Delhi District Court
Sh. Babu Lal vs Sh. Khem Chand on 12 November, 2018
IN THE COURT OF SH. SIDHARTH SHARMA
ADDITIONAL DISTRICT JUDGE-03: EAST DISTRICT
KARKARDOOMA COURTS: DELHI
RCA DJ 68/2018
SH. BABU LAL
S/o Sh. Mangal Chaudhary
R/o 13/248, Trilok Puri, Delhi-110091. ............. Appellant
Versus
SH. KHEM CHAND
S/o Sh. Babu Lal
R/o A-4, Vidhyut Vihar, Sarai Kale Khan,
Ring Road, Delhi. ..........Respondent
Date of institution : 22.05.2018
Final arguments concluded on : 12.11.2018
Date of decision : 12.11.2018
JUDGMENT
1. The present civil appeal u/s 96 of CPC has been filed by the appellant against the respondent with the prayer of setting aside the impugned judgment dated 04.05.2016, passed in civil suit no. 345/08 (old), 8921/16 (new) by the court of Sh. Gagandeep Singh, ASCJ/JSCC/Guardian Judge, East, KKD Courts, Delhi as well as seeking ad interim injunction thereby staying the operation of the impugned judgment and further restraining the respondent from RCA DJ 68/18, Page- 1/18 creating third party interest or to demolish the superstructure over the property bearing no. 13/247, Trilokpuri, Delhi and using the stair case build in the property no. 13/248 till final disposal of the instant appeal.
2. It is stated that impugned judgment dated 04.05.2016 was challenged by the appellant before Hon'ble High Court of Delhi in CM (M) 533/18 but on 04.05.2018, ld. Counsel for petitioner (appellant herein) sought permission to withdraw the petition with liberty to file the appeal under Section 96 of the CPC and accordingly, said petition was dismissed as withdrawn and present appeal under Section 96 of CPC was filed before this court.
3. The present appeal has been filed on the grounds that the matter which was substantially in issue between the parties has been heard and decided by the competent court and the decision was upheld by the Appellate Court as well as by Hon'ble High Court and amounting to res-judicata which cannot be agitated again and therefore, impugned order is liable to set aside. It is stated that trial court has erred in concluding that appellant has failed to prove that he is entitled for permanent injunction qua the staircase and Chhajja as well as right in the suit property bearing no. 13/247, Trilokpuri, Delhi as it has already been settled in the earlier suit between the parties and upheld by the Hon'ble High Court in RSA RCA DJ 68/18, Page- 2/18 No. 224/2006 that Appellant was the co-owner of the suit property bearing no. 13/247, Trilokpuri, Delhi along with his late brother Sh. Chunni Lal and after his death he inherited the other half portion of the property by virtue of the provisions of the Hindu Succession Act and therefore, the conclusion given by trial court has no merit and is being patently illegal. The next ground taken by the appellant is that trial court failed to appreciate that the documentary evidence placed on record, according to which the plot bearing no. 13/247, Trilokpuri, Delhi was alloted to late Sh. Chunni Lal in the year 1977, when the respondent was a minor, his claim that he was alloted half of the plot measuring 25 sq. yards has no basis since there is no provision in the JJ Scheme of the DDA to allot the said plot to two persons or to a minor. It is also proved on record that due to poor financial condition the said plot could not be built up by said Sh. Chunni Lal and on receipt of a show cause notice from the DDA he requested the appellant to build the same with the oral understanding that the upper portion of the built up plot will be owned by the appellant. It is stated that ld. Trial court has failed to apply its judicial mind to the fact that the license fee receipt issued by the DDA revealed that the fee was accepted through respondent in the name of Sh. Chunni Lal, the allottee of the plot and it does not make the respondent the owner of the half of the plot as concluded by the trial court. It is stated that respondent neither was RCA DJ 68/18, Page- 3/18 entitled to the half share as he has not contributed anything in the constructing of the same or proved that half of the plot was allotted to him by the DDA and even his right to inherit was negated as he could not prove his adoption by late Sh. Chunni Lal and due to presence of class-II heir, appellant could not inherit anything after the death of Sh. Chunni Lal. It is stated that upholding of assertion of the respondent by the trial court that the respondent was the joint owner of the suit property along with Sh. Chunni Lal is patently erroneous, contrary to the conclusion upheld by the Hon'ble High Court. It is stated that in the cross-examination not a suggestion had been put to Babu Lal that he was not the brother of Chunni Lal. Even otherwise, as regard the existence of one of the sisters of Chunni Lal is concerned, no such plea was either taken in the plaint filed by the respondent in earlier suit. It is stated that even otherwise the existence of sister of late Sh. Chunni Lal was not stated in the written statement filed by he respondent. It is stated that trial court has failed to apply its judicial mind while giving the findings that staircase in the property no. 13/248, Trilokpuri, Delhi was constructed with the common fund of the appellant and respondent and claim of the respondent is upheld on the ground that he had a right of using the said staircase which was the only egress and ingress of his own property no. 13/247, Trilokpuri, Delhi. It is stated that trial court ignored the fact that superstructure over RCA DJ 68/18, Page- 4/18 the plot bearing no. 13/248, Trilokpuri, Delhi was built up by the appellant in the year 1977, when the respondent was a minor. Even the appellant had contributed in construction of the superstructure on the plot bearing no. 13/247, Trilokpuri, Delhi and that is why there was an understanding between late Sh. Chunni Lal and the appellant that he would be the owner of the first floor wherein the appellant allowed the respondent to occupy as a license being his elder son. It is stated that a licensee cannot claim ownership of the property which he possessed by virtue of license or he claimed any easement right. The findings of trial court on the face of it are illegal, perverse and a case of non-application of judicial mind and hence, impugned judgment is liable to be set-aside.
