Delhi District Court
Sunita Devi vs Ajay Singh on 27 February, 2024
CS SCJ 410/21
SMT. SUNITA DEVI Vs. AJAY SINGH & ORS.
IN THE COURT OF MS. KANIKA AGARWAL, CIVIL
JUDGE-01 (SOUTH) SAKET COURT, NEW DELHI
Civil Suit No :- 410/21
CNR No. :- DLST03-000769-2021
SMT. SUNITA DEVI
W/o Late Sh. ParasNath
R/o: First Floor, F-2/227,
Gali No. 18, Sangam Vihar, Mehrauli, South,
New Delhi-110062 ......PLAINTIFF
VERSUS
1. AJAY SINGH
S/o LateSh.ParasNath
R/o Ground Floor, F-2/227, Gali No.8,
Sangam Vihar, Mehrauli, South,
New Delhi-110062 ......DEFENDANT NO. 1
2. SMT. MANJU
W/o Sh. Ajay Singh
R/o Ground Floor, F-2/227, Gali No.8,
Sangam Vihar, Mehrauli, South,
New Delhi-110062 ......DEFENDANT NO. 2
3. MASTER ANIK
S/o Sh. Ajay Singh
R/o Ground Floor, F-2/227, Gali No.8,
Sangam Vihar, Mehrauli, South,
New Delhi-110062 ......DEFENDANT NO. 3
Page no. 1 of 18
(Kanika Agarwal)
CJ-01/(South) Saket Court/New Delhi
CS SCJ 410/21
SMT. SUNITA DEVI Vs. AJAY SINGH & ORS.
4. MASTER ANKUR
S/o Sh. Ajay Singh
R/o Ground Floor, F-2/227, Gali No.8,
Sangam Vihar, Mehrauli, South,
New Delhi-110062 ......DEFENDANT NO. 4
Date of Institution : 09.04.2021
Date of Decision : 27.02.2024
Date of framing of issues : 03.03.2022
Date of final arguments : 26.02.2024
Decision : DECREED
SUIT FOR MANDATORY AND PERMANENT INJUNCTION
JUDGMENT
1. This is the suit filed by the plaintiff for the reliefs of mandatory and permanent injunction.
AVERMENTS OF THE PLAINT
2. Pertinent to mention that defendant no. 1 and 2 are the son and daughter-in-law of the plaintiff whereas defendant no. 3 and 4 are grandsons of the plaintiff. Succinctly, it is the case of plaintiff that she is the owner in possession of property bearing no. F-2/227, Gali No. 18, Sangam Vihar, Mehrauli, South, New Delhi-110062 built upto from ground floor to first floor having three rooms, one kitchen and one toilet on the ground floor and two rooms, one kitchen and one toilet on the first floor (hereinafter referred to as "suit property") having purchased from Wahabuddin s/o Shri Ikramuddin through notarized General Power of Attorney, Page no. 2 of 18 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 410/21 SMT. SUNITA DEVI Vs. AJAY SINGH & ORS.
Agreement to Sell, Affidavit, Possession Letter and Will dated 27.11.2005. It is averred that before the death of plaintiff's husband, all the family member were residing together but after death of plaintiff's husband, there were drastic change in the behaviour of defendants and they used to taunt the plaintiff that she gave all her money and valuable article to her elder son Vijay and therefore, she has not right to stay in their house and also threatened the plaintiff that if she would stay in their house, they will kill her by burning her or by hanging her. It is averred that after death of plaintiff's husband, defendant no. 2 used to harass the plaintiff and also beat her mercilessly and also attempted to kill her.
3. It is averred that defendant no. 1 was facing the financial hardship and difficulty in finding a rented accommodation so the plaintiff being the mother, allowed defendants to live on the ground floor of the suit property. It is averred that plaintiff survives on pension of amount of Rs. 2,500/- per month. It is averred that defendant no. 1 is an electrician having independent source of income of Rs. 50,000/- per month and despite this, the defendants intend to grab the property of the plaintiff. It is averred that plaintiff has requested the defendants various times to vacate the suit property so that she may live her life peacefully, however, defendants having evil eyes on the property of the plaintiff are not vacating the same and occupying the same illegally and unauthorizedly.
