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Delhi District Court

Shri Bhagwan vs . Jai Bhagwan & Anr. on 1 April, 2014

                                                       Shri Bhagwan Vs. Jai Bhagwan & Anr.
                                                                             CS NO. 109/11

  IN THE COURT OF SH. MANISH KHURANA: JSCC­CUM­ASCJ­CUM 
             GUDN. JUDGE: ROHINI COURTS: DELHI
                      Suit No. 109/11

Sh. Shri Bhagwan 
S/o Lt. Shri Bhaney Ram
12­B, Village Sahipur,
Shalimar Bagh, Delhi­88 
                                                            ..............Plaintiff
                         Versus
   1.

Shri Jai Bhagwan S/o Late Sh. Bhaney Ram, R/o 12, Village Sahipur, Shalimar Bagh, Delhi­88.

2. Sh. Bijender kumar, S/o Late Sh. Bhaney Ram R/o 12, Village Sahipur, Shalimar Bagh, Delhi­88 ..............Defendants DATE OF INSTITUTION: 06.07.2009 DATE OF DECISION: 01.04.2014 SUIT FOR PERMANENT INJUNCTION

1. Vide this judgment I proceed to dispose of the suit for permanent and mandatory injunction. Through this suit it has been prayed that a decree of permanent injunction may be passed in 1 Shri Bhagwan Vs. Jai Bhagwan & Anr.

favour of the plaintiff and against the defendant no. 1 restraining him from using the passage shown as B­2, B­3 & B­4 in the site plan in the suit property and also a decree of mandatory injunction seeking directions against defendant no. 1 to remove the hand pump from the said passage and the wall over the roof /side wall as shown in the site plan of the suit property.

2. In brief the case of the plaintiff is that the plaintiff is residing at property bearing no. 12, Village Sahipur, Shalimar Bagh, Delhi and the entire property no. 12 including 12­B, Village Sahipur, Shalimar Bagh, Delhi was owned by Sh. Bhaney Ram i.e. father of both the parties to the suit. It is further alleged that the suit property was partitioned and different shares were alloted to each of his sons i.e. plaintiff and defendants during the life time of the father and the portions so allocated are shown in the site plan and all of them have been in possession of their respective portions. It is further alleged 2 Shri Bhagwan Vs. Jai Bhagwan & Anr.

that after the demise of father Sh. Bhaney Ram, defendant no. 1 started creating trouble with intention to grab the portion of the plaintiff i.e. passage which is marked as B­4,B­3 & B­2. It is alleged that the said passage was solely allotted to the plaintiff and in order to create trouble, the defendant no. 1 installed a hand pump in the said passage and also constructed about 5 ft. high wall on the wall of the plaintiff. It is also alleged that the plaintiff has exclusive right to the use and enjoyment of his portion of property, however, the defendant no. 1 is causing interference in the said passage. The plaintiff has also stated in para 8 of the plaint that the defendant no. 2 has been impleaded as necessary party because he may also start claiming the passage B­4, B­3 & B­2 as a common passage for him and the plaintiff. It is alleged that the defendant no. 1 may be restrained from using that passage and hand pump installed in the said passage alongwith the wall over the roof/side wall of the plaintiff 3 Shri Bhagwan Vs. Jai Bhagwan & Anr.

may be removed. Hence the present suit has been filed praying for the decree of permanent/mandatory injunction.

3. Thereafter, Written Statement was filed on behalf of the defendants. The defendant no. 1 alleged that there was no private passage as such either of the plaintiff or of the defendant no. 2. He alleged that the private passages as shown in the site plan is infact a common passages of all the occupants of the suit property. The defendant no. 2 also filed the written statement and he admitted the alleged portion claimed by the plaintiff and that the hand pump in the passage belongs to the plaintiff and defendant no. 2 and defendant no. 1 has no right or interest therein. The plaintiff has not sought any relief in the plaint against defendant no. 2.

4. From the pleading of the parties, the following issues were settled:­

1. Whether the plaintiff is entitled for the decree of Permanent 4 Shri Bhagwan Vs. Jai Bhagwan & Anr.

Injunction as prayed for?OPP

2. Whether the plaintiff is entitled for the decree of mandatory injunction as prayed for?OPP

3. Whether the suit filed by the plaintiff is not maintainable in view of preliminary objections taken in the WS?OPD.

4. Relief.

5. The plaintiff examined himself as PW1, Smt. Tejo as PW2, Smt. Krishna as PW3 and Smt. Ritesh Kumari as PW4 who all tendered their evidence by way of affidavits and they were cross­ examined by ld. counsel for defendant no. 1. The defendant no. 2 was proceeded exparte vide order dt.23.07.2013.

