. Finally, on 18.05.2013, one of the LRs of the plaintiff appeared in court and apprised it of the order passed by the Hon'ble High Court on 06.09.2001. With the help of Goshwara number, the file was somehow traced, and court notices were issued to the defendants to cause them to appear in Court. By then, defendant No. 1 Mehtab Singh Jain and defendant No. 2 Surinder Kumar Jain, besides the original plaintiffs, had already expired.
2.4 Negligence of both parties to the litigation being the direct cause of delay in disposal thereof is writ large on the record.
FACTS:
3. The suit originally was filed by Bahadur Singh Jain, with his wife Chaman Kali Jain as a co-plaintiff, against his brother Mehtab Singh Jain, and his three sons. At present, sons of plaintiffs are continuing the proceedings as their legal representatives. The CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 4/29 following pedigree chart shall be helpful in understanding the facts of the case-
As noted, defendants no. 1 and 2 have already joined their Maker, and suit proceedings continue against defendants Santosh Kumar Jain and Yashodhar Kumar Jain.
CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 5/29
E1 Y E4
X
E2 E3
4. Dispute at hand centres around the suit property i.e. property bearing No. 301 (New) and 160 (Old), Dariba Kalan, Chandni Chowk, Delhi-110006. Above is the site plan reflecting the suit property. Pertinently, the parties to the lis are not at variance qua the same. Suit property is stated to be divided into various portions, with shares of plaintiff no.1 and defendant no.1 in it as well. Plaintiffs claim that they are the exclusive owners of the disputed passage as indicated by points E1-E2-E3-E4 in the site plan, CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 6/29 leading, through gates at points X and Y, to the Courtyard within which is a Well also. Plaintiff claims himself to be the owner of the Courtyard as well.
5. Certain documents have been relied upon by both the parties. A brief synopsis of the documents is laid out here under itself, so as to make the reading of facts and the judgment that follows easier:
5.1 Gift Deed dated 29.06.1942, Ex P1: executed by Lala Mehboob Singh Jain in favour of Bahadur Singh, the original plaintiff no.1, bestowing upon him 1/5th portion of the suit property, duly registered on 29.06.1942.
5.2 Gift Deed dated 12.09.1944, Ex.P2: The said document was executed with respect to shop no. 161-B at ground floor, alongwith one shop in Phatak and 1/5th undivided, unspecified share in seven shops alongwith stairs, upper floors, bearing no. 158-159, and one big house, bearing no. 140, Dariba Kalan, Chandni Chowk, Delhi.
As per the recitals of the said gift deed, Lala Mehboob Singh being the absolute owner of these properties, and gifted the same in equal shares to his four sons, Mehtab Singh, Ranjit Singh, Daryao Singh and Bahadur Singh.
5.3 Partition Deed dated 18.10.1943, the certified Urdu copy of which is Ex.P3. The same was executed between Lala Mehboob Singh and his sons Lala Mehtab Singh, Lala Ranjit Singh, Lala Daryao Singh, as well as Lala Bahadur Singh, who was adopted by CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 7/29 Lala Raghubir Singh but was the biological son of Lala Mehboob Singh . Vide this partition deed, the suit property was partitioned into five parts. The Well and the Chowk (Courtyard) became the absolute property of Lala Bahadur Singh and Lala Daryao Singh in equal shares, but Lala Mehtab Singh and Lala Ranjit Singh, and their heirs, were given the right to use the same in common in perpetuity. Per the translated copy of partition deed relied upon by plaintiffs, for use of the Chowk, passage in the suit property has also been provided to the aforesaid parties.
5.4 Sale deed executed between Mehtab Singh and Bahadur Singh dated 11.07.1957, Urdu copy of which is Ex.P4. Vide the same, undivided share in the hall and Kothri situated inside the suit property were sold by Mehtab Singh (defendant no.1) to Lala Bahadur Singh, the plaintiff no.1.
