Delhi District Court
Smt. Man Bhavti vs Smt. Durgawati on 20 October, 2011
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IN THE COURT OF JITENDRA KUMAR MISHRA
ADDITIONAL DISTRICT JUDGE -III, ROHINI COURTS, DELHI.
Civil Suit no. 426/11
Unique ID No. 14142010
1. Smt. Man Bhavti
W/o. Late Sh. Ram Nath
2. Sh. Ram Ujagir
S/o. Late Sh. Ram Nath
3. Sh. Ram Millan
S/o. Late Sh. Ram Nath
All r/o. K-117, Shakurpur
J. J. Colony, Delhi
.............Plaintiff
Versus
1. Smt. Durgawati
W/o. Sh. Ram Het
2. Sh. Sanjay
S/o. Smt. Durgawati
3. Ms. Archana
D/o. Smt. Durgawati
4. Ms. Vandana
D/o. Smt. Durgawati
All r/o K-117, Shakurpur,
J. J. Colony, Delhi
.........Defendant
Date of institution of the suit : 22.01.2010
Reserved for judgment on : 05.10.2011
Date of pronouncement of judgment : 20.10.2011
JUDGMENT :
1. This is a suit for possession and permanent injunction filed by the plaintiffs.
2. Briefly stated the facts of the case are :
Civil Suit no. 426/11: 2:
a) Plaintiffs are legal heirs of late Sh. Ram Nath who died intestate and left behind suit property bearing no. K-117, Shakurpur, J.J. Colony, Delhi. After death of Sh. Ram Nath, plaintiffs became the owner of the suit property. At present, the plaintiffs are in occupation and in possession of one room on the second floor and are using latrine and bath room commonly.
b) Defendant no. 1 during life time of late Sh. Ram Nath started to live as a concubine of late Sh. Ram Nath. Defendants no. 2, 3 and 4 are son and daughters respectively of defendant no. 1 and are also residing with her.
c) Defendant no. 1 is receiving rent of Rs. 2600/- per month for three rooms which have been let out by her illegally as well as unauthorisedly.
d) Few days before the death of late Sh. Ram Nath, defendant no. 1 took into her custody all the original documents related to the suit property and threatened the plaintiffs that she would alienate the suit property to third person. A suit for permanent and mandatory injunction was filed by the plaintiff. During the said suit, it was stated by defendant no. 1 that late Sh. Ram Nath executed a Will on 24/01/2005 in her favour and as a result, she became absolute owner of the suit property. The said suit was partly decreed with the direction to defendant no. 1 to hand over all the documents relating to the suit property to the plaintiffs. This judgment was challenged by defendant no. 1 by filing of appeal and the same was dismissed by Additional District Judge, on 25/11/2009.
e) Despite the judgment dated 27/08/2009, the defendants are adamant not to hand over the possession of the suit property to the plaintiffs.
f) Plaintiffs could not file earlier the suit for possession because Civil Suit no. 426/11 : 3: original documents related to the suit property were stolen by defendant no. 1 and did not return the same to the plaintiffs in spite of the best efforts by the plaintiffs to get these original documents.
g) With all these facts, the plaintiff has filed the present suit for possession and permanent injunction against the defendants.
3. Written statement filed by the defendants wherein it was objected that suit of the plaintiff is barred under Order 2 Rule 2 of CPC. It is further objected that the plaintiffs under the garb of the present suit is seeking the declaration of the ownership right in respect of the suit property. It is further stated that late Sh. Ram Nath had married with defendant no. 1 according to Hindu Rites and Ceremonies in the year 1983 and they were living as husband and wife. Due to this wedlock, defendants no. 3 and 4 were born. It is further stated that defendant no. 1 is working in a factory since long time. Defendant no. 1 and late Sh. Ram Nath out of their funds and resources have purchased and developed the suit property no. K-117, Shakurpur, J. J. Colony, New Delhi and had constructed this property up to 2nd floor. The suit property was purchased with the contribution of defendant no. 1 out of her earnings and selling. Defendant no. 1 and late Sh. Ram Nath were joint owners of the suit property. It is further stated that suit property was purchased by late Sh. Ram Nath from one Sh. Chaturu. Late Sh. Ram Nath had executed a Will on 24/01/2005 in presence of witnesses to the extent of his share in the immovable property bearing property no. K-177, Shakurpur, J. J. Colony, Delhi in favour of defendant no. 1. Defendant no. 1 along with her daughters residing at the ground floor of the suit property. The tenant is residing at the first floor of the suit property. The second floor is illegally and unauthorisedly occupied by the plaintiff against the will and consent of defendant no. 1. It is the case of defendant no. 1 that she is legally wedded wife of late Sh. Ram Nath. Filing of previous suit by the plaintiff is not denied. Filing of appeal by defendants no. 1 and 2 to challenge the said judgment is also not denied. Rest of the contents of the plaint have been denied by the defendants in the written statement.
