Delhi District Court
Mr. Subhash Chander vs Mr. Manoj Kumar on 30 April, 2024
IN THE COURT OF CIVIL JUDGE-01, WEST, TIS
HAZARI COURTS, DELHI
Presided over by- Sh. Vikas Madaan, DJS
CS SCJ No. 1019/2021
CNR DL WT 030023452021
Date of institution of suit :16.09.2021
Date of reservation of Judgment :09.04.2024
Date of pronouncement of Judgment :30.04.2024
1. Sh. Subhash Chander (Senior Citizen)
S/o Late Sh. Barkat Ram and Late Smt. Somawanti
2. Ms. Asha Rani ( Senior Citizen)
W/o Sh. Subhash Chander
D/o Late Sh. Nand Lal & Late Smt. Raj Rani
Both R/o House No. 15/64, Ground Floor
Near Sanatam Charam Mandir, Subhas nagar
Police Station, Rajouri Garden, District West, Delhi
New Delhi-110027.
3. Ms. Tannu
D/o Sh. Subhash Chander & Smt. Asha Rani
Permanent R/o : House No. 15/64, First floor
Near Sanatam Dharam Mandir, Subhash nagar
Police Station, Rajouri Gardsen, District West, Delhi
New Delhi-110027.
..............Plaintiffs
Vs.
Digitally
signed by
1. Mr. Manoj Kumar VIKAS
VIKAS MADAAN
Disowned/debarred son of Sh. Subhash Chander and MADAAN Date:
2024.04.30
15:33:06
+0530
Pages 1 of 16 Subhash Chander vs. Manoj Kumar CS SCJ NO. 1019/21
Smt. Asha Rani
Presently R/o 15/90, Top Floor
Subhash Nagar, Police Station, Rajoueri Garden
District, West Delhi, New Delhi-110027
Previously at
15/76, Third Floor, Subhash Nagar
Police station: Rajouri Garden District :West Delhi
New Delhi-110027
Previously at 15/76, Third Floor, Subhash Nagar
Police Station, Rajouri Garden District, West Delhi
New Delhi-110027.
2. Mrs. Neha Kaur
W/o Sh. Manoj Kumar
D/o Sh. Rajinder Singh & Smt. Nisha Kaur
Currently/presently R/o
Z-29, Gali No.2, Khui Wali Gali
Vishnu Garden, Khyala Police Station:Khyala
District:West, New Delhi-18
Also At
15/90, Top Floor
Subhash Nagar, Police Station, Rajouri Garden District
West Delhi, New Delhi-110027.
Previously at 15/76, Third Floor
Subhash Nagar, Police Station, Rajouri Garden District
West Delhi, New Delhi-110027.
Digitally
3. Mr. Rajinder Singh signed by
VIKAS
(Father of defendant no.2 ) VIKAS MADAAN
MADAAN Date:
2024.04.30
15:33:14
4. Mrs. Nisha Kaur +0530
Pages 2 of 16 Subhash Chander vs. Manoj Kumar CS SCJ NO. 1019/21
W/o Mr. Rajinder Singh ( mother of defendant no.2. )
Both R/o Z-29, Gali No.2, Khui Wali Gali
Vishnu Garden, Khyala, Police Station Khyala
District West, New Delhi-18.
.......... Defendants
_________________________________________________
Argued by
Sh. Anuuj Aggarwall, Ld. counsel for plaintiff.
