Delhi District Court
Geeta vs Bhulli on 17 December, 2020
IN THE COURT OF DR. SUDHIR KUMAR JAIN
PRINCIPAL DISTRICT & SESSIONS JUDGE, NORTH-EAST
KARKARDOOMA COURTS, DELHI
CS 7/2017
CNR NO DLNE01-005056-2016
1. GEETA
WIFE OF RAM SINGH
2. RAM SINGH
SON OF KANCHHI SINGH
RESIDENTS OF HOUSE NO G-3/103
GALI NO 10, SONIA VIHAR
DELHI-110094
.... PLAINTIFFS
V
USHA
WIFE OF LATE RAJESH KUMAR
DIUGHTER OF RAM PRASAD
RESIDENT OF F-36, GALI NO 6
SADATPUR EXTENSION
MAIN KARAWAL NAGAR ROAD
DELHI-110094
....DEFENDANT
INSTITUTION: 10.01.2017
ARGUMENTS: 14.12.2020
JUDGMENT:17.12.2020 SUIT FOR RECOVRY OF POSSESSION, DAMAGES / MESNE PROFIT & PERMANENT INJUNCTION JUDGMENT
1. The plaintiffs filed present suit for recovery of possession, permanent injunction and damages/mesne profit. The plaintiffs pleaded as under:-
The plaintiff no 1 is owner of the property bearing no F-36, Gali No 6, Sadatpur Extension, Delhi-110094 (hereinafter referred as "the suit property"). The defendant got married with their son Rajesh Kumar who has already expired and as such the defendant is daughter-in-law of the plaintiffs and is residing in suit property as shown in site plan. The plaintiff no 1 out of love and affection on 31.12.2012 executed Family Will Deed and General Power of Attorney in favor of CS 7/2017 GEETA AND ANOTHER V USHA 1/21 Rajesh Kumar but the plaintiff no 1 on 13.04.2015 cancelled Family Will Deed and General Power of Attorney vide registered Cancellation of General Power of Attorney dated 13.04.2015. The plaintiff no 1 transferred the property in favor of husband i.e. the plaintiff no 2 vide Family General Power of Attorney, Gift Deed, Possession Letter and Family Will Deed dated 27.04.2015 registered on 29.04.2015. The defendant is a quarrelsome in nature and never discharged her duties towards the plaintiffs. The defendant also inflicted cruelties mental and physical to husband besides interference caused by her parental family. The defendant after death of Rajesh Kumar started to ask the plaintiffs to transfer the property in her name and in default threatened with serious consequences. The defendant and her children filed a suit bearing no 476511/15 titled as Usha and others V Ram Singh and others for declaration, permanent and mandatory injunctions and damages against the plaintiffs and others by alleging that the plaintiff no.1 sold out the suit property to her husband i.e. Rajesh Kumar for a consideration of Rs.20,00,000/- but the suit was dismissed by Sh. G.N. Pandey, Additional District Judge, KKD Courts vide judgment and decree dated 17.10.2016. The defendant does not have any right, title or interest in the suit property. The plaintiff no 1 has already orally terminated license of the defendant to live in the suit property. The defendant has refused to vacate and hand over the peaceful and vacant possession of the suit property despite repeated requests and threatened the plaintiffs to part with possession of the suit property. The plaintiff being aggrieved filed the present suit and made prayers which are reproduced verbatim as under:-
i. Pass a decree of recovery of possession in favour of the plaintiffs and against the defendant thereby directing the defendant to hand over the peaceful and vacant possession of the suit property bearing no. F-36, Gali No 6, Sadatpur Extn., Delhi-110094, which is more specifically shown in the site plan attached herewith.
ii. Pass a decree of permanent injunction in favour of the plaintiffs and against the defendant thereby restraining the defendant, her family members, agents, successors, servants, representatives and persons working on her behalf etc. from creating any sort of third party interest in any portion of the suit property i.e. F-36, Gali No. 6, Sadatpur Extn., Delhi- 110094.
iii. Pass a decree of damages/mesne profit in favour of the CS 7/2017 GEETA AND ANOTHER V USHA 2/21 plaintiffs and against the defendant thereby directing the defendant to pay mesne profit/damages @ Rs.6000/- per month or at any other rate as may be decided by this Hon'ble Court from the date of filing this suit till handing over the actual possession of the property by the defendant to the plaintiff.