5.5 Will of Mehboob Singh Jain registered on 20.04.1956 inter- alia, containing the recitals that after his death, his son Lala Bahadur Singh, against consideration of Rs.3,000/-, would be entitled to purchase hall and kothri in the suit property from Mehtab Singh.
5.6 Sale deed executed between Daryao Singh and Chaman kali Jain on 17.08.1953 vide which Daryao Singh sold his share in the suit property to Chaman Kali Jain, the plaintiff no.2. As per the recitals in the sale deed, it was clarified that Lala Mehtab Singh, lala Ranjit Singh, and their family members will continue to have access CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 8/29 and approach up to Well and chowk/courtyard located in the suit property.
5.7 Suit filed by Sh. Santosh Kumar Jain and Yashodhar Jain, Ex Y2: Suit seeking declaration that above described Gift Deeds dated 18.06.1942 and 18.08.1944, Partition Deed dated 02.10.1942, Will dated 03.04.1956, Sale deed dated 03.08.1953 and 11.07.1947 are null and void. Besides declaration qua the above documents, a decree of partition was also sought. The said suit bearing no. 281/1974 was instituted by the parties in the Hon'ble High Court of Delhi, invoking the civil original jurisdiction of the Hon'ble Court. The said suit was dismissed on 18.05.1982, inter-alia, on the ground that it is barred by limitation.
6. Suit averments are to the effect that vide partition deed dated 02.10.1943 (or 18.10.1943), the disputed passage, and the Courtyard including the Well, fell into the share of Plaintiff no. 1 and his brother Daryao Singh. However, defendant no.1 and his other brothers Daryao Singh and Ranjit Singh were given the right to use the said disputed passage and Courtyard. Plaintiff no. 2 then purchased the share of Daryao Singh in the suit property vide sale deed dated 17.08.1953. Plaint also records the averments that by virtue of a sale deed dated 11.07.1957, Defendant no.1 sold his share in the suit property to plaintif no.1, as desired by their father in his Will dated 13.04.1956. As such, plaintiffs became the absolute owners of the disputed passage and Courtyard.
CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 9/29 6.1. It is the case of plaintiffs that defendants lost their right to the disputed passage and Courtyard by acquiescence, since they have not been using the same for 30-40 years. It is their case that the disputed passage, courtyard and the well have always been in exclusive use of the plaintiff and therefore, the defendants lost all rights to the same.
6.2 It is the case of plaintiffs that suddenly, for 3-4 days prior to the institution of the suit, at the instance and in collusion with defendant No. 1, defendants No. 2 to 4 started using disputed passage to reach to the courtyard as well as the well and when this interference in their property was protested to by the plaintiffs, the defendants threaten them with dire consequences. It is the case of plaintiffs that defendants have also tampered with the bolts installed at the common entrance, so as to make them dysfunctional, which has jeopardized the security of the remaining portions of the suit property, as the gates are now lying open for 24 hours of the day. As such, the plaintiffs have filed the instant suit seeking permanent injunction in their favour and against the defendants, seeking to restrain the defendants, their employees, representatives, etc. to interfere with the possession of the plaintiffs with respect to the disputed passage marked as E1, E2, E3 and E4 in the site plan, the entrance at points X and Y, and the open Courtyard as also the Well shown in the suit property. They have also prayed for award of costs of the suit, and any other relief which the court may deem it fit to grant to them.
CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 10/29
7. Separate written statements to the plaintiff were filed by all the defendants. As noted in forgoing portions of this judgment, the amended written statements were also filed by defendants No. 1, 3 and 4 subsequently. The same shall be considered. Since the line of defence taken by the defendants in the written statements is common, their defence can be discussed together.
