Delhi District Court
Mr. Kamlesh Patil vs Mrs. Leela on 26 April, 2013
IN THE COURT OF SHRI. ASHISH AGGARWAL, ADDITIONAL SENIOR
CIVIL JUDGECUMJUDGE, SMALL CAUSES COURTCUMGUARDIAN
JUDGE, NORTH WEST DISTRICT, ROHINI COURTS, DELHI.
SUIT NO.504/09.
Unique ID no.02404C0075622009.
Mr. Kamlesh Patil
S/o Mr. Babu Lal
R/o F2/61, Sultanpuri,
Delhi.
....Plaintiff
Versus
Mrs. Leela
W/o Mr. Suresh
R/o Gali no.1, BBlock, Agar Nagar,
Khara Pani, Prem NagarIII,
Delhi.
....Defendant
Date of institution : 26.03.2009
Date on which reserved for judgment : Not Reserved.
Date of decision : 26.04.2013
Suit for Permanent Injunction
Judgment
1. This judgment shall decide the suit filed by the plaintiff.
2. This suit revolves around property bearing plot no.D1, area
measuring 37 ½ square yards out of Khasra no.39/10, situated in
1/18 Kamlesh Patil Vs. Leela Suit no.504/09
the area of village Kirari Suleman Nagar and colony known as
Aggar Nagar, BlockA, Prem NagarIII, Delhi shown in the site plan
filed along with the plaint (hereinafter referred to as "the suit
property").
3. The case of the plaintiff is that he is owner of the suit property
having purchased it from Mr. Panna Lal on 07.03.2002. The
plaintiff has claimed to be in physical possession of the suit
property.
4. It is stated in the plaint that the defendant and her associates
have been interfering in the possession of the plaintiff. According
to the plaintiff, the defendant is not allowing the plaintiff to carry
out construction on the suit property.
5. On the basis of the aforesaid averments, the plaintiff has filed the
present suit praying for permanent injunction restraining the
defendant and her representatives from interfering in the
possession of the plaintiff over the suit property. The plaintiff has
further prayed for permanent injunction restraining the
defendant from creating third party interest in the suit property.
6. The defendant filed her written statement. She has stated in the
written statement that she is absolute owner of the suit property
and is in possession thereof. She has stated that the plaintiff has
no right over the suit property. According to the defendant, the
entire chain of documents of title is in the possession of the
defendant. According to the defendant, the suit is not
2/18 Kamlesh Patil Vs. Leela Suit no.504/09
maintainable in the present form and has not been correctly
valued. The defendant has claimed to have purchased the suit
property from Smt. Hansa Kumari on 10.11.2008. The defendant
also disputed the correctness of the property number disclosed
by the plaintiff.
7. Plaintiff filed replication. He reiterated the correctness of the
averments made in the plaint and denied the averments of the
defendant.
8. After completion of pleadings, the following issues were framed
by the Ld. Predecessor of the Court, by order dated 12.12.2009 :
1. Whether the plaintiff is entitled to relief of
permanent injunction as prayed for? OPP.
2. Whether the suit is barred u/s 41 (h) of the Specific
Relief Act? OPD.
3. Whether the suit is without cause of action? OPD.
4. Whether the suit is not properly valued for the
purposes of court fees and jurisdiction? OPD.
5. Relief.
9. The plaintiff adduced evidence in support of his case. He
examined himself as PW1. He tendered his affidavit Ex. PW1/A in
evidence. In his affidavit, he reiterated the averments made in
the plaint. He also identified and relied upon the following
3/18 Kamlesh Patil Vs. Leela Suit no.504/09
documents:
a) The site plan as Ex. PW1/1;
b) Agreement to sell as Ex. PW1/2;
c) General Power of attorney dated 07.03.02 as Ex. PW1/3;
d) Registered Will as Ex.PW1/4.
e) Receipt as Ex. PW1/5;
f) Affidavit as Ex.PW1/6;
g) Possession letter as Ex. PW1/7;
h) Agreement to sell as Ex. PW1/8;
i) General Power of attorney as Ex. PW1/9;
j) Registered Will as Ex.PW1/10;
k) Receipt as Ex. PW1/11;
l) Affidavit as Ex.PW1/12;
m) Possession letter as Ex. PW1/13;
n) Agreement to sell as Ex. PW1/14;
o) General Power of attorney as Ex. PW1/15;
p) Registered Will as Ex.PW1/16;
q) Affidavit as Ex.PW1/17.
