Delhi District Court
Shri Lachhman Dass vs Shri Vijay Prakash on 26 May, 2010
IN THE COURT OF SH. RAJ KUMAR : ADMINISTRATIVE
CIVIL JUDGEcum ADDITIONAL RENT CONTROLLER :
(NORTH) DELHI.
In Re : Suit No. 60/2008.
Old Suit No. 321/1995.
Shri Lachhman Dass,
S/o late Sh. Shival Dass,
R/o H.No. K81, West Ghonda,
near Bhajan Pura, Shahdara,
Delhi11053. Plaintiff.
Versus.
Shri Vijay Prakash
S/o late Sh. Shival Dass,
R/o H.No. 2938, Arya Pura,
Subzi Mandi, Delhi110007. Defendant.
Date of Institution of Suit : 30.08.1995.
Date on which Order was reserved : 14.05.2010.
Date of Pronouncement of Order : 26.05.2010.
JUDGMENT.
The facts in brief, necessary for the disposal of the
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present suit for permanent injunction as disclosed by the plaintiff in
the plaint, are that the plaintiff is engaged in business of selling fruits
at C691, New Subzi Mandi Azadpur, Delhi since 1986 as a
proprietorship business under the name & style of M/s Lachhman
Dass & Sons. It has been further submitted that originally in the year
1962 the plaintiff alongwith his brother namely Vijay (defendant
herein) started business of fruit merchant and commission agent at
Phar no. 15, 2938, Old Subzi Mandi, Delhi under the name & style of
M/s Vijay Parkash & Gulab Rai. It has been stated further that during
emergency with the shifting of Subzi Mandi at Azadpur, Delhi in the
year 1975, the plaintiff as well as the defendant continued to deal in
the same business of fruits and also applied for permanent place of
business being provided by DDA at that time for their collective
benefit and out of their joint funds. It has been further stated that
sometimes in the year 1980, the shop bearing no. C691 with
basement was allotted to the parties to this suit and by now the
number of partners in the ongoing business rose to four including the
plaintiff and defendant as well. It has been further submitted that the
business of fruit merchant and commission agent was started under
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different name & style of M/s Bhagwati Fruits Traders from the shop
newly allotted bearing no. C691, at New Subji Mandi Azadpur, Delhi
but the said business suffered losses and could not last beyond the
year 1985. It has been further submitted that defendant who is the
real younger brother of the plaintiff, thereafter without discharging
his liability of the preexisting business, separated from the existing
business and similarly the other two brothers / partners of M/s
Bhagwati Fruit Traders also got separated from the erstwhile business
and started their own business to their choice but the plaintiff
continued in the capacity of proprietor of M/s Lachhman Dass & sons
at the subject shop no. C691, New Subji Mandi, Azadpur, Delhi. It
has been further submitted that due to hard work and luck the
proprietorship business of the plaintiff flourished. It has been further
submitted that the plaintiff is in permissive, physical possession of the
subject shop to his exclusive use with the commencement of his fruit
business and his goods worth lakhs of rupees are also lying in the said
shop. It has been further submitted that on 29.08.1995 the defendant
out of sheer frustration has extended threats to the ailing plaintiff
either to vacate the shop or he shall put his lock forcibly hampering
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the business activities of the plaintiff. It has been further submitted
that plaintiff has all legal rights and claims whatsoever for running his
business without prejudice to the ownership rights of all other
brothers including the defendant in respect of the subject shop.
It has been prayed that a decree for permanent injunction
may kindly be passed in favour of the plaintiff and against the
defendant thereby restraining the defendant and his agents etc from
interfering and hampering in any manner in the peaceful use and
enjoyment of the shop (distinctly described in rough sketch) bearing
no. C691, New Subji Mandi Azadpur, Delhi with basement and from
running the business in the said shop by the plaintiff being its sole
proprietor. It has also been prayed that the defendant be also
restrained from illegally and forcibly dispossessing the plaintiff from
shop no. C691, New Subzi Mandi Azadpur, Delhi with basement
without due process of law. Plaintiff has also prayed for the costs of
the suit.
