Delhi District Court
Presently At vs Shri Hira Singh on 24 July, 2018
IN THE COURT OF MS. RICHA SHARMA,
CIVIL JUDGE01 (WEST), TIS HAZARI COURTS,
DELHI
CS SCJ No. 608021/2016
Date of Institution : 13.11.2013
Date of reservation of judgment : 21.07.2018
Date of pronouncement of Judgment : 24.07.2018
Smt. Sushila Devi,
W/o Late Bachha Singh,
R/o T523, Prem Nagar,
Patel Nagar,
New Delhi 110 008.
Presently at:
R/o T610, Prem Nagar,
Patel Nagar,
New Delhi110 008 .................Plaintiff
Vs.
1.Shri Hira Singh, S/o Late Jagar Nath Singh, R/o T523, Prem Nagar, Ground Floor, Gali No. 3, Patel Nagar, New Delhi 110 008.
2. Shri Rajesh Singh, S/o Not known C/o Shankar Yadav, R/o T Gali No. 3, Prem Nagar, Patel Nagar, New Delhi110 008 ...............Defendants Suit No. 608021/2016 Sushila Devi Vs. Hira Singh Page No. 1/17 SUIT FOR PERMANENT AND MANDATORY INJUNCTION Judgment
1. In brief the factual matrix of the present case is that, plaintiff is seeking permanent injunction, possession of the first and second floor of the property bearing No. T523, Gali No. 3, Prem Nagar, Patel Nagar.
2. Plaintiff further states she is a housewife and was married to the younger brother of the defendant No. 1, before 32 years and the late husband of the plaintiff and the defendant No. 1 had been working in Delhi Cloth Mills, Delhi as labourers and out of the composite incomes of their respective engagement, purchased the suit property, about 22 years back and the documents pertaining to the suit property were retained and kept by the late husband of plaintiff.
3. Plaintiff further states that defendant No. 1 also used to threaten her late husband that he better vacate the suit property as the same had been in his name and when the late husband of the plaintiff did not bow down to the illegal demands of the defendant, he killed the late husband of plaintiff.
4. Plaintiff further states that after coming back to Delhi from 22.04.2011 to 13.05.2011, after completing the last rites of her husband, defendant regularly kept on picking up quarrel with the plaintiff and unrest and disturbance became a routine in the life of the plaintiff and due to this reason at times PCR calls were made by the plaintiff but the defendant kept on harassing the plaintiff and the defendant emerged successful in his illegal Suit No. 608021/2016 Sushila Devi Vs. Hira Singh Page No. 2/17 demands and the designs as the defendant No. 1 did not let the plaintiff enter the suit property and resultantly she had to take shelter in the house property of her brother in law (jija) at T610, Gali No. 3, Prem Nagar, Delhi.
5. Plaintiff further states that she was illegally arrested by the police in connection with the murder of her husband and was sent to judicial custody on 20.07.2011, the said case is pending trial.
6. That the plaintiff was released on bail on 13.05.2012, and she and the defendant No. 1 visited their native village Sogantha, Pargana Garha, District Balia, Uttar Pradesh to reconcile their issues and in this regard a panchayat was convened on 09.06.2013 at the native village, after hearing the plaintiff and the defendant No. 1, said panchayat decided that after the death of the late husband of the plaintiff, defendant No. 1 shall be the head of the family and shall take care of the plaintiff and her children.
7. That after coming back to Delhi, when plaintiff tried to enter the suit property, defendant No. 1 did not let her enter therein and informed the plaintiff that the lock and key on the suit property are his and when plaintiff requested the defendant No. 1 that at least she be allowed to collect the clothes and other articles from there and to do the same, when she entered the suit property, she found that the documents pertaining to the suit property were missing. On asking of it from defendant No. 1, he threatened the plaintiff that he was going to sell of the suit property and in case the plaintiff comes in between the sale of the suit property, she shall be eliminated.
Suit No. 608021/2016 Sushila Devi Vs. Hira Singh Page No. 3/17
8. Vide present suit, plaintiff has prayed as under :
(a) A decree for permanent injunction in favour of plaintiff and against the defendants, thereby restraining defendant No. 1, his agents, servants, attorneys, representative, employee, friends associates etc. from dispossessing the plaintiff from the suit property and from disposing of the suit property bearing No. T 523, Gali No. 3, Prem Nagar, Patel Nagar, Delhi110008, in any manner whatsoever.
(b) Pass any other or further order / orders which this Court may deem fit and proper in the facts and circumstances.