4. The appeal has been contested by the respondent by filing reply, denying the averments as made in the appeal and submitting that judgment passed by the trial court is in accordance with law.
5. I have perused the trial court record. The brief facts relevant for disposal of the present appeal are that plaintiff (appellant herein) had filed a suit for permanent injunction and mandatory injunction submitting that he is the owner of property no. 13/248, Trilokpuri, Delhi and the adjacent plot bearing no. 13/247, Trilokpuri, Delhi, was allotted to his brother Chunni Lal who was a bachelor and died on 02.10.1999 leaving no heir except plaintiff/ appellant who was RCA DJ 68/18, Page- 5/18 previously employed with DESU and had built up superstructure on both the said plots at the time of allotment in the year 1997. His brother Chunni Lal was unskilled worker and defendant (respondent herein) is the elder son of the plaintiff who was allowed to reside on the first floor constructed over plot no. 13/247 (herein referred to as 'suit property') which has been inherited by him from his brother. The defendant (respondent herein) filed a suit for possession and permanent injunction claiming to be the joint allottee of the plot no. 13/247 along with Chunni Lal. He also claimed to be adopted son of late Chunni Lal and thus claimed to be sole owner of entire plot in the suit no. 427/02. The said suit was dismissed by ld. Civil Judge on 11.07.2005. It was proved on record that plot was not alloted in the name of defendant (respondent herein) who was minor at that time. The first appeal as well as second appeal were also dismissed.
6. It is further pleaded in the suit before trial court that the defendant (respondent herein) also filed suit for partition qua property no. 13/248, Trilokpuri, Delhi, which too has been dismissed by ld. Civil Judge. The defendant (respondent herein) has also been allotted govt accommodation being employee of DVB but he is greedy person who has made the life of the plaintiff (appellant herein) miserable. The license in his favour with respect to property no.
RCA DJ 68/18, Page- 6/18 13/247 has been now revoked. He also using the staircase and chhajja built in property no. 13/248 and thereby disturbing and interfering the peaceful possession of the plaintiff. The legal notice dated 13.08.2008 was served upon the defendant but despite that he did not remove the articles lying in the suit property and hence, the appellant herein had preferred the suit before trial court for permanent injunction restraining the defendant (respondent herein) from trespassing the property of plaintiff particularly using staircase and chhajja in property no. 13/248 as well as seeking relief of mandatory injunction directing the defendant for removing the articles lying in first floor of the property no. 13/247 and handing over the peaceful possession of the same.
7. Defendant (respondent herein) filed written statement disputing the claim of plaintiff (appellant herein) and submitting that property no. 13/247 was jointly allotted in the name of Chunni Lal and defendant and he was looking after late Chunni Lal being adopted son and hence, he is now the absolute owner of the property no. 13/247. The defendant also disputed the claim of the plaintiff that Chunni Lal was his brother. It was further pleaded that staircase was constructed with the common funds of the plaintiff and defendant and thus he has the right of using the staircase which is the only egress and ingress of his own property no. 13/247. The defendant RCA DJ 68/18, Page- 7/18 later on moved an application u/o 6 rule 17 CPC, which was allowed and he filed amended written statement stating that in the suit no. 355/01 instituted by the plaintiff, decided by the court of Ms. Preeti Aggarwal, ld. Civil Judge, the plaintiff admitted that defendant is the joint allottee of property no. 13/247, Trilokpuri, Delhi. Rejoinder was filed by the plaintiff reiterating the contents of plaint and denying the contents of written statement and on the basis of the pleadings, trial court framed the following issues :-
1. Whether the plaintiff is entitled for permanent injunction? OPP
2. Whether the plaintiff is entitled for mandatory injunction? OPP
3. Whether the defendant is the joint allottee of the suit property along with deceased Chunni Lal, if so, its effect? OPD