2. Written Statement has been filed on behalf of the
defendant taking therein various preliminary objections such as that
the plaintiff is not in actual and physical possession of the shop in
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question and as such the suit for injunction is not maintainable; that
the defendant is the allottee and in possession of the shop in suit and
there is also no subsisting partnership in between the defendant and
the plaintiff; that the plaintiff has not been carrying on any business in
the suit shop on the date when he filed the present suit; that no copy
of the site plan of the shop in question has been furnished to the
defendant; that there is no cause of action in favour of the plaintiff;
that there is no documentary proof placed by the plaintiff on record in
support of his claim that he is in possession or is carrying on any
business in the suit shop at the time of institution of the suit; that the
plaintiff has got no title or right in respect of the shop in suit; that the
suit of the plaintiff is bad for non joinder of necessary parties as the
DDA, who is the lessee of the land where the suit property is situated,
has not been added as a party and that the Agricultural Produce
Market Committee has also not been made a party in the present suit.
On merits, it has been stated that the plaintiff is not
running his business from the suit shop. It has been further submitted
that on removal of old Subji Mandi Azadpur, it was the defendant
who was allotted the shop in suit and he alone paid the cost of the said
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shop to DDA and plaintiff has no right or interest in the lease hold
rights of the said shop. It has been further submitted that M/s Vijay
Prakash Gulab Rai was the allottee of the shop bearing no. C691,
New Subji Mandi on the basis of draw of lots held on 05.10.1978 and
the said firm is the proprietorship firm of the defendant. It has been
further submitted that defendant is the sole proprietor of the suit
premises vide allotment letter dated 15.06.1978 issued by DDA and
the firm was intimated of the allotment subject to payment of cost of
the shop and on the condition of payment of Rs. 436/ as annual
ground rent payable in advance. It has been further submitted that the
defendant deposited a sum of Rs. 17,000/ towards full cost of
construction of the shop in question and the defendant was handed
over the possession of the shop on 18.04.1979 by DDA. It has been
further submitted that the defendant has been carrying on his business
in the shop in suit after its allotment to him by the DDA and
continued his business therein. It has been further submitted that
defendant also started paying 1% market fee on the gross yearly sale
to Agricultural Produce Market Committee and the defendant was
issued a licence no. B.2104 and the plaintiff has no licence at the shop
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in question. It has been further submitted that defendant is also a
member of the Apple Exporters Association having its office at C71,
New Subji Mandi, Azadpur, Delhi and the electricity connection is
also installed in the name of M/s Vijay Prakash Gulab Rai. It has been
further submitted that the said allotment has no concern with M/s
Bhagwati Fruits Traders which was a partnership firm of the parties in
suit. It has been denied that plaintiff was allowed by the defendant
any any time to carry on business under name of M/s Lachhman Dass
& Sons in the suit shop nor the plaintiff had any right to do so. Rest
of the contents of the plaint have also been denied by the defendant
and it has been prayed that the suit of plaintiff be dismissed.
3. Replication to the Written Statement of defendant has
also been filed by the plaintiff thereby denying the contents of the
plaint and reiterating and reaffirming the stand taken by the plaintiff
in the plaint.
4. Vide order dated 22.09.2005, from the pleadings of the
parties, the following issues were framed in the present suit :
1. Whether the plaintiff has no locus standi to file the present suit?
OPD.
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2. Whether suit is bad for nonjoinder of necessary parties? OPD.
3. Whether the plaintiff is entitled for decree of injunction as prayed
for? OPP.
4. Relief.
5. In order to prove their respective cases, both the parties
have examined one witness each. The detailed testimonies of these
witnesses shall be discussed in the later part of this judgment.
6. Ld. counsel for the plaintiff has filed on record the
written final arguments. I have carefully gone through the entire
material on record and have heard the rival submissions as advanced
by both the Ld. counsels for both the parties. My findings on the
various issues as were framed by my Ld. Predecessor in the present
suit are as under :
ISSUE Nos. 1 :
The onus to prove this issue was on the defendant.