9. In written statement of defendant No. 1, he states that plaintiff is actually residing alongwith her children in property bearing No. T610, Gali No. 3, Prem Nagar, Patel Nagar, New Delhi 110 008 for the last more than 4 years. Defendant No. 1 is the absoloute owner of the suit property since 06.06.1985 and late Shri Bachha Singh, who was husband of the plaintiff was the real brother of the defendant No. 1 and defendant No. 1 allowed the said Bachha Singh to reside in one room accommodation on the first floor of the suit property, being a licensee of the defendant No. 1, out of love and affection and when sometimes plaintiff used to come from the native village of her husband, then also used to live with her husband in the said one room accommodation on the first floor of the suit property.
10. Defendant No. 1 further states that, plaintiff left the company of her husband and deserted him and she took all her belongings including her clothes etc. from the said one room accommodation Suit No. 608021/2016 Sushila Devi Vs. Hira Singh Page No. 4/17 on the first floor of the suit property and permanently shifted to the property bearing No. T610, Gali No. 3, Prem Nagar, Patel Nagar, New Delhi 110 008 alongwith her children and the said property belongs to brotherinlaw of the plaintiff and he has already transferred his rights in the said property in favour of the plaintiff and her children through executing Documents dated 18.07.2011 which include a gift deed, Will and affidavits, etc and therefore, the plaintiff is in possession of the property bearing No. T610, Gali No. 3, Prem Nagar, Patel Nagar, New Delhi 110 008. The said room was rented out by the defendant No. 1 to Shri Radheyshayam Shukla on the monthly rent of Rs. 1,500/ who is residing in the same for about three years and the adjoining room on the first floor of the suit property as well as the entire ground floor is in possession of the tenant, Shri Virender Singh on the monthly rent of Rs. 2500/ and the one room on the second floor of the suit property is in possession of the tenant, Shri Rajesh Singh for last six years at the monthly rent of Rs. 1500/.
11. Defendant No. 1 further states that, plaintiff is in actual possession of the property bearing No. T610, Gali No. 3, Prem Nagar, Patel Nagar, New Delhi 110 008, since July 2009, when she deserted the company of her husband late Bachha Singh. Plaintiff has got fabricated the documents, like, Adhaar card, showing the address of the suit property, without physical verification and by just showing the election ID Card (got prepared on 7.9.2005) as well the ration card (got prepared on Suit No. 608021/2016 Sushila Devi Vs. Hira Singh Page No. 5/17 30.11.2002, which were got prepared long back before she deserted the company of her husband and which were carrying the address of the suit property at that time.
12. Replication on behalf of the plaintiff to the written statement also filed, wherein plaintiff negated all averments made by the defendant No. 1 in his WS.
13. Vide Order dated 10.09.2014, following issues were framed by the Ld. Predecessor of this court on the basis of the pleadings of the parties:
1. Whether the plaintiff is entitled to decree of permanent injunction as prayed for ? OPP
2. Whether the plaintiff is not in actual and physical possession of the suit property? OPD
3. Relief
14. In order to prove his case, the plaintiff examined herself as PW1 and in her testimony exhibited her duly sworn in affidavit, exhibited as Ex.PW1/A on 24.10.2016. In her testimony, following documents were exhibited :
Site Plan PW1/1
Copy of ration card (OSR) PW1/2
Aadhar card (OSR) PW1/3
Election card (OSR) PW1/4
Copy of death certificate (OSR) PW1/5
Photographs PW1/6 (colly)
15. Vide order dated 16.03.2017, plaintiff's evidence was closed.
16. In order to prove his case, defendant examined himself as DW1 and in his testimony exhibited his duly sworn in affidavit as Suit No. 608021/2016 Sushila Devi Vs. Hira Singh Page No. 6/17 Ex.DW1/A on 03.07.2017. In his testimony, following documents were exhibited :
General power of attorney DW 1/1 Agreement to sell DW 1/2 Affidavit DW 1/3 Receipt dated 06.06.1985 DW 1/4 Copy of letter to regional provident fund Mark A commissioner Complaint dated 20.08.2009 Mark B Complaint dated 04.04.2010 Mark C Gift Deed, Will and two affidavits Mark D to G Certified copy of the chargesheet in case Mark H FIR No. 92/2011 Death certificate of Bachha Singh Mark I Complaint dted 07.11.2013 DW1/16 Complaint dated 23.11.2013 DW1/17 (OSR) Complaint dated 24.11.2013 DW1/18 (OSR)
17. Vide order dated 13.09.2017, defendant's evidence was closed.
18. I have heard the arguments advanced by Ld. counsels for both the parties and have perused the evidence on record carefully. My issuewise findings are as under :
ISSUE NO. 2Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP.