7.1 The defendants have challenged the maintainability of the suit by stating that in the garb of seeking permanent injunction, the plaintiffs are instead seeking declaration of their exclusive ownership rights over the disputed passage leading to the courtyard, the courtyard itself, and the Well placed therein. It is the version of the defendants that even prior to the execution of the partition deed, they had all been in possession of the disputed passage, the common courtyard, and had been using the Well, which was in fact constructed in the year 1936 -1937 by defendant No. 1 with Shri Ranjit Singh, his brother. It is also averred that Wells have a special importance in Jain religion, to which all the parties to the suit subscribe, and as such, the defendants have continuously been using the Well. It is the case of defendants that in his Will dated the 13.04.1956, father of defendant No. 1, as well as plaintiff No. 1, had expressed his wish that defendant may sell his share in the Hall and Kothri situated in suit property to plaintiff No. 1, and accordingly vide sale deed dated 11.07.1957, the plaintiff has sold his share in the aforesaid portions of suit property to plaintiff No. 1. It is the case of defendants that even this sale deed makes it clear that CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 11/29 defendants have always been using the courtyard as well as the disputed passage leading to it.
7.2 It is the case of defendants that not only the entrance of the disputed passage displays their names indicating their use of the same, but the drainage pipe from their share in the property also passes through the common courtyard as well as the disputed passage, and therefore, the defendants cannot be said to have ever stopped using the said passage. It is their case that during all important family functions, such as the wedding of sons and daughters of defendant No. 1, the common courtyard and the Well were used by defendants. It is also their case that Shri Ranjit Singh and his sons have always been running their business under the name and style of M/s. Vigyan Udhyog, which is also accessible only through the disputed passage and courtyard, which has been in their continuous occupation. It is also stated that since plaintiff No. 1 had been adopted by Shri Raghbir Singh, despite the execution of the partition deed, he could not have taken any share in the suit property, which is ancestral property of the father of defendant No. 1, being a stranger to the family. It is their case that since defendants have always been in use of the common passage as well as the courtyard, there was no question of them extending any threat to the plaintiffs regarding the use of the said passage. They have denied the right of the plaintiff to maintain a suit to injunct them from the use of their own property, and have prayed for the dismissal of the suit accordingly.
CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 12/29
8. In replication to Written statement of defendant no.2, it was reasserted that plaintiffs have been in exclusive use and occupation of the disputed passage, as well as the courtyard and the Well therein for over 30 years. It was also stated that as Shri Mehboob Singh Jain was the exclusive owner of the suit property, which was his self acquired property, he was entitled to deal with it as he pleased and accordingly, the partition deed cannot be challenged on the ground that plaintiff No. 1 was also given a share in the suit property despite being adopted by his aunt and uncle. It has been also asserted in the replication that even otherwise, father of defendant No. 1, and other sons of Mehboob Singh Jain had all signed the partition deed, and now it does not lie in the mouth of the defendants to challenge the merit of the said partition deed.
8.2 It is seen that no replication was filed to the amended written statements filed by defendants No. 1, 3 and 5.
9. On the basis of pleadings, the following issues were framed vide order dated 07.11.1975:-
(i) Whether plaintiffs are entitled for injunction, as prayed for? OPP
(ii) Whether plaintiffs have any locus standi to file the present suit? OPP.
(iii) Whether the suit is barred U/s. 41 of Specific Relief Act? OPD CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 13/29
(iv) Whether plaintiff no. 1 was adopted by Sh. Raghubir Singh Jain, if so its effect ? OPP (deleted vide order dated 05.03.1977).
(v) Relief.
9.1. Thereafter, again following issues were framed vide order dated 05.03.1977 and issue no. (iv) framed on 07.11.1975 was deleted. The additional issues are as follows :-
(i) Whether the partition deed dated 02.10.1943 is void, and ineffective as against the rights of the defendants? OPD.
(ii) Whether Sh. Mehboob Singh Jain had no right to give the immovable property by Will dated 13.04.1956 in favour of plaintiff No. 1? OPD, if so its effect?
(iii) Whether the sale deed dated 11.07.1957 and 03.08.1953 are void and not binding on the defendants? OPD, if so its effect?