The factual matrix in the present suit is within a narrow
compass. In the present suit of permanent injunction plaintiff has
alleged that he is engaged in business of selling fruits at C691, New
Subzi Mandi Azadpur, Delhi since 1986 as proprietorship business
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under the name & style of M/s Lachhman Dass & Sons. It has been
further submitted that originally in the year 1962 the plaintiff
alongwith his brother namely Vijay (defendant herein) started
business of fruit merchant and commission agent at Phar no. 15,
2938, Old Subzi Mandi, Delhi under the name & style of Vijay
Parkash & Gulab Rai. It has been stated further that during
emergency with the shifting of Subzi Mandi at Azadpur, Delhi in the
year 1975, the plaintiff as well as the defendant continued to deal in
the same business of fruits and also applied for permanent place of
business being provided by DDA. It has been further stated that
sometimes in the year 1980, the shop bearing no. C691 with
basement was allotted to the parties to this suit and by now the
number of partners in the ongoing business rose to four including the
plaintiff and defendant as well. It has been further submitted that the
business of fruit merchant and commission agent was started under
different name & style of M/s Bhagwati Fruits Traders from the shop
newly allotted bearing no. C691, at New Subji Mandi Azadpur, Delhi
but the said business suffered losses and could not last beyond the
year 1985. It has been further submitted that defendant who is the
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real younger brother of the plaintiff, thereafter without discharging
his liability of the preexisting business, separated from the existing
business but the plaintiff continued to do the aforesaid business under
the name and style of Lacchman Dass & Son at the aforesaid shop
which is the sole proprietorship business of plaintiff. It has been
further submitted that due to hard work and luck the proprietorship
business of the plaintiff flourished but on 29.08.1995 the defendant
out of sheer frustration has extended threats to the ailing plaintiff
either to vacate the shop or he shall put his lock forcibly and hence
the present suit for permanent injunction.
Written Statement has been filed on behalf of the
defendant taking therein various preliminary objections such as that
the plaintiff is not in actual and physical possession of the shop in suit
and that the plaintiff has not been carrying on any business in the suit
shop. It has been further submitted that there is no cause of action in
favour of the plaintiff and that the suit of the plaintiff is bad for non
joinder of necessary parties as the DDA. But the main defence of the
defendant is that the suit shop was allotted solely in the name of the
defendant and the plaintiff has no legal right, title or interest in the
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suit shop. The defendant has taken the categorical stand that it was
the defendant who was carrying on the business in the suit shop and
the suit shop was under the exclusive ownership and possession of the
defendant.
In the light of the aforesaid pleadings of the parties,
without discussing the evidence of the parties in detail, I am of the
opinion that plaintiff has locus standi to file the present suit because
the plaintiff has claimed the possession of the suit shop since a long
time and has claimed that he has been carrying on business of fruit
merchant and commission agent under the name and style of
Lacchman Dass & Sons, the alleged sole proprietorship concern of
the plaintiff. I am of the opinion that the defendant has utterly failed
to prove on record that the plaintiff has no cause of action to file the
present suit in his favour and as such, issue no. 1 is decided in favour
of the plaintiff and against the defendant.
ISSUE No. 2 :
The defendant in the Written Statement filed on record
has taken a stand that the suit of the plaintiff is bad for nonjoinder of
necessary parties because the suit shop is a lease hold property of
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DDA and that the Agricultural Products Market Committee (APMC)
which charges 1% market tax from the allottees of the shop, have not
been added as party in the present suit. During the course of
arguments Ld. counsel for the defendant has not stressed this point at
all. Further more, it has to be seen that during the evidence as well
nothing has been brought forth by the defendant to show that the suit
is bad for nonjoinder of DDA or APMC. As such, I have no
hesitation to hold that the defendant has failed to show that the suit of
the plaintiff is bad for nonjoinder of necessary parties.
Accordingly, issue no. 2 is also decided in favour of the
plaintiff and against the defendant.
ISSUE No. 3 :
Ld. counsel for the plaintiff has filed on record the
written final arguments wherein it has been argued that on careful
perusal of the testimonies of PW 1 and DW 1, it becomes evidently
clear that the business was being run under the name & style of M/s
Bhagwati Fruits Traders till the year 1995 and the earnings from the
said business were used in common by the family members including
the plaintiff. It has been argued further that DW 1 has testified that he
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had separated from the plaintiff in the year 2001 or 2002. It has been
argued further by the Ld. counsel for the plaintiff that DW 1 has
unequivocally admitted that the business under the name & style of
Lacchman Dass & Sons has also been run from the subject shop
which is being run presently also. It has been argued further that after
the death of Lacchman Dass, his son Naresh continued to run the
business from the subject shop. Ld. counsel for the plaintiff has
argued further that defendant may have his share in the ownership
rights of the subject shop but qua the business being run, the
defendant has no legal right to thwart the claim of the plaintiff
through his legal heirs. It has been argued further that the plaintiff
has approached the court with clean hands and in equity he has his
legal right which is being invaded by the defendant. It has been
argued further that the plaintiff has not sought any partition in the
subject shop but has claimed protection by way of injunction of his
running business from the subject shop, the physical possession
whereof is admittedly with the plaintiff and his sons. It has been
further submitted that plaintiff has thus succeeded in establishing his
legal right as the degree of his legal right qua the business, physical
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possession and ownership in the subject shop is higher than that of the
defendant.