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4. It is averred that defendants in collusion with each other on several occasions have illegally detained/ confined the plaintiff in a room for several hours without food and water as a result of which the plaintiff suffered various health issue and have attempted to kill the plaintiff. It is averred that defendants have stolen the household articles of the plaintiff including gold and silver ornaments of the plaintiff. It is averred that defendant no. 1 is in habit of coming in a drunken condition along with their friends at late hours and quarrel, beat and threaten the plaintiff with dire consequences. Police complaint was filed on 26.01.2021 against the defendants against trauma and cruelty meted out to her. Having left with no other option, the present suit is filed seeking following reliefs:-
(i) pass a decree of mandatory injunction in favour of the plaintiff and against the defendant, thereby directing the defendants to vacate and remove all his belonging from the Ground Floor of the house/ suit property of the plaintiff bearing no. F-2/227, Gali No. 18, Sangam Vihar, Mehrauli, New Delhi and handover the peaceful vacant physical possession of the same to the plaintiff;
(ii) pass a decree of permanent injunction against the defendants thereby restraining the defendants, his assigns, agents, servants and legal heirs etc. not to disturb the peaceful use and enjoyment of the suit property of the plaintiff;
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(iii) cost of the suit; and
(iv) any other relief.
WRITTEN STATEMENT OF DEFENDANTS
5. Per contra, it is stated by defendants that they have been in possession of the suit property for the last 15 years and plaintiff is not the owner of the suit property. It is averred that defendant no. 1 had made full and final payment at the time of purchase of the suit property and it was in good faith that the suit property was registered in the name of the plaintiff. The present suit is based on false frivolous and concocted story and has been filed in collusion with the elder son of the plaintiff who wants to grab the suit property. All the other averments of the plaint are denied. Thus, it is prayed that suit of the plaintiff is liable to be dismissed. REPLICATION
6. In replication, averments of the plaint have been reiterated and contents of the written statement have been denied. ISSUES
7. From the pleadings of the parties following issues were framed by Ld. Predecessor of this court vide order dated 03.03.2022.
(i) Whether the plaintiff is entitled to the relief of mandatory injunction as claimed? OPP
(ii) Whether the plaintiff is entitled to relief of permanent injunction as claimed? OPP Page no. 5 of 18 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 410/21 SMT. SUNITA DEVI Vs. AJAY SINGH & ORS.
(iii) Whether defendant had paid full and final payment at the time of purchasing the suit property? OPD
(iv) Relief.
PLAINTIFF EVIDENCE
8. To prove her case, the plaintiff herself stepped into the witness box as PW-1 and tendered her affidavit as Ex. PW1/1. She placed reliance upon the following documents:
(i) Ex. PW1/2 (OSR) i.e. aadhar card;
(ii) Ex. PW1/3 (OSR) i.e. electricity bill;
(iii) Ex. PW1/4 (OSR) i.e. copy of property document along with complete cheque;
(iv) Ex. PW1/5 i.e. site plan of suit property which is on judicial record;
(v) Mark A i.e. copy of death certificate dated 18.04.2016 of deponent husband;
(vi) Ex. PW1/7 (OSR) i.e. copy of bank account of deponent bank (SBI); and
(vii) Mark B i.e. copy of complaint dated 26.01.2021.
9. PW1 was duly cross examined by Ld. Counsel for defendants. During cross-examination, PW1 has stated that she has a bank account in her name in State Bank of India. It is stated by PW1 that her husband was in the job of handling machinery in Delhi and used to earn approximately about Rs.15,000/ per month. It is stated by PW1 that she does not know whether her husband has a Page no. 6 of 18 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 410/21 SMT. SUNITA DEVI Vs. AJAY SINGH & ORS.
bank account in his name. It is stated by PW1 that she has been residing at the suit premises with the defendant for the last about 15 years. It is stated by PW1 that she does not know whether her son Ajay Singh is paying the electricity bills or not. It is denied by PW1 that defendant no.1 Ajay Singh has been paying the electricity bills of suit premises since beginning. It is stated by PW1 that her son Ajay Singh is residing at the ground floor with his family and she is residing at the first floor in one room of the suit premises. It is stated by PW1 that the repair work of the suit property is done by her of her portion where she is residing and her son used to do the same of his portion of the suit premises where he resides. It is denied by PW1 that all the repairing and maintenance of the suit property is being done by defendant no.1.
10. It is stated by PW1 that the suit property was purchased by her with the help of her parents. It is stated by PW1 that she does not remember what her parents used to do however, her parents had vast agricultural land. It is stated by PW1 that she took their help for purchasing the suit property. It is stated by PW1 that she does not remember in which year the suit property was purchased due to her old age. It is denied by PW1 that defendant no.1 has purchased the suit property with his own funds. It is further denied by PW1 that at the time of purchase of the suit property she had assured defendant no.1 that all family members shall reside together and there would Page no. 7 of 18 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 410/21 SMT. SUNITA DEVI Vs. AJAY SINGH & ORS.
be no dispute regarding the same. PW1 cross-examination was concluded on 06.09.2022.