Sh. S.K. Mittal, Ld. counsel for defendant no.2 ,3
and 4
SUIT FOR PERMANENT AND MANDATORY
INJUNCTION
JUDGMENT
A. FACTUAL MATRIX
1. Brief facts of the present case as per plaint are that the plaintiff no.1 and 2 are super senior citizens and plaintiff no.3 is unmarried daughter of plaintiff no.1 and 2 and defendant no.1 is disowned son of plaintiff no.1 and 2 and brother of plaintiff no.3. It is stated that the suit property i.e. House No. 15/64, Near Sanatam Dharam Mandir, Subhash Nagar, Police Station Rajouri Garden, District West, Delhi-27 is self acquired property of plaintiff no.1 which was purchased by him vide registered GPA dated 17.01.1990 and other transfer documents i.e. agreement to Digitally signed by sale and purchase, affidavit, receipt, all dated 17.01.1990. VIKAS VIKAS MADAAN MADAAN Date:
2024.04.30 15:33:22 Pages 3 of 16 Subhash Chander vs. Manoj Kumar CS SCJ NO. 1019/21 +0530 It is further stated that plaintiff no.1 and 2 have blessed with three children i.e. one son and two daughters. It is further stated that defendant no.1 got married with defendant no.2 on 12/13.10.2013 and due to love and affection, plaintiff no.1 allowed defendant no.1 and 2 both as licensee to reside at one room on first floor of suit property till 01.1.2021. It is further stated that defendant no.1 and 2 used to quarrel and insult plaintiffs as routine manner. It is further stated that on 01.1.2021, both defendant no.1 and 2 crossed all their limits as defendant o.2 started giving bearings physically to plaintiffs with mala fide intention either to kill plaintiffs or compelled plaintiff no.1 to such circumstances that plaintiff no.1 might either transfer one room of first floor of suit property in the name of defendant no.2 or might leave the entire suit property. It is further stated that on the same day, defendant no.2 also called defendant no.3 and 4 and their associates in order to further pressurize, blackmail and terrorize plaintiffs. It is further stated that defendant no.2 to 4 and their associates all in collusion with each other again extended threat to plaintiffs. It is further stated that on 01.1.2021, defendant no.1 and 2 left one room of the first floor of suit property with their all belongings and they also took valuables of plaintiff with them and shifted and started living at 15/76, Third Floor, Subhash Nagar, Digitally signed by VIKAS Police Station Rajouri Garden District West, Delhi-27. VIKAS MADAAN MADAAN Date:
2024.04.30 15:33:35 +0530
2. It is further stated that on 09.09.2021, all of a sudden defendant no.2,3 and 4 alongwith anti social elements Pages 4 of 16 Subhash Chander vs. Manoj Kumar CS SCJ NO. 1019/21 persons forcibly entered in the suit property and again started leveling false and frivolous allegations against plaintiffs and repeated their threats and their demands, that plaintiffs should pay sum of Rs. 10,00,000/- in cash to them or immediately transfer the portion of suit property in the name of defendant no.2. unless the remaining days of plaintiffs will be behind the bar. Hence, the present suit has been filed by the plaintiff.
3. By virtue of present suit the plaintiff has prayed for the following reliefs :
(1) Decree of permanent injunction in favour of plaintiff no.1,2 and 3 and against defendant no.1 to 4 thereby restraining the defendant no.1 to 4 their agents, attorneys, servants, successors and associates etc. not to enter, coming, interfere three storey self acquired built up property of plaintiff no.1 i.e. H.No. 15/64, Near Sanatam Dharam Mandir, Subhash Nagar, Police Station :Rajouri Garden, West District, New Delhi -27 entire suit property shown in red colour in site plan and plaintiff no.1 and 2 used and in possession of entire ground floor and second floor of suit property which is shown in yellow colour in site plan and plaintiff no.1 tenants under the tenancy of plaintiff no.1 resides and used as tenants on second floor of the suit property which is also shown in yellow colour in site plan. Plaintiff no.3, Tannu reside and used and in possession of entire first floor of suit property which is shown in green colour in site plan. Digitally signed by VIKAS VIKAS MADAAN MADAAN Date:
2024.04.30 15:33:42 +0530 Pages 5 of 16 Subhash Chander vs. Manoj Kumar CS SCJ NO. 1019/21
(b) To pass a decree for mandatory injunction in favour of plaintiff no.1,2 and 3 and against defendant no.1 to 4 thereby directing defendant no.1 to 4 their agents, attorney, servants, successors and associates etc. not to dispossess or interfere in the peaceful possession of the plaintiffs in entire suit property i.e. House No. 15/64 Near Sanatam Dharam Mandir, Subhash Nagar, Police Station :Rajouri Garden, West District, New Delhi -27 shown in red colour in site plan of the suit property.
(c) Cost of the suit.
(d) Any other relief.
4. Vide Order dated 18.07.2022, the right to file W.S on behalf of defendant no.1,3 and 4 was closed.
5. Written statement filed on behalf of defendant no.2 wherein it is stated that plaintiff no.1 and 2 have disowned the defendant no.2 with a sole motive to grab her rights in the suit property being her matrimonial house. It is submitted by defendant no.2 that defendant is herself a victim by the hands of defendant no.1 and plaintiffs who were having a mala fide intention to get rid of defendant no.2 and used to harass her and owing to the same, the defendant no.2 had already filed a petition U/s 125 Cr.PC against defendant no.1. It is submitted that defendant during her stay in the matrimonial house/suit property has also given the money by borrowing the same from her parental family members for the renovation of the house Digitally signed by on the constant pressure from the plaintiff no.1. It is VIKAS VIKAS MADAAN MADAAN Date:
2024.04.30 15:33:50 Pages 6 of 16 Subhash Chander vs. Manoj Kumar CS SCJ NO. 1019/21 +0530 further stated that plaintiffs since the marriage have been mentally and physically harassing the defendant no.2 for want of dowry in collusion with defendant no.1 and was made a dowry victim in the matrimonial house. It is further submitted that the present suit is a collusive suit being filed by the plaintiffs in collusion with the defendant no.1 with sole motive to get rid of defendant no.2 and grab her right over the suit property and also to save their skin from the cruelties they have inflicted on defendant no.2. In rest of the W.S the averments made in the plaint are denied and prayer is made for dismissal of suit.