9.2. On the basis of amendment pleadings filed in the matter, following additional issues are also framed :-
(i) Whether the suit is maintainable in the present form i.e. whether the suit is infact one for declaration of the ownership rights? OPD.
(ii) Whether plaintiffs are estopped from filing the present suit due to the rights derived by defendants under partition deed dated 02.10.1943 and registered sale deed dated 03.08.1953 as well as due to acquiescence CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 14/29 in the common user of the property by defendants since 1943? OPD.
(iii) Whether the suit property is common property and in common use of defendants since 1943? OPD, if so its effect?
(iv) Relief.
10. Thereafter, matter progressed to the stage of recording plaintiff's evidence.
11. Daryao Singh, brother of plaintiff no. 1 (and defendant no. 1) was examined by the plaintiffs as PW-1. He testified that plaintiff had been adopted by Sh. Raghubir Singh, husband of his aunt, despite which he continued to live with Mehboob Singh, his biological father. He testified that the gift deed Ex.P1 was validly executed by his father in favour of the plaintiff and the gift deed was accepted by all members of the family. He testified that thereafter, an oral family settlement had taken place in which all the members of the family divided the their joint property amongst themselves, which was later reduced to the partition deed Ex.P3. He testified that defendant no. 1 sold some portion of his share in the suit property to the plaintiff no. 1 vide Sale Deed Ex.P4, in terms of the Will of their father Ex.P5. He testified that the defendants have neither been using the common passage through the entrances E1, E2, E3, E4, and gate at point X and Y to reach the common courtyard, nor have they any right to do so. He testified that the disputed property is under the exclusive ownership and possession CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 15/29 of both the plaintiffs. He further testified that even the well in the courtyard has dried up for the last 15 to 20 years. He testified that lately, upon the instigation of defendant no. 1, defendants no. 2 to 4, being his sons, have been trying to disturb the possession of plaintiffs over the disputed property, forming part of the suit property. He was cross-examined duly, and discharged.
12. Plaintiff no. 1 stepped into the witness box as PW-2. He testified that Mehboob Singh was his biological father, although he had later been adopted by his aunt and her husband, Raghubir Singh. He testified that vide gift deed dated 18.06.1942, shop no.
162-B was gifted to him by his father, Mehboob Singh. He relied upon the certified copy of the gift deed Ex.P1 in his testimony. He testified that in terms of the Will of his late father Ex.P5, defendant no. 1, Mehtab Singh, sold his share in the suit property to him vide sale deed dated 11.07.1957, Ex.P4. He further testified that the share of Daryao Singh in the suit property was purchased by his wife, being plaintiff no. 2. He testified that the defendant used to enter the property through the gate marked as Mark G. He testified that the doors at Mark A, B and C have been lying closed for about 35 to 40 years. He testified that entrance marked as E1, E2, E3 and E4, is the entrance / dehleez and have not been used by the defendants for the last 30 to 35 years. He testified that defendants tried to forcibly start using this entrance in 1974 i.e. immediately prior to the filing of the instant proceedings. He testified that defendants removed the bolts on the entrances affixed by the plaintiff and started prohibiting the plaintiff from closing the doors. He testified that the courtyard, CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 16/29 including the well as well as the common passage, have been under his use and occupation alone for a considerable time and the defendants have not been using it for the last 35 to 40 years. He was cross-examined at length, and discharged.
13. PW-3 Mantar Das, S/o Lala Ranjit Singh testified that plaintiff is his real uncle, as also defendant no. 1. He testified that the courtyard and the Well shown in this existing in the suit property are in possession of the plaintiff. He testified that there is a common passage in front of the property. He testified that entrances E1, E2, E3 and E4 are in possession of plaintiff no. 1, alongwith gate X and Y. He testified that for about 5-7 years, prior to the filing of the suit, defendants have been using the passage mark X and Y forcibly. After being cross-examined at length, he was discharged.