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4. Defendants also filed counter claim along with written statement, wherein with above mentioned facts, sought a decree for possession in their favour and against the plaintiffs.
5. Plaintiffs filed replication to the written statement wherein the plaintiffs denied the averments made in the written statement. In replication, it is specifically denied by the defendant that late Sh. Ram Nath had married to defendant no. 1 according to Hindu rites and ceremonies in the year 1983. It is further denied that due to this wedlock, defendants no. 3 and 4 were born. It is also denied that defendant no. 1 and late Sh. Ram Nath contributed towards the fund and resources to purchase and construct the suit property. Joint ownership of late Sh. Ram Nath and defendant no. 1 is also denied. Rest of the averments of the written statement are also denied in the replication and contents of the plaint have been reiterated and affirmed.
6. In reply to the counter claim, the averments in the counter claim have also been denied by the plaintiffs.
7. My ld predecessor by order dated 15/07/2010 framed following issues:
"i) Whether the plaintiff is entitled to a decree of possession directing the defendant to hand over the possession to her of the entire suit property bearing no. K-117, Shakurpur, Delhi, as shown red in the site plan ? OPP.
ii) Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for ? OPP.
Iii) Whether the defendant is entitled to a decree of possession against the plaintiff of the second floor of the suit property ? OPD.
iv) Whether the defendant no. 1 is entitled to decree of damages against the plaintiff for a sum of Rs. 3,000/- per month excluding water and electricity charges from January, 2010 till handing over the possession ? OPD.
v) Relief, if any."
8. To prove her case, the plaintiff examined herself as PW.1. She tendered Civil Suit no. 426/11 : 5: her evidence as Ex. PW1/A. She further relied upon documents of ownership relating to the suit property as Ex. PW1/1 to PW1/5 (OSR). She further relied upon the site plan as Ex. PW1/6, certified copy of judgment in suit no. 322/06 passed by Civil Judge, Delhi as Ex. PW1/7, certified copy of judgment in RCA No. 18/09 as Ex. PW1/8 and the certified copy of statement of defendant no. 1 recorded before the ld Civil Judge, Delhi dated 30/04/2009 as Ex. PW1/9. PW.1 was cross-examined by ld counsel for the defendants at length. My ld predecessor thereafter, by order dated 26/10/2009 closed PE. In defence, defendants examined defendant no. 1 as DW.1. DW.1 tendered her evidence by way of affidavit Ex. DW1/A. She further relied upon photocopies of documents which are Ex. DW1/1 to DW1/3 and DW1/5 to DW1/7 (OSR). There is no document as Ex. DW1/4 on the record. She further referred to some documents which are mark A to mark Q. DW.1 cross examined at length by ld counsel for plaintiff.
Thereafter, my ld predecessor by order dated 04/08/2011 closed DE.
9. I have gone through the entire records of the case including pleadings of the parties, evidence led by the parties and documents proved by the parties during trial. Ld counsels for the parties have also advanced their arguments. My issuewise findings are :
Issue No. 1Whether the plaintiff is entitled to a decree of possession directing the defendant to hand over the possession to her of the entire suit property bearing no. K-117, Shakurpur, Delhi, as shown red in the site plan ? OPP.