6. Vide Order dated 15.11.2022, the following issues are framed :
1. Whether the plaintiff is entitled to decree of permanent injunction as prayed for ? OPP.
2. Whether the plaintiff is entitled to decree of mandatory injunction as prayed for ? OPP.
3. Whether the suit is maintainable in its present form ?
OPD
4. Relief.
C. PLAINTIFF'S EVIDENCE
7. In order to prove his case plaintiff no.1 has examined himself as PW-1 and has tendered in evidence his duly Digitally signed by sworn in affidavit. Same is Ex. PW 1/A and has relied VIKAS VIKAS MADAAN MADAAN Date:
upon following documents : 2024.04.30 15:33:58 +0530 Pages 7 of 16 Subhash Chander vs. Manoj Kumar CS SCJ NO. 1019/21 Sr. No. Details of documents Exhibits 1 Copy of aadhar cards Ex. PW 1/A (OSR) Ex. PW 1/B (OSR) Ex. PW 1/C (OSR)
2. Site plan Ex. PW 1/D
3. Five Photographs Mark A
4. Copy of GPA Ex. PW 1/F ( pages Agreement to sell 52 to 58) (OSR) Affidavit Receipt 5 Electricity bills Ex. PW 1/G (Colly.) (59 to 60) (OSR) Copy of water bills Mark B
6. Copy of public notice for Mark H (colly) publication request and (62 to 63) publication dated 23.06.2021 6A Copy of newspaper report Ex. PW 1/H ( Original newspaper seen and returned)
7. Copy of medical records Ex. PW 1/I (colly) of plaintiff no.1 and 2 (OSR) (pages 65 to 71 and Page no. 87 of document from 78 to 82 and 85 is hereby marked as Mark to 86) C Digitally 8 Cop of order dated Ex. PW 1/J (Colly.) signed by VIKAS VIKAS MADAAN MADAAN Date:
2024.04.30 15:34:04 +0530 Pages 8 of 16 Subhash Chander vs. Manoj Kumar CS SCJ NO. 1019/21 11.08.2021 (attested copy seen and returned) 9 Copy of complaint Mark K (colly. ) (pages 89 to 98 and 102 to 119)
8. In order to prove his case plaintiff no.2 has examined himself as PW-2 and has tendered in evidence his duly sworn in affidavit. Same is Ex. PW 2/A and has relied upon documents as exhibited in testimony of PW-1.
9. In order to prove his case plaintiff no.3 has examined himself as PW-3 and has tendered in evidence his duly sworn in affidavit. Same is Ex. PW 3/A and has relied upon documents as exhibited in testimony of PW-1.
10. Thereafter vide separate statement made by plaintiffs on 27.07.2023, PE was closed and the matter was listed for DE.
11. Subsequently, the DE was also closed as defendant has failed to lead DE despite giving opportunities. Thereafter the matter was listed for final arguments.
12. Thereafter final arguments were heard on behalf of plaintiffs and defendant no.2 to 4. I have perused the VIKAS MADAAN record carefully. Digitally signed by VIKAS MADAAN Date: 2024.04.30 15:34:11 +0530 Pages 9 of 16 Subhash Chander vs. Manoj Kumar CS SCJ NO. 1019/21
13. My issuewise findings are as under :
ISSUE NO.1 & 21. Whether the plaintiff is entitled to decree of permanent injunction as prayed for ? OPP.
2. Whether the plaintiff is entitled to decree of mandatory injunction as prayed for ? OPP.
Both the issues are taken up together as the findings on these issues are based on common facts and evidence.
The onus to prove these issues was upon the plaintiffs.