2. The defendant filed written statement and contested the suit. The defendant in preliminary objections stated that the suit is not maintainable. The suit is liable to be dismissed under Order VII Rule 11 of CPC being without cause of action. The suit is not properly valued for purpose of the court fee. The suit is bad for non-joinder and misjoinder of necessary parties. The suit is barred under Order II Rule 2 CPC as the plaintiff did not make counter claim in former suit filed by the defendant against the plaintiffs. The suit is barred by constructive res judicata as a former suit bearing no CS 476511/2015 titled as Usha and others V Ram Singh and others between same parties has already been decided by Sh. G.N. Pandey, Additional District Judge, North-East District, KKD Courts, Delhi vide judgment and decree dated 17.10.2016. The plaintiff no 1 gifted and handed over the physical possession of the suit property to her deceased son namely Rajesh Kumar i.e. husband of the defendant along with defendant and her children. The defendant on reply on merits stated that the plaintiffs have taken Rs.20,00,000/- from their son at the time of executing the GPA, Will etc. but did not execute receipt. The plaintiffs do not have any right, title or interest on the suit property. The defendant is living in the suit property along with her children as an owner and as such the plaintiffs are not entitled to claim any damages. The defendant denied other allegations/pleas of the plaintiffs.
3. The plaintiffs filed replication whereby denied allegations as mentioned in written statement and reiterated pleas as mentioned in plaint.
4. Vide order dated, following issues were framed:-
1. Whether the plaintiff has not valued the present suit properly for the purpose of Court fees? OPD
2. Whether the present suit is bad for non-joinder and misjoinder of necessary parties? OPD
3. Whether the present suit is barred under the provisions of Order 2 Rule 2 CPC? OPD
4. Whether the present suit is barred by 'res-judicata'? OPD
5. Whether the plaintiff is entitled for a decree of possession in respect of suit property bearing No. F-36, Gali No. 6, Sadatpur Extn., Delhi-94, as claimed in the plaint? OPP CS 7/2017 GEETA AND ANOTHER V USHA 3/21
6. Whether the plaintiff is entitled for a decree of permanent injunction against the defendant as prayed in the plaint? OPP
7. Whether the plaintiff is entitled to claim damages/mesne profit from the defendant? If so, at what rate and for which period? OPP
8. Relief.
5. The plaintiffs examined the plaintiff no 1 as PW1 who tendered affidavit in evidence which is Ex.PW1/A. The evidence of the plaintiffs was ordered to be closed vide order dated 18.04.2019. The plaintiffs filed application under Order XVIII Rule 17 CPC for recalling the plaintiff no 1 in evidence and under Order XIII Rule 1 CPC for filing site plan which were allowed vide order dated 09.11.2020. The plaintiff no 1 as PW1 re-examined her and relied on documents which are Ex. PW1/A to Ex. PW1/J. The plaintiffs also examined Gopal Dutt, Record Keeper, Sub Registrar - IV, Seelampur as PW2 who produced documents Ex.PW2/A to Ex.PW2/C. The defendant examined her as DW1 and tendered affidavit in evidence which is Ex. DW1/A. The defendant's evidence was ordered to be closed vide order dated 13.08.2019.
6. Sh. Mohd Arif, Advocate for the plaintiffs and Sh. S.S.Rajora, Advocate for the defendant heard. The respective counsel for the plaintiffs and the defendant filed written arguments which are considered. Record perused.
7. The burden of proof in civil trial is the obligation on the plaintiff that the plaintiff would adduce evidence that proves his claims against the defendant and is based on preponderance of the probabilities. Under Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it. Relevant provisions of the Evidence Act, 1872 dealing with burden of proof are produces as under:-
101. Burden of proof.--
Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
102. On whom burden of proof lies.--
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
CS 7/2017 GEETA AND ANOTHER V USHA 4/21
103. Burden of proof as to particular fact.--
The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
106. Burden of proving fact especially within knowledge.-- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
The Supreme Court in R.V.E. Venkatachala Gounder V Arulmigu Viswesaraswami & V.P. Temple & another,VI(2003)SLT307 observed that whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It was observed in A. Raghavamma & another V Chenchamma & another, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. It was observed in Rangammal V Kuppuswami and others, Civil Appeal No 562 of 2003 decided on 13th May, 2011 by the Supreme Court observed that burden of proof lies on the person who first asserts the fact and not on the one who denies that fact to be true. The responsibility of the defendant to prove a fact to be true would start only when the authenticity of the fact is proved by the plaintiff. In Anil Rishi V Gurbaksh Singh, (2006) 5 SCC 558 it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues. This view was also accepted in M/S. Gian Chand & Brothers and Another V Rattan Lal @ Rattan Singh, (2013) SCR 601.
ISSUEWISE FINDINGS ARE AS UNDER ISSUE NO 1 Whether the plaintiff has not valued the present suit properly for the purpose of Court fees? OPD CS 7/2017 GEETA AND ANOTHER V USHA 5/21
8. The defendants alleged that the suit is undervalued and the plaintiffs did not pay proper court fee. The plaintiff filed present suit for recovery of possession, permanent injunction and damages/mesne profit. Section 7(v) of the Court Fees Act, 1870 provides for court fee in suits for the possession of land, houses and gardens and lays down that the value of such a suit would be according to value of the subject-matter. Clause (e) provides that the value of the subject-matter, when it is a house or garden, will be the market value of the house or garden. Section 7(iv)
(d) of Court Fees Act, 1870 provides valuation of the suit for purpose of court fee when relief of injunction is claimed. In suits for injunction the court fee is payable according to the amount at which the relief sought is valued in the plaint and in such suits the plaintiff shall state the amount at which he values the relief sought. The plaintiff valued the suit for relief of possession at Rs.17,00,000/- and for relief of injunction at Rs.130/- and paid ad valorem court fee for claiming reliefs of possession and fixed court fee for claiming relief of injunction. The defendant did not state valuation of the suit for purpose of court fee. The plaintiff as such properly valued present suit for purpose of court fee. Issue no 1 is decided in favour of the plaintiffs and against the defendant.