11. Further, plaintiff examined summoned witness ASI Ajith as PW2 who proved the complaint bearing DD no. 03A dated 26.01.2021 as Ex. PW2/1 (OSR) (colly). Thereafter, vide separate statement, plaintiff evidence was closed on 13.10.2022. DEFENDANT EVIDENCE
12. On the other hand, in support of their case, defendant no. 2 examined himself as DW1 who tendered her affidavit of evidence as Ex.DW1/A.
13. DW1 during her cross-examination has stated that plaintiff along with defendants were residing together on the suit property. It is denied by DW1 that after the death of his fatherin law, there is no good relation between him and plaintiff. It is further denied by DW1 that after partition between the defendants and plaintiff family members, defendants used to taunt the plaintiff that plaintiff has given all money and articles to their elder son so she is not eligible to stay in the suit property and also threatened the plaintiff that if plaintiff will stay in their suit property, then they will kill the plaintiff by burning her or by hanging her. It is denied by DW1 that after society or panchayat interference plaintiff started living separately with the defendants on the first floor and the defendant no. 1 being the son of plaintiff was allowed to live him and his family on the ground floor of the suit property by the Page no. 8 of 18 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 410/21 SMT. SUNITA DEVI Vs. AJAY SINGH & ORS.
plaintiff as her permissive user. It is further denied by DW1 that defendant no. 1 was facing the financial hardship and difficulty in finding rent accommodation as he was not able to afford monthly rent out of his own income so that plaintiff being the mother and due to her kindheartedness allowed the defendant to live on the ground floor of the suit property respectively as her permissive user. It is stated by DW1 that she cannot say as to how much her husband was earning before.
14. It is stated by DW1 that her husband was earning since his childhood. It is stated by DW1 that she has no documents to produce on the record that her husband was earning since childhood. It is stated by DW1 that Ex. PW1/8 was filed by her brotherinlaw (jeth). It is stated by DW1 that the suit property is in the name of plaintiff but all the money of said property paid by defendant no. 1 and she has no document showing that consideration amount of the suit property was paid by defendant no. 1. It is denied by DW1 that the suit property was purchased by plaintiff in her own funds and with the help of her father. It is further denied by DW1 that defendants have always with malafide intention trying to grab the suit property of the plaintiff. It is denied by DW1 that plaintiff has always pleaded and requested the defendants various time to vacate the suit property so that she may live her life peacefully, however, defendants were having evil eyes on the suit property are not Page no. 9 of 18 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 410/21 SMT. SUNITA DEVI Vs. AJAY SINGH & ORS.
vacating the same and have occupied the same illegally and unauthorizedly. DW1 crossexamination was concluded on 31.07.2013.
15. Further, defendant no. 1 was examined himself as DW2 who tendered his affidavit of evidence as Ex. DW2/A. During crossexamination of DW2, it is stated by DW2 that his age is 38 year and the age mentioned in the medical document is wrong as 35 year. It is stated by DW2 that he has completed I.T.I in the year 2001 at Noida Sector 21 U.P. and all the expenses of I.T.I was born by him. I have started to earning since 1998 as electrician at Noida Phase-II U.P. It is stated by DW2 that he used to earn approximately Rs. 7000 per month and his expenses was only Rs. 800 per month. It is stated by DW2 that he has no documents to prove the same as he is earning Rs. 7000/- per month. It is denied by DW2 that he is earing Rs. 7000/- per month and again denied that all the expenses of I.T.I was born by him. It is stated by DW2 that the suit property is in the name of the plaintiff. It is stated by DW2 that he does not have any document to prove that the consideration amount of the suit property which was paid by him. It is denied by DW2 that police complaint dated 26.01.2021 Ex. PW1/8 was filed by plaintiff against him and his family member. It is stated by DW2 that his wife at the time of cross-examination dated 26.01.2021 has stated that said complaint was filed by her brother in law/Jeth. It is denied by DW2 that the suit property was purchased by plaintiff in her own Page no. 10 of 18 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 410/21 SMT. SUNITA DEVI Vs. AJAY SINGH & ORS.