14. It is averred by counsel for plaintiff that defendant no.1 is the owner of the suit property and he is residing with her wife and daughter at the suit property. It is further averred by plaintiff no.1 that defendant no.1 and 2 are his son and daughter in law and they were debarred by him vide a publication made in the newspaper Mark H and Ex. PW 1/H. It is further averred by plaintiff no.1 that the suit property is his self acquired property. It is further averred that after the marriage of defendant no.1 and 2, they were permitted to reside at the suit property out of love and affection but they subjected them to cruelty and due to said reasons, they were debarred/disowned by plaintiff no.1 and 2 from their immovable properties and severed all relations with defendant no.1 and 2. It is further averred that defendant no.1 and 2 had started living separately since Digitally signed by 01.1.2021. It is further averred that defendant no.1 to 4 do VIKAS VIKAS MADAAN MADAAN Date:
2024.04.30 15:34:19 +0530 Pages 10 of 16 Subhash Chander vs. Manoj Kumar CS SCJ NO. 1019/21 not have any right, title or interest in the suit property but despite that they are threatening the plaintiffs to dispossess them from the suit property and they further threaten them to face dire consequences.
15. Per contra, it is argued by the counsel for defendant no.2 to 4 that the present suit is a collusive suit between the plaintiffs and defendant no.1 and in the whole plaint and evidence affidavit, no allegations were made against defendant no.1. It is further submitted that the suit property is the matrimonial home of defendant no.2 and she has every right to reside at the suit property. It is further submitted that the plaintiffs have levelled serious allegations against defendant no.2 to 4 but no FIR or any complaint under the relevant provisions of law were filed against the defendants which shows that plaintiffs are just acting in connivance with defendant no.1 in order to disentitle defendant no.2 from entering into the suit premises. It is further argued that no declaration has been sought by plaintiff no.1 and 2 against defendant no.1 and 2 to debar them and merely giving a public notice is not adequate to disentitle the defendant no.1 and 2 from the suit property of the plaintiff no.1.
16. It is an admitted position of fact that defendant no.1 and 2 are not residing at the suit property. The contention of defendant no.2 is that suit property being his matrimonial house, she has every right to visit and to reside at the suit Digitally property. It is pertinent to mention that in para 4 of the signed by VIKAS VIKAS MADAAN MADAAN Date:
2024.04.30 15:34:26 Pages 11 of 16 Subhash Chander vs. Manoj Kumar CS SCJ NO. 1019/21 +0530 plaint it is averred by the plaintiffs that defendant no.1 and
2 resided at one room on the first floor of the suit property till 01.01.2021.
17. At this stage it is relevant to refer to certain provisions of The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as 'DV Act' for brevity) Section 17 Right to reside in a shared household.--(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.
(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.
(s) "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a house hold whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household;
18. In Satish Chander Ahuja vs Sneha Ahuja, Civil Appeal no. 2483 of 2020, The Hon'ble Supreme Court has held that :
"64. In paragraph 29 of the judgment, this Court in S.R. Batra Vs. Taruna Batra (supra) held that wife is only entitled to claim a right to residence in a shared Digitally signed by household and a shared household would only mean the VIKAS house belonging to or taken on rent by the husband, or the VIKAS MADAAN MADAAN Date:
2024.04.30 15:34:33 Pages 12 of 16 Subhash Chander vs. Manoj Kumar CS SCJ NO. 1019/21 +0530 house which belongs to the joint family of which the husband is a member. The definition of shared household as noticed in Section 2(s) does not indicate that a shared household shall be one which belongs to or taken on rent by the husband. We have noticed the definition of "respondent" under the Act. The respondent in a proceeding under Domestic Violence Act can be any relative of the husband. In event, the shared household belongs to any relative of the husband with whom in a domestic relationship the woman has lived, the conditions mentioned in Section 2(s) are satisfied and the said house will become a shared household. We are of the view that this court in S.R. Batra Vs. Taruna Batra (supra) although noticed the definition of shared household as given in Section 2(s) but did not advert to different parts of the definition which makes it clear that for a shared household there is no such requirement that the house may be owned singly or jointly by the husband or taken on rent by the husband. The observation of this Court in S.R. Batra Vs. Taruna Batra (supra) that definition of shared household in Section 2(s) is not very happily worded and it has to be interpreted, which is sensible and does not lead to chaos in the society also does not commend us. The definition of shared household is clear and exhaustive definition as observed by us. The object and purpose of the Act was to grant a right to aggrieved person, a woman of residence in shared household. The interpretation which is put by this Court in S.R. Batra Vs. Taruna Batra (supra) if accepted shall clearly frustrate the object and purpose of the Act. We, thus, are of the opinion that the interpretation of definition of shared household as put by this Court in S.R. Batra Vs. Taruna Batra (supra) is not correct interpretation and the said judgment does not lay down the correct law.
....
157. From the above discussions, we arrive at following conclusions: (I) The pendency of proceedings under Act, 2005 or any order interim or final passed under D.V. Act under Section 19 regarding right of residence is not an embargo for initiating or continuing any civil proceedings, which relate to the subject matter of order interim or final passed in proceedings under D.V. Act, 2005.
(ii) The judgment or order of criminal court granting an interim or final relief under Section 19 of D.V. Act, 2005 are relevant within the meaning of Section 43 of the Digitally Evidence Act and can be referred to and looked into by signed by VIKAS VIKAS MADAAN MADAAN Date:
2024.04.30 Pages 13 of 16 Subhash Chander vs. Manoj Kumar CS SCJ NO. 1019/21 15:34:39 +0530 the civil court.
(iii) A civil court is to determine the issues in civil proceedings on the basis of evidence, which has been led by the parties before the civil court.
(iv) In the facts of the present case, suit filed in civil court for mandatory and permanent injunction was fully maintainable and the issues raised by the appellant as well as by the defendant claiming a right under Section 19 were to be addressed and decided on the basis of evidence, which is led by the parties in the suit."
19. The Hon'ble Apex Court in one of its recent Judgment titled as "Prabha Tyagi Vs. Kamlesh Devi" Crl. Appeal No. 511/2022 (date of decision :12.05.2022) has observed that even a woman who is not residing at the shared household, can see enforcement of a right to live in a shared household. In the present case, it is an admitted fact that defendant no.2 resided at the suit property after her marriage. Therefore, defendant no.2 has a right to reside and visit at the suit property being his matrimonial home. This Court is further of the opinion that merely a publication disowning defendant no.1 and 2 from all their immovable properties and severed all relations with defendant no.1 and 2,without seeking any declaration from any competent Court would itself disentitle the defendant no.2 from enforcing her right at the suit property.
20. Therefore on the basis of the material on record this court finds the suit property to be the matrimonial home of defendant no.2. Defendant no.2 has a right to visit and stay in the matrimonial home till the subsistence of her marriage. Digitally signed by VIKAS VIKAS MADAAN MADAAN Date:
2024.04.30 15:34:47 +0530 Pages 14 of 16 Subhash Chander vs. Manoj Kumar CS SCJ NO. 1019/21
21. Since the suit has not been contested by defendant no.1,3 and 4, therefore, defendant no.1, 3 and 4 and their agents, attorneys, servants, successors and associates etc. are hereby restrained not to enter, coming, interfere three storey self acquired built up property of plaintiff no.1 i.e. H.No. 15/64, Near Sanatam Dharam Mandir, Subhash Nagar, Police Station :Rajouri Garden, West District, New Delhi -110027 as shown in the site plan and they are further restrained from dispossessing or interfering in the peaceful possession of the plaintiffs in entire suit property i.e. House No. 15/64 Near Sanatam Dharam Mandir, Subhash Nagar, Police Station :Rajouri Garden, West District, New Delhi -27.
The Issue no.1 and 2 are decided accordingly.
22. ISSUE NO.3 Whether the suit is maintainable in its present form ? OPD The onus to prove this issue was upon defendant.
Since no evidence has been led by the defendants, this Issue stands decided against the defendant and in favour of the plaintiff.
23. RELIEF Considering the aforementioned findings and observations of the aforementioned Issues, defendant no.1, 3 and 4 and their agents, attorneys, servants, successors and associates Digitally signed by VIKAS etc. are hereby restrained not to enter, coming, interfere VIKAS MADAAN MADAAN Date:
2024.04.30 15:34:53 +0530 Pages 15 of 16 Subhash Chander vs. Manoj Kumar CS SCJ NO. 1019/21 three storey self acquired built up property of plaintiff no.1 and they are further restrained from dispossessing or interfering in the peaceful possession of the plaintiffs in entire suit property i.e. House No. 15/64 Near Sanatam Dharam Mandir, Subhash Nagar, Police Station :Rajouri Garden, West District, New Delhi -27. Suit of the plaintiffs stands partly decreed in view of above.
No order as to costs.
Decree Sheet be prepared accordingly. File be consigned to Record Room after due compliance.Digitally signed by VIKAS
VIKAS MADAAN
PRONOUNCED IN THE MADAAN Date:
2024.04.30
15:35:00 +0530
OPEN COURT TODAY i.e.
on 30.04.2024 (VIKAS MADAAN)
Note: This judgment CIVIL JUDGE-01,
contains 16 pages and each WEST, TIS HAZARI
page is signed by the under COURTS, DELHI
signed.
Pages 16 of 16 Subhash Chander vs. Manoj Kumar CS SCJ NO. 1019/21