ISSUE NO 2 Whether the present suit is bad for non-joinder and misjoinder of necessary parties? OPD
9. A civil case starts with institution of the case by one party against another party and the competent court decides the rights and liabilities of the parties. Order I of the Code of Civil Procedure, 1908 deals with parties to the suit and also contains provisions for addition, deletion and substitution of parties, joinder, non-joinder and misjoinder of parties and objections to misjoinder and non-joinder. Rule 1 deals with who may be joined as plaintiffs. Rule 3 deals with who may be joined as defendants. It reads as under:-
3. Who may be joined as defendants.--All persons may be joined in one suit as defendants where-- (a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and
(b) if separate suits were brought against such persons, any common question of law or fact would arise.
CS 7/2017 GEETA AND ANOTHER V USHA 6/21 The question of joinder of parties may arise either as regards the plaintiffs or as regards the defendants. The question of joinder of parties arises only when an act is done by two or more persons or it affects two or more persons.
In misjoinder of parties if two or more persons are joined as plaintiffs or defendants in one suit in contravention of order 1 Rules 1 and 3 and are neither necessary nor proper parties. Order I Rule 9 provides that no suit shall be defeated by reason of misjoinder or non-joinder of parties. It reads as under:-
9. Misjoinder and nonjoinder.--No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:
Provided that nothing in this rule shall apply to non-joinder of a necessary party.
10. The defendant alleged that suit is bad for nonjoinder and misjoinder of necessary parties. The counsel for the plaintiffs argued that the defendant did not lead evidence to prove that how suit is bad for nonjoinder and misjoinder of necessary parties and the plaintiff no 1 already executed title documents in respect of the suit property in favor of the plaintiff no 2 and as such the plaintiffs are necessary parties. The plaintiffs pleaded that the plaintiff no 1 being owner of the suit property executed Family Will Deed and General Power of Attorney in favor of her son Rajesh Kumar on 31.12.2012 which were cancelled on 13.04.2015 vide registered cancellation of General Power of Attorney dated 13.04.2015. The plaintiff no 1 transferred the suit property in favor of the plaintiff no 2 vide Family General Power of Attorney, Gift Deed, Possession Letter and Family Will Deed dated 27.04.2015 registered on 29.04.2015. The defendant who is in possession of the suit property did not vacate the suit property despite repeated request and oral termination of license of the defendant to live in the suit property. The plaintiffs as such impleaded necessary parties in the present suit. It is not disclosed by the defendant that how the suit is bad for non-joinder and misjoinder of necessary parties. Issue no 2 is decided in favor of the plaintiffs and against the defendant.
ISSUE NO 3 Whether the present suit is barred under the provisions of Order 2 CS 7/2017 GEETA AND ANOTHER V USHA 7/21 Rule 2 CPC? OPD
11. The defendant and her children filed a suit for declaration, permanent and mandatory injunctions and damages bearing no 476511/15 titled as Usha and others V Ram Singh and others against the plaintiffs and others which was dismissed by court of Sh. G. N. Pandey, Additional District Judge-02, North-East, Karkardooma Courts vide judgment and decree dated 17.10.2016 Ex. PW1/I. The defendant alleged that present suit is barred under Order II Rule 2 CPC as the plaintiffs in above suit did not seek reliefs of possession, damages and permanent injunction claimed in present suit as counter claim and as such the plaintiffs have relinquished their present claims. The plaintiffs pleaded that non-filing of counter claim in former suit does not disentitle the plaintiffs from filing present suit. The counsel for the plaintiffs argued that present suit is not barred under Order II Rule 2 CPC. The counsel for the defendant argued that present suit is barred under Order II Rule 2 CPC.
12. Order II Rule 2 of Code of Civil Procedure 1908 reads as under:-
Rule 2.__Suit to include the whole claim (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or internationally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
13. Object of Order 2 Rule 2 is to avoid multiplicity of litigation and the defendant should not be vexed twice for same cause of action. If the plaintiff is entitled to several reliefs on basis of the same cause of action against the defendant then he cannot split up claim so as to omit one part of the claim and sue for the other. The plaintiff has to place all claims in one suit based on same cause of action as observed by the Supreme Court in Deva Ram V Ishwar Chand, AIR1996SC378. The plaintiff is prevented from splitting claims and remedies based on same cause CS 7/2017 GEETA AND ANOTHER V USHA 8/21 of action. The plaintiff is not precluded from filing second suit based on different and diverse cause of action. The Supreme Court in Gurbux Singh V Bhooralal, AIR 1964 SC 1810 held as under:-
In order that a plea of a bar under Order 2 Rule 2(3) of the Civil Procedure Code should succeed the defendant who raises the plea must make out: (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar.