Onus to prove this issue was upon the plaintiff. Plaintiffs claimed the ownership of the suit property being successor in interest of late Sh. Ram Nath as it is the case of the plaintiff no. 1 that after the death of late Sh. Ram Nath, she is the legal heir and is entitled for the ownership of the suit property. It is further case of the plaintiff that defendants are entering the suit property without right, interest or title in the suit property. Plaintiffs further proved documents of ownership relating to the suit property whereas copy of one document is receipt of registration form as Ex. PW1/1, copy of GPA dated 11/05/98 in favour of late Sh. Ram Nath as Ex.Civil Suit no. 426/11
: 6: PW1/2, agreement dated 11/05/98 in favour of late Sh. Ram Nath as Ex. PW1/3, copy of affidavit and receipts are Ex. PW1/4 and PW1/5 (original seen and returned). PW.1 was cross-examined by the ld counsel for the defendant wherein it is admitted case of the plaintiff that she did not have any proof of marriage because she got married with late Sh. Ram Nath in her childhood. At that time, she was only ten years of age. However, status of the plaintiff as wife of late Sh. Ram Nath has been admitted by the defendant in her cross-examination. She has further stated that she was residing at Shakurpur for the last 25 years. Prior to that she was at Nehru Nagar. It is further admitted case of the plaintiff that when she started to live with her husband then defendant no. 1 also resided with her husband at that time. It is further stated that at that time, it was only single storey house and her both sons Ram Ujjagar and Ram Milan, defendant no. 1, she herself and two children of defendant no. 1 along with her late husband were residing there. She has further admitted that when marriages of her children were solemnized, defendant no. 1 was present in the village. She has further stated that the room in front of her room at second floor was let out by defendant no. 1. She has further admitted that defendants no. 3 and 4 are the daughters of late Sh. Ram Nath. It is further admitted case that she had not filed any case for collection of rent from the tenants in the suit property. It is admitted case of the plaintiff that she shifted in the house of Shakurpur i.e. the suit property after purchasing it. She has further admitted that after electricity and water supply has been cut off by the defendant, she has not filed any application in the court for restoration of the essential supplies. DW.1 stated in Ex. DW1/A that she was married with late Sh. Ram Nath according to Hindu rites and ceremonies in the year 1983 and they were living as husband and wife since 1983 and out of the wedlock, defendants no. 3 and 4 were born. To prove this contention, she proved copy of ration card as Ex. DW1/1, wherein the name of her husband is shown as late Sh. Ram Nath and this ration card was executed on 03/04/2006 i.e. after the death of late Sh. Ram Nath. She further proved her election I card wherein it is mentioned that her husband is late Sh. Ram Nath. This election I card has been proved as Ex. DW1/2 and date of issue is Civil Suit no. 426/11 : 7: 25/03/95 i.e. when Ram Nath was alive. During cross-examination, it is admitted case of DW.1 that she has no documentary proof to show that she got married to late Sh. Ram Nath. She has also admitted that earlier she got married to one Sh. Ramhet who is still alive but she is not aware where he is presently residing. She has further stated that she had no document to show that she had taken divorce from Sh. Ramhet and further stated that those documents were torned by the plaintiff. She has further stated that Ramhet ran away leaving her alone in 1982 but no divorce was filed by any of them. She then started working in a factory where she met deceased Ram Nath who told her that he has no family of his own and then she started living with him. She never knew that he had a wife and children. In 1988 she and her husband late Sh. Ram Nath purchased the suit property out of joint funds and he had sold her jewellery. She has further stated that she did not file any complaint against late Sh. Ram Nath after she was told that he was having wife and children. A suggestion was given to DW.1 that late Sh. Ram Nath purchased the property out of his own funds and she did not contributed any money towards purchase of the suit property but the suggestion was denied. She has further stated that in the year 1999, defendants were not residing in the suit property.
10. It is the case of the plaintiff that since late Sh. Ram Nath could not marry to defendant no. 1 as his wife i.e. the plaintiff was alive and his marriage subsists with the plaintiff and for this reason defendant no. 1 has no status in the eyes of law but only mere a status of concubine. For this reason she has no right over the suit property and she is merely a stranger to the suit property. For this reason, plaintiffs are only entitled to exercise the right over the suit property.