PW1 / plaintiff was crossexamined on behalf of defendant and
was discharged.
10.The plaintiff then examined Mr. Krishan Kumar, LDC from Sub
RegistrarII as PW2. He produced and identified the following
documents:
a) Records of GPA Regd. No. 8580, Book No. 4, Vol. No. 6844,
4/18 Kamlesh Patil Vs. Leela Suit no.504/09
Pages 1618 dated 11.02.2000 and Will Registration No. 8600,
Book No. 3, Vol. No. 4872 Page No. 183 dated 11.02.2000, both
executed by Shri Madan Lal in favour of Ram Naresh, as Ex.
PW2/A (two pages).
b) GPA Regd. No. 13356 Book No. 4, Vol. No. 145 Pages 152153
dated 14.07.1999 executed by Shri Madan Lal in favour of Shri
Bharat Soni, as Ex. PW2/B (four pages).
c) GPA Regd. No. 13356 Book No. 4 Vol. No. 145 Pages 152153
dated 14.07.1999 executed by Shri Madan Lal in favour of Shri
Prem Singh, as Ex. PW2/C (five pages).
He was crossexamined on behalf of defendant and was
discharged.
11.The plaintiff then examined Mr. Panna Lal. Mr. Panna Lal has
been mentioned as PW2. This appears to be an inadvertent error
on the part of the Ld. Predecessor of the Court in as much as Mr.
Krishan Kumar has already been examined as PW2. Hence, for
the purpose of this judgment, PW Panna Lal shall be referred to
as PW3. PW Panna Lal tendered his affidavit in evidence. He
deposed that he had indeed sold the suit property to the
plaintiff. He has identified and relied upon the following
documents:
a) General power of attorney, agreement to sell, receipt of
payment, Will etc. as Ex.PW1/1 (colly).
b) General power of attorney, agreement to sell, receipt of
5/18 Kamlesh Patil Vs. Leela Suit no.504/09
payment, Will etc. as Ex.PW1/2 (colly).
He was not crossexamined on behalf of defendant and was
discharged. Plaintiff closed his evidence. Defendant chose not
to lead any evidence.
12. Final arguments have been heard. Record is perused. My issue
wise findings are as under:
ISSUE NO. 1
"Whether the plaintiff is entitled to relief of permanent injunction as
prayed for? OPP."
13. The onus to prove this issue was upon the plaintiff. The plaintiff
has prayed for permanent injunction restraining the defendant
from interfering in the possession of the plaintiff over the suit
property and also from creating third party interest in the suit
property.
14.The case of the plaintiff is that he is the owner of, and in
possession of, the suit property. He has claimed to have
purchased the suit property from one Mr. Panna Lal on
07.03.2002.
15.The plaintiff has supported his version by his own testimony. He
has examined himself as PW1 and has reiterated the aforesaid
assertion in his affidavit Ex.PW1/A. He has also identified and
relied upon the agreement to sell as Ex.PW1/2, general power of
attorney as Ex.PW1/3 and possession letter as Ex.PW1/7. He has
also relied upon the previous chain of documents as Ex.PW1/8 to
6/18 Kamlesh Patil Vs. Leela Suit no.504/09
Ex.PW1/13. PW1 was crossexamined on behalf of the defendant.
In his crossexamination he reiterated that he is aware of the
contents of his affidavit. He has emphasized that he is owner and
in possession of the suit property. Nothing could be brought out
on the crossexamination of the witness which could render his
testimony doubtful.
16.Further, the plaintiff has supported his version by production of
the documents registered before the SubRegistrar. From the
testimony of PW2 Mr. Krishan Kumar, it is evident that the general
power of attorney dated 11.02.2000 was duly registered.
17.The claims of the plaintiff are further supported and
strengthened by testimony of PW Panna Lal. PW Panna Lal has
stated in his affidavit that he had sold the property to the plaintiff.
It is significant to note that PW Panna Lal was not cross
examined on behalf of the defendant. Failure to crossexamine
implies acceptance of correctness of testimony. It is thus inferred
that the defendant does not dispute the correctness of
deposition of PW Panna Lal. In other words, the assertion of PW
Panna Lal that he had sold the suit property to the plaintiff has
remained uncontroverted. PW Panna Lal has claimed to have
earlier been the owner of the property and to have transferred
his rights in favour of the plaintiff. He has not been questioned on
this point by the defendant by way of crossexamination.
