Delhi District Court
Smt. Mohini Jain vs Smt. Vimla Gautam on 27 October, 2007
IN THE COURT OF SH. RAKESH KUMAR
ADDITIONAL DISTRICT JUDGE: DELHI
(FAST TRACK COURT)
Suit No.610/06/99
1. Smt. Mohini Jain
D/o Late Sh. Mahender Sain Jain,
R/o D-201, Vivek Vihar,
Delhi.
2. Smt. Anita Jain
D/o Late Sh. Mahender Sain Jain,
R/o D-201, Vivek Vihar,
Delhi. .....Plaintiffs.
Versus
1. Smt. Vimla Gautam,
W/o Sh. Hargyan Singh,
R/o E-500/9, West Vinod Nagar,
Delhi.
And also at:-
F-274, Abadi of Janta Garden,
Patparganj, Shahdara,
Delhi.
2. Smt. Kusum Lata
W/o Sh. Vigender Singh
R/o F-274, Abadi of Janta Garden,
Pandav Nagar, Patparganj,
Shahdara, Delhi.
And also at:-
F-274, Abadi of Janta Garden,
Patparganj, Shahdara,
Delhi.
3. Sh. Manveer Singh,
S/o Sh. Ram Swaroop Singh
R/o E-468/9, Vinod Nagar,
Delhi
And also at:-
F-274, Abadi of Janta Garden,
Patparganj, Shahdara,
Delhi. .....Defendants.
SUIT FOR DECLARATION OF TITLE, POSSESSION
AND MESNE PROFITS ETC.
JUDGMENT
1. The aforementioned plaintiffs filed the present suit for declaration of title, possession and mense profits against the aforesaid defendants interalia making the following prayers to:-
(i).declare that the plaintiffs are the owners of plot of land measuring about 200 sq. yard situated at F-274, Abadi of Janta Garden, Pandav Nagar, Patparganj, Delhi;
(ii).pass a decree of possession in favour of the plaintiffs and against the defendants directing the defendants to hand over the possession of the plot of land measuring about 200 sq. yards situated at F-274, Abadi of Janta Garden, Pandav Nagar, Patparganj, Delhi;
(iii).pass a decree in favour of the plaintiffs and against the defendants directing the defendants to pay Rs.3,00,000/- as mesne profits to the plaintiffs and further to pay mesne profits @ Rs.5,000/- per month during the pendencey of the suit till the date of payment;
(iv).pass a decree of Permanent Injunction in favour of the plaintiffs and against the defendants restraining the defendants, their agents, servants, associates or representatives from selling, transferring, creating any right, title or interest or alienating the suit premises bearing no. F-274, situated at in Abadi of Janta Garden, Pandav Nagar, Patparganj, Delhi.
2. The story of the plaintiff as per plaint are that the plaintiffs are the daughters of Smt. Indira Kumari Jain, who died on 02.11.1996. Before his death, Smt. Indira Kumari Jain had made a Will dated 09.04.1991 of the plot of land measuring about 200 sq. yards situated at F-274, Abadi of Janta Garden, Pandav Nagar, Patparganj, Shahara, Delhi in favour of the plaintiffs. Smt. Indira Kumari Jain was the General Attorney in respect of the said plot of land. Sh. Birender Kumar Jain executed a duly registered Power of Attorney on 17.04.1986 in favour of Smt. Indira Kumar Jain. The Power of Attorney is accompanied by a receipt of Rs.15,000/- which is duly registered and also an agreement to sell. Sh. Birender Kumar Jain purchased the said plot of land by Registered Sale Deed from Smt. Raj Kumari Bhatnagar on 11.07.1966, who purchased the said plot of land vide Registered Sale Deed dated 20.08.1959 from the Delhi Housing Company situated at Chawri Bazar, Delhi through Sh. Banwari Lal. The said Delhi Housing Company was the owner of the said plot of land. After Sh. Birender Kunar Jain executed the Registered Power of Attorney on 17.04.1986 in favour of Smt. Indira Kumari Jain i.e. the mother of the plaintiffs, she took the possession of the said plot and constructed a small Kachha room on the said plot of land. The plaintiffs also employed a Chowkidar namely Dildar Hussain alias Chunnu to look after the said plot of land who was residing in the said plot of land along with his family members. The said chowkidar made some forged documents regarding the Power of Attorney about the said plot of land in collusion with the defendants and on 09.03.1994 gave the possession of the said plot of land to the defendants. On coming to know of the said fraud committed by their chowkidar, Smt. Indira Kumari Jain and the plaintiff no.1 went to lodge the FIR in the police station Trilokpuri, Delhi but the police did not take action on the pretext that it is a case of civil dispute and the police filed a Kalandra U/s 145 Cr. P. C. in the court of Sub Divisional Magistrate (SDM), Shahdara which was filed on or about 15.03.1994. The defendants started residing in the said plot of land from 09.03.1994 and in the month of July, 1994 Smt. Indira Kumari Jain and the plaintiffs came to know that the defendants were about to sell/dispose off the said plot of land to any third party. As such, on or about 04.08.1994 Smt. Indira Kumari Jain filed a suit in the court of Ld. Civil Judge, Delhi thereby praying for passing of a decree of Permanent Injunction against the defendants thereby restraining the defendants, their agents, servants, associates or representatives from selling, transferring, creating any right, title or interest or alienating the suit premises bearing no. F-274, situated at in Abadi of Janta Garden, Pandav Nagar, Patparganj, Shahdara, Delhi. Alongwith the suit plaintiffs also filed an application U/o 39 R 1 & 2 r.w. Sec. 151 CPC. On 21.12.1994 the counsel for the defendants Sh. Yaspal Khanna, Advocate made the following statement on behalf of the defendants:-
''I undertake on behalf of the defendants not to dispose of the suit property except with due process of law.'' The said suit was withdrawn by the plaintiffs on 08.04.1999 with the permission to claim the relief sought in the said suit in the present suit pending before the court. The plaintiffs are also entitled to mesne profits for the period for which the defendants were/are still in illegal possession of the said plot. The defendants took the illegal possession of the said plot of land on 09.03.1994, therefore, the plaintiffs are entitled to mesne profits @ Rs.5,000/- per month from 09.03.1994 till the date the defendants are in illegal possession of the said plot of land and the plaintiffs are entitled to mesne profits of Rs.3,00,000/- till the date of filing of this suit. The plaintiffs also entitled to claim mesne profits during the pendency of the suit till the date the defendants are in illegal possession of the said plot.
The cause of action arose in favour of plaintiffs and against the defendants on 09.03.1994 when the defendants took the possession of the land of the plaintiffs from their Chowkidar, Dildar Hussain alias Chunnu. On that date, the plaintiffs were wrongfully and illegally dispossessed by the defendants. The cause of action in favour of plaintiffs is continuing as the defendants are still in the possession of the said plot of land. Since the said plot of land is situated with the jurisdiction of this court and the defendants are also residing within the jurisdiction of this court, so this court has jurisdiction to try and entertain the present suit. The suit has been properly valued for the purpose of court fee and jurisdiction.
3. Defendants contested the suit by filing their joint Written Statement in which they have raised certain preliminary objections like the plaintiffs have not approached the court with clean hands, the suit of the plaintiffs is bad for non-joinder or mis-joinder of necessary parties, suit is barred by the provision of Order 2 R 2 CPC as the plaintiffs have already intentionally relinquished and omitted the relief in the previous suit instituted by the plaintiffs against the defendants regarding the same subject matter, suit is not maintainable under the provisions of Sec. 31, 34, 38 and 42 of Specific Relief Act and that the suit is not valued properly for the purpose of court fees and hence is liable to be rejected.