6. The defendant­ Jai Bhagwan examined himself as DW1 , Sh. Ashok Kumar as DW2 and Smt. Sona Devi as DW3.

6. I have heard the arguments and perused the material available on record.

7. Issue­wise findings are as under:­ Issue no. 1 5 Shri Bhagwan Vs. Jai Bhagwan & Anr.

Whether the plaintiff is entitled for a decree of Permanent Injunction as prayed for? OPP

8. Onus to prove this issue was conferred upon the plaintiff and in order to discharge the same, the plaintiff examined himself as PW­1, Smt. Tejo i.e. the sister of the plaintiff as PW­2, Smt. Krishana i.e the sister of the plaintiff as PW­3 and Smt. Ritesh Kumari i.e. the sister of the plaintiff as PW­4.

9. On the other hand, the defendant has also examined himself as DW­1, Sh. Ashok Kumar i.e. cousin of defendant No. 1 as DW­2 and Smt. Sona Devi i.e. the aunt (Bua) of the defendant no. 1 as DW­3.

10. Section 38 of the Specific Relief Act defines the cases in which perpetual injunction can be granted.

Section 38 of the said Act reads (1) Subject to other provisions contained in or referred to by this chapter a 6 Shri Bhagwan Vs. Jai Bhagwan & Anr.

perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.

(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:

(a) Where the defendant is trustee of the property for the plaintiff;

(b)Where the 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.

11. Section 38 of the Specific Relief Act, 1963 enables the court to 7 Shri Bhagwan Vs. Jai Bhagwan & Anr.

grant a perpetual injunction to prevent the breach of an obligation existing in favour of the applicant, whether express or implied. This is again subject to exceptions. The query, therefore, has to be 'whether there exists an obligation in favour of the applicant'. Even where an obligation is made out, if the case falls within s. 41 of that Act, an injunction cannot be granted. Therefore, where the plaintiff cannot and does not allege any recognizable right or obligation in himself nor the breach of the same, he cannot get a perpetual injunction and also if he cannot get a perpetual injunction, he cannot get a temporary injunction as well.

12. In the case in hand, the plaintiff has alleged that the suit property belonged to Sh.Bhaney Ram i.e. the father of the plaintiff and defendants and the said property was partitioned amongst three brothers namely Shri Bhagwan (plaintiff), Jai Bhagwan (defendant no. 1) and Sh. Bijender Kumar (defendant no. 2) during the life time 8 Shri Bhagwan Vs. Jai Bhagwan & Anr.

of their father Sh. Bhaney Ram and the separate portions were occupied by all the three brothers. As per the site plan filed by the plaintiff along with plaint the plaintiff is claiming his exclusive rights over the passage in the suit property. The plaintiff has alleged that the said passage was exclusively given in partition to him and the defendant No. 1 has no right, title or interest therein as per the terms of partition and therefore, he may be restrained from using the same.

13. As per the site plan filed by the plaintiff, the said passage is allegedly in exclusive possession of the plaintiff and no entry or exit gate towards the portion of defendant no. 1 has been shown or mentioned in the said site plan. However, as per the site plan filed on behalf of defendant no. 1 along with WS there is a an entry gate towards the portion of the defendant no. 1 from the said passage. It is pertinent to mention that the plaintiff has given the statement before this court on 24.03.14 that defendant no. 1 Jai Bhagwan is 9 Shri Bhagwan Vs. Jai Bhagwan & Anr.

having two entries into his portion of house and one entry is from the shops in the portion of the defendant no. 1 from the front road side and another entry is from the passage B­2,B­3 and B­4 as shown in the site plan Ex. PW1/1. Therefore, it is not in dispute that the defendant No. 1 is having an access to the said passage allegedly claimed by the plaintiff and he is also having an entry gate towards his portion from the said passage. Therefore, it cannot be said that the entire suit property was ever partitioned by meets and bounds.