The Supreme Court in Alka Gupta V Narender Kumar Gupta, (2010) 10 SCC 141 observed as under:-
The object of Order 2 Rule 2 of the Code is twofold. First is to ensure that no defendant is sued and vexed twice in regard to the same cause of action. Second is to prevent a plaintiff from splitting of claims and remedies based on the same cause of action. The effect of Order 2 Rule 2 of the Code is to bar a plaintiff who had earlier claimed certain remedies in regard to a cause of action, from filing a second suit in regard to other reliefs based on the same cause of action. It does not however bar a second suit based on a different and distinct cause of action.
The Supreme Court in Coffee Board V M/S Ramesh Exports P. Ltd, Civil Appeal No 5527 of 2014 decided on 09th May, 2014 observed as under:-
The above rules are offshoots of the ancient principle that there should be an end to litigation traced in the Full Bench decision of the Court in Lachmi vs. Bhulli, ILR (1927) 8 Lah 384 and approved by this Court in many of its decisions. The principle which emerges from the above is that no one ought to be vexed twice for the same cause. In light of the above, from a plain reading of Order 2 Rule 2, it emerges that if different reliefs and claims arise out of the same cause of action then the plaintiff must place all his claims before the Court in one suit and cannot omit one of the reliefs or claims except without the leave of the Court. Order 2 Rule 2 bars a plaintiff from omitting one part of claim and raising the same in a subsequent suit.
The bar of Order 2 Rule 2 comes into operation where the cause of CS 7/2017 GEETA AND ANOTHER V USHA 9/21 action on which the previous suit was filed, forms the foundation of the subsequent suit; and when the plaintiff could have claimed the relief sought in the subsequent suit, in the earlier suit; and both the suits are between the same parties. Furthermore, the bar under Order 2 Rule 2 must be specifically pleaded by the defendant in the suit and the Trial Court should specifically frame a specific issue in that regard wherein the pleading in the earlier suit must be examined and the plaintiff is given an opportunity to demonstrate that the cause of action in the subsequent suit is different.
It was further observed that the courts to determine whether a suit is barred by Order 2 Rule 2 must examine the cause of action pleaded by the plaintiff in his plaints filed in the relevant suits. The plaints must be read as a whole to identify the cause of action which is necessary to establish a claim or necessary for the plaintiff to prove if traversed. Therefore, after identifying the cause of action if it is found that the cause of action pleaded in both the suits is identical and the relief claimed in the subsequent suit could have been pleaded in the earlier suit then the subsequent suit is barred by Order 2 Rule 2.
14. The plaintiff no 1 being owner of the suit property on 31.12.2012 executed Family Will Deed and General Power of Attorney in respect of the suit property in favor of their son Rajesh Kumar who was husband of the defendant but the plaintiff no 1 on 13.04.2015 cancelled Family Will Deed and General Power of Attorney vide registered cancellation of General Power of Attorney dated 13.04.2015 Ex. PW1/D. The perusal of judgment dated 17.10.2016 Ex. PW1/I reflects that the plaintiff and her children filed suit for declaration, permanent and mandatory injunctions and damages titled as Usha and others V Ram Singh and others bearing no 476511/15. The defendant and her children as plaintiffs in suit no 476511/15 prayed for decree of declaration for declaring that the plaintiffs and others who were impleaded as the defendants in suit no 476511/15 do not have any right, title or interest in respect of the suit property and documents executed by the plaintiff no 1 in favor of son i.e. Rajesh Kumar on 31.12.2012 as valid and further for restraining them to ingress and from dispossessing from the suit property and issuance of directions for registration of documents dated 31.12.2012 besides claiming damages. The plaintiffs in present suit has claimed reliefs of recovery of possession of the suit property; restraining the defendant from creating CS 7/2017 GEETA AND ANOTHER V USHA 10/21 third party interest in the suit property besides award of damages/mesne profit. The cause of actions pleaded by respective plaintiffs in suit no 476511/15 and present suit are different and not identical. The reliefs in both suits are different and could not be pleaded in the earlier suit.
15. The counsel for the defendant argued that the plaintiffs should have claimed reliefs as claimed in present suit as counter claim in suit no 476511/15. Order VIII Rule 6A which pertains to the counter claim reads as under:
6A. Counterclaim by Defendant (1) A defendant in a suit may, in addition to his right of pleading a setoff under rule 6, set up, by way of counterclaim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit, but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counterclaim is in the nature of a claim for damages or not:
Provided that such counterclaim shall not exceed the pecuniary limits of the jurisdiction of the court.