18.From the aforesaid, the plaintiff has succeeded in establishing his
7/18 Kamlesh Patil Vs. Leela Suit no.504/09
claim that he is in possession of the suit property and that his
possession is on behalf of the owner (by virtue of general power
of attorney).
19.The defendant has, in her written statement, disputed the title of
the plaintiff. However defendant has failed to lead any evidence
in support of her contention. Her claim of ownership of the suit
property has remained not proved. It is therefore liable to be
rejected.
20.The version of the plaintiff is thus remained unrebutted. From the
testimony of PW1, PW2 and PW3, it stands established that the
plaintiff is in possession of the suit property. The said possession is
on the strength of general power of attorney executed by
previous owner. General power of attorney does not confer title
in favour of the plaintiff. As such, it cannot be held that plaintiff is
the absolute owner of the suit property. Be that as it may, the
general power of attorney is not without any legal effect. It does
empower the plaintiff to occupy the property, albeit not in his
own right but only on behalf of the owner of the property.
Although the Hon'ble Supreme Court has held in the case of Suraj
Lamps & Industries Pvt. Ltd. Vs. State of Haryana and Anr. 183
(2011) DLT 1 (SC) that a general power of attorney does not
confer any title, in the same decision, the Hon'ble Supreme Court
has clarified that its order shall not be construed to imply that the
said documents are without any legal effect or cannot be
8/18 Kamlesh Patil Vs. Leela Suit no.504/09
looked into. Rather, the Hon'ble Supreme Court has held that its
observations shall not impinge on the validity of genuine
transaction. The following observation is relevant:
"We make it clear that our observations are not intended to in
any way affect the validity of sale agreements and powers of
attorney executed in genuine transactions."
In the case of Shri Ramesh Chand vs Suresh Chand & Anr RFA No.
358/2000 decided on 09 April, 2012 the Hon'ble High Court of
th
Delhi held as under:
"Therefore, no doubt, a person strictly may not have complete
ownership rights unless there is a duly registered sale deed,
however, certain rights can exist in an immovable property
pursuant to the provisions of Section 53A of the Transfer of
Property Act, 1882, Section 202 of the Contract Act, 1872.
xxx xxx
In view of the aforesaid facts and the validity of the documents,
being the power of attorney and the Will dated 16.5.1996, the
respondent No.1/plaintiff would though not be the classical
owner of the suit property as would an owner be under a duly registered sale deed, but surely he would have better rights/entitlement of possession of the suit property than the appellant/defendant No.1."
It was noted that the said document does create certain restricted and limited rights over the property.
9/18 Kamlesh Patil Vs. Leela Suit no.504/09
21.In the present case, the documents in favour of the plaintiff do permit the plaintiff to hold and enjoy the property on behalf of its owner. The right to occupy the property subsumes within itself the right to keep out trespassers. The defendant has failed to prove that she has any right over the property. Hence, she would be a trespasser in the suit property. The plaintiff is entitled to protect his possession from interference by the defendant.
22.The plaintiff is therefore entitled to permanent injunction restraining the defendant from interfering in the possession of the plaintiff over the suit property.
23.The plaintiff has also prayed for restraining the defendant from creating third party interest in the suit property. It has already been noted above that the plaintiff is entitled to act on behalf of the owner by virtue of general power of attorney. It has also been noted above that the defendant has no right, title or interest in the suit property. It follows from the above that the defendant has also no right to create third party interest in the suit property. The plaintiff is entitled to permanent injunction restraining the defendant from creating third party interest in the suit property.
24.The issue is decided in favour of the plaintiff and against defendant.
ISSUE No.2 "Whether the suit is barred u/s 41 (h) of the Specific Relief Act? 10/18 Kamlesh Patil Vs. Leela Suit no.504/09 OPD."
25.The onus to prove this issue was upon the defendant. According to the defendant, the suit is barred by Section 41 (h) of the Specific Relief Act, 1963. As per the defendant, the present suit for simplicitor permanent injunction is not maintainable.
26.Section 41 (h) of the Specific Relief Act provides that injunction shall not be issued if there is an alternative and equally efficacious remedy available to the plaintiff. As to what remedy was available to the plaintiff for protection of his rights has not been disclosed by the defendant in her written statement. Unless the defendant discloses the remedy which ought to have been availed by the plaintiff, it cannot be assessed as to whether the said remedy is equally efficacious so as to operate as a bar to the suit for injunction.