4. Relief.
8. Plaintiff examined two witnesses i.e. himself as PW1 and his neighbour Satya Prakash Sharma as PW2 and defendant examined himself as DW1. After hearing final arguments, vide impugned judgment, trial court decided the above issues against the plaintiff and in favour of the defendant.
9. I have heard Sh. A.S. Datir, counsel for appellant and Sh. S.S. Kalra, counsel for respondent and gone through the record. By preferring the present appeal, besides prayer of setting aside the impugned judgment, appellant/ plaintiff has also prayed for ad-
RCA DJ 68/18, Page- 8/18 interim injunction restraining the respondent/ defendant from using the staircase constructed upon the portion of property no. 13/248, which is the property alloted in the name of the appellant/ plaintiff. It is admitted case that there is only one staircase for both the properties i.e. property no. 13/247 and 13/248. Appellant/ plaintiff Sh. Babu Lal is the real father of the respondent/ defendant Sh. Khem Chand and the said staircase was constructed when the families of appellant/ plaintiff and his deceased brother Chunni Lal were staying and they have been using the stairs as egress and ingress to the properties since the year 1976. Ld. Trial court while dealing with the issue no. 1 of permanent injunction gave findings as follows :-
21. It is also clear from the testimony of PW1 that the said chhajja constructed over both houses is in existence since beginning and defendant is using the same staircase since the date of construction for going to his first floor property no. 13/247. Thus no fresh cause of action could have been arisen now in favour of plaintiff seeking restraint against the defendant from using the said staircase and chhajja. Similarly DW1 in his affidavit in evidence in para 3 specifically deposed that said staircase was constructed jointly by the plaintiff and deponent out of their joint funds for common use.
Therefore, the plaintiff alone cannot claim to have right over the said staircase to the exclusion of legal occupant of property no. 13/247. The said averment of RCA DJ 68/18, Page- 9/18 DW1 is not challenged in the entire cross-examination of DW1 and thereby admitting the contents of said para of the affidavit. Thus no restraint can be put upon the occupants of suit property in enjoyment of their property after more than 30 years of construction.
22. The plaintiff herein has approached the court by way of suit for an equitable relief and the person who seeks equity must approach the court with clean hands. In the entire plaint there is complete non disclosure of the previous litigation preferred by the plaintiff herein against the defendant qua suit property only. The defendant in his amended written statement specifically has pleaded about the suit for permanent injunction no. 355/01 preferred by plaintiff herein involving the rights over the suit property bearing no. 13/247. PW1 was also cross-examined on the said aspect wherein he categorically denied having instituted any case in this regard against the defendant. The copy of plaint has been proved on recored by DW1 as Ex.DW1/9 which is not rebutted or challenged in the cross-examination. The plaint of the said suit shows that plaintiff herein specifically pleaded that he is the only owner of the property no. 13/248, Trilokpuri, Delhi and defendant is joint owner of other property no. 13/247 which is the suit property herein being co-allottee. The plaintiff further claimed that he has no right in the said property. The said suit was preferred in the year 2001 after the death of Shri Chunni Lal i.e. on 02.10.1999. Now the pleadings of the plaintiff with respect to the property no. 13/247 are in clear contradiction with the earlier pleadings in his RCA DJ 68/18, Page- 10/18 plaint Ex.DW1/9. The plaintiff has tried to hide the said fact and thus is guilty of concealment of material facts. The suit of the plaintiff is liable to be dismissed on this account alone. In this regard the judgment of Hon'ble Supreme Court in the matter titled as S.P. Chengalvaraya Naidu (dead) by LRs vs. Jagan Nath (dead) by LRs and Ors., Civil Appeal no. 994/72, date of decision 27.10.1993 is relevant. The relevant paras reproduced as under :
"The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property grabbers, tax evaders, bank loan dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of litigation."