(2) Such counterclaim shall have the same effect as a crosssuit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counterclaim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counterclaim of the defendant within such period as may be fixed by the Court.
(4) The counterclaim shall be treated as a plaint and governed by the rules applicable to plaints.
The defendant in written statement can make a plea of counter claim against the plaintiff. The counter claim means a claim made by the defendant in a suit against the plaintiff. It is independent and separable claim from claim of the plaintiff. It is a cause of action in favor of the defendant and against the plaintiff. The object of counter claim is to avoid multiplicity of litigation and to exclude inconvenience to the litigants. The Supreme Court in Ashok Kumar Kalra V Wing Cdr Surendra Agnihotri, SLP (C) NO. 23599 of 2018 decided on 19th November, 2019 regarding object of filing of counter claim observed as under:-
(t)he purpose of introducing Rule 6A in Order VIII of the CPC is to avoid multiplicity of proceedings by driving the parties to file separate suit and see that the dispute between the parties is decided finally. If the provision is interpreted in such a way, to allow delayed filling of the counterclaim, the provision itself CS 7/2017 GEETA AND ANOTHER V USHA 11/21 becomes redundant and the purpose for which the amendment is made will be defeated and ultimately it leads to flagrant miscarriage of justice. At the same time, there cannot be a rigid and hyper technical approach that the provision stipulates that the counterclaim has to be filed along with the written statement and beyond that, the Court has no power. The Courts, taking into consideration the reasons stated in support of the counter claim, should adopt a balanced approach keeping in mind the object behind the amendment and to sub serve the ends of justice. There cannot be any hard and fast rule to say that in a particular time the counterclaim has to be filed, by curtailing the discretion conferred on the Courts. The trial court has to exercise the discretion judiciously and come to a definite conclusion that by allowing the counterclaim, no prejudice is caused to the opposite party, process is not unduly delayed and the same is in the best interest of justice and as per the objects sought to be achieved through the amendment. But however, we are of the considered opinion that the defendant cannot be permitted to file counter-
claim after the issues are framed and after the suit has proceeded substantially. It would defeat the cause of justice and be detrimental to the principle of speedy justice as enshrined in the objects and reasons for the particular amendment to the CPC.
16. The plaintiffs till disposal of former suit bearing no 476511/15 did not prefer to claim relief of possession in respect of the suit property. The reliefs as claimed in present suit are not time barred. Mere filing of former suit bearing no 476511/15 by the defendant does not preclude or bar the plaintiffs from filing present suit. If the plaintiffs preferred to file present suit instead of filing counter claim in suit no 476511/15 then the present suit being subsequent suit is not barred under Order II Rule 2. Any provision under the procedural law should not be construed in such a way that it would leave the Court helpless. The civil courts are vested with wide discretion regarding the procedural elements of a suit. The procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. The whole purpose of the procedural law is to ensure that the legal process is made more effective in the process of delivering substantial justice. Issue no 3 is decided in favor of the plaintiffs and against the defendant.
ISSUE NO 4 Whether the present suit is barred by 'res-judicata'? OPD
17. Section 11 of the Code of Civil Procedure, 1908 deals with res judicata. It CS 7/2017 GEETA AND ANOTHER V USHA 12/21 reads as under:-
No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Section 11 of the code of Civil Procedure, 1908 embodies the rule of res judicata or the rule of conclusiveness of the judgment as to the points decided either of facts or of law or of facts and law in every subsequent suit between the same parties. It enacts that once a matter is finally decided by a competent court, no party can be permitted to reopen it in a subsequent litigation. The doctrine of res judicata is conceived in the larger public interest which requires that all the litigation must, sooner than later, come to an end. The principle is also founded on justice, equity and good conscience which require that a party who has once succeeded on an issue should not be harassed by multiplicity of proceedings involving the same issue. The constructive res judicata arises out of Explanation IV of section 11. It is artificial form of res judicata and provides that if a plea could have been taken by a party in a proceeding with opponent, he should not be permitted to take that plea against same party in a subsequent proceeding with reference to same subject matter which is opposed to public policy basis of doctrine of res judicata. The Supreme Court in Satyadhyan Ghosal V Deorjin Debi, AIR1960SC941 explained doctrine of res judicata as under:-
The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter, whether on a question of fact or a question of law, has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again.
18. To constitute res judicata following conditions need to be fulfilled.
CS 7/2017 GEETA AND ANOTHER V USHA 13/21 i. The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit.
ii. The former suit must have been a suit between the same parties or between parties under whom they or any of them claim.
iii. Such parties must have been litigating under the same title in the former suit.
iv. The Court which decided the former suit must be a Court competent to try the subsequent suit or the suit in which such issue is subsequently raised.
v. The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit.