14. No other witnesses were examined by the plaintiffs and PE was closed.
15. At the stage of DE, it is seen that defendant no. 1 and 2 have since expired and defendant no. 4, although he filed a separate written statement, never entered the witness stand. While the plaintiffs were cross-examined at the behest of both the defendants, defendant no. 4 never led any evidence in the affirmative. The only witness examined on part of the defendants was defendant no. 3 himself who took the witness stand as DW-1. In his examination-in- chief DW-1 relied upon his evidence affidavit Ex.DW-1/A in which he has testified on the lines CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 17/29 of the written statement filed by him. He was also duly cross- examined before discharged.
16. DE was closed after the examination of this witness, and the proceedings progressed to the stage of final arguments.
17. Final arguments have been heard at length. Record perused. Considered. My issue-wise findings are as under:
18. Whether the partition deed dated 02.10.1943 is void, and ineffective as against the rights of the defendants? OPD.
and Whether the sale deed dated 11.07.1957 and 03.08.1953 are void and not binding on the defendants? If so, its effect? OPD.
and Whether Sh. Mehboob Singh Jain had no right to give the immovable property by Will dated 13.04.1956 in favour of plaintiff No. 1? If so, its effect? OPD.
Onus to prove this issue was upon the defendants. It is seen that the substratum of the defence of the defendants is that vide the partition deed Ex.P3, defendant no. 1 was given a specific share in the suit property. They have also admitted that after the execution of the partition deed, defendant no. 1 sold his shae in the Hall and Kothri existing in the suit property to plaintiff no. 1, against consideration of Rs.3,000/-. Ex.P4 is the sale deed vide which sale was made, in terms of the Will of Sh. Mehboob Singh. That is to say, the partition deed and the consequent documents have been CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 18/29 acted upon by the defendants as well. It appears absurd that they now claim the documents to be non-est. The said claim of the defendants is premised on the fact that the plaintiff had been taken in adoption by his aunt and her husband, and therefore, had no subsisting right in the joint family property of his biological father, who was also the father of defendant no.1. In order to substantiate their defense that the suit property was ancestral in nature, no evidence was led on record by the defendants, however. In cross- examination of PW-2, he was specifically asked about the nature of the suit property. PW-2 specifically testified that this property was purchased by his biological father, late Sh. Mehboob Singh and was his separate property. No contrary suggestion or evidence contravening this fact was placed on record by the defendant. Even the recitals of the partition deed show that the suit property has been described by Sh. Mehboob Singh to be his self acquired. No contrary material has been brought on record by the defendants to show that the property was ancestral in nature. Even otherwise, defendant no. 3 admitted on oath that a prior litigation had been filed by the defendants against the plaintiffs, seeking declaration that, inter-alia, the partition deed dated 02.10.1943, is ineffective. The said suit was dismissed by the Hon'ble High Court of Delhi on 18.05.1982 vide order being Ex.Y2. Once, the same issue has been adjudicated upon and has reached finality, the defendants have no right to claim that the partition deed is null and void. As such, this issue is decided against the defendants and in favour of the plaintiff.
CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 19/29
19. Whether plaintiffs are estopped from filing the present suit due to the rights derived by defendants under partition deed dated 02.10.1943 and registered sale deed dated 03.08.1953 as well as due to acquiescence in the common user of the property by defendants since 1943? OPD Onus to prove this issue was placed upon the defendant. It is seen that both the parties have relied upon the partition deed, one of the recitals of which is that neither of the beneficiaries of the partition deed shall file a suit against each other. However, in the considered opinion of this Court, this clause of the partition deed is contrary to the provisions of Section 23 of the Indian Contract Act, 1872, and cannot be enforced so as to debar a party from filing a claim before a court of law. This issue is accordingly decided against the defendants and in favour of the plaintiffs.
20. Whether the plaintiffs are entitled for injunction, as prayed for ?
and Whether plaintiffs are estopped from filing the present suit due to the rights derived by defendants under partition deed dated 02.10.1943 and registered sale deed dated 03.08.1953 as well as due to acquiescence in the common user of the property by defendants since 1943? OPD and Whether the suit property is common property and in common use of defendants since 1943? OPD, if so its effect?
CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 20/29 All these issues are taken up together as they are interconnected. From the pleadings, certain admitted facts emerge:
(a) That the property was owned by father of plaintiff no. 1 and defendant no. 1 Sh. Mehboob Singh Jain.
(b) That Mehboob Singh Jain executed a partition deed dated the 02.10.1943 / 18.10.1943, dividing the property between him and his four sons, including plaintiff no. 1 and defendant no. 1.
(c) Upon partition of the suit property, the disputed passage as well as the courtyard and the Well therein fell in the share of original plaintiff no. 1 Mehtab Singh and his brother Daryao Singh. However, defendant no. 1 Mehtab Singh Jain and his brother Lala Ranjit Singh were given the right to use the disputed passage, the common courtyard and the Well in perpetuity alongwith their legal heirs. Qua the last admitted fact, it is seen that both the parties have placed on record the translated versions of the partition deed Ex.P3, but neither of them have proved the translated copies thereof. That is to say, neither of the parties have examined the translators, the authors of the documents. However, both of their versions tally to the extent that they admit that the right to use the disputed passage and the common courtyard were granted to defendant no. 1, Mehtab Singh and their brother Lala Ranjit Singh, although the ownership thereof was given to plaintiff no.1, and Daryao Singh. Since the versions of the parties qua the partition deed tally to this extent, the translated versions of the partition deed can be accepted to be CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 21/29 correct, and formal proof of the translated documents can be dispensed with.
21. Now, plaintiffs have claimed permanent injunction seeking to restrain the defendants and their legal heirs from using the disputed passage as well as the common courtyard. Permanent injunction can be granted to a party who shows: (a) the existence of a right in his favour; (b) the infraction or threatened infraction of that right. In this case, plaintiffs claim to be the exclusive owners of the disputed passage as well as the common courtyard and the Well shown in the suite property. It is the case of the plaintiffs, that after the execution of Partition Deed Ex.P3, Daryao Singh sold his share in the suit property to plaintiff no. 2 (Sale Deed dated 17.08.1953), and defendant no. 1 sold his share in the suit property to plaintiff no. 1 (Sale Deed Ex.P4). It is their case that as a result thereof, plaintiffs became the exclusive owners of the suit property, including the disputed passage and the common courtyard.
22. This case of the plaintiffs is contrary to all the documents on record. It is seen that the sale deed executed between Daryao Singh and Chaman Kali Jain / plaintiff no. 2 on 17.08.1953 categorically states that despite the sale of his portion by Daryao Singh Jain to Chamankali Jain, Lala Mehtab Singh and Lala Ranjit Singh, and their family members will continue to have access and approach up to the Well, in the Courtyard located in the suit property. Perusal of the recitals of this document makes it abundantly clear that the document in no way extinguished the right of defendants over the CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 22/29 disputed passage or the common courtyard in the suit property. Likewise, perusal of the sale deed executed by defendant no. 1 Mehtab Singh in favour of Bahadur Singh dated 11.07.1957, Ex.P4 reveals that vide the same only, the sale of hall and portion situated inside the suit property was made by defendant no. 1 to plaintiff no.
1. Even this document in no way extinguished any right, interest of defendant over the disputed passage or the courtyard. Neither of these documents support the claim of the plaintiffs that they became the absolute owners of the disputed passage and the common courtyard to the exclusion of the defendants as a result of execution thereof. Perusal of testimony of PW-2 / plaintiff no.1 reveals that he testified that he is the exclusive owner of the disputed passage and the courtyard as per the partition deed, Ex.P3. This portion of testimony of PW-2 is contrary to the translated version of the partition deed on which the plaintiffs themselves rely. No subsequent document executed qua portions of suit property supports this claim either. As such, this testimony of PW-2 cannot be considered to be of any value.