10. In my opinion, trial court has rightly came to the conclusion that there is only one staircase in both the properties, which has been in usage for last more than 30 years and the appellant/ plaintiff alone cannot claim exclusive right to use the said staircase to the exclusion of legal occupant of property no. 13/247. It is seen that DW1 in his affidavit in evidence deposed that staircase was constructed jointly by the plaintiff and deponent out of their joint funds for common use and in cross-examination of DW1, no RCA DJ 68/18, Page- 11/18 suggestion was given to him by the plaintiff challenging said averment of DW1 defendant/ respondent. It is also seen that plaintiff (appellant herein) concealed the material facts of previous litigations wherein, plaintiff/ appellant had stated that in earlier suit that he was sole owner of property no. 13/248, Trilokpuri, Delhi and defendant was joint owner of property no. 13/247, Trilokpuri, Delhi, as co-allottee, which is the suit property. Plaintiff (appellant herein) has also stated that defendant had no right in the suit property. It is pertinent to note that Sh. Chunni Lal, brother of plaintiff, died in the year 1999 and the suit was filed by the plaintiff in the year 2001. However, in the plaint before trial court, plaintiff (appellant herein) took contradictory stand to the earlier pleadings that defendant (respondent herein) has no right in the suit property and he has right by way of succession.
11. In view of the above facts and circumstances and the reasoning given by the trial court, I am in complete agreement with the findings of trial court and therefore, I hold that issue no. 1 has been rightly decided against the plaintiff (appellant herein).
12. Perusal of trial court record shows that while deciding issue no. 2 and 3, trial court has observed as follows :-
25. The case of the plaintiff is based upon the premise that property no. 13/247, Trilokpuri, Delhi, was RCA DJ 68/18, Page- 12/18 allottee in the name of his brother Chunni Lal who was bachelor and he had left with no other heir except plaintiff. His brother expired on 02.10.1999. Thus by virtue of inheritance he has become the sole owner of the said suit property. It is further the case of the plaintiff that defendant who had raised issue of being joint owner in the suit bearing no. 427/02 being adopted son of late Chunni Lal stand already rejected in the judgment of ld.
Civil Judge, dated 11.07.2005. The judgment has been confirmed in the first appeal vide order dated 13.04.2006 and in second appeal dated 20.02.2008.
26. The judgment of ld. Civil Judge, dated 11.07.2005 is perused. The suit was instituted by defendant herein for possession and permanent injunction qua property no. 13/247, Trilokpuri, Delhi. It was based on the premise that he was adopted as son by late Chunni Lal. But surprisingly the plaintiff herein in the said suit no. 427/02 took contradictory defence in the said case by pleading that Chunni Lal has nominated his nephew Bhupinder Singh in the DDA record. So he is the owner of the suit property. The said judgment also clearly records the findings that defendant herein is one-half owner of the property no. 13/247 being joint allottee. The dispute only revolved around the other joint onwer Chunni Lal and whether defendant inherited his share being adopted son. The said part of the judicial finding was never challenged by the plaintiff herein. Thus he now cannot turn around in the present case by pleading contradictory stand that joint ownership claim of the defendant is false and RCA DJ 68/18, Page- 13/18 frivolous. The suit was ultimately dismissed on the ground of failure to prove the fact of adoption of the defendant by late Chunni Lal. Further the defence of the plaintiff herein that his Bhupinder Singh has been nominated by late Chunni Lal was also not proved. Thus the pleadings as well as findings in the said suit no. 427/02 are in clear contradiction to the pleadings of the plaintiff herein. In the said suit it was never the stand of plaintiff herein that he has become the owner of the suit property no. 13/247 by virtue of succession.
27. The claim of PW1 that he has become the sole owner of the suit property after death of Chunni Lal by virtue of the law of succession also stands rebutted through his own cross-examination. The PW1 categorically admitted in the cross-examination that late Chunni Lal was survived by one brother and two sisters. One sister Dhanno is still alive. It has also come on record through cross-examination of DW1 that late Shri Chunni Lal and the plaintiff herein were not real brothers. The suggestion to this effect was given to DW1 in his cross-examination that they are not real brothers and are cousin brothers. Thus once it has come on record that plaintiff herein is not real brother and real sister of Chunni Lal still being alive, he cannot claim to be the owner by virtue of law of succession. The real sister falls in class-II category '2' of the Schedule of Hindu Succession Act and plaintiff herein falls in class-II category '4' of the Act. Thus in terms of Section 9 of the Act the real sister being in class-II category 2 shall have preferential right to the succession of the property of RCA DJ 68/18, Page- 14/18 deceased o the exclusion of the succession in the later entries.
28. The said fact was within the knowledge of plaintiff but he preferred not to disclose the same in order to mislead the court and to deprive the rights to the actual successor of the property of late Chunni Lal
29. The plaintiff again in the cross-examination of DW1 introduced another story through document Ex.DW1/PC changing his entire case. It was argued during the argument stage that as per the said document rights have been transferred in favour of the plaintiff herein.