14. As per the site plan filed on behalf of both the parties and the evidence brought on record plaintiff and the defendants are in possession of separate two room sets and there is an approximately 4 feet wide passage in the suit property and from that passage all the parties to the suit are having entries gates towards their respective portions. The plaintiff has examined himself and his sisters namely Smt. Tejo, Smt. Krishna and Smt. Ritesh Kumari to show that the 10 Shri Bhagwan Vs. Jai Bhagwan & Anr.

partition was done and the plaintiff was granted exclusive rights over the said passage, B­2,B­3 and B­4 as shown in the site plan. The defendant has also examined himself and his cousin brother and his aunt (Bua) to show that no such private passage was given to the plaintiff.

15. Counsel for the plaintiff has argued that as per the testimonies of the plaintiff's witnesses, the suit property was partitioned during the life time of the actual owner i.e the father of parties and the respective portions of the same were allotted to the parties. It is also submitted that the portion of the plaintiff lies in between the portions of the defendants no. 1 and 2 and therefore, the plaintiff was given exclusive rights to use the passage B­2, B­3 and B­4 as shown in the site plan. Ld counsel therefore, argued that the defendant no. 1 may be restrained from using the same.

16. Per­contra counsel for the defendant no. 1 has argued 11 Shri Bhagwan Vs. Jai Bhagwan & Anr.

that the disputed passage was never partitioned and all the parties are having an entry into their respective portions from that passage. It is further submitted that the defendant no. 1 is also having the entry gate towards his portion from the said passage which is sufficient to prove that the said passage was never partitioned.

17. In the case in hand, the parties have alleged that the said property was orally partitioned amongst the brothers i.e. plaintiff and the defendants and no share in the property of the father was given to the sisters. Both the parties have alleged that the suit property is the exclusive property of Sh. Bhaney Ram i.e. their father who has already died. None of the parties has claimed that the suit property is an ancestral property or joint Hindu family property. It has not been alleged that Sh. Bhaney Ram has relinquished his share in the suit property. The exclusive property of an individual during his lifetime cannot be partitioned by other persons and the same can be 12 Shri Bhagwan Vs. Jai Bhagwan & Anr.

conveyed or transferred by way of a conveyance deed or a gift deed or by a validly executed documents which is compulsorily registrable in accordance with Section 17 of the Registration Act. In CWT Vs. Chandrasen 1986 161 ITR 370, Hon'ble Supreme Court held that even the ancestral property devolved upon an individual under Hindu Succession Act is his exclusive property. The exclusive property of an individual cannot be partitioned by anybody else. As per the case of the plaintiff, the property of Sh. Bhaney Ram was conveyed to the parties to the suit without any document in writing. However, as per law the immovable property can be conveyed by a document in writing. In these circumstances, partition of the property of Sh. Bhaney Ram during his life time by the parties to the present suit cannot be said to be a legal partition in the eyes of law.

18. Admittedly, Sh. Bhaney Ram has already died and the suit property has devolved upon his class­I legal heirs u/s 8 of Hindu 13 Shri Bhagwan Vs. Jai Bhagwan & Anr.

Succession Act. The plaintiff, the defendants and their sisters namely Smt. Tejo, Smt. Krishan and Smt. Ritesh Kumari are allegedly the class­I legal heirs of Sh. Bhaney Ram and by operation of law the entire suit property has devolved upon all of them. The sisters of the parties namely Smt. Tejo, Krishna and Ritesh Kumar are having their vested legal rights in the suit property and no relinquishment deed of their right in the suit property has been brought on record and it has not been alleged that any relinquishment deed by the sisters was ever executed in favour of the brothers who are parties to the present suit. It is also pertinent to mention that as per section 17 of the Registration Act, the relinquishment deed is also a compulsorily registrable document and any person conveying/leaving his legal rights in any immovable property has to do so by way of a written document which is compulsorily registrable (Section 17 (1) (b) of Registration Act 1908). Hence in the present case the sisters of the 14 Shri Bhagwan Vs. Jai Bhagwan & Anr.

parties could not have relinquished their rights in the suit property by way of any oral agreement.

19. The claim of the plaintiff with respect to the suit property is based on the fact that the said property was partitioned during the lifetime of his father and not on the factum of there being any coparcenary or HUF in existence. The Supreme Court in Sathya Prema Manjunatha Gowda Vs. Controller of Estate Duty Karnataka (1997) 10 SCC 684 held that the law of succession after coming into force of Hindu Succession Act 1956, is governed thereby only. Of course, section 6 thereof carved out an exception qua interest held by a deceased in a Mitakshara coparcenary property and provides that such interest shall devolve by survivorship upon the surviving of the coparcenary and not in accordance with the Act. However, in the instant case, it is not the case of the plaintiff that there was any coparcenary of which their grandfather, his father and the plaintiff 15 Shri Bhagwan Vs. Jai Bhagwan & Anr.

and the defendants were the members.