11. During arguments when a specific query put by this court to the ld counsel for plaintiff regarding any definition of concubine as defined under civil law, then ld counsel for the plaintiff unable to give for the same. In such circumstances, court referred Section 11 of Hindu Marriage Act, 1955 regarding void marriage. It is the case of the plaintiffs that defendant no. 1 Civil Suit no. 426/11 : 8: has no legal status as marriage of plaintiff no. 1 with late Sh. Ram Nath was subsisting. During entire cross-examination of DW.1, there is no challenge to DW.1 that no marriage had taken place between DW.1 i.e. defendant no.1 and late Sh. Ram Nath. At the most, the case of the plaintiff is that since marriage between defendant no. 1 and late Sh. Ram Nath was void, therefore, her status merely is of a concubine. Section 11 of Hindu Marriage Act, 1955 states :
"11 Void marriages.- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5."
In Hindu Marriage Act, there is definition of void marriage, voidable marriage and conditions and ceremonies regarding Hindu marriage. Section 5 (i) of Hindu Marriage Act states that the marriage may be solemnized between two Hindus, if neither party has a spouse living at the time of marriage. In case if any marriage took place in contravention to Section 5 (i) of Hindu Marriage Act, then such marriage may be declared as a void marriage only on a petition presented by either party thereto against the other party. Decree for nullity declaring such marriage void has to be also obtained from the competent court of law. Thus, according to literal meaning of the statute, it is clear that unless and until a decree of nullity is not passed in favour of either party to the marriage, then the marriage was remained valid. It is admitted case of the plaintiff that she was well aware of the presence of defendant no. 1 or of her marriage with late Sh. Ram Nath but she never objected during his life time.
12. Now I have to discuss the law laid down by superior courts on this point. The Hon'ble Supreme Court of India in Pyla Mutyalamma @ Satyavathi Vs. Pyla Suri Demudu & Anr., Criminal Appeal No. 219 of 2007, decided on 09/08/2011 held :
"Under the law, a second wife whose marriage is void on account of survival of the previous marriage of her husband with a living wife is not a legally wedded wife and she is, therefore, not entitled to maintenance under Section 125 Cr.P.C for the sole reason that "law leans in favour of Civil Suit no. 426/11 : 9: legitimacy and frowns upon bastardy." But, the law also presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for a long number of years and when the man and woman are proved to have live together as man and wife, the law will presume, unless the contrary is clearly proved, that they were living together in consequences of a valid marriage and not in a state of concubinage. Several judicial pronouncements right from the Privy Council up to this stage, have considered the scope of the presumption that could be drawn as to the relationship of marriage between two persons living together. But, when an attempt is made by the husband to negative the claim of the neglected wife depicting her as a kept mistress on the specious plea that he was already married, the court would insist on strict proof of the earlier marriage and this is intended to protect women and children from living as destitutes and this is also clearly the object of incorporation of Section 125 of the Code of Criminal Procedure providing for grant of maintenance."
The Hon'ble Supreme Court in Maharani Kusumkumari Vs. Kusum Kumari Jadeja, (SC) 1991 (1) Cur.L.J. 351 held in paras 3 and 4 :
"3. The appellants challenged the maintainability of the application of the ground that the marriage could not be declared nullity after the death of the Maharaja. Both the trial Court and the High Court have rejected the appellants' plea.
4. Mr. Mehta, the learned counsel for the appellants, has contended that having regard to the very special relationship between husband and wife, a marriage cannot be dissolved or declared to be a nullity unless both of them are parties thereto. The marital status of a person stands on such a higher footing than other positions one may hold in the society or may have in relation to a property. And cannot be allowed to be challenged lightly. The marriage of a person, therefore, cannot be declared as a nullity after his death when he does not have an opportunity to contest......"
In the said case, the facts were that the marriage took place in 1960 and the husband died in 1974. After the death of the husband a petition was filed to declare the marriage as void and the Hon'ble Supreme Court in the said petition further held that the effect of granting of decree of nullity is to discover the flaw in the marriage at the time of its performance and accordingly to grant a decree declaring it to be void. It was further held that an application under Section 11 before amendment in 1976 was maintainable at the instance of the party to the marriage even after the death of the other spouse.
Civil Suit no. 426/11: 10:
13. Thus, prior to amendment in Section 11 of Hindu Marriage Act in 1976, the application to declare the marriage as void was maintainable even after the death of the other spouse. The Legislature amended Hindu Marriage Act 1955 by amendment Act 68 of 1976 and added the phrase 'against the other party.' Thus, the Legislature cautiously added this phrase and in view of this amendment the petition under Section 11 can be presented by either party against the other party i.e. the other party to the marriage, to declare the marriage void by decree of nullity, only when the other party is alive but not after the death of the other party. Thus, if no such decree during the life time of other party has been obtained by the aggrieved party of the said marriage then after the death of the other party, no such decree can be granted.