19. The defendant alleged that the suit is barred by constructive res judicata as a former suit bearing no CS 476511/2015 titled as Usha and others V Ram Singh and others between same parties has already been decided by Sh. G.N. Pandey, Additional District Judge, North-East District, KKD Courts, Delhi vide judgment and decree dated 17.10.2016 Ex. PW1/I. The counsel for the defendant is barred by constructive res judicata. It is admitted that the defendant and her children filed a suit for declaration, permanent and mandatory injunctions and damages bearing no 476511/15 titled as Usha and others V Ram Singh and others against the plaintiffs and others which was dismissed by court of Sh. G. N. Pandey, Additional District Judge-02, North-East, Karkardooma Courts vide judgment and decree dated 17.10.2016 Ex. PW1/I. The perusal of judgment dated 17.10.2016 Ex. PW1/I reflects that the plaintiff and her children in suit bearing no 476511/15 claimed decree of declaration for declaring that the plaintiffs do not have any right, title or interest in respect of the suit property and documents executed by the plaintiff no 1 in favor of son i.e. Rajesh Kumar on 31.12.2012 as valid and further for restraining them from dispossessing from the suit property and issuance of directions for registration of documents dated 31.12.2012 besides claiming damages. The plaintiffs in present suit have claimed possession of the suit property from the defendant and for restraining the defendant from creating third party interest in the suit property besides award of damages/mesne profit. The subject matter of former suit bearing no 476511/15 and present suit is completely different.The matter directly and substantially in issue in the present suit which is CS 7/2017 GEETA AND ANOTHER V USHA 14/21 a subsequent suit was not same matter which was directly and substantially in issue either actually or constructively in the former suit i.e. suit no 476511/15 although the plaintiffs and the defendant were contesting parties in suit no 476511/15 and the court which decided the former suit i.e. suit no 476511/15 was competent to try the present suit. The present suit is not barred by res judicata either constructive or actual. Issue no 4 is decided in favor of the plaintiffs and against the defendant.
ISSUE NO 5 Whether the plaintiff is entitled for a decree of possession in respect of suit property bearing No. F-36, Gali No. 6, Sadatpur Extn., Delhi-94, as claimed in the plaint? OPP
20. The plaintiffs prayed for passing of decree of recovery of possession of the suit property as shown in site plan Ex. PW1/J. The plaintiffs primarily pleaded and deposed in affidavit Ex. PW1/A that the plaintiff no 1 is owner of the suit property and on 31.12.2012 executed Family Will Deed and General Power of Attorney in favor of her son Rajesh Kumar i.e. deceased husband of the defendant which were cancelled vide registered Cancellation of General Power of Attorney dated 13.04.2015 Ex. PW1/D. The defendant who is in possession of the suit property has refused to hand over possession of the suit property to the plaintiffs. The defendant primarily alleged and deposed in affidavit Ex. DW1/A that the plaintiff no 1 gifted and handed over the physical possession of the suit property to her deceased son namely Rajesh Kumar i.e. husband of the defendant and took Rs.20,00,000/- at the time of executing GPA, Will etc. but did not execute receipt. The burden was on the plaintiffs that they are entitled to recover possession of the suit property from the defendant and onus was on the defendant to prove that the plaintiff no1 gifted the suit property to Rajesh Kumar for Rs.20,00,000/-. The counsel for the plaintiffs argued that the defendant admitted ownership of the plaintiff no 1 in respect of the suit property and the defendant could not prove any title in respect of the suit property. The counsel for the defendant argued that the plaintiff no 1 has transferred the suit property in favor of Rajesh Kumar on 31.12.2012 by executing necessary documents which cannot be cancelled. The plaintiff no 1 has failed to prove her ownership in respect of the suit property.