20. In Premwati Vs. Bhagwati Devi Manu/DE/4784/2012, Hon'ble Delhi High Court held that for a case for claiming a share in the property otherwise than under the Hindu Succession Act, it has to be pleaded that there existed an HUF since prior to coming into force of the Succession Act and which HUF by virtue of section 6 of the Act has been permitted to continue.

21. Therefore, the self acquired property of Late Sh. Bhaney Ram could not have been validly partitioned by the parties to the present suit during his lifetime as per law and after the death of Sh.Bhaney Ram in the year 2005 the suit property,devolved upon all the class­I legal heirs of Late Sh. Bhaney Ram in accordance with section 8 of Hindu Succession Act 1956. It means that on the death of Bhaney Ram the sisters to the parties to the present suit i.e., Tejo Devi, Smt. Krishana and Smt. Ritesh Kumari also acquired vested 16 Shri Bhagwan Vs. Jai Bhagwan & Anr.

rights in the suit property. Therefore, it cannot be said that the passage in the suit property B­2,B­3 and B­4 as shown in the site plan is the exclusive property of the plaintiff.

22. As discussed above the plaintiff has neither proved that the entire suit property was validly partitioned by metes and bound nor has he proved his exclusive right in the property/passage as alleged by him.

24. Therefore, in view of the abovesaid discussion I am of the opinion that the plaintiff has failed to prove his exclusive rights over the passage B­2, B­3 and B­4 as shown in the site plan. Hence, no injunction order can be passed against the defendant no. 1, who is also residing in the suit property, for restraining him from using the said passage. Accordingly, this issue is decided against the plaintiff and in favour of defendant no. 1.

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Shri Bhagwan Vs. Jai Bhagwan & Anr.

Issue No. 2 Whether the plaintiff is entitled for the decree of mandatory injunction as prayed for?OPP

25. Plaintiff has prayed for mandatory injunction seeking directions against the defendant no. 1 to remove the handpump in the passage B­2, B­3 and B­4 and the wall over the roof/side wall in the suit property at point C­4 to C­1 as shown in the site plan. As discussed above, the plaintiff has failed to prove his exclusive right over the passage B­2, B­3, and B­4 or in the suit property as shown in the site plan. Therefore, no directions can be given to defendant no. 1 to remove the handpump from the passage or the side wall as shown in the site plan. Accordingly, this issue is decided against the plaintiff and in favour of the defendant no. 1.

Issue No. 3

Whether the suit filed by the plaintiff is not maintainable in view of preliminary objections taken in the WS?OPD.

26. The defendant NO. 1 has taken preliminary objection in the 18 Shri Bhagwan Vs. Jai Bhagwan & Anr.

written statement that the suit filed by the plaintiff is without any cause of action and is liable to be rejected u/o 7 rule 11 CPC. He also alleged that the plaintiff has no locus­standi to file the present suit and the suit filed by the plaintiff has not been property valued and no advolerum court fee has been paid by the plaintiff thereupon. Cause of action is set of facts sufficient to justify a right to sue or the enforcement of a right against another party. The plaintiff has alleged various facts to claim his rights over the suit property and he alleged his rights in the property of his father. Therefore, it cannot be said that suit is not maintainable for want of cause of action. Further, it can also not be said that the plaintiff has no locus­standi to file the present suit because he is the occupant of the suit property and he is also using the passage B­2, B­3 and B­4 as shown in the site plan. Further, the plaintiff has prayed for the relief of permanent and mandatory injunction and has valued the suit in accordance with that 19 Shri Bhagwan Vs. Jai Bhagwan & Anr.

and paid the court fee accordingly. Therefore, it can also not be said that the suit filed by the plaintiff is not properly valued or is not maintainable. Accordingly, this issue is decided in favour of the defendant and against the plaintiff. However, in view of the findings of the issue no. 1 and 2, the findings of this issue is not going to effect the decision of this case.

Relief: Hence, suit of the plaintiff is hereby dismissed and accordingly disposed of. Decree Sheet be drawn accordingly. File be consigned to record room after due compliance.

Announced in the open                                 (Manish Khurana)
Court on 01.04.2014                        JSCC­cum­ASCJ­cum­Gudn. Judge
                                               North, Rohini Courts, Delhi




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