14. In Tulsan Devi Vs. Krishni Devi reported as AIR 1973 Punjab & Haryana 442, it was held :
"............The only persons interested in denying that status to Smt. Krishni Devi and her children are Smt. Tulsan Devi and her children and, therefore, a petition under Section 11 of the Act was necessary to be filed to safeguard the interests of the children of Smt. Krishni Devi from Mangat. We, therefore, hold that it is not the requirement of Section 11 of the Act that a petition for a declaration of nullity of marriage should be made during the life time of both spouses to the marriage. Such an application can be made by one spouse even after the death of the other....... "
In Birendra Bikram Singh and others Vs. Kamala Devi, AIR 1995 Allahabad 243, it was held :
"10. The general rule of matrimonial law that a party to a marriage of which the other party is incompetent to join in the celebration because of the existence of a previous husband or wife is entitled without recourse to any court to marry anyone else because that particular marriage is not in law a marriage at all is applicable equally well to marriage under the Act. A person, an innocent party to a bigamous marriage, may go to a court for a declaration that the bigamous marriage is null and void. That would be for the purpose of precaution or record or evidence. But the bigamous marriage is non-existent and simply because there is no recourse to the court it cannot be said that it exists unless and until a decree is passed declaring it to be null and void, Section 17 in terms lays down such a marriage is null and void and imposes punishment for bigamy as provided in the Penal Code.
11. In the case of Smt. Aina Devi v. Bachan Singh reported in AIR 1980 All 174 it was held :
" Section 11 specifically enables either party to the marriage to have it declared null and void by a decree of nullity, against the other Civil Suit no. 426/11 : 11: party. Section 11 does not confine the right to present a petition thereunder to the aggrieved party alone. On the other hand, it expressly confers the right to sue on either party to a marriage which contravenes any of the conditions of clauses (i), (iv) and (v) of Section 5 ".
12. It was also held; " the petitioner having proved by positive evidence that the first respondents already had a married wife living in the person of respondent 2 was entitled to a decree declaring it as null and void. It could not be said that the petitioner was taking any advantage of her own wrong, for the petitioner's allegation that she was already married thrice before had been denied by the first respondent, which meant that even if it were a fact that the petitioner had three husbands of previous marriages living when the first respondent married her, the first respondent was not at all aggrieved by that fact."
13. In the case of Lakshmi Ammal v. Ramaswami Naicker (sic) and another. It was held;
" The phase "either party thereto " can only mean two persons namely, the actual parties to the marriage. Any marriage requires only two parties, and no third party. It will be contrary to sense and commonsense alike to bring in a co-wife, co-husband, concubine, keep, etc., on the ground that they also perform much the same functions, as the husband and wife, the parties to the void marriage. A co-wife cannot become "a wife under the second marriage" for she is already a wife under first marriage, and cannot be married again to her husband, at any rate without the intervention of a divorce and cessation of marriage for some time. Hence, the first wife cannot apply under Section 11 for declaring the marriage of the second wife as void under Section 17. The first wife is however not left remediless. She can file a suit, under the ordinary law, for a declaration that a marriage of her husband with the second wife is illegal and void, under Act XXV of 1955. The law, in its wisdom, has given a preferential treatment to the husband and wife vitally affected, and that comes under " Proper classification " cannot be called an "illegal discrimination offending Art. 14 of the Constitution, or any other Articles of the Constitution. "
14. In view of the Sections 11 and 17 of the Hindu Marriage Act there is no remedy in case her husband married with another lady. In common law she has right to file a suit for declaration that the marriage of her husband with second wife is illegal and void."