CS 7/2017 GEETA AND ANOTHER V USHA 15/21
21. It is reflecting from analytical and critical reading of pleadings and evidence including cross examination of the plaintiffs and the defendant is that the plaintiff no 1 is owner of the suit property which is not disputed by the defendant as the defendant is claiming her rights in suit property through the plaintiff no 1. Rajesh Kumar was son of the plaintiffs who got married with the defendant. Rajesh Kumar is already expired. The plaintiff no 1 on 31.12.2012 executed Family Will Deed and General Power of Attorney in favor of Rajesh Kumar in respect of the suit property and also handed over title documents in respect of the suit property in favor of the plaintiff no 1 to Rajesh Kumar. The plaintiff no 1 vide registered Cancellation of Deed of Will dated 13.04.2015 Ex. PW2/A and Cancellation of General Power of Attorney dated 13.04.2015 Ex. PW2/B (Ex. PW1/D) cancelled Family Will Deed and General Power of Attorney executed in favor of Rajesh Kumar. It reflects and proved that the plaintiff no 1never transferred ownership rights in favor of Rajesh Kumar. Mere execution of Family Will Deed and General Power of Attorney on 31.12.2012 in favor of Rajesh Kumar in respect of the suit property in favor of Rajesh Kumar does not create any ownership in respect of the suit property in favor of Rajesh Kumar. The Supreme Court in Suraj Lamp & Industries Private Limited V State of Haryana & another, 2009 (7) SCC 363 referred to the ill - effects of sales through General Power of Attorney or Sale Agreement/General Power of Attorney/Will transfers (for short `SA/GPA/WILL' transfers) and observed that there cannot be a sale by execution of a power of attorney nor can there be a transfer by execution of an agreement of sale and a power of attorney and will. The Supreme Court regarding scope of Power of Attorney again in Suraj Lamp & Industries Private Limited V State of Haryana & another, Special Leave Petition (C) No 13917 of 2009 decided on 11th October, 2011 held that a power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him as per sections 1A and section 2 of the Powers of Attorney Act, 1882. It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not CS 7/2017 GEETA AND ANOTHER V USHA 16/21 have the effect of transferring title to the grantee. Moreover the plaintiff no 1 cancelled Family Will Deed and General Power of Attorney executed in favor of Rajesh Kumar vide registered Cancellation of Deed of Will dated 13.04.2015 Ex. PW2/A and Cancellation of General Power of Attorney dated 13.04.2015 Ex. PW2/B (Ex. PW1/D).
22. The plea of the defendant that the plaintiff no 1 gifted the suit property to her deceased son namely Rajesh Kumar i.e. husband of the defendant and took Rs.20,00,000/- without executing does not substantiated by adequate and suitable evidence. There is no evidence to prove that the plaintiff no 1 has ever gifted the suit property to Rajesh Kumar. The plaintiff no 1 was not even cross examined by the defendant that the plaintiff no 1 gifted the suit property in favor of Rajesh Kumar. The transfer of property is an act of conveyance of property between living persons in present or future. Section 122 of the Transfer of Property Act, 1882 defined gift as transfer of certain existing moveable or immoveable property made voluntarily and without consideration by one person called as donor to another called as donee and accepted by or on behalf of done. As per section 123 of the Transfer of Property Act, 1882 for making gift of immoveable property registration is compulsory irrespective of valuation of the property. It is not case of the defendant that the plaintiff gifted the suit property to Rajesh Kumar by registered gift deed. The defendant also stated that Rajesh Kumar paid Rs.20,00,000/- to the plaintiff no 1 which is against express legal provision of section 122. The defendant also filed a civil suit bearing no 476511/15 titled as Usha and others V Ram Singh and others for declaration, permanent and mandatory injunctions as well as damages against the plaintiffs and others which was dismissed by Sh. G.N. Pandey, Additional District Judge, KKD Courts vide judgment and decree dated 17.10.2016 Ex. PW1/I. The perusal of judgment and decree dated 17.10.2016 Ex. PW1/I reflects that suit was dismissed by holding that the defendant is not having right, title or interest in suit property and gift deed relied on by the defendant was not found sufficient to prove claims of the defendant in respect of the suit property.
23. The plaintiffs pleaded that the plaintiff no 1 executed documents which are Family General Power of Attorney Ex. PW1/E (Ex. PW2/C), Gift Deed Ex.
CS 7/2017 GEETA AND ANOTHER V USHA 17/21 PW1/F, Possession Letter Ex. PW1/G and Family Will Deed Ex. PW1/H dated 27.04.205 in favor of her husband i.e. the plaintiff no 2 in respect of the suit property. However issue whether the plaintiff no 1 sold and transferred the suit property to the plaintiff no 2 as per law is not an issue for adjudication in present suit. As per above discussion it is proved that the plaintiff no 1 is owner of the suit property. The defendant could not prove any right, title or interest in respect of the suit property either through Rajesh Kumar or independently. The plaintiff no 1 is entitled for possession of the suit property bearing no F36, Gali No 6, Sadatpur Extension, Delhi110094 as shown in site plan Ex. PW1/J. Issue no 5 is decided in favor of the plaintiff no 1 and against the defendant.
ISSUE NO 6 Whether the plaintiff is entitled for a decree of permanent injunction against the defendant as prayed in the plaint? OPP
24. Section 37(2) of the Specific Relief Act, 1963 lays down that a permanent injunction can only be granted by a decree at the hearing and upon the merits of the case. In simple words, for obtaining a permanent injunction, a regular suit is to be filed in which the right claimed is examined upon merits and finally, the injunction is granted by means of judgment. A permanent injunction therefore finally decides the rights of a person whereas a temporary injunction does not do so. A permanent injunction completely forbids the defendant to assert a right which would be contrary to the rights of the plaintiff specifies certain circumstances under which permanent injunction may be granted. Section 38 reads as under:-
38. Perpetual injunction when granted.--
(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. (2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. (3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:--
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(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
25. The plaintiffs pleaded and deposed in affidavit Ex. PW1/A that the plaintiff no 1 is owner of the suit and the defendant who is in possession of the suit property does not have any right, title or interest in the suit property. The plaintiff no 1 has already orally terminated license of the defendant to live in the suit property but the defendant has refused to hand over possession of the suit property and threatened the plaintiffs to part with possession of the suit property. The plaintiff prayed for passing of decree of permanent injunction for restraining the defendant from creating any third party interest in any portion of the suit property. It is proved that the plaintiff no 1 is owner of the suit property and the defendant does not have any right, title or interest in respect of the suit party. The defendant is not legally competent to create third party interest in respect of the suit property. The plaintiffs are entitled for decree of permanent injunction as prayed for. Issue no 6 is decided in favor of the plaintiff no 1 and against the defendant.