Ld. counsel for the defendant has not filed on record the
written final arguments in counter to the written final arguments filed
on record by the plaintiff and has addressed the arguments orally in
support of case of the defendant. Ld. counsel for the defendant has
argued that the present suit is barred u/S 41 (h) & (i) of the Specific
Relief Act. It has been argued further that the defendant has proved
all the documents of ownership which are the allotment letter issued
by DDA and the receipts etc which clearly go to show that the suit
shop was solely allotted in the name of defendant and as such
defendant has been able to prove successfully on record that he is the
exclusive owner of the suit shop. It has been further submitted that
defendant has been able to show further his exclusive possession over
the suit shop. It has been further submitted that admittedly the
plaintiff has expired in the present suit and the relief of permanent
injunction is a relief in personam and not a reliefinrem and as such
the present suit for permanent injunction has to be dismissed. Ld.
counsel for the defendant has relied upon the following authorities :
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1. Municipal Corporation of Delhi vs. Suresh Chandra jaipuria &
Anr. Supreme Court Reports (1977) 2. wherein it has been held as
under :
"Section 41 (h) of the Specific Relief Act, 1963, lays down that an
injunction, which is a discretionary equitable relief, cannot be granted
when an equally efficacious relief is obtainable in any other usual
mode or proceedings except in cases of breach of trust...
... It also seems that the attention of the learned Judge was not
directed towards section 41 (h) of the Specific Relief Act, 1963,
which lays down that an injunction, which is a discretionary
equitable relief, cannot be granted when an equally efficacious relief
is obtainable in any other usual mode or proceedings except in cases
of breach of trust. Ld. counsel for the appellant Corporation points
out that there was the ordinarty machinery of appeal under section
169 of the Delhi Municipal Corporation Act, 1957, open to the
assessee respondent. It had not even been found that the respondent
was unable to deposit the necessary amount before filing the appeal. However, we abstain from deciding the question whether the suit is barred or not on his ground. All we need say is that this consideration Suit no. 60/2008 Page No. Page numbers / Statistics also has a bearing upon the question whether a prima facie case exists for the grant of an interim injunction..."
2. 164 (2009) DLT 86 titled as B.L. Malhotra & Anr. vs. DDA wherein it has been held as under :
" Suit does not seek any declaration about invalidity of orders or that it violates any provision of law It proceeds on assumption that DDA can be restrained from taking back possession, notwithstanding existence of such an order - Suit was instituted by plaintiff no. 2 as attorney of plaintiff, who did not sign or verify pleadings... ... Section 41 (h) of the Specific Relief Act mandates that injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceedings, except in case of breach of trust. Section 41 (j) similarly states that relief should be refused if the plaintiff has no personal interest in the matter. In the case, the suit averments would disclose that Charanjit Lal was the original lessee; upon his death, the estate was succeeded to by his five children, including B.L. Malhotra. They concededly entered into an agreement to sell their interest or share in the suit property. It is a matter of record that the DDA issued a statutory order on 04.03.2002, Suit no. 60/2008 Page No. Page numbers / Statistics canceling the Lease Deed. The suit does not seek any declaration about the invalidity of the order or that it violates any provision of law. It proceeds on the assumption that the DDA can be restrained from taking back possession, notwithstanding the existence of such an order...
3. 157 (2009) DLT 712 titled as Roshal Lal Gupta vs. Shri Parasram Holdings Pvt. Ltd. & Anr., wherein it has been held as under " Said party has equally efficacious remedy of Sections 16 and 34 of Arbitration Act - Suit for declaration and permanent injunction barred by provisions of Specific Relief Act also. ...There is yet another reason for me to hold so and it is reflected in the substantial questions of law framed on 29th January, 2009. The relief of declaration is guided by Section 34 and the relief of permanent injunction by Section 41 of the Specific Relief Act. Grant or nongrant of declaration is in the discretion of the Court. A permanent injunction cannot be granted under Clause (h) of Section 41 when equally efficacious relief can be obtained by any other usual mode of proceedings except in case of breach of trust. The discretion Suit no. 60/2008 Page No. Page numbers / Statistics of the Court ought not be exercised in a manner so as to adversely affect the arbitral proceedings or to negate the purport of the 1996 Act. Similarly, it is not as if, it injunction restraining the arbitration is not given, the party challenging the validity or the arbitration agreement would be rendered remediless. The said party has the equally efficacious remedy of Section 16 and 34 of the Arbitration Act. The suit for declaration and permanent injunction is found to be barred by provisions of Specific Relief Act also....