But after referring Section 11 of Hindu Marriage Act, the Hon'ble Supreme Court further held in Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav and another (1988) 1 Supreme Court Cases 530 :
"Clause (1) (i) of Section 5 lays down, for a lawful marriage, the necessary condition that neither party should have a spouse living at the time of the marriage. A marriage in contravention of this condition, therefore, is null and void. It was urged on behalf of the appellant that such a marriage should not be treated as void because such a marriage was earlier recognized in law and custom. A reference was made to Section 12 of the Act and it was said that in any event the Civil Suit no. 426/11 : 12: marriage would be voidable. There is no merit in this contention. By reason of the overriding effect of the Act as mentioned in Section 4, no aid can be taken of the earlier Hindu law or any custom or usage as a part of that law inconsistent with any provision of the Act. So far as Section 12 is concerned, it is confined to other categories of marriages and is not applicable to one solemnised in violation of Section 5(1)(i) of the Act. Subsection (2) of Section 12 puts further restrictions on such a right. The cases covered by this section are not void ab initio, and unless all the conditions mentioned therein are fulfilled and the aggrieved party exercises the right to avoid it, the same continues to be effective. The marriages covered by Section 11 are void ipso jure, that is, void from the very inception, and have to be ignored as not existing in law at all if and when such a question arises. Although, the section permits a formal declaration to be made on the presentation of a petition, it is not essential to obtain in advance such a formal declaration from a court in a proceeding specifically commenced for the purpose................"
Subsection (1), by using the words italicised above clearly implies that a void marriage can be held to be so without a prior formal declaration by a court in a proceeding. While dealing with cases covered by Section 12, subsection (2) refers to a decree of nullity as an essential condition and subsection (3) prominently brings out the basic difference in the character of void and voidable marriages as covered respectively by Sections 11 and 12. It is also to be seen that while the legislature has considered it advisable to uphold the legitimacy of the paternity of a child born out of a void marriage, it has not extended a similar protection in respect of the mother of the child. The marriage of the appellant must, therefore, be treated as null and void from its very inception."
This judgment was further upheld by Hon'ble Supreme Court in M. M. Malhotra Vs. Union of India (2005) 8 Supreme Court Cases 351.
15. In the present case, it is admitted fact that the litigation between plaintiffs and defendants, commenced only after the death of late Sh. Ram Nath i.e. husband of plaintiff no. 1 and defendant no. 1. During life time of late Sh. Ram Nath neither plaintiff no. 1 nor defendant no. 1 had approached the court to declare the marriage of either party as null and void. In view of amendment in Hindu Marriage Act, 1976, as discussed herein above, no controversy regarding the marriage of late Sh. Ram Nath and defendant Civil Suit no. 426/11 : 13: no. 1 can be raised after the death of late Sh. Ram Nath. Moreover, as per Section 11 of Hindu Marriage Act, petition to declare the marriage as void can be raised by either party to the marriage as it is evident from phrase used in Section 11 'either party thereto', which implies that the petition to declare the marriage void can be filed only parties to the said marriage but not a third party. In this case, plaintiff no. 2 is not a party to the said marriage but only as a third party who is not entitled to get declare the marriage of defendant no. 1 and late Sh. Ram Nath as void.
But the Hon'ble Supreme Court has taken view in Yamunabai Anantrao Adhav's case (supra) which was upheld in M. M. Malhotra's case (supra) that no formal declaration to declare the marriage null and void of defendant no. 1 with late Sh. Ram Nath was required as marriages covered by Section 11 are void ipso jure i.e void from the very inception and has to be ignored as not existing in law. In such circumstances, defendant no. l has no right as successor of late Sh. Ram Nath as she is no legal wife of late Sh. Ram Nath.
However, in both the above mentioned cases, the Hon'ble Supreme Court has further held legitimacy of the paternity of a child born out of a marriage cannot be questioned again. In such circumstances, defendants no. 3 & 4 are legitimate children of late Sh. Ram Nath.
In such circumstances, this issue is partly decided in favour of the plaintiff and against the defendants; inasmuch as the plaintiff is entitled for decree for possession only against defendants no. 1 & 2. Though, defendants no. 3 & 4 in all their rights are entitled to extend permissive use to defendants no. 1 & 2 through their own rights as observed by this Court herein.
Issue No. 2Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for ? OPP.
Onus to prove this issue was upon the plaintiff. The plaintiff has Civil Suit no. 426/11 : 14: prayed in the plaint the relief for permanent injunction as :
"To pass a decree of permanent injunction thereby restraining the defendant no. 1 from collecting the rent from the tenants kept by the defendant no. 1 without any consent of the plaintiffs in the suit property in the interest of justice. "
In view of observations made during disposal of issue no. 1, this court is of the view that since plaintiffs and defendants no. 3 and 4 are equal co- sharers in the suit property, therefore, defendant no. 1 is restrained to collect rent from the tenants kept by her. But the plaintiffs and defendants no. 3 and 4 are having equal rights to collect rent from the tenants. This issue is decided partly in favour of the plaintiff in view of the observations made herein above.