23. PW-1 Daryao Singh also testified that the disputed property is under the exclusive ownership and possession of both the plaintiffs, but failed to substantiate his testimony on the basis of any evidence. He did not substantiate as to how, despite the recitals contained in the sale deed executed by him himself, saving the rights of defendants to use the disputed passage and the common courtyard, he knows that it is the plaintiffs who have the exclusive ownership and possession of the disputed passage as well as the courtyard to CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 23/29 the extent that the defendants do not even have a right to use the same. All in all therefore, it is the considered opinion of this court that plaintiffs failed to establish that the rights of defendant to use the disputed passage and the common courtyard were extinguished by virtue of the sale deeds referred above.
24. It is next the case of the plaintiffs that the defendants have no right to use the disputed passage or the common courtyard as they had lost their rights because of non user of the same for over 30 years. It is trite that although defendant in a suit can set up contrary defences, plaintiff is not entitled to take inconsistent stands. Reliance at this juncture can be placed on judgment of Hon'ble High Court of Delhi titled Usha Balashaheb Swami & Ors. Vs. Kiran Appaso Swami & Ors. Appeal (Civil) 2019 of 2007, DoD 18.04.2007
25. In the case at hand, plaintiffs have claimed that they purchased the rights of the defendant to the disputed passage and the common courtyard vide the sale deeds executed by Daryao Singh in favour of plaintiff no. 2 and defendant no. 1 in favour of plaintiff no.
1. The effect of the said sale deeds has already been discussed. This court has already reached the conclusion that rights of defendant to use the disputed passage or the common courtyard were not extinguished by virtue of the said documents. Now, the contrary claims set up by the plaintiffs that the rights of the defendants were so extinguished because of their non user is not permissible in law. Be that as it may, this court is of the considered opinion that even on merits, the plaintiffs have not been able to establish this version.
CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 24/29 PW-2 / plaintiff no. 1 testified that for the last 30-35 years, the defendants have not been using the disputed passage or the common courtyard. This version of the plaintiffs is contrary to the recitals of the documents relied upon by them. That is to say, as per sale deed executed in favour of plaintiff no. 2 by Daryao Singh, the right of the defendant no. 1 and his legal heirs to use the disputed passage and the common courtyard was saved, and it was categorically mentioned therein that they shall have a right to use the common passage as well as the courtyard up to the well. Further, during cross-examination, PW- 2 was asked if the common courtyard had been used by defendant no. 1 during the wedding ceremonies of his children. PW-2 vaguely replied that if any such ceremonies had been solemnized in the courtyard, they were solemnized with his prior permission. This answer, when considered together with his answer that the parties have been at loggerheads and have been involved in litigations against each other since the year 1960, does not appear to be convincing. Parties having interest adverse to each other since the year 1960, there would have been no occasion for plaintiff no. 1 to permit defendant no. 1 to use the common courtyard or the disputed passage over which he had exclusive rights of use and ownership. From this testimony of PW-2, it can be gathered that defendants had been using the common courtyard in their own right.
26. PW-1 Daryao Singh also testified that he had executed a sale deed with respect to his share in the suit property in favour of plaintiff no.2 and for a long time, defendants have neither been using the disputed passage or the gates at points X and Y to reach the common courtyard, nor have they any rights to do so.
CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 25/29 In his cross-examination, he testified that he cannot say if Lala Ranjit Singh had put a board of Vigyan Udhyog in the courtyard in his own portion. This portion of testimony of PW-1 also makes it clear that the common courtyard is not only being used by defendant no. 1 but also by the other son of late Sh. Mehboob Singh namely Lala Ranjit Singh. PW-1 further testified that he had only seen plaintiff no.1 using the well in the courtyard, but admitted that he visits the house of plaintiffs only occasionally. In view of the same, the testimony of witness does not go a long way in establishing that defendants have not been using the common courtyard or the disputed passage. His testimony appears to be partisan in nature, and does not inspire confidence.