4. (2008) 4 Supreme Court Cases 594 Anathula Sudhkar vs. P. Buhi Reddy (dead) by LRs and Others, wherein it has been held as under :
" Therefore, in the absence of necessary pleadings and appropriate issue regarding title (either specific of implied), decision would be given with reference to finding on possession and no on the question of title..... relegate the parties to the remedy of comprehensive suit for declaration of title....
....Where a cloud is raised over the plaintiff 's title and he does not have possession, a suit for declaration and possession with or without a consequential injunction, is the remedy. Where the plaintiff's title is Suit no. 60/2008 Page No. Page numbers / Statistics not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown.
5. Shakuntala (Smt). vs. Lt. Colonel Mukhyiar Singh and Ors, (2008) II Supreme Court Cases 42, wherein it has been held as under :
"..A sister (petitioner - plaintiff) is in conflict with her brothers (respondent - defendants) over certain landed properties in Rohtak which, according to her belonged to their father Captain Sardar Singh and which after his demise devolved on his children in equal shares, her own share being onesixth. The brothers resisted her claim by taking the plea that the suit properties, though acquired in the name of their father, were in reality joint Hindu family properties and had come in their exclusive share on the basis of a settlement among the coparceners comprising the father and the five sons. Their sister had no right or interest in the suit properties...
Suit no. 60/2008 Page No. Page numbers / Statistics ... The plaintiff filed a suit seeking permanent injunction restraining the defendants from interfering with her joint possession of the suit properties and from transferring the suit properties or changing their nature in any way. It is significant to note that the plaintiff did not pray for any declaration as to her title in the suit properties nor is there any clear assertion on her behalf of being in possession of the suit properties as one of the cosharers...
.... Both sides led evidence in support of their respective cases. It is, however, significant to note that the plaintiff herself did not come to depose before the Court and in her place her husband holding power of attorney on her behalf came as one of the plaintiff's witness. On a consideration of the entire evidence the trial court recorded its findings on the aforesaid issues in favour of the defendants and against the plaintiff. In appeal the judgment was affirmed and the second appeal too preferred before the High Court, as noted above, was dismissed...."
The crux of the controversy in between the parties to the present suit is as to whether the suit shop was allotted by DDA jointly in favour of the deceased plaintiff alongwith defendant as claimed by Suit no. 60/2008 Page No. Page numbers / Statistics the plaintiff in the plaint or the suit shop was exclusively under the possession of the defendant and the same was allotted by the DDA solely in the name of defendant as claimed by the defendant in the Written Statement.
So far as allotment of the suit shop is concerned, it has to be seen that in this regard Sh. Naresh (son of the original plaintiff who was later on substituted as plaintiff in place of deceased plaintiff) has examined himself as PW 1 and he has filed his evidence by way of affidavit, reiterating and reaffirming the stand taken by the plaintiff in the plaint. It has to be seen that in para no. 5 of the affidavit in evidence PW 1 has stated that allotment was made in the name of defendant but investment was joint and the business in the subject shop was started under the name and style of M/s Bhagwati Fruits Traders. PW 1 has placed on record the receipt from Apple Exporters Association as Ex. PW 1/1 in the name of plaintiff firm, the receipt from Kiran Press in the name of plaintiff firm as Ex. PW 1/2, the copy of the ledger as Ex. PW 1/3, another receipt in the name of plaintiff firm by Sh. Amod Kumar, Fruit Merchant and Commission Agent as Ex. PW 1/4, copy of circular issued by The Apple Exporters Suit no. 60/2008 Page No. Page numbers / Statistics Association as Ex. PW 1/5, copy of statement of account w.e.f. 31.01.2002 to 28.02.2002 in the name of plaintiff firm as Ex. PW 1/6, copy of another statement of account in the name of plaintiff firm as Ex. PW 1/7, copy of statement of another account from UCO Bank as Ex. PW 1/8 and PW 1/9, another copy of statement of account as Ex. PW 1/10, another copy of statement of account as Ex. PW 1/11, another copy of statement of account as Ex. PW 1/12, letter from Bank of India as Ex. PW 1/13, another receipts in the name of plaintiff firm as Ex. PW 1/14 and PW 1/15, envelops addressed to plaintiff firm as Mark Y and Mark Z, copy of the ledger pages as Ex. PW 1/16 to PW 1/24.