30. The defendant was confronted with document Ex.DW1/PC which is reply given to the show cause notice by DDA. In the said reply late Chunni Lal contended that he has transferred half of his rights in the property no. 13/247 in favour of the plaintiff herein. But authenticity and validity of the said document was put into dock by defendant no. 1 in his cross-examination. DW1 categorically stated that the said document was prepared and written by his father i.e. plaintiff herein who also put his signature at point Z. The said version of DW1 is not rebutted thereby proving the fact that reply though is under the thumb impression of late Sh. Chunni Lal, but it has been prepared at the instance of plaintiff herein by creating rights in his favour. No such record was summoned from the DDA as to whether any action was taken in their record upon the said reply or not by RCA DJ 68/18, Page- 15/18 the plaintiff.
31. Even otherwise this reply cannot be taken as to be a valid transfer document in favour of plaintiff herein thereby transferring the rights in his favour. The document Ex.DW1/PC also is not a Will in favour of plaintiff.
32. The issue no. 3 is entirely based upon the defence of the defendant herein who has claimed that he is joint owner of the suit property along with Chunni Lal and hence he is residing in the suit property in his own rights. It has already been discussed that in the judgment in suit no 427/02 finding has already been given regarding failure on the part of defendant herein to prove the factum of adoption. Though in the said judgment said fact is also recorded that defendant herein is half share owner of property no. 13/247. The said finding has been upheld till Hon'le High Court in RSA no. 224/06 vide decision dated 20.02.2008. Thus now claim of plaintiff that said joint ownership is forged and fabricated document and the receipts issued by the DDA officials also records the fact of it being issued without prejudice is liable to be rejected in view of categorical finding in the earlier suit. The said two receipts have been exhibited by the defendant herein as Ex.DW1/3 dated 23.03.1997 and 03.10.1997. There is no reason to disbelieve the said receipts which shows the deposit of licence fee jointly in the name of defendant herein and late Chunni Lal. No record from the office of DDA was summoned by the plaintiff to rebut RCA DJ 68/18, Page- 16/18 the said documentary evidence to prove their own case of it being alone in the name of late Chunni Lal.
33. In view of abovesaid reasons, I am of considered opinion that plaintiff has miserably failed to show his rights of ownership in the property no. 13/247, Trilokpuri, Delhi and defendant not having any right over it. Issue no. 2 is accordingly decided against the plaintiff and issue no. 3 is decided in favour of the defendant herein.
13. In my opinion, issue no. 2 and 3 have been rightly decided against the plaintiff by ld. Trial Court holding that plaintiff has been taking contradictory stand in different litigations. Plaintiff claimed Chunni Lal to be his real brother whereas later on it came on record that name of father of Chunni Lal was Devi Ram whereas name of the father of appellant/ plaintiff was Mangal Chaudhary, and therefore, it is clear that appellant/plaintiff was not real brother and class-I legal heir of the late Chunni Lal. It is also seen that there is one brother and two sisters of Chunni Lal and name of one of the sister is Dhanno who is still alive and the plaintiff has not been able to show that he is successor of Chunni Lal, who was not original allottee.
14. The admission of appellant/ plaintiff with respect to the fact that Chunni Lal was survived by one brother and two sisters and one of the sisters is still alive and the brother and sisters are class-II successors in terms of Section 9 of the Hindu Succession Act and RCA DJ 68/18, Page- 17/18 plaintiff being cousin brother only, cannot claim rights over the property. It is also seen that appellant/ plaintiff was aware of the same but concealed the material facts and on this ground also relief of permanent injunction is liable to be dismissed.
15. In view of the facts and circumstances of the case as discussed above, I am of the considered opinion that trial court has rightly came to the conclusion that plaintiff (appellant herein) had failed to prove his right of ownership with respect to the property no. 13/247, Trilokpuri, Delhi. Accordingly, I find no merit in the present appeal. Appeal is therefore, dismissed.
16. TCR be sent back with the copy of this judgment. Appeal file be Digitally signed consigned to Record Room. by SIDDHARTH SHARMA SIDDHARTH Location: Court No.7, SHARMA Karkardooma Courts, Delhi Date: 2018.11.12 16:34:00 +0800 Announced in the open Court (SIDHARTH SHARMA) today on November 12th, 2018 Addl. District Judge-03, East District Karkardooma Courts, Delhi RCA DJ 68/18, Page- 18/18