funds and with the help of her father. It is further denied by DW2 that defendants have always with malafide intention trying to grab the suit property of the plaintiff. It is denied by DW2 that plaintiff has always pleaded and requested the defendants various time to vacate the suit property so that the she may live her life peacefully, however, defendants were having evil eyes on the suit property are not vacating the same and have occupied the same illegally and unauthorizedly. DW2 cross-examination was concluded on 04.10.2023. Thereafter, vide separate statement, defendant evidence was closed on 04.10.2023 and matter was fixed for final arguments. FINAL ARGUMENTS
16. Final arguments advanced by both parties were heard on 26.02.2024. The file has been carefully and minutely perused and my issue-wise findings with reasons thereof are as under :-
ISSUE NO. 1Whether the plaintiff is entitled to the relief of mandatory injunction as claimed? OPP ISSUE NO. 2 Whether the plaintiff is entitled to relief of permanent injunction as claimed? OPP AND ISSUE NO. 3 Whether defendant had paid full and final payment at the time of purchasing the suit property? OPD Page no. 11 of 18 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 410/21 SMT. SUNITA DEVI Vs. AJAY SINGH & ORS.
17. All the three issues being interconnected are taken up together. The burden of proof with respect to issue no. 1 and 2 is upon the plaintiff and with respect to issue no. 3, the same is upon the defendants. In nutshell, it is the case of the plaintiff that she is the absolute owner of the suit property by virtue of General Power of Attorney, Agreement to Sell, Affidavit, Possession Letter and Will dated 27.11.2005 Ex. PW1/4 (OSR). It is averred that the defendant no. 1 was allowed to live on the ground floor of suit property along with his family as permissive user since he was unable to shift to any rented accommodation due to financial hardship. It is averred that defendant no. 1 is an electrician and has independent source of income. That the defendant has drastically changed towards the plaintiff after his marriage with defendant no. 2. That the defendant no. 1 and 2 has made the life of the plaintiff miserable and they extend life threats to the plaintiff for which police complaint was also made on 26.01.2021. That the defendant no. 1 is a habitual drinker and after comes home late, quarrel with the plaintiff. That many a times, the plaintiff has asked the defendant to vacate the suit property, however, they have failed to do so. Hence, the present suit.
18. Per contra, the defence of the defendants is that the defendants are in possession of the suit property for last 15 years. It is denied by the defendants that plaintiff is the owner of the suit property. It is further averred that defendant no. 1 has made the full and final payment for purchase of the suit property and only out of love and respect towards the plaintiff, the suit property was Page no. 12 of 18 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 410/21 SMT. SUNITA DEVI Vs. AJAY SINGH & ORS.
registered in the name of the plaintiff despite the payment being made by defendant no. 1.
19. The plaintiff in support of her case has relied upon notarized documents i.e. General Power of Attorney, Agreement to Sell and Purchase, Affidavit, Possession Letter and Will dated 21.11.2005 Ex. PW1/4 (OSR). Pertinent to mention that the execution of documents in favour of the plaintiff is not disputed by the defendants either. The defendants have never challenged or disputed the genuineness/ authenticity of documents Ex. PW1/4 (OSR) in favour of the plaintiff. However, they lay their claim in the suit property on the strength that the consideration amount to purchase the suit property was paid by defendant no. 1. Evidently, not even a single evidence either oral or documentary has been led by defendants to substantiate his bare claim. There are absolutely no pleadings or evidence on record to show how and in what manner the consideration amount was paid by defendant no. 1. The defendant no. 1 has failed to establish that the consideration amount to purchase the property was paid by him.
20. This court is aware of the legal position that General Power of Attorney and Agreement to Sell are incapable of transferring the title in the immovable property, however, at the same time, it cannot be ignored that the plaintiff on the basis of the said documents Ex. PW1/4 (OSR) is able to show better right, interest and entitlement in the suit property. It is a settled position of law that in a suit for possession and / or injunction, the court is Page no. 13 of 18 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 410/21 SMT. SUNITA DEVI Vs. AJAY SINGH & ORS.
required to see the better title and not the perfect title. Further, in the opinion of the court, the issue whether the documents relied by the plaintiff confer a perfect title in the plaintiff or not is immaterial since even the defendants have not challenged/ disputed the authenticity of the documents relied upon by the plaintiff.
21. In this context, the Court deems fit to place reliance upon the judgment of Hon'ble High Court of Delhi in Sh. Ramesh Chand Vs. Suresh Chand RFA no. 358/2000 dated 09.04.2012 wherein the Hon'ble Court has observed as follows:-
"In view of the aforesaid facts and the validity of the documents, being the power of attorney and the Will dated 16.5.1996, the respondent No.1/plaintiff would though not be the classical owner of the suit property as would an owner be under a duly registered sale deed, but surely he would have better rights/entitlement of possession of the suit property than the appellant/defendant No.1. In fact, I would go to the extent saying that by virtue of para 14 of the judgment of the Supreme Court in the case of Suraj Lamps & Industries Pvt. Ltd. (supra) taken with the fact that Sh. Kundan Lal has already died, the respondent No.1/plaintiff becomes an owner of the property by virtue of the registered Will dated 16.5.1996. A right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement/right to the possession of the property than qua the person who is in Page no. 14 of 18 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 410/21 SMT. SUNITA DEVI Vs. AJAY SINGH & ORS.