The onus to prove this issue was upon the plaintiff.
19. At the outset, it is pertinent to note that plaintiff has averred in her plaint as well as in her affidavit that the suit property was jointly purchased by her late husband and defendant No. 1, out of Suit No. 608021/2016 Sushila Devi Vs. Hira Singh Page No. 7/17 their composite income. It is further averred by the plaintiff that her husband prior to his death was an employee of DGM and thereafter, he started working on daily wage basis. But, plaintiff has not placed on record any documentary evidence to prove and show that her husband was ever employed with DCM. Further it is relevant to mentioned that no evidence has been placed on record by the plaintiff to show that her husband was ever employed with any employer and that his source of income was emanating through the employment with the DCM. Thus, plaintiff in the first place miserably failed to prove the income and the source of income of her late husband out of which he purchased the suit property.
20. It is even noteworthy to mention that the plaintiff in her cross examination on court query stated that she has no proof regarding the payment of salary by DCM to her husband as no documents pertaining to the same are available with her, as all the documents were lying in a box in the suit property which was taken away by the defendant. But it is relevant to mention that no complaint pertaining to the stealing / or taking away of the documents of the plaintiff or her husband by the defendant was made by the plaintiff with any police or for that matter with any court. It is further relevant to mention that it is stated by the plaintiff in her crossexamination conducted on 24.10.2016, that the salary was paid to her husband, in cash, both by DCM as well as by the officers of the DCM, when her husband started working with them, after the closure of the DCM but no proof pertaining to the Suit No. 608021/2016 Sushila Devi Vs. Hira Singh Page No. 8/17 payment of salary or the income source of the plaintiff's husband is placed on record. Interestingly, it is stated by the plaintiff in her crossexamination that her husband was having a bank account with the SBI, so being the case, it does not appeal to the prudent mind that the salary of the plaintiff's husband was given in cash and not deposited in the bank or through cheque, where, she herself states subsequently in her crossexamination that the bonus was paid by cheque to her husband. It is even pertinent to mention that it is stated by the plaintiff that her husband received Rs. 20,000/ towards ESI and Provident Fund after the closure of the DCM but further states in her crossexamination that she has no proof pertaining to the same and again gives the same reason that all the documents had been taken away by the defendant and at the cost of the repetition it is again stated that no complaint has ever been made by the plaintiff against defendant No. 1, for taking away all the relevant documents of the plaintiff and her husband. Further plaintiff has stated in her crossexamination that the salary paid to her husband by DCM was collected by defendant and this again does not inspire the confidence of the court, as it is highly unlikely that an employer will hand over the salary of an employee to some third person without the consent of the employee or without explicitly specifying the reasons for doing the same. All the averments made by the plaintiff with regard to her husband being employed with the DCM and the said employment being the source of income for her husband stands unproved as neither any document pertaining to the same Suit No. 608021/2016 Sushila Devi Vs. Hira Singh Page No. 9/17 is placed on record nor any independent witness is examined to this effect. Therefore, in the first place, plaintiff has been unable to prove that her husband had sufficient funds to purchase the suit property. Further, no documents pertaining to the suit property being executed in the name of her husband is placed on record by the plaintiff nor has any independent witness been examined by the plaintiff to show that the suit property was jointly purchased by the husband of plaintiff alongwith the defendant No. 1.
21. Defendant on the other hand has placed on record chain of document in form of GPA, agreement to sell, affidavit, receipt, collectively exhibited as Ex. DW 1/1. Perusal of the said document show that, the same were executed by one Shri Pyare Lal in favour of Hira Singh i.e. the defendant with respect to the suit property on 06.06.1985. There is no denials to the fact that the said documents are not registered documents, but nevertheless these documents are in the first place sufficient to at least establish the possession of the defendants qua the suit property, when plaintiff on the other hand has not adduced any documentary evidence.
22. It is further averred by the plaintiff that, she is in possession of the suit property and the said fact is stated by her in para 1 of her plaint, whereby it is stated that "plaintiff is in possession of the first and second floor of the property bearing No. T523, Gali No. 3, Prem Nagar, Patel Nagar. But the contents of para 1 are not in sync with the site plan placed on record by the plaintiff and the same is exhibited as Ex. PW1/1. As per the site plan the Suit No. 608021/2016 Sushila Devi Vs. Hira Singh Page No. 10/17 highlighted portion marked as "Mark A" is only the first floor and it nowhere shows that even second floor is in possession of the plaintiff. Further, on one hand in her plaint and affidavit plaintiff states that, she is in possession of the first floor and the second floor of the suit property but in her crossexamination dated 24.10.2016 "she states that I am residing in the suit property since the date suit property was purchased but on the contrary she does not know the exact date on which the suit property was purchased and the said fact is stated by her in her crossexamination of the same date, whereby she states that "I do not remember the date when the suit property was purchased". Further the factum of her being in possession of the suit property since the date suit property was purchased stands contradicted by her own statement made in the crossexamination, whereby on 16.03.2017 a specific question was put to her i.e. "is it not correct that in FIR No. 92/2011 PS Patel Nagar, you are an accused and you have furnished bail bond showing your address bearing No. T610, Gali No. 3, Prem Nagar" and to this, the answer of the plaintiff was in affirmative, implying thereby that in 2011 she has herself given the address in her bail bonds to be of a property which is different from the suit property and thus it cannot be said on the basis of the statement of the plaintiff even statement made in her crossexamination dated 16.03.2017 that she is in possession of the suit property since the time it was purchased.
23. On the contrary, it cannot even be said that she is in possession of Suit No. 608021/2016 Sushila Devi Vs. Hira Singh Page No. 11/17 the suit property from the date on which the suit was instituted as the present suit was instituted in the year 2013 and the address which she gives in the bail bonds furnished in the other court in the year 2011 pertains to the address bearing No. T610, Gali No. 3, Prem Nagar. Further, it is relevant to mention that on the same date in her crossexamination plaintiff stated that the defendants have got her wrong address mentioned in the FIR in connivance but on court query she herself stated that she had not moved any application before the concerned court for correcting her address in the bail bond furnished by her. Further, it is categorically admitted by the plaintiff in her crossexamination that the police had arrested her from the address of the property bearing No. T 610, Gali No. 3, Prem Nagar and not from the suit property, in another criminal case in which she was one of the accused. It is further admitted by the plaintiff that w.e.f. 18.07.2011 property bearing No. T610, Gali No. 3, Prem Nagar has been transferred in her name. Further discrepancy can be seen in the cross examination of the plaintiff dated 24.10.2016 at page 3 whereby she has herself in the complaint made by her mentioned her address different from that of the suit property and the relevant portions of the crossexamination are as under: "It is correct that in the complaint dated 20.08.2009 diary No. 42 and dated 04.04.2010, I had mentioned my address as T610, Gali No. 3, Prem Nagar, Delhi, I made the said complaint against my husband".
24. Another interesting aspect which needs to be dwelled into at this Suit No. 608021/2016 Sushila Devi Vs. Hira Singh Page No. 12/17 stage is that, plaintiff has placed on record death certificate of her husband and it is relevant to mention that the said document is exhibited in the testimony of the plaintiff herself as PW1/5. Perusal of the said document clearly shows that the permanent address as well as the present address of the deceased i.e. the husband of the plaintiff was mentioned as that of T610, Gali No. 3, Prem Nagar, Delhi and not of the suit property. Document Ex. PW1/5 has two heading of addresses, one being the present address and other being the permanent address and in that aspect also plaintiff nowhere mentioned the address of the suit property as one any of the addresses. Interestingly, the address of the suit property was not mentioned even in alternative as one of the addresses of the deceased on the death certificate. Perusal of the record further shows that, document Ex. PW 1/5 i.e. death certificate pertains to the year 2011 and the present suit was instituted in 2013, implying thereby that, in the year 2011 itself plaintiff was not residing at the suit property but was residing at T610, Gali No. 3, Prem Nagar, Delhi. Further in her cross examination, she admits that death certificate of her husband does not bear the address of the suit property but on the contrary it bears the address of the property bearing No. T610, Gali No. 3, Prem Nagar, Delhi. Thereafter, she states that the defendant got the wrong address mentioned in the death certificate, but this explanation appears to be a result of an afterthought and does not inspire the confidence of this court as it is stated by the plaintiff in her crossexamination itself that the last rites of her husband Suit No. 608021/2016 Sushila Devi Vs. Hira Singh Page No. 13/17 took place in her presence and the same was performed by her children and so being the case, the possibility of the defendant giving wrong address of the husband of the plaintiff in the death certificate stands negated as the plaintiff and her children were very much present there.
25. Further, it is averred by the plaintiff that, she is in possession of the suit property since its purchase, but this averment stand contradicted by her own statement made in crossexamination, whereby in her crossexamination dated 24.10.2016 at page 5, she admits that Shri Rajesh Singh is a tenant in the portion of the property in dispute for the last so many years, implying thereby that if admittedly as per the plaintiff herself, Shri Rajesh Singh is in the possession of the disputed property, then she cannot be in possession of the same and she further admits that Shri Rajesh Singh is a tenant in the suit property for last 10 years. Further, in her crossexamination of the same day at page 5, plaintiff states, "I cannot tell if Virender Singh is in possession of the entire ground floor as well as one room of the first floor", implying thereby that plaintiff is not denying to the possession of Virender Singh and so being the case she cannot be set to be in an undisputed possession of the suit property as it is a settled preposition of law that evasive denial is no denial and in this case plaintiff is not even denying to the possession of Virender Singh.
26. Further, from the averments of para 4 of the plaint itself it can be culled out that the plaintiff is not in possession of the suit property as it is averred that "defendant No. 1 did not let the Suit No. 608021/2016 Sushila Devi Vs. Hira Singh Page No. 14/17 plaintiff to enter the suit property and resultantly she had to take shelter in the house property of her husbandinlaw at T610, Gali No. 3, Prem Nagar". Thus, admittedly as per the averments of the plaintiff herself in her plaint, she was not in possession of the suit property after coming back to Delhi on 20.04.2011, after completing the last rites of her husband.
27. Plaintiff has not placed on record any document to show her existing possession of the suit property. Further, she has even miserably failed to prove that she was in possession of the suit property on the date on which the suit was instituted as the present suit was instituted in the year 2013 and by virtue of her own documents placed on record pertaining to the year 2011 i.e. the death certificate of her husband, the address mentioned in the death certificate is different from that of the suit property.
28. The only documents placed on record by the plaintiff showing the address of the suit property is a ration card issued in the name of her husband which is Ex. PW1/2 and aadhar card which is Ex. PW1/3, a voter I/Card which is Ex. PW 1/4, but it is noteworthy to mention that documents Ex. PW 1/4 i.e. the voter I/Card pertains to the year 2002 and therefore, neither this document establishes the current possession of the plaintiff with respect to the suit property nor does it establish plaintiff's possession of the suit property at the time of institution of the suit as this document was made prior to the institution of the suit. As far as the aadhar card of the plaintiff is concerned, it does not bear any date on which the same was made, therefore, simplicitor on the basis of Suit No. 608021/2016 Sushila Devi Vs. Hira Singh Page No. 15/17 aadhar card it cannot be stated that the plaintiff was in possession of the suit property at the time when the suit was instituted. Apart from this, the ration card placed on record by the plaintiff is in the name of her husband though it bears the address of the suit property but same pertains to the year 2005 and subsequent to this the document placed on record by the plaintiff in her own evidence i.e. death certificate of her husband is of the year 2011 and the same does not bear the address of the suit property and therefore the death certificate being a document subsequent in point of time and relied upon by plaintiff herself in her evidence will prevail over the ration card, at least for the purpose of establishing the address of the plaintiff as well as her husband at the time of plaintiff's husband death and also at the time of the institution of the present suit.
29. Thus, on the basis of the observations and finding made as above it can be categorically stated that plaintiff has miserably failed to prove in the first place that, the suit property was jointly purchased by the plaintiff's husband and defendant No. 1 as neither the plaintiff has proved her husband's source of income nor has she been able to prove any document showing joint execution made in favour of her husband and defendant No. 1 with respect to the suit property. Secondly, plaintiff has failed to prove her locus qua the suit property. She has been unable to prove her possession qua the suit property, not only in the current date but also at the time when the suit was instituted. Thirdly, there has been material contradictions in her testimony and her Suit No. 608021/2016 Sushila Devi Vs. Hira Singh Page No. 16/17 credibility has been shaken in her crossexamination and she could not withstand the litmus test of crossexamination. Plaintiff self contradicted the averments made by her in her plaint and affidavit with the statements made by her in her cross examination. Therefore, on the basis of the findings made as above, this issue is decided in favour of defendant and against the plaintiff.
Issue No. 1Whether the plaintiff is entitled to decree of permanent injunction as prayed for ? OPP The onus to prove this issue was upon the plaintiff.
30. On the basis of the observation and findings made in issue No. 2, the present issue becomes infructuous as the plaintiff has not been able to prove her possession qua the suit property in first place. Thus, the present issue also stands decided against the plaintiff.
Relief On the basis of observation and finding made in the issue as above, this court is of the considered opinion that the plaintiff has miserably failed to discharge the onus placed upon her to prove the above two issues. Therefore, the suit of the plaintiff stands dismissed. No separate order as to cost.
Digitally signed by RICHA RICHA SHARMA
SHARMA Date:
2018.07.25
14:46:52 +0530
Pronounced in the open court (Richa Sharma)
today on 24.07.2018 Civil Judge 01 (West)/Delhi
Suit No. 608021/2016 Sushila Devi Vs. Hira Singh Page No. 17/17