In the cross examination PW 1 has categorically admitted that there is no ownership document in the name of his father in respect of the suit shop. He has admitted it to be correct that shop was allotted by the DDA in the name of Vijay Parkash Gulab Rai, which was a sole proprietorship firm of Vijay Parkash. PW 1 has further stated that he had not seen his father and the defendant working together from old Sabzi Mandi, as he was not even born at that time.
Suit no. 60/2008 Page No. Page numbers / Statistics Now coming to the testimony of DW 1, defendant has filed his evidence by way of affidavit, reiterating and reaffirming the stand taken by the defendant in the Written Statement. He has proved on record various documents such as letter dated 11.04.1979 of DDA as Ex. DW 1/1, letter dated 05.06.1980 of DDA as Ex. DW ½. Letter dated 06.06.1979 regarding allotment of the shop to his sole proprietorship firm as Ex. DW 1/3, possession letter as Ex. DW 1/4, letter dated 16.01.1984 as Ex. DW 1/5, original telephone bill in the name of M/s Vijay Parkash Gulab Rai as Ex. DW 1/6, constitution of firm as Ex. DW 1/7, receipt issued by The Apple Exporters Association as Ex. DW 1/8, another receipt issued by The Apple Exporters Association as Ex. DW 1/9, another receipt issued by APMC as Ex. DW 1/10, another receipts issued by the AMPC as Ex. DW 1/11 to DW 1/16, notice regarding composition fee dated 24.11.1989 issued by APMC as Ex. DW 1/17, original receipts issued by Apple Exporters Association as Ex. DW 1/18 to DW 1/20, original challan form of Income Tax Return as Ex. DW 1/21, original receipt of payment of property tax as Ex. DW 1/22, property tax receipt dated 26.03.1984 as Ex. DW 1/23, original property tax bill as Suit no. 60/2008 Page No. Page numbers / Statistics Ex. DW 1/24, original receipt of payment of license fee issued by APMC as Ex. 26.02.1988 as Ex. DW 1/25, original receipt dated 14.03.1994 as Ex. DW 1/26 issued by Azadpur Mandi Traders Welfare Association, the original receipts of security deposit, issued by DESU as Ex. DW 1/27 and DW 1/28 and the photographs of the suit property as Ex. DW 1/29 (colly).
First of all, it has to be seen that in the plaint the plaintiff has taken the stand that the suit property was allotted in the name of plaintiff and defendant but PW 1 son of deceased plaintiff has taken a different stand and has categorically stated that suit shop was allotted in the name of defendant but the same was purchased out of joint funds of M/s Bhagwati Fruits Traders, which was a joint business firm. As such there is a shift in the stand of plaintiff regarding this aspect of the matter. Further more, PW 1 has admitted in clear cut and unequivocal terms in his cross examination that the suit shop was exclusively allotted in the name of defendant. Further more, from the various allotment letters issued by the DDA in the name of proprietorship firm and other material produced on record, it is clear the defendant has been successfully able to prove that the suit shop Suit no. 60/2008 Page No. Page numbers / Statistics was allotted in the name of defendant only. As such, I hold that the defendant has been able to prove that he is the exclusive owner of the suit shop.
Now coming to the next controversy as has been raised by the PW 1 in his evidence for the first time that the suit shop was purchased out of joint funds and the business in the subject shop was started in the name & style of M/s Bhagwati Fruits Traders. In this regard, PW 1 in his cross examination has stated that he thinks that his father would have filed the proof of payment of the value of the shop in dispute purchased by him. By way of volunteer, he has stated that there are bank statements to this effect. PW 1 has admitted further that no such proof has been filed either by him or his father. PW 1 has further admitted it to be correct that there was no partnership between him and the defendant. PW 1 has stated further in is cross examination that he does not have any sales tax document or any document from the bank to show that he is the owner of the said shop. PW 1 has further stated that he does not have any receipt of the payment made to DDA in respect of allotment of shop. PW 1 has stated further that his father did not represent to DDA or write Suit no. 60/2008 Page No. Page numbers / Statistics any letter to include his name as a allottee of the shop. PW 1 has stated further that he does not know whether his father had admitted the defendant to be an exclusive and absolute owner of the shop in question.