actual physical possession thereof. The facts of the present case show that the respondent No.1/plaintiff has undoubtedly better entitlement/title/rights in the suit property so as to claim possession from the appellant/defendant No.1/brother. I have already held above that the appellant/defendant No.1 miserably failed to prove that there was any partition as alleged of the year 1973 whereby the suit property allegedly fell to the share of the appellant/defendant No.1. In fact, the second reason for holding the appellant to be unsuccessful in establishing his plea of partition is that the appellant failed to lead any evidence as to the other two properties being the property No.290, Ambedkar Basti, Delhi and the second property being the property adjoining the property No.290, Ambedkar Basti, Delhi as having belonged to the father-Sh. Kundan Lal."
22. Further, the Court deems fit to refer to judgment of Hon'ble High Court of Delhi in Sh. Shivraj Yadav & Ors. Vs. Dr. Arun Nirula RFA 71/2022 decided on 02.08.2022 wherein it has been observed as follows:-
"In the light of my aforesaid conclusion that the learned Trial Court was justified in passing a judgment upon admission, though it is not necessary to deal with the defendant's other pleas regarding the suit not being maintainable for want of a registered and sufficiently stamped transfer document in the plaintiff's favour, I find that even in the decision in Suraj Lamps Page no. 15 of 18 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 410/21 SMT. SUNITA DEVI Vs. AJAY SINGH & ORS.
(supra), heavily relied on by the learned counsel for the appellant, the Apex Court ,being conscious of the innumerable property transactions based on unregistered documents which had taken place prior to the said decision, had observed that genuine transactions already entered into between the parties need not be disturbed.
The relevant extract of the decision of the Apex Court in Suraj Lamp (Supra) reads as under:
"18. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/WILL transactions are not 'transfers' or 'sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said 'SA/GPA/WILL transactions' may also be used to obtain specific performance or to defend possession under Section 53A of Transfer of Property Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities. We make it clear that if the documents relating to 'SA/GPA/WILL transactions' has been accepted and acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision.""
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23. Indisputently, the documents Ex. PW1/4 (OSR) in favour of plaintiff clearly shows better right and interest of the plaintiff over the suit property than the defendant. A person can occupy a property in various capacities such as (i) owner, (ii) tenant
(iii) licensee and (iv) by adverse possession. Admittedly, it is not the case of the defendants that they are the tenants in the suit property or that they have become its owner. Further, defendants have failed to prove any ownership rights in the suit property. From the discussions above, it can be safely inferred on the basis of preponderance of probabilities that the defendant's occupation in the suit property was merely that of licensee and same having been revoked by the plaintiff, hence, they are liable to vacate the suit property. Accordingly, issues no. 1 and 2 are decided in favour of plaintiff and against the defendants and issue no. 3 is decided against the defendants and in favour of plaintiff.
ISSUE NO. 4Relief
24. In light of the aforesaid discussion, the suit of the plaintiff is decreed to the effect that defendants are directed to vacate and remove all their belongings from the Ground Floor of the house/ suit property of the plaintiff bearing no. F-2/227, Gali No. 18, Sangam Vihar, Mehrauli, New Delhi and handover the peaceful vacant physical possession of the same to the plaintiff and are further restrained not to disturb the peaceful use and enjoyment of the suit property of the plaintiff . Page no. 17 of 18 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi CS SCJ 410/21 SMT. SUNITA DEVI Vs. AJAY SINGH & ORS.
25. No order as to cost.
26. Let decree sheet be drawn up accordingly.
27. File be consigned to record room after due compliance. Pronounced in open court: Digitally signed by KANIKA KANIKA Dated: 27.02.2024 AGARWAL AGARWAL Date:
2024.02.27 15:14:37 +0530 (Kanika Agarwal) CJ-01(South)Saket/New Delhi/27.02.2024 Note :-This judgment contains eighteen pages and all the pages have been checked and signed by me. Digitally signed by KANIKA KANIKA AGARWAL AGARWAL Date:
2024.02.27 15:14:44 +0530 (Kanika Agarwal) CJ-01(South)Saket/New Delhi/27.02.2024 Page no. 18 of 18 (Kanika Agarwal) CJ-01/(South) Saket Court/New Delhi