On merits side, it is denied that Smt. Indra Kumari Jain made a Will dated 09.04.1991 in respect of the suit property in favour of the plaintiffs. It is also denied that Smt. Indra Kumari Jain was the General Attorney of Sh. Birender Kumar Jain in respect of plot of land measuring about 200 sq. yds. situated at F-274, Abadi of Janta Garden, Pandav Nagar, Patperganj, Shahdara, Delhi or that Sh. Birender Kumar Jain executed a duly registered Power of Attorney on 17.04.1985 in favour of the Smt. Indra Kumari Jain. It is also denied that Sh. Birender Kumar Jain purchased the said plot of land by registered Sale Deed from Smt. Raj Kumari Bhatnagar on 11.07.1966 or that Smt. Raj Kumari Bhatnagar purchased the said plot of land by registered Sale Deed dated 26.08.1959 from Delhi Housing Company, situated at Chawri Bazar, Delhi, through Sh. Banwari Lal. It is also denied that after Sh. Birender Kumar Jain executed a registered Power of Attorney on 17.04.1986 in favour Smt. Indra Kumari Jain, she took the possession of the said plot of land and constructed a small room on the said plot of land or that the plaintiff employed a chowkidar namely Sh. Dildar Hussain @ Chunnu to look after the said plot of land who was residing in the said plot of land along with his family members. It is specifically denied that the chowkidar namely Sh. Dildar Hussain @ Chunnu made some forged documents regarding the Power of Attorney about the said plot of land in collusion with the defendants and on 09.03.1994 gave the possession of the said plot of land to the defendants. The defendants have purchased the said plot in dispute from Sh. Shafiq Raja and paid the valuable consideration to the owner of the plot Mr. Shafiq Raja, who was also in the physical possession of the plot in question. It is specifically denied that the plaintiffs ever approached the police station. The plaintiffs were inclined to take law in their hands and tried to dispossess the defendants illegally from the suit premises, therefore, the defendants lodged complaint in the police station, resultantly, police filed a Kalandara U/s 145 of Cr. P. C. on the complaint of the defendants.
The plaintiffs never lodged any complaint in this respect. In context of the para 8 of the plaint, it is stated that the plaintiffs filed the said suit to counter blast the suit filed by the defendants on 18.03.1994, which was filed much earlier and the Ld. Judge also granted exparte stay to the defendants in the suit. It is also denied that the defendants took the illegal possession of the said plot from Sh. Dildar Hussain on 09.03.1994 or that the defendants are illegally occupying the plot of the plaintiffs. It is also submitted that the defendants have purchased the said plot of land from the rightful owner after paying valuable consideration to Shafiq Raja. Arising of cause of action in favour of the plaintiffs and against the defendants on 09.03.1994 is denied. It is also denied that the cause of action is still continuing. The suit is not properly valued for the purpose of court fee and is liable to be rejected.
4. The Plaintiffs filed joint replication to the Written Statement of the defendants in which the averments made by the defendants are strongly denied and the contents of the plaint reaffirmed and reasserted. It is specifically denied that the plaintiffs have concealed any material or relevant facts from the court or that the suit is bad for non-joinder or mis-joinder of necessary parties. It is also denied that the Chowkidar named Chunnu is necessary or proper party to the suit. It is denied that the suit is barred by the provisions of Order 2 rule 2 CPC. It is also denied that the plaintiffs have already relinquished or omitted the relief in the previous suit. It is submitted that the previous suit filed in the lower court was withdrawn by the plaintiffs with permission to claim the relief claimed in that suit in the present suit. Therefore, the provisions of Order 2 rule 2 does not apply in the present suit. It is also denied that the suit is not maintainable under the provisions of Sec. 31, 34, 38 or 42 of the Specific Relief Act or that the suit is not properly valued for the purposes of court fee.
5. It is pertinent to mention here that the issues in this case were framed twice, firstly on 15.02.2002 and secondly on 16.02.2004 on moving of an application U/o 14 rule 5 CPC on behalf of defendants.
6. From the pleadings of the parties following issues were framed vide order dated 15.02.2002:-
(i).Whether the plaintiffs are entitled to a declaration that the plaintiffs are the owners of the suit land? OPP.
(ii).If issue no.1 is decided in the affirmative, whether the plaintiffs are entitled to a decree of possession in respect of suit land? OPP.
(iii).Whether the plaintiffs are entitled to mesne profits/damages from the defendants? If so, for what period and to what amount? OPP.
(iv).Whether the plaintiffs are entitled to interest? If so, at what rate? OPP.
(v).Whether the defendants purchased the plot in question from Shafiq Raja and whether they are in rightful possession of the suit land?
OPD.
ADDITIONAL ISSUES framed vide order dated 16.02.2004:-
I) Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD.
II)Whether the suit is bad for non-joinder and mis-joinder of parties?
OPD.
III)Whether the suit is barred U/o 2 rule 2 CPC? OPD. IV)Whether the suit of the plaintiff is barred under any provision of the Specific Relief Act? OPD.
V) Relief.
7. In support of their case, the plaintiffs have examined as many as eight witnesses namely Ms. Mohini Jain, Sh. Vidhya Bhushan Jain, Smt. Anita Jain, Sh. N.K. Srivastava (Xerox Operator, Deptt. of Delhi Archives, Govt. of NCT, Delhi), Smt. Prem Lata (Head Clerk from the Office of the Sub-Registrar 4, Seelampur, Delhi), Sh. Bhim Singh (LDC, Sub Registrar-2, Kashmere Gate, Delhi), Sh. Yogesh Sharma (Clerk, Sub-Registrar Office-II, Noida), Sh. Virender Kumar Jain, as PW-1, PW-2, PW-3, PW-4, PW-5, PW-6, PW-7 & PW-8 respectively and thereafter the plaintiffs' evidence was closed.
On the other hand, defendants have produced five witnesses in support of their case namely Ms. Kusum Lata, Ms. Vimla Gautam, Sh. Manbir Singh, Sh. Richpal Singh and Sh. Braham Pal Singh as DW-1, DW-2, DW-3, DW-4 & DW-5 respectively and then the defendants' evidence was also closed.
8. PW-1 Ms. Mohin Jain in her evidence tendered by way of affidavit has reiterated the contents of plaint and has also exhibited the following documents:-
Ex.PW1/1: Certified copy of the Registered Sale Deed dated 20.08.1959 between Delhi Housing Company and Smt. Rajkumari Bhatnagar.
Ex.PW1/2: Certified copy of the Registered Sale Deed dated 11.07.1966 whereby Smt. Rajkumari Bhatnagar sold the said plot of land to Sh. Birender Kumar Jain.
Ex.PW1/3: Certified copy of a Registered Power of Attorney dated 17.04.1986 executed by Sh. Birender Kumar Jain in favour of Smt. Indira Kumri Jain, whereby all the rights in respect of the said plot of land were transferred by Sh. Birender Kumar Jain in favour of Smt. Indira Kumari Jain.
Ex.PW1/4: Certified copy of the receipt of a sum of Rs.15,000/-
received by Sh. Birender Kumar Jain in advance from Smt. Indira Kumari in respect of the said plot of land. Ex.PW1/5: Agreement to Sell dated 17.04.1986 executed by Sh.
Birender Kumar Jain in favour of Smt. Indira Kumari Jain.
Ex.PW1/6: Affidavit signed by Sh. Birender Kumar Jain on 17.04.1986 wherein he has stated that the said plot of land has been sold by him to Smt. Indira Kumari Jain for a consideration of Rs.15,000/- on the basis of General Power of Attorney, Agreement, Receipt, Will and the said affidavit.
Ex.PW1/7: Certified copy of Will dated 09.04.1991 made by Smt. Indira Kumari Jain in respect of the said plot of land in favour of the deponent and in favour of Smt. Anita Jain.
During her cross examination, she expressed her ignorance as to whether the suit property belongs to one Sh. Rajender Singh S/o Sh. Mam Chand, who executed any documents in favour of Sh. Shafiq Raja S/o Sh. Murtaza on 14.09.1992. She denied the suggestion that the possession of the suit property was given to said Sh. Rajender to Sh. Shafiq Raja rather she claimed that the possession of the suit property was with them much prior to 14.09.1992. She also expressed her ignorance in respect of the suggestion to the effect that said Sh. Raja sold the suit property to the defendants although she admitted that since 09.03.1994 the defendants are in actual physical possession of the suit property. She conceded that the defendants had filed the suit against her mother in March, 1994. She also conceded that the plaint of the suit no.842/95, certified copy of which is Ex.PW1/D3, bears the signatures of her mother. Her mother expired on 02.10.1996 and after the expiry of mother she along with her sister Anita Jain got themselves impleaded as the party. She conceded that the aforesaid suit was dismissed on 06.01.1997, copy of the order is Ex.PW1/D5. She could not tell as to whether any Kalandara U/s 145 Cr. P. C. was registered by police authority in respect of the suit property at any point of time. She further conceded that prior to 04.08.1994 defendants were in actual possession of the suit property. She denied the suggestion that Sh. Bijender Kumar Jain had no concern with suit property. She confirmed that the documents Ex.PW1/3 to Ex.PW1/6 were executed in her presence. Sh. Dildar Hussain left the suit premises prior to 09.03.1994. She conceded that they are two brothers and two sisters and her both the brothers namely Sh. Praduman Kumar and Sh. Rakesh Kumar are alive. She did not accompany her mother to the office of Sub-Registrar when the Will Ex.PW1/7 was executed. Her mother was not having any other property except the suit property.
9. PW-2 Sh. Vidya Bhushan Jain in his evidence, tendered by way of evidence, has deposed that on 02.11.1996 Smt. Indira Kumari Jain died and before her death she made a Will dated 09.04.1991 Ex.PW1/7 in respect of the plot of land measuring about 200 sq. yards situated at F-274, Abadi of Janta Garden, Pandav Nagar, Shahdara, Delhi, in favour of Smt. Mohini Jain and Smt. Anita Jain. The said Will Ex.PW1/7 was signed by Smt. Indira Kumari Jain in his presence and he can identify her signatures. It is also stated that he was the attesting witness to the said Will Ex.PW1/7 and the same was also witnessed by Sh. Iqbal Bahadur Mathur and the same is duly registered with the Sub-Registrar, Delhi.
During his cross examination, he conceded that Sh. Iqbal Bahadur Mathur was not earlier known to him. Smt. Indira Kumari Jain was the wife of his brother in law. The Will Ex.PW1/7 was got prepared by him on the instruction of Smt. Indira Kumari Jain. At the time of the execution of the Will he was present. He was also present before the Office of Sub Registrar, Welcome Colony, Shahdara along with Smt. Indira Kumari and Mohini Jain. Smt. Indira Kumari Jain was ill at that time, however, her mental condition was perfectly all right. All the persons who were signatories on the Will Ex.PW1/7 i.e. the executant and the witnesses were all present at one point of time and signed the same and were known to each other. Smt. Indira Kumari Jain was having two sons and two daughters.
10. Smt. Anita Jain appeared in the witness box as PW-3 and tendered her evidence by way of affidavit in which she has reiterated the contents of plaint.
In her cross examination she conceded that before the present litigation there was no litigation between the parties relating to the suit property. The suit property is three side open. She conceded that on 12.03.1994 her mother along with some persons visited the suit property in order to dispossess the defendants from the suit property and the defendants were in the possession of the suit property on that day. She expressed her ignorance about the stay order Ex.PW1/D1 obtained by the defendants against her mother Smt. Indira Kumari Jain. She denied the suggestion that earlier Sh. Rajender Singh S/o Sh. Mam Singh was the owner of the suit property. She never met with any person called Shafiq Raja. Sh. Dildar Hussain was the Chowkidar in the suit property. Although, they went to the police station for lodging a complaint against Dildar Hussain but police took no action. They are two brothers and two sisters but her mother gave her property to her and her sister. She conceded that she had no document to show that her mother Smt. Indira Kumari Jain had raised any construction in the suit property. She also conceded that she did not give any document showing payment of any charges to any authority in respect of the suit property.
11. PW-4 Sh. N.K. Srivastava (Xerox Operator, Deptt. of Delhi Archives, Govt. of NCT, Delhi) is a formal witness, who brought the record of Registered Sale Deed dated 20.08.1959 registered between Delhi Housing Company and Smt. Raj Kumari Bhatnagar, which is registered as registration no.6995 in book no.1, volume no.496 at page 291 to 294 dated 20.08.1959.
During his cross examination, he admitted that the above said document was not registered in his presence. He could not tell as to for which property, the above said Sale Deed is registered. He also could not say whether the above said Sale Deed was registered by the Delhi Housing Company or not.
12. PW-5 Smt. Prem Lata (Head Clerk Office of the Sub-Registrar 4, Seelampur, Delhi) is also a formal witness, who brought the record of Will dated 09.04.1991 executed by Smt. Indira Kumari Devi in favour of Smt. Mohini Jain and Smt. Anita Jain. She stated that the same is registered on 09.04.1991 vide registration no.8498 book 3, volume 358 at pages 45 and 46. She also brought the record of the receipt dated 17.04.1986 executed by Sh. Birender Kumar and stated that the same is registered vide registration no.9954 book 4, volume no.1427 page no.58 dated 17.04.1986.
During her cross examination, she also conceded that the above said documents have not been registered in her presence.
13. PW-5 Sh. Bhim Singh (LDC, Sub-Registrar-2, Kashmere Gate, Delhi) is a formal witness, who brought the record Ex.PW1/2. He could not tell the details of the parties by whom the said document was executed, however, he stated that the said document is registered with the Sub-Registrar-2, Kashmere Gate, Delhi, as registration no.9023 book no.1, volume no.565, page no.23 to 24 dated 25.07.1966.
During his cross examination, he admitted that he is having no personal knowledge of the document Ex.PW1/2. He also admitted that document Ex.PW1/2 is not registered in his presence.
14. PW-7 Sh. Yogesh Sharma (Clerk, Sub-Registrar Office II, Noida) produced the summoned record relating to GPA dated 17.04.1986 executed by Sh. Birender Kumar Jain in favour of Smt. Indira Kumari Jain Ex.PW1/3. He also deposed that the same is duly registered with the Sub-Registrar-II, Noida, which was presented for registration on 21.04.1986 and was duly registered on 12.06.1986. The same is registered in book no.4, Zild no.343, page no.150/152, document no.9342.
During his cross examination, he could not tell as to for which property above said document was registered in his office. He also stated that the same was not registered in his presence. He also clarified that now the Power of Attorney which are being registered in the office, the parties are required to affix the photograph over the document but at that time the same was not required.
15. PW-8 Sh. Birender Kumar tendered his evidence by way of affidavit and has exhibited the certified copy of the Will dated 17.04.1986 as Ex.PW8/1, which was executed by him in favour of Smt. Indira Kumari Jain in respect of the said suit plot of land. He also deposed that the Delhi Housing Company situated at Chawri Bazar, Delhi, was the owner of the said plot in dispute. Smt. Rajkumari Bhatnagar purchased the said plot of land by registered Sale Deed dated 20.08.1959 from Delhi Housing Company situated at Chawri Bazar, Delhi through Sh. Banwari Lal. He also stated that the said Sale Deed is in Urdu which bears the signatures of Sh. Banwari Lal on behalf of Delhi Housing Company. He also stated that Smt. Rajkumari Bhatnagar vide registered Sale Deed dated 11.07.1966 sold the said plot of land to him. He executed a registered Power of Attorney on 17.04.1986 in favour of Smt. Indira Kumari Jain, thereby all the rights in respect of the said plot of land were transferred by him in favour of Smt. Indira Kumari Jain. It also stated that on 17.04.1986, he executed a receipt for a sum of Rs.15,000/- before the Sub-Registrar, Delhi Ex.PW1/4, which bears his signatures. The said amount of Rs.15,000/- was received by the deponent in advance from Smt. Indira Kumari Jain in respect of the said plot of land. It is also stated that he also executed an Agreement for Sale dated 17.04.1986 in favour of Smt. Indira Kumari Jain. He also deposed that he also signed an affidavit on 17.04.1986 wherein he clearly stated that the said plot of land has been sold by him to Smt. Indira Kumari Jain for a consideration of Rs.15,000/- on the basis of General Power of Attorney, Agreement, Receipt, Will and the said affidavit. The said affidavit is duly registered with the Sub-Registrar, Delhi. He also deposed that a Will dated 17.04.1986 Ex.PW8/1 was also executed by him in favour of Smt. Indira Kumari Jain in respect of the said plot of land and the said will was executed in the presence of Sh. M.S. Jain, the father of the plaintiffs and Sh. S.P. Singh, Advocate.
During his cross examination he could not tell the Khasra number of the land in dispute. He conceded that the suit property was lastly seen by him in July, 1986. He admitted that no document in favour of Smt. Raj Kumari Bhatnagar was ever executed or registered in his presence but Smt. Raj Kumari Bhatnagar had singed in his favour. He claimed that he had executed the will in favour of Smt. Indira Kumari on his own free will and not at the instance of Smt. Indira Kumari.
16. Ms. Kusum Lata appeared in the witness box as DW-1 and tendered her evidence by way of affidavit in which she has deposed that the property bearing no. F-274, Janta Garden, Pandav Nagar, New Delhi is built upon a plot ad-measuring 200 Sq. Yards, having a Khasra no.445/49/71 of village Gharonda Neem Ka Bangar. Out of the said 200 sq. yards of land, she purchased 50 sq. yards of the land of the said plot on 09.03.1994 from its previous owner Sh. Shafiq Raja for a consideration of Rs.80,000/-, who after receiving the same executed an Agreement to Sell dated 09.03.1994 Ex.DW1/1, General Power of Attorney dated 09.03.1994 Ex.DW1/2, Receipt dated 09.03.1994 of Rs.80,000/- Ex.DW1/3, Affidavit dated 09.03.1994 Ex.DW1/4 and Will dated 09.03.1994 Ex.DW1/5, in favour of the deponent. Sh. Shafiq Raja handed over the actual physical possession of the above said plot to deponent on the spot on the same day and since 09.03.1994 she is in actual physical possession of the said plot and after coming into the possession of the said plot, deponent also raised the construction over the said plot. She also stated that she is a bonafide purchaser of the said plot. It is also stated that on 09.03.1994, defendant no.1 Smt. Vimla Gautam also purchased 100 sq. yards land/property out of the above said plot ad-measuring 200 sq. yards and defendant no.3 Sh. Manveer Singh also purchased 50 sq. yards land/property out of the above said plot. Only one room and boundary wall was in existence at the time of purchase of above said property, bearing no. F-274, Janta Garden, Pandav Nagar, New Delhi, by the defendants. Before Sh. Shafiq Raja, one Sh. Rajender Singh, S/o Sh. Man Chand, resident of Shashi Garden, Shahdra, Delhi was the owner and in possession of the above said plot which is subject matter of the present suit and he sold the said plot to Sh. Shafiq Raja on 14.09.1992. From 14.09.1992 to 09.03.1994 Sh. Shafiq Raja was in possession of the said plot. Sh. Rajender Singh executed the General Power of Attorney dated 14.09.1992 Ex.DW1/6, Agreement to Sell dated 14.09.1992 Ex.DW1/7 and Receipt dated 14.09.1992 Ex.DW1/8 in favour of Sh. Shafiq Raja. It is also stated that on 12.03.1994 mother of the plaintiffs Smt. Indira Kumari Jain came to the above noted plot alongwith 4-5 persons and tried to forcibly dispossessed the defendants from the said plot by force. Thereafter, defendants filed a suit for Permanent Injunction against Smt. Indira Kumari Jain and the court vide order dated 18.03.1994 Ex.PW1/D1 granted the stay order in favour of the defendants who were plaintiffs in that suit and against Smt. Indira Kumari Jain. The mother of plaintiffs Smt. Indira Kumari Jain on 04.08.1994 also filed a suit for injunction against the defendants, copy of the same is Ex.PW1/D-3, and the said suit was dismissed in default on 06.01.1997. She also stated that in the month of March, 1994 when Smt. Indira Kumari Jain, after having quarrel with the defendants, tried to dispossess the defendants from the suit property, the defendants also filed the complaints against Smt. Indira Kumari Jain at the police station Trilok Puri, upon which a Kalandra U/s 107/150 Cr. P. C. and Section 145 Cr. P. C. was registered against Smt. Indira Kumari Jain. It is also stated that Delhi Housing Company was neither the owner nor in possession of the suit property at any point of time and the Sale Deed Ex.PW1/1 is a forged paper. Smt. Raj Kumari Bhatnagar and Sh. Birender Kumar Jain were neither the owners nor in possession of the suit property at any point of time and the document Ex.PW1/2 is also a forged paper. Smt. Indira Kumari Jain was neither the owner nor in possession of the suit property at any point of time and the documents Ex.PW1/3, Ex.PW1/4, Ex.PW1/5, and Ex.PW1/6 are the forged and fabricated papers and the same does not confirm/convey any right, title and interest in favour of Smt. Indira Kumari Jain. It is also stated that in the suit property no person namely Dildar Hussain alias Chunnu ever resided at any point of time. Since 09.03.1994, the defendants are in possession of the suit property and before 09.03.1994 Sh. Shafiq Raja was in possession of the suit property. Plaintiffs wrongly claimed that person namely Dildar Hussain alias Chunnu had executed the Power of Attorney etc. in favour of the defendants. The alleged Will Ex.PW1/7 is also a forged and fabricated paper as it does not confirm any right, title and interest in favour of the plaintiffs. Since Smt. Indira Kumari Jain was not the owner and in possession of the suit property, so she had no authority or right to execute any Will pertaining to the suit property.
During her cross examination she could not tell whether the documents executed by Sh. Shafiq Raja were got registered or not, although they were signed by him in her presence. She also could not tell whether the documents executed by Sh. Rajender in favour of Sh. Shafiq Raja were registered or not. She also could not tell as to from whom Sh. Rejender purchased the suit property. She claimed that she raised the construction after two months of purchasing the same. She denied the suggestion that Smt. Indira Kumari Jain was the owner of the suit property at any point of time. She confirmed of having filed a suit for injunction against Smt. Indira Kumari but could not recollect that after getting the stay what had happened to that suit.
17. DW-2 Smt. Vimla Gautam also tendered her evidence by way of affidavit and she has almost deposed on the same lines as deposed by DW-1 Smt. Kusum Lata and has also exhibited the following documents:-
Ex.DW2/1: Agreement to Sell dated 09.03.1994.
Ex.DW2/2: General Power of Attorney dated 09.03.1994.
Ex.DW2/3: Receipt dated 09.03.1994 of Rs.3,80,000/-.
Ex.DW2/4: Affidavit dated 09.03.1994.
She has also stated that property bearing no. F-274, Janta Garden, Pandav Nagar, New Delhi is built upon a plot ad-measuring 200 Sq. Yards, having a Khasra no.445/49/71 of village Gharonda Neem Ka Bangar. Out of the said 200 sq. yards of land, she purchased 100 sq. yards of the land of the said plot on 09.03.1994 from its previous owner Sh. Shafiq Raja for a consideration of Rs.3,80,000/-, who after receiving the same, executed the aforementioned documents in favour of the deponent. On the said date i.e. 09.03.1994, defendant no.2 Smt. Kusum Lata also purchased 50 sq. yards. Land/property out of the above said plot ad-measuring 200 sq. yards and defendant no.3 Sh. Manveer Singh also purchased 50 sq. yards land/property out of the above said plot.
During her cross examination she confirmed that she purchased the suit property on 09.03.1994 from Sh. Shafiq Raja. The documents executed by Sh. Raja were got registered at Seelam Pur. She could not tell as to from whom Sh. Rajender purchased the suit property and when. There was boundary wall and one room constructed in the suit premises. When she purchased the same, the room was a pacca room.
18. Sh. Manveer Singh appeared in the witness box as DW-3 and tendered his evidence by way of affidavit and has almost deposed on the same lines as deposed by DW-1 Smt. Kusum Lata and DW-2 Smt. Vimla Gautam and has also exhibited the following documents:-
Ex.DW3/1: Agreement to Sell dated 09.03.1994.
Ex.DW3/2: General Power of Attorney dated 09.03.1994.
Ex.DW3/3: Receipt dated 09.03.1994 of Rs.1,90,000/-.
Ex.DW3/4: Affidavit dated 09.03.1994.
He has also stated that the property bearing no. F-274, Janta Garden, Pandav Nagar, New Delhi is a built upon a plot ad-measuring 200 Sq. Yards, having a Khasra no.445/49/71 of village Gharonda Neem Ka Bangar. Out of the said 200 sq. yards of land, she purchased 50 sq. yards of the land of the said plot on 09.03.1994 from its previous owner Sh. Shafiq Raja for a consideration of Rs.1,90,000/-, who after receiving the same executed the aforementioned documents in favour of the deponent. On the said date i.e. 09.03.1994, defendant no.1 Smt. Vimla Gautam also purchased 100 sq. yards. Land/property out of the above said plot ad-measuring 200 sq. yards and defendant no.2 Smt. Kusum Lata also purchased 50 sq. yards land/property out of the above said plot.
During his cross examination he stated that he purchased the suit property on 09.08.1994 from Sh. Shafiq Raja and the documents which Sh. Shafiq Raja executed in his favour were got registered at Seelampur. He could not tell as to from whom Sh. Shafiq Raja had purchased the suit property. He admitted that they had never approached Smt. Mohini Jain and Smt. Anita Jain to sell the property to them. He also deposed that the proceeding U/s 145 Cr. P. C. were also initiated with respect to the suit property which was decided in their favour.
19. Sh. Rich Pal Singh appeared in the witness box as DW-4 and tendered his evidence by way of affidavit in which he has deposed that he is residing at 292, Village Patpar Gunj, Delhi and the property bearing no.F-274, Janta Garden, Pandav Nagar, Delhi is approximately 200 mtr. away from his residence. In the year 1992 Sh. Shafiq Raja was residing in the property bearing no.F-274, Janta Garden, Pandav Nagar, Delhi as the owner of the said property and he used to run the auto rikshaw and was very well known to Sh. Shafiq Raja as he used to hire his auto rikshaw. He also stated that on 09.03.1994 Sh. Shafiq Raja sold the property bearing no.F-274, Janta Garden, Pandav Nagar, Delhi to Smt. Vimla Gautam, Smt. Kusum Lata and Sh. Manveer Singh and also delivered the possession of the same on spot. In the month of March, 1994 the property bearing no.F-274, Janta Garden, Pandav Nagar, Delhi was bounded with the boundary wall and having one room and a hand pump. He also stated that in the property bearing no.F-274, Janta Garden, Pandav Nagar, Delhi neither Smt. Indira Kumari Jain nor alleged person namely Sh. Dildar Hussain @ Chunnu was in possession at any point of time.
During his cross examination he conceded that Sh. Shafiq Raza resided in the suit property in the year, 1992 but he could not tell who was residing before 1992. He also stated that the documents executed by Sh. Shafiq Raja in favour of the defendants were executed in his presence and the same were got typed by an Advocate and the same were signed at the suit property. He also could not tell as to who were the witnesses in the said documents or whether these documents were registered or not. He also stated that he does not know whether Sh. Dildar Hussain @ Chunnu was resided at the suit property at any point of time. He admitted that Sh. Shafiq Raja was the owner of the suit property. He could not tell whether Smt. Indira Kumari Jain was the owner of the suit property. He also could not tell whether before Smt. Indira Kumari Jain, Sh. Virender Kumar Jain Smt. Rajkumari Bhatnagar and Delhi Housing Company were the owner of the suit property. He denied the suggestion that documents executed by Sh. Shafiq Raja in favour of the defendants are forged one.
20. DW-5 Sh. Braham Pal Singh appeared in the witness box in support of the case of the defendant and tendered his evidence by way of affidavit and has deposed on the same line as DW-4 deposed.
During his cross examination he claimed that Sh. Shafiq Raja who was an auto rickshaw driver was known to him but the documents executed by him in favour of the defendants were not executed in his presence. He also stated that Sh. Shafiq Raja told him that he purchased the suit property from one Sh. Rajinder Singh. He admitted that Sh. Manveer Singh is his father in law, who raised construction in his portion of the suit property and Smt. Vimla Gautam and Smt. Kusum Lata also raised the constructions in their portions. He claimed that he was residing in the suit property since 09.03.1992.
21. I have carefully heard the rival submissions of the counsels for the parties. I have also thoroughly perused the entire relevant material placed in the file.
My issues wise findings are as under:-
22. Since in the additional issues the questions of law are raised, so I will take up all the additional issues prior to the main issues.
23. ADDITIONAL ISSUE No.1:-
Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD.
The onus to prove this issue has been placed upon the defendants but they have led no evidence on this issue. There is no evidence to show that the market value of the property in dispute was more than Rs.6,50,000/- on the date of the institution of the suit. The additional issue no.1 is, therefore, liable to be decided against the defendants and the same stands decided accordingly.
24. ADDITIONAL ISSUE No.2:-
Whether the suit is bad for non-joinder and mis-joinder of parties? OPD.
The onus to prove this issue too has been placed upon the defendants, who have claimed in the preliminary objection no.2 of their Written Statement the suit of the plaintiffs is bad for non-joinder or mis-joinder of necessary parties as the plaintiffs have not impleaded the alleged Chowkidar namely Dildar Hussain @ Chunnu, who is a necessary and proper party in the suit.
In the corresponding para of the replication, the plaintiffs have denied the claim of the defendants while making the assertion that Sh. Dildar Hussain @ Chunnu is neither necessary nor proper party. In a suit for recovery of possession only a person who is in illegal possession is a necessary party and the plaintiffs have already impleaded all the persons in possession of the property in dispute. The plaintiffs could not have claimed any relief against the said Sh. Dildar Hussain, so he is rightly not impleaded. Thus the suit of the plaintiff is not bad for non joinder or mis joinder of the parties. Issue stands decided accordingly.
25. ADDITIONAL ISSUE No.3:-
Whether the suit is barred U/o 2 rule 2 CPC? OPD.
The onus to prove this additional issue has been placed upon the defendants who have taken the preliminary objection that the suit is hit by the provisions of Order 2 rule 2 of the Code of Civil Procedure and this is the issue upon which Ld. counsel for the defendants has led his arguments most vigorously and also at a great length.
According to Ld. Counsel for defendants admittedly before institution of the present suit the plaintiff had also filed a suit for Permanent Injunction on 04.08.1994, the copy of the plaint of that suit is Ex.PW1/D3. The aforesaid suit as well the present suit are based upon the same and identical cause of action i.e. on 09.03.1994 the defendants took the possession of the suit land from the alleged Chowkidar of the plaintiffs namely Dildar Hussain @ Chunnu on some forged documents regarding Power of Attorney about the plot in dispute in collusion of the defendants and since then they are in illegal and unauthorized possession of the suit land. On 04.08.1994, when the plaintiff filed the earlier suit for Permanent Injunction, the plaintiffs were in possession to seek the relief of declaration, possession and mesne profits as sought by them in the present suit but they omitted/relinquished to seek the reliefs of declaration of their title, possession and mesne profit in that suit. Admittedly on the date when the plaintiff instituted the present suit before the Hon'ble High Court of Delhi, the suit for Permanent Injunction was pending before the Ld. Civil Judge, Delhi which was based upon same cause of action upon which the present suit has been filed and instituted and at that time they had not sought any relief from the court where the previous suit for Permanent Injunction was pending for disposal as required by the provision of Order 2 rule 2 (3) CPC. After instituting the present suit on 08.04.1999, the plaintiffs withdrew the suit for Permanent Injunction with permission to claim the relief, claimed in the said suit, in the present suit. The plaintiffs have not sought any permission to file a fresh suit on the basis of the cause of action upon which the aforesaid suit was filed as per requirement of the provision of Order 2 R 2 (3) CPC but they have sought the leave from the Hon'ble Court to claim the relief asked in the previous suit to be asked in the present suit which has already been filed by the plaintiffs before withdrawing the previous suit. Thus the present suit filed by the plaintiff is clearly barred U/o 2 R 2 CPC. The foundation of the cause of action of both suits are same. It is also claimed by Ld. Counsel for the defendants that the opposite counsel did not argue on the point of Order 2 R 2 CPC rather he confined his arguments in respect of the provisions of Order 23 R 1 CPC which is not applicable in the present set of circumstances. The scope and applicability of Order 2 R 2 CPC and Order 23 R 1 CPC are totally different from each other.
Order 2 R 2 CPC provides that:-
Suit to include the whole claim
(i).Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction any court.
(ii).Relinquishment of part of claim - where a plaintiff omits to sue in respect of, or intentionally relinquish any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(iii).Omission to sue for one of the several relives - a person entitled for more than one relief in respect of same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any reliefs so omitted.
Order 23 Rule 1 (4) CPC Where the plaintiff (a) Abandons any suit or part of the claim under sub-rule (1) or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule 3, he shall be liable for such cost as the court may award and shall be precluded from instituting any fresh suit in respect of the such subject matter or part of the claim.
The provision of Order 2 R 2 CPC is fully applicable in the present case. The expression 'include the whole claim' under order 2 rule 2 means different reliefs which a plaintiff would be entitled.
If another suit is filed during the pendency of the previous suit for the same relief then second suit is not bared under order 23 rule 1 CPC, because provision of the order 23 rule 1 are applied only after withdrawal of the suit. But if another suit is filed during the pendency of the previous suit for the relief which is arisen from the cause of action on which the previous suit is filed and the foundation of the cause of action of both the suits are same then second suit is bared under order 2 rule 2 CPC.
The leave to institute second suit can be sought at any time during the pendency of the first suit but such leave must be obtained prior to the date of institution of the second suit. Admittedly, in the present case plaintiffs had withdrawn the first suit after filing the present suit and at the time of institution of the present suit plaintiffs have not sought any permission of the court wherein previous suit was pending disposal but they sought permission after the institution of the present suit.
The defendants also relied upon the provisions of Order 4 CPC which provides that the institution of a plaint means the date on which the plaint is presented to the court or to the officer appointed in that behalf is the date on which it is instituted although it is not admitted. The date which the plaint is presented to the court or the officer appointed in that behalf is the date of institution of the plaint for all purposes i.e. limitation, Order 2 rule 2 CPC, Section 10 and 11 CPC, Order 23 CPC etc. Chapter IV of Delhi High Court Rules (Original Side) provides that the suit shall be presented at the filing counter and the date on which the suit is filed at the filing counter is the date of institution of the suit.
Admittedly, the plaintiffs instituted the present suit on 18.03.1999 at the registry of the Hon'ble High Court of Delhi. On the said date of institution of the plaint by the plaintiffs, the suit for Permanent Injunction was pending disposal. For the purpose of Order 2 rule 2 the date of institution of the plaint is to be treated the date on which the plaintiffs presented the present suit for it's institution at the registry of the Hon'ble High Court of Delhi. After institution of the present suit at the registry of the court, same was sent at the court for it's trial and same was listed on 22.03.1999. The Hon'ble Court registers the suit under Order 4 rule 2 CPC for cause the particulars of the suit to be entered in a book to be kept for the purpose and called the registrar of Civil Suits and given the number as year wise. The date 12.04.1999 on which the plaint is registered as a suit is not the date of institution of the suit but the date on which plaintiffs presented the suit for it's institution is the date i.e. 18.03.1999 is the date on which the plaint was instituted (on that day previous suit for Permanent Injunction was pending for disposal before the Civil Judge, Delhi). Thus the suit is not maintainable being hit by the provisions of Order II R 2 of CPC and in his above contentions, Ld. counsel for defendants has placed reliance upon the following authorities:-
(i). 1995 AIHC 3988 (DB)
(ii). 1997 AIHC 4120 (DB)
(iii). 1998 (2) RCR 222
(iv). 1988 (1) RCR 25
(v). 1998 (I) RCR 368
(vi). 2001 (III) RCR 285
(vii). AIR 2004 Bombay 455
(viii). AIR 1990 MP 80
(ix). AIR 2000 MP 184
(x). 88 DLT 606
(xi). 90 DLT 45 (DB)
(xii). 1998 (2) RCR 114
(xiii). AIR 1970 SC 1059
(xiv). 1994 (1) RRR 57
(xv). AIR 1991 Kerala 137
(xvi). 65 DLT 595
(xvii).AIR 1949 PC 78
(xviii).AIR 1964 SC 1810
(xix). 1997 (DRJ) 462
On the other hand as per submissions of Ld. Counsel for plaintiff the provisions of Order 2 R 2 CPC are not attracted to the facts of the present case as the second suit was filed while the first suit was pending and the defendants have been failed to cite any authority in answer to the judgments reported as 1928 LAHORE 710, 1930 LAHORE - 599, 1985 PUNJAB & HARYANA - 219, 31 (1987) DLT - 134 and 1992 KERALA - 85 upon which the counsel for the plaintiff is placing reliance. It is claimed that the second suit was filed in the Hon'ble High Court of Delhi on 22.03.1999 but the Hon'ble court did not admit the same and the matter was adjourned to 12.04.1999. Before 12.04.1999, the first suit was withdrawn with liberty to seek the same relief. Liberty was granted. It was only thereafter the Hon'ble High Court directed for registration of the plaint as suit. Thus when the second suit was ordered to be registered there was no suit pending and as such the present case is not hit by the provisions of Order 2 rule 2 CPC. Here counsel for the plaintiffs has placed reliance upon the judgment reported as AIR 1986 BOMBAY - 353.
The plaintiffs have also cited the following judgments:-
AIR 1987 KERALA - 246 AIR 1998 ANDHRA PRADESH - 414 AIR 1960 MYSORE - 175 for the proposition of law that permission under order 23 can be granted even after the filing of the second suit and that if permission is granted, the effect is that such a suit was never filed.
The judgment reported as 1995 A.I.H.C. 3988 upon which Ld. Counsel for defendants has placed reliance is not applicable to the present circumstances as the said case is related to the grant of leave U/o 2 rule 2 (3) CPC and it was held that such permission should be sought during the pendency of the first suit prior to filing of the second suit but in the case in hand the plaintiffs have never applied for grant of permission U/o 2 R 2 (3) CPC rather they only withdrew the first suit with liberty under order 23 CPC.
It is also claimed by Ld. Counsel for plaintiffs that the Ld. Counsel for the defendants has cited number of authorities just to burdened the record. The ratio of the authority is that where the second suit is filed on same cause of action after the dismissal of the first suit, the second suit is barred U/o 2 R 2 CPC. However, none of the authorities have laid down that if the second suit is filed during the pendency of the first suit and first suit is later on withdrawn with liberty to seek the same relief in the second suit, the second suit will be barred U/o 2 R 2 CPC. Thus the suit is not hit by the mischief of Order II R 2 of Code of Civil Procedure.
After giving due thoughts to the rival submissions of the counsels for the parties and perusing the entire relevant material placed in the file including the authorities cited by them, I have come to the conclusion that the present suit is not hit by the provisions of Order 2 R 2 CPC as in the case in hand admittedly, the previous suit was instituted during the pendency of the first suit and the filing of the second suit is not barred under any provision of law. The present suit was filed in the Hon'ble High Court of Delhi during the pendency of the previous suit where no relief of Permanent Injunction, as claimed in the previous, was claimed. The matter came up before the Hon'ble High Court of Delhi on 22.03.1999 and it did not order for registration of the suit, rather, it called upon the plaintiff to file the copy of the plaint of the previous suit. The matter was adjourned to 12.04.1999. Before 12.04.1999, an application was filed for withdrawal of the suit with liberty to seek the relief claimed in the first suit in the subsequent suit. The plaintiffs were allowed to withdraw the suit with liberty to claim the relief in the suit filed before the Hon'ble High Court of Delhi. When the matter came up before the Hon'ble High Court of Delhi on 12.04.1999 it was informed to the court that the previous suit has been withdrawn with liberty to get the relief claimed in that suit in the present suit and it was only thereafter the direction for the registration of the plaint as suit was issued. The proposition raised by Ld. Counsel for defendant that the suit is deemed to have been instituted on the date when the plaint is presented is not correct as for the purpose of limitation Act a suit is deemed to have been instituted on that day when the plaint is presented otherwise the suit is deemed to be filed when the orders are passed for its registration.
In this regard a reliance can be placed upon the judgment reported as AIR 1986 Bombay 353, where in para 4 it has been held that:-
''The Code itself therefore envisages two stages - first of the presentation of the plaint and the next of the admission of the plaint. The suit is not admitted to the register of the suits and a number given to it merely on the presentation of the plaint.
After the presentation the plaint is scrutinized. If there are any defects in the same, the plaintiff is required to remove them. The removal of defects is a matter of procedure. It is only after the defects are removed then it becomes eligible for an entry and a number in the register of suits.
One of the defects can be the absence of leave of the court to institute the suit where it is necessary including leave under C1. 12 of the Letters Patent. So long therefore as the plaint is not admitted and entered in the register of suits all defects including that of the absence of leave under the said clause can be removed without returning the plaint. There is no question of returning the plaint which is not admitted. It simply remains under objection till it is admitted.'' In Ammini Kutty and others Vs. George Abraham reported as AIR 1987 Kerala 248, it has been held in para 8 that , ''It is well known that plaints are drafted by counsel; and so long as infallibility is not a universal virtue, a mistake committed by counsel should not be the undoing of the client in every case. Where the court is satisfied that a bona fide error is committed, that high stakes are involved, and that it would be unjust on the facts and circumstances of the case to allow the defendant to take advantage of such an error, it must have the power to do what is just.'' Further in para 9 of the said judgment, it has been held that, ''The last contention is that the Rule provides for grant of permission to withdraw a suit, only when a fresh suit is to be instituted, and not for grant of permission after the institution of such a second suit. The purpose and object of the Rule has already been considered; and if the court is competent to relieve a plaintiff of the adverse consequences of mistakes committed by him in instituting or-proceeding with a suit, it is not really material whether the permission is granted before or after the institution of a fresh suit. Even if the institution of the second suit before obtaining of permission to withdraw the first is not proper, that can at best only be an irregularity, which should be considered as cured at least from the time permission is obtained.'' In AIR 1998 Andhra Pradesh 414 titled as M.A. Faiz Khan Vs. Municipal Corporation of Hyderabad it was held:-
''The procedural rigor cannot be allowed to come in the way of substantive justice. Filing of the second suit without actually obtaining permission to withdraw the first suit should only be treated as a procedural irregularity, which is curable. The permission to withdraw the first suit is only to file fresh suit and when such permission is granted, the suit already instituted should not fail.
The permission takes away the bar of res
judicata. Hence the second suit should be
held as maintainable.''
In the light of above, I have come to the considered opinion that the suit of the plaintiff is not hit by the provisions of Order II R 2 of the Code of Civil Procedure, accordingly, issue stands decided against the defendants and in favour of plaintiffs.
26. ADDITIONAL ISSUE No.4:-
Whether the suit of the plaintiff is barred under any provision in the Specific Relief Act? OPD.
As per submissions of Ld. counsel for defendants in the present suit the plaintiff has sought the relief of declaration of their title. The Section 34 of Specific Relief Act provided that any person entitled to any legal character or to any right as to any property may institute a suit against any person denying or interested to deny his title to such character and the court may in its discretion make their in a declaration that he is so entitled.
The present suit of the plaintiff is based upon the alleged documents i.e. Agreement to Sell, General Power of Attorney etc., Ex.PW1/3 to Ex.PW1/7. The Hon'ble Division Bench of Hon'ble High Court of Delhi in the judgment G. Ram Vs. DDA cited as AIR 2003 Delhi 120 (relevant para no.14) and agreement to sell is not a document of transfer nor by reason the execution of a Power of Attorney, right, title or interest of an immovable property can be transferred. Such transfer can only be effected by executing a registered document as provided for under section 54 of T.P. Act read with section 17 of the Indian Registration Act. Hence, in the absence of the Sale Deed in favour of the plaintiffs no declaration regarding the title of the suit property can be decided in favour of the plaintiffs.
The Article 58 of the Limitation Act, 1963 provided that the limitation for obtain the declaration is three years, from the date when right to sue first accrues.
In the present case the plaintiff no.1 Smt. Mohini Jain who appeared as PW-1 also admitted in her cross examination that prior to 04.08.1994 the defendants were in actual physical possession of the suit property and prior to 04.08.1994 the defendants had already denied the title of her mother in regard the suit property. Hence in view of the said admission on the part of the plaintiff the cause of action for filing the suit for decoration in regard the title of the plaintiff had already accrued prior to 04.08.1994, but the plaintiffs filed the present suit in the year 1999, hence the relief of decoration is barred by limitation. The defendants also relied upon the judgment reported as AIR 1993 Gauhati 52 titled as Harender Chandra Nath Vs. Bijoy Krishan Nath.
On the other hand according to Ld. counsel for plaintiffs, the contentions of Ld. Opposite counsel is devoid of merits as Article 58 of Limitation Act applies to suits filed for mere declaration under Section 34 of the Specific Relief Act. In a suit for declaration, possession, mesne profits and Permanent Injunction the relief of declaration is superfluous and such a suit is governed by Articles 64 or 65 of the Limitation Act.
AIR 1990 BOMBAY 98 Suit for declaration and possession and incidental reliefs - Declaration sought was not necessary and main relief sought was of possession and mesne profits - Limitation - Suit filed within twelve years was held within limitation.
AIR 1990 N. O. C. 123 (ANDHRA PRADESH) Where suit is filed based on title but claiming declaration of title with consequential relief of possession. Article 65 would apply and Article 58 would have no application. Article 58 applies only to a case where declaration simplicitor is sought that is, without further relief.
AIR 1991 KARNATAKA - 273 Suit for declaration with relief of possession and damages for cutting tree on land also claimed - Held that such suit where possession was claimed as consequence of declaration would be governed by Article 65 and not Article 58 of Act.
AIR 1989 J & K - 93 ''The relief of declaration in the suit was implicit in the relief of possession because plaintiff had based her claim for possession firstly that she was possessed while in possession and, secondly that the suit property was given to her and she was put in possession by her husband in lieu of dower and she remained in peaceful possession of the same till her forcible dispossession, hence, the suit of the plaintiff was essentially for possession covered by Article 142 of Limitation Act.
Admittedly, the defendants came into possession on 09.03.1994 and present suit which was filed within 12 years is within time. As to what is title of the plaintiffs qua a property in dispute is a matter to be decided in Issue no. 1 & 2 and therefore, additional issue no.4 is liable to be decided against the defendants because the suit is not barred under Specific Relief Act, accordingly, this issue also stands decided against the defendants and in favour of plaintiffs.
27. Now come to the main issues.
Since both the issue no.1 & 2 are interconnected, so I shall take both of the together:-
ISSUE No.1:-
Whether the plaintiffs are entitled to a declaration that the plaintiffs are the owners of the suit land? OPP. ISSUE No.2:-
If issue no.1 is decided in the affirmative, whether the plaintiffs are entitled to a decree of possession in respect of suit land? OPP.
The onus to prove both the issues have been placed upon the plaintiff. In this case, the plaintiffs have based their title not on any Sale Deed but on execution of the usual documents such as Agreement to Sell, General Power of Attorney etc. In order to prove the title, the plaintiffs have proved on record the following documents:- Ex.PW1/1: Certified copy of the Registered Sale Deed dated 20.08.1959 between Delhi Housing Company and Smt. Rajkumari Bhatnagar.
Ex.PW1/2: Certified copy of the Registered Sale Deed dated 11.07.1966 whereby Smt. Rajkumari Bhatnagar sold the said plot of land to Sh. Birender Kumar Jain.
Ex.PW1/3: Certified copy of a Registered Power of Attorney dated 17.04.1986 executed by Sh. Birender Kumar Jain in favour of Smt. Indira Kumri Jain, whereby all the rights in respect of the said plot of land were transferred by Sh. Birender Kumar Jain in favour of Smt. Indira Kumari Jain.
Ex.PW1/4: Certified copy of the receipt of a sum of Rs.15,000/-
received by Sh. Birender Kumar Jain in advance from Smt. Indira Kumari in respect of the said plot of land. Ex.PW1/5: Agreement to Sell dated 17.04.1986 executed by Sh.
Birender Kumar Jain in favour of Smt. Indira Kumari Jain. Under Agreement to Sell the consideration has been mentioned as Rs.15,000/-. The whole consideration was paid to him vide receipt Ex.PW1/4. In clause I of the said Sale Deed, it is mentioned that ''the actual physical vacant possession of the said property has been delivered to party no.2 by the party no.1 on the spot'' Smt. Indira Kumari Jain, thus came into possession of the property in part performance of the Agreement to Sell dated 17.04.1986.
Ex.PW1/6: Affidavit signed by Sh. Birender Kumar Jain on 17.04.1986 wherein he has stated that the ownershop rights with possession of the plot no.274 in Block - F, measuring 200 sq. yds. situated in the area of Vill. Gharonda Neem Ka Bangar alias Patparganj in the abadi of Pandav Nagar, Illaqa Shahdara, Delhi with one room with boundary wall has been sold to Smt. Indira Kumari Jain.
According to Ld. counsel for plaintiffs, from these documents it has been established that Sh. Birender Kumar Jain was the owner of the said property and that he had agreed to sell the said property to Smt. Indira Kumar Jain and had placed Smt. Indira Kumar Jain in possession of the said property in part performance of the Agreement to Sell. Sh. Birender Kumar Jain also appeared as a witness and testified that he had entered into the transaction with Smt. Indira Kumari Jain. It is not disputed that Smt. Indira Kumari Jain died during the pendency of the first suit after leaving behind a Will dated 09.04.1991. The said Will has been exhibited as Ex.PW1/7 by its attesting witness Sh. Vidya Bhushan. Even otherwise, the plaintiffs are the natural heirs of the deceased being her daughters.
On the other hand according to Ld. counsel for defendants, in the absence of any registered documents like Sale Deed, the plaintiffs are not entitled for relief of declaration as claimed in the suit.
The defendants have relied upon AIR 2003 DELHI 120 that the transfer of an immovable property can only be effected by executing a registered document. Merely execution of the Agreement to Sell or execution of the Power of Attorney would not transfer the right, title or interest of an immovable property.
I find substance in the submissions of Ld. counsel for plaintiffs. No doubt the plaintiffs did not become the owner of the property by virtue of the Agreement to Sell. However, these are the usual documents which are being executed in Delhi for transfer of properties. The entire sale consideration has been paid. Smt. Indira Kumari Jain came into possession of the property. She had the possessory title to the property in dispute. Even a person having a possessory title is entitled to file a suit for recovery of possession against the tresspasser who has no title to the property. The plaintiffs have better title than the defendants. In this regard, the reliance can be placed upon the following judgments:-
1977 RAJDHANI LAW REPORTER - 487.
1999 RAJDHANI LAW REPORTER - 20.
Further AIR 1968 SC 1165 is the authority of possessory title, wherein it has been held that:-
''A person in possession of land is assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title. In the event of disturbance of possession by a third party and not the owern, the plaintiff can maintain a possessory suit under the provisions of Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised.'' In AIR 1969 BOMBAY - 429 it was held that:-
''A suit for possession on the basis of a possessory title of the plaintiff who has been dispossessed by a person without any title is maintainable and the plaintiff is entitled to claim possession from the tresspasser.'' ''A party ousted by a person who has no better right is, with reference to the person so ousting, entitled to recover by virtue of the possession he had held before the ouster even though that possession was without any title. Possession in law is a substantive right or interest which exists and has legal incidents and advantages apart from the true owner's title.'' Power of Attorney sales in Delhi is a common mode of sale of immovable properties to get over the Legislative restriction of transfer of properties.
In the case in hand no Sale Deed was executed, however, the property was transferred by execution of the General Power of Attorney, Special Power of Attorney, Agreement to Sell etc. The concept of Power of Attorney sales have been recognized as mode of transaction. An interest has been created in favour of the purchaser. In 117 (2005) DELHI LAW TIMES - 506 it was held that, ''Even if the plaintiffs have not become the owners as provided by execution of the Sale Deed, they have interest in the property and the plaintiffs are entitled to the possession of the property being as they were placed in possession of the property U/s 53 A of the Specific Relief Act.'' The issue no.1 should be answered in favour of the plaintiffs alleging that by virtue of the execution of the aforesaid documents, Smt. Indira Kumari Jain had interest in the property in dispute and that on her death the plaintiffs have acquired interest in the property and that the plaintiffs have possessory title over the property and are entitled to the possession of the property and and as such both the issues i.e. issue no.1 & 2 are liable to be decided in favour of the plaintiffs and against the defendants and they stand decided accordingly.
28. ISSUE No.3:-
Whether the plaintiffs are entitled to mesne profits/damages from the defendants? If so, for what period and to what amount? OPP.
The onus to prove this issue also placed upon the plaintiffs. While deciding the earlier issues, I have already reached to the conclusion that the plaintiffs are entitled to the decree of possession. In this case the plaintiffs are demanding mesne profits/damages @ Rs.5,000/- per month from 09.03.1994 till the date of handing over of the suit property by the defendants to the plaintiffs. The plaintiffs have claimed mesne profits/damages @ Rs.5,000/- per month. The plaintiffs have alleged that the defendants are earning at least Rs.5,000/- per month from the property in dispute. The defendants have not led any evidence in rebuttal. The defendants have no where stated in their Written Statement that the plaintiffs are not entitled to damages for use and occupation/mesne profits. Thus the plaintiffs are entitled for mesne profits/damages.
Now the question arises as to what should be the quantum of mesne profits/damages?
The plaintiff are claiming mesne proftis/damages @ Rs.5,000/- per month from 09.03.1994 but they have led no evidence to justify the quantum of Rs.5,000/- per month. The defendants have also not stated as to what should be the quantum of damages. The claim of Rs.5,000/- per month is quite excessive taking into consideration the entire necessary facts and circumstances, in my considered opinion the plaintiffs can be awarded mesne profits/damages @ Rs.2,000/- per month from 09.03.1994 till the date of handing over of the suit property to the plaintiffs by the defendants. Issue stands decided accordingly.
29. ISSUE No.4:-
Whether the plaintiffs are entitled to interest? If so, at what rate? OPP.
In the entire prayer clause of the plaint, the plaintiffs have not claimed/demanded interest on the amount of mesne profit/damages. Even in the body of plaint, there is no averment about the claim of interest on account of mesne profit/damages. Even in the entire evidence, the plaintiffs have neither brought any material in respect of their entitlement of the claim of interest nor they made any assertion in this regard, so the plaintiffs are not entitled for grant of any interest. Accordingly, issue is decided against the plaintiffs and in favour of the defendants.
30. ISSUE No.5:-
Whether the defendants purchased the plot in question from Shafiq Raja and whether they are in rightful possession of the suit land? OPD.
The onus to prove this issue is placed upon the defendants and for this purpose all the three defendants appeared in the witness box. Smt. Kusum Lata, defendant no.2 appeared as DW-1 and she exhibited General Power of Attorney dated 14.09.1992 Ex.DW1/6, Agreement to Sell dated 14.09.1992 Ex.DW1/7 and a receipt dated 14.09.1992 Ex.DW1/8 executed by one Sh. Rajinder Singh in favour of Sh. Shafiq Raja. She also executed Ex.DW1/1 Agreement to Sell executed by Sh. Shafiq Raja in her favour, Ex.DW1/2 the General Power of Attorney dated 09.03.1994, Ex.DW1/3 the receipt dated 09.03.1994, Ex.DW1/4 the affidavit dated 09.03.1994 and the Will dated 09.03.1994 as Ex.DW1/5. However, the documents have not been proved in accordance with law. When cross examined, DW-1 has admitted that ''I do not know from whom Sh. Rajinder purchased the suit property.'' Smt. Vimla Gautam appeared as DW-2 and exhibited the documents Agreement to Sell dated 09.03.1994, General Power of Attorney dated 09.03.1994, Receipt dated 09.03.1994 and affidavit dated 09.03.1994 executed by Sh. Shafiq Raja in her favour as Ex.DW2/1 to Ex.DW2/4 respectively. On cross examination, she also alleged that ''I do not know from whom Sh. Rajinder had purchased the suit property and when.'' Sh. Manveer Singh (defendant no.3) appeared in the witness box as DW-3 and exhibited the documents Agreement to Sell, General Power of Attorney, Receipt and affidavit executed by Sh. Shafiq Raja in her favour as Ex.DW3/1 to Ex.DW3/4 respectively. He was also unable to produce any documents regarding the ownership of Sh.
Rajinder. Admittedly, the property in dispute bearing plot no.F-274, situated at in the Abadi of Janta Garden, Pandav Nagar, Patparganj, Shahdara, Delhi. The said colony was developed by Delhi Housing Company.
There is no document in favour of Sh. Rajinder. Merely, because one Sh. Rajinder executed any document without any title, no right can be accrued in favour of the defendants. The defendants were bound to prove the title of the said Sh. Rajinder. Since the title of the said Sh. Rajinder qua the property in dispute has not been proved, the defendants have miserably failed to prove any title to the property in dispute. This issue is liable to be decided against the defendants. Issue stands decided accordingly.
31. RELIEF:-
In view of my findings on the above issues, I hereby pass a decree of declaration in favour of plaintiffs and against the defendants thereby declaring that the plaintiffs are the owners of plot of land measuring about 200 