ISSUE NO 7 Whether the plaintiff is entitled to claim damages/mesne profit from the defendant? If so, at what rate and for which period? OPP
26. Order XX Rule12 of the Code of Civil Procedure, 1908 deals with decree of possession and mesne profit. It reads as under:-
Decree for possession and mesne profits.- (1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree-
(a) for the possession of the property;
(b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent;
(ba) for the mesne profits or directing an inquiry as to mesne profits;
(c) directing an inquiry as to rent or mesne profits from the institution of the suit until-
(i) the delivery of possession to the decree-holder, CS 7/2017 GEETA AND ANOTHER V USHA 19/21
(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or
(iii) the expiration of three years from the date of the decree, whichever event first occurs.
(2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.
27. The plaintiff pleaded and deposed in affidavit Ex.PW1/A that the defendant is unauthorized occupant of the suit property and as such the defendant is liable to pay damages at rate of Rs.6,000/- per month which is prevalent rate of rent in locality where suit property is situated. The defendant was allowed by the plaintiffs to live in the suit property after marriage. The plaintiff did not lead adequate evidence to prove or establish prevailing rate of rent in the locality. The suit property is situated in the area of Sadatpur Extension which is stated not to be a posh area with every possible facility or infrastructure. The suit property is only 56 sq. yards in measurement. The defendant is not earning and is maintaining two children who are grandchildren of the plaintiff. After considering all facts and on the basis of reasonable estimation, the occupation charges for the suit property is assessed at Rs.1000/ per month. The defendant is liable to pay occupation charges at the rate of Rs.1000/ per month to the plaintiff no 1 for a period of three years prior to the filing of present suit and thereafter from the filing of present suit till the possession of the suit property is handed over to the plaintiff no 1. The issue no 7 is accordingly decided in favor of the plaintiff no 1 and against the defendants.
ISSUE NO 8 RELIEF
28. The entire journey of the judicial process is to find the truth from the pleadings, documents and evidence of the parties. Truth is the basis of the justice. The Supreme Court in A.S. Narayana Deekshitulu V State of A.P., (1996) 9 SCC 548 observed that from the ancient times, the constitutional system depends on the foundation of truth. In Zahira Habibullah Sheikh V State of Gujarat, (2006) 3 SCC 374 it was observed that right from the inception of the judicial CS 7/2017 GEETA AND ANOTHER V USHA 20/21 system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The Supreme Court in Dalip Singh V State of UP, (2010)2SCC114 observed that truth constituted an integral part of the justice delivery system. In Maria Margarida Sequeria Fernandes V Erasmo Jack de Sequeria, (2012)5SCC370, it was observed that the truth should be guiding star in the entire judicial process. Truth alone has to be the foundation of justice. This view was reiterated in A. Shanmugam V Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam. In view of above discussions and findings on issue no 1 to 7 the suit of the plaintiff is decreed with costs and a decree of possession is passes in favor of the plaintiff no 1 and against the defendant in respect of the suit property bearing no F-36, Gali No 6, Sadatpur Extension, Delhi-110094 as shown in the site plan Ex. PW1/J. A decree of permanent injunction is also passed in favor of the plaintiff no 1 and against the defendant and the defendant and any other person claiming through the defendant is restrained from creating third party interest in the suit property bearing no F-36, Gali No 6, Sadatpur Extension, Delhi-110094 as shown in site plan Ex. PW1/J. The defendant is directed to pay occupation charges at the rate of Rs.1000/- per month to the plaintiff no 1 for a period of three years prior to the filing of present suit and thereafter from the filing of present suit till the possession of the suit property is handed over to the plaintiff. The plaintiff no 1 is directed to pay deficient court fee on relief of damages within 15 days. Thereafter Decree-sheet be prepared accordingly. File be consigned to record room.
Digitally signed Sudhir by Sudhir
Kumar Jain
ANNOUNCED IN OPEN
COURT ON 17TH DECEMBER, 2020 Kumar Date:
2020.12.17
Jain 17:03:28
+0530
(DR. SUDHIR KUMAR JAIN)
PRINCIPAL DISTRICT AND SESSIONS JUDGE
NORTH-EAST
KARKARDOOMA COURTS, DELHI
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