27.Although the defendant has not stated so, assuming that the remedy referred to by the defendant is the option of filing of a suit for declaration of title and injunction, that would not be a bar to the maintainability of the present suit. In the present case, the defendant has set up a different title but has miserably failed to prove it. In absence of any proof to support the claim of the defendant of a rival title, the assertion of the plaintiff of ownership of the suit property has remained uncontroverted. In other words, since there is no evidence to the contrary, the claim 11/18 Kamlesh Patil Vs. Leela Suit no.504/09 of the plaintiff over ownership of the property (either in his own right or on behalf of previous owner) is required to be accepted. Since the claim of the plaintiff over ownership has remained unquestioned, the plaintiff cannot be forced to institute a suit for declaration of title and injunction. The suit for injunction alone would sustain.
28.Further, it may be noted that the plaintiff has proved his possession over the suit property by his own testimony. On the other hand, the defendant has led no evidence to prove that it is she who is in possession. Since there is no evidence in rebuttal, the version of the plaintiff of being in possession of the suit property must be accepted. Being in possession of the suit property the plaintiff is also presumed to be its owner as per Section 110 of Evidence Act. The onus to prove the contrary was upon the defendant. The defendant has failed to prove this. Being in possession of the suit property, and in absence of any evidence to challenge the title of the plaintiff, the plaintiff is not required to mandatorily seek declaration of title. As such, the suit is not barred by Section 41 (h) of the Specific Relief Act, 1963. The issue is decided in favour of the plaintiff and against the defendant.
ISSUE No.3 "Whether the suit is without cause of action? OPD." 12/18 Kamlesh Patil Vs. Leela Suit no.504/09
29.The onus to prove this issue was upon the defendant. According to the defendant, the plaintiff has no cause of action to file the present suit.
30.The defendant has not led any evidence to prove that the plaintiff has no cause of action.
31.It has already been noted above that the plaintiff has proved that he is in possession of the suit property. The plaintiff has also succeeded in proving that he is entitled to enjoy the suit property on behalf of its owner. The plaintiff has further established that the defendant has no right over the suit property. From this, it follows that the plaintiff is entitled to restrain the defendant from interfering in the possession of the plaintiff and from creating third party interest in the suit property. It cannot be said that the plaintiff has no basis to file the present suit.
32.The expression "cause of action" has been succintly explained by Hon'ble High Court of Delhi in the case of Kanwal Kishore Manchanda & Anr. Vs. S. D. Technical Services Pvt. Ltd. 121(2005) DLT 98 in which it was observed as follows:
"What then is a cause of action? Till there is no cause, there cannot be any action. For a cause, there has to be a right to sue. Infringement of a right or a clear and unequivocal threat to infringe that right would constitute a cause to bring an action. Whether a particular threat gave rise to a compulsory cause of action depends, upon the question whether that threat effectively invades or jeopardises the right. To constitute a cause of action, first is the coming into existence 13/18 Kamlesh Patil Vs. Leela Suit no.504/09 of a right and secondly, its infringement or threat to be infringed."
33.In the present case the plaintiff has proved by his own testimony that the defendant was interfering in the possession of the plaintiff and was also threatening to set up a rival title. On the other hand, the defendant has failed to lead any evidence. The defendant has not proved that the defendant was not interfering with the possession of the plaintiff or that the defendant was not trying to raise a rival claim over the suit property. It is therefore inferred that the defendant was indeed interfering with the possession of the plaintiff and that the defendant was trying to set up her own title over the suit property. This is sufficient to impel the plaintiff to seek permanent injunction restraining the defendant from doing the above. There was thus cause of action for the plaintiff to institute the present suit.
34.The issue is decided in favour of the plaintiff and against the defendant.
ISSUE No.4 "Whether the suit is not properly valued for the purposes of court fees and jurisdiction? OPD."
35.The onus to prove this issue was upon the defendant. According to the defendant, the suit has not been properly valued for the purpose of court fees and jurisdiction and the plaintiff ought to have valued the suit as per the market value of the property and 14/18 Kamlesh Patil Vs. Leela Suit no.504/09 the plaintiff ought to have sought declaration of his title.
36.The defendant has not led any evidence to prove this issue.