Issue No. 3Whether the defendant is entitled to a decree of possession against the plaintiff of the second floor of the suit property ? OPD.
Onus to prove this issue was upon the defendant. It is admitted case of the defendant that the plaintiff is the wife of late Sh. Ram Nath. Defendant admittedly has not obtained any probate of the Will made by late Sh. Ram Nath. In Ex. DW1/A, it is stated that the Will is Ex. DW1/33, but during examination, no such document has been brought on the record. Even file is perused, but original Will is not on the record. A certified copy thereof i.e. Will dated 24/01/05 has been filed which is Mark 'P', but no attesting witness has appeared before this court to prove this Will. Therefore, this Will has not been proved in accordance with the law. It is also not the case of the defendants that probate was granted to the said Will by any competent court and, therefore, the Will has not been proved in their favour in accordance with the law. In such circumstances, the defendants are not entitled for decree for possession as prayed against the plaintiff. Thus, this issue is also decided against the defendant.
Issue No. 4Whether the defendant no. 1 is entitled to decree of damages against the plaintiff for a sum of Rs. 3,000/- per month excluding water and Civil Suit no. 426/11 : 15: electricity charges from January, 2010 till handing over the possession ? OPD.
Onus to prove this issue was upon defendant no. 1. Defendant no. 1 is not able to prove any right over the suit property as observed by this court during disposal of issue no. 1. Therefore, this issue is also decided against the defendant and the defendant is not entitled for damages, as prayed.
Issue No. 5Relief.
In view of the observations made herein above, the suit of the plaintiff is partly decreed in favour of the plaintiffs as decree for possession for the suit property bearing no. K-117, Shakur Pur, J. J. Colony, Delhi is passed in favour of the plaintiffs and against defendants no. 1 and 2. Suit of the plaintiff against defendants no. 3 and 4 is dismissed as defendants no. 3 and 4 along with plaintiffs are equal co-sharers of above referred suit property. However, defendants no. 3 and 4 in all their rights are entitled to extend permissive use to defendants no. 1 and 2 in the suit property. Decree for permanent injunction is also passed in favour of the plaintiffs and against defendant no. 1 with a direction to defendant no. 1 to restrain her to collect rent from the tenants kept by her, but suit for the permanent injunction of the plaintiff is dismissed against defendants no. 3 and 4 as defendants no. 3 and 4 along with plaintiffs are having equal rights to collect rents from the tenants. Counter claim of the defendants is dismissed. No party is entitled for cost against anyone. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the Open Court today on 20.10.2011 (Jitendra Kumar Mishra) Additional District Judge-III, Rohini Courts, Delhi Civil Suit no. 426/11 : 16: CS No. 426/11 20.10.2011 Present: None.
Vide separate judgment announced in the open court today, the suit of the plaintiff is partly decreed in favour of the plaintiffs as decree for possession for the suit property bearing no. K-117, Shakur Pur, J. J. Colony, Delhi is passed in favour of the plaintiffs and against defendants no. 1 and 2. Suit of the plaintiff against defendants no. 3 and 4 is dismissed as defendants no. 3 and 4 along with plaintiffs are equal co-sharers of above referred suit property. However, defendants no. 3 and 4 in all their rights are entitled to extend permissive use to defendants no. 1 and 2 in the suit property. Decree for permanent injunction is also passed in favour of the plaintiffs and against defendant no. 1 with a direction to defendant no. 1 to restrain her to collect rent from the tenants kept by her, but suit for the permanent injunction of the plaintiff is dismissed against defendants no. 3 and 4 as defendants no. 3 and 4 along with plaintiffs are having equal rights to collect rents from the tenants. Counter claim of the defendants is dismissed. No party is entitled for cost against anyone. Decree sheet be prepared accordingly. File be consigned to record room.
(Jitendra Kumar Mishra) ADJ-III, Rohini Courts,Delhi 20.10.2011 Civil Suit no. 426/11