In the cross examination DW 1 has categorically denied the suggestion that investment was made out of the receipts and earning made from the old business. DW 1 has stated that the investment which was made to the allotment of the subject shop was from him. He has further stated that he has already filed the documents showing that the investment was made by him personally.
In the light of the aforesaid testimonies of PW 1 and DW 1. I have no hesitation to hold that the plaintiff has utterly failed to prove on record that the suit shop was purchased out of joint funds. Rather the defendant has been able to prove that suit shop was allotted by DDA exclusively in the name of defendant and the money was deposited by the defendant for purchase of the suit shop from DDA.
Now coming to the last controversy in between the parties to the present suit, it has to be considered by the court as to Suit no. 60/2008 Page No. Page numbers / Statistics whether the plaintiff has been able to prove the long time possession of the plaintiff as claimed by the plaintiff or as to whether the defendant has been able to prove his possession as claimed by the defendant in the Written Statement.
In this regard, cross examination of DW 1 is important. DW 1 in his cross examination has clearly admitted that business under the name & style Lacchman Dass & Sons has also been run from the subject shop, which is being run presently also. He has stated further that he does not remember the exact date of death of his brother Lacchman Dass and again said he died probably 67 years back. He has admitted it to be correct that after the death of his brother Lacchman Dass, his son Naresh continued to run the business from the subject shop. He has further admitted it to be correct that Nared used to work with his deceased brother Lacchman Dass. By way of volunteer, DW 1 has stated that his brother Lacchman Dass had requested him to run his business as he was in need of money for the marriage of his daughters. DW 1 has further admitted it to be correct that Naresh is making payment to AMPC for the purpose of accounting for sale and purchase of fruits and his payments are Suit no. 60/2008 Page No. Page numbers / Statistics showing the commission received by him. DW 1has stated further that he has been out of the subject shop for the last two years approx.
In the light of aforesaid cross examination of DW 1, in my opinion the inevitable conclusion is that the possession of the plaintiff over the suit shop is established and the defendant has utterly failed in proving that he has the possession over the suit shop.
In the light of the aforesaid discussion, the vital question is as to whether the plaintiff is entitled for the relief of permanent injunction as claimed by the plaintiff or not. Needless to mention that the plaintiff has been able to prove his possession over the suit property but the plaintiff has utterly failed to prove on record that the suit shop was allotted by DDA in the joint name of plaintiff and defendant. Rather it has been clearly established on record that the defendant is the exclusive owner of the suit shop and the plaintiff has utterly failed to prove that the suit shop was purchased out of joint funds.
Ld. counsel for the defendant has argued that relief of permanent injunction is a relief in personam and not a relief in rem and since the plaintiff has expired the present suit for permanent Suit no. 60/2008 Page No. Page numbers / Statistics injunction does not lie. In this regard, it has to be seen that vide orders dated 23.07.2002 my Ld. Predecessor has held that after the death of plaintiff the right to sue survives in favour of the plaintiff and the present suit does not abate on the death of original plaintiff. As such, I am of the opinion that in view of the aforesaid orders, the aforesaid contention does not survive any more.
It has to be seen that in the present suit, the plaintiff has prayed for injunction simpliciter and no other consequential relief has been sought for by the plaintiff. If the claim of the plaintiff is to the effect that the suit shop was purchased jointly out of the joint funds, then the plaintiff must have sought for other reliefs as well but the same has not been done. Further more, it is the settled preposition of law that injunction against the true owner has to be declined and the same cannot be granted.
In the case in hand, as has been discussed herein above, it has been established on record that the defendant is the exclusive owner of the shop in question and as such merely on the basis of the possession, in my opinion, the injunction as prayed to by the plaintiff against the true owner who is the defendant herein, cannot be granted Suit no. 60/2008 Page No. Page numbers / Statistics to the plaintiff.
Accordingly,issue no. 3 is decided in favour of the defendant and against the plaintiff.
Relief : In view of my findings under the foregoing issues, plaintiff is not entitled for any relief and as such suit of the plaintiff is hereby dismissed. No orders as to costs.
Decree Sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open court today on 26th Day of May, 2010.
(RAJ KUMAR) ADMINISTRATIVE CIVIL JUDGE cum ADDL RENT CONTROLLER (NORTH) DELHI Suit no. 60/2008 Page No. Page numbers / Statistics