37.The present suit has been filed by the plaintiff for permanent injunction for protecting his possession over the property and for restraining the defendant from creating third party interest in the suit property. Declaration of title has not been prayed for. Valuation of suits is determined as per the prayers actually made in the plaint and not as per the prayers that ought to have been made. This principle of law was laid down in the case of Vishnu Pratap Sugar Works (P.) Ltd. v. Chief Inspector of Stamps, U. P., AIR 1968 SC 102, wherein it was observed as follows:
"It is true that for purposes of the CourtFees Act, it is the substance and not the form which has to be considered while deciding which particular provision of the Act applies. It cannot, however, be gainsaid that the actual relief prayed for in the plaint was an injunction restraining the State and its authorities to realize from the appellantcompany the aforesaid cess and the purchase tax. It is clear from the plaint when read as a whole that though the appellantcompany alleged that the Acts were void and therefore non est for the reasons set out therein, it did not seek any declaration that they were void. The plaint proceeds on the footing that the said Acts were void and that, therefore, the State of U. P. or its authorities had no power to realise the said tax and the said cess. It may be that, while deciding whether to grant, the injunction or not, the court might have to consider the question as to the validity or otherwise of the said Act. But that must happen in almost every case where an injunction is prayed for. If for the mere reason, that the court might have to go into such a question, a prayer for injunction were to be treated as one for a declaratory decree of which the 15/18 Kamlesh Patil Vs. Leela Suit no.504/09 consequential relief is injunction, all suits where injunction is prayed for would have to be treated as falling under Cl. (a) of subsection (iv) of S. 7 and in that view Cl. (b) of subsection (ivB) of S. 7 would be superfluous."
In the case of N.A. Siddiqui v. State AIR 1973 AP 13 it was held as under:
"When it is disclosed in the plaint that the relief is not one for declaration but for injunction only, and the plaintiff has been given the liberty to value the relief and when he sought to bring the case within the purview of clause (c) of Section 26 of the CourtFees Act, it is not for the Court, at this stage, to go into the question whether the injunction relief could be considered as a consequential relief, the main relief being one for declaration, and as the Supreme Court has observed in the decision referred to heretofore that invariably, in every case where injunction relief is sought for, it may be on the basis that some act or action or activity on the part of the authorities concerned is not warranted by law. But, in so far as any declaration is not sought for in that direction and when the relief was confined exclusively to injunction, as in the case here before me, it is not open for the Court to read something into the section which is not there."
In the case of Chief Inspector of Stamps v. Laxmi Narain AIR 1970 All 488, it was noted as under:
"Likewise, if only a substantive relief is prayed for, it is not open to a Court to add or read a declaratory relief also into it and treat it as a declaratory relief with a consequential relief."
In light of the aforesaid decisions, it is concluded that the prayer for declaration not having been made in the plaint is not determinative of the valuation of the suit. The suit shall be treated 16/18 Kamlesh Patil Vs. Leela Suit no.504/09 as one for injunction alone and is thus properly valued.
38.It has already been held above that the plaintiff is in possession of the suit property. Being in possession, he is not required to seek declaration of title and to pay ad valorem court fees or to value his suit as per market value of the property. The defendant has, in her written statement, contested the claim set up by the plaintiff in the plaint. The defence in the written statement is however not required to be taken into account since valuation is to be determined on the basis of the allegations made, and the reliefs claimed, in the plaint and not as per the defences in the written statement. Further, it has already been held above that in absence of any evidence to support the claim of the defendant, the plaintiff was not required to seek declaration of his title.
39.In the aforesaid circumstances, there is nothing to suggest that the suit is not properly valued for the purpose of court fees and jurisdiction. The issue is decided in favour of the plaintiff and against the defendant.
ISSUE No.5 "Relief."
40.In view of the aforesaid facts and circumstances, the suit is decreed in favour of the plaintiff and against the defendant. A decree of permanent injunction is passed restraining the defendant and his representatives from interfering in possession 17/18 Kamlesh Patil Vs. Leela Suit no.504/09 of the plaintiff over the suit property bearing no. plot no.D1, area measuring 37 ½ square yards out of Khasra no.39/10, situated in the area of village Kirari Suleman Nagar and colony known as Aggar Nagar, BlockA, Prem NagarIII, Delhi shown in the site plan Ex.PW1/1.
41.A further decree of permanent injunction is passed in favour of the plaintiff and against the defendant restraining the defendant from creating third party interest in the aforesaid property.
42.Costs of the suit are awarded in favour of the plaintiff and against the defendant.
43. Decree sheet shall be prepared accordingly. File be consigned to record room.
Announced in the open Court on 26 April 2013.
th (Ashish Aggarwal) ASCJcumJSCCcumGJ NorthWest District,Rohini Courts, Delhi.
18/18 Kamlesh Patil Vs. Leela Suit no.504/09