27. Son of Lala Ranjit Singh, Sh. Mantar Das was examined by the plaintiff as PW-3. PW-3 testified that defendant no. 1 had been using the disputed passage to enter the courtyards from gates at point X and Y forcibly, although the same are under the exclusive ownership and possession of the plaintiffs. However, the veracity of this witness was also successfully challenged by the defendants during his cross-examination.
In his cross-examination, the witness testified that he has also been using the common courtyard and the disputed passage to reach the courtyard for about 15-20 years with the permission of plaintiff no. 1, but did not specify any reason as to why he was required to take such permission, given the fact that recitals of the partition deed itself bestowed upon his father and his legal heirs the right to use such disputed passage and the courtyard. The witness admitted CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 26/29 that he has never perused the said partition deed infact, and the significance of his testimony fails. The fact that the witness accepted that he has been using the passage for the past 15-20 years as also the fact that supply line from the Well in the courtyard of the suit property is being used for water supply to his portion in the suit property, impels the court to raise the inference that, as per the partition deed itself, Lala Ranjit Singh had been using the disputed passage and the common courtyard, and the same has been continued to be done by PW-3 as well. This circumstance dents the version of plaintiffs that they have been using the disputed passage and common courtyard exclusively.
28. The plaintiffs have neither been able to prove that because of the registered sale deeds dated 03.08.1953 and 11.07.1957, the rights of the defendants to use the disputed passage or the common courtyard was extinguished, nor have they been able to establish that the rights of the defendants to use the same was extinguished because of non user. As such, these issues are all decided against the plaintiffs and in favour of the defendants.
29. Whether the suit is maintainable in the present form i.e. whether the suit is infact one for declaration of the ownership rights? OPD.
Onus to prove this issued was upon defendant. In the case at hand, the plaintiffs admitted that while the partition deed dated 18.10.1943, defendants had been given the right to use the disputed passage and the common courtyard, but contended that they are now CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 27/29 entitled to a decree of injunction restraining the defendants from using these rights as they had lost the same. The fulcrum of the case of plaintiffs being the extinguishment of these rights of the defendant over the disputed passage and the common courtyard, the plaintiffs ought to have claimed a declaration to this effect. In the considered opinion of this court, without such a declaration, the suit is not maintainable in its present form. The issue is accordingly decided in favour of the defendants, and against the plaintiff.
30. Whether plaintiffs have any locus standi to file the present suit? OPP.
As has already been discussed above, the plaintiffs could not prove that the defendants had lost their rights of user of the disputed passage or the common courtyard by virtue of any sale deeds executed subsequent to the execution of partition deed in favour of the plaintiff. As per the said partition deed, at the cost of reiteration, the plaintiffs have admitted that such common rights of user existed in favour of the defendant. The extinguishment of these rights by way of non user also could not be established by the plaintiffs. As such, this court is of the considered opinion that plaintiffs have not been able to prove any locus standi to file the present suit. This issue is accordingly decided against the plaintiffs, and in favour of the defendant.
31. Whether the suit is barred under section 41 of Specific Relief Act? OPD.
CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 28/29 The onus to prove this issue was upon the defendant. The defendants neither adduced any evidence on record to show that the suit is barred by Section 41 of the Specific Relief Act, 1963, nor raised any argument to show under which clause of the said provision would the suit be barred. Accordingly, this issue is decided in favor of the plaintiffs, and against the defendants.
32. RELIEF:
In view of the findings qua various issues above, the suit of the plaintiffs is dismissed.
Parties to bear their own costs.
Decree sheet be drawn accordingly.
File be consigned to record room after due compliance.
Digitally
signed by
Medha Medha Arya
Date:
Arya 2024.04.30
10:22:26
+0530
Announced in the open court (MEDHA ARYA)
on 29.04.2024 Administrative Civil Judge -cum-
(This judgment contains Additional Rent Controller (Central)
29 pages in total) Delhi/29.04.2024
CS/98985/16 Lala Bahadur Singh Jain Vs.. Lal Mehtab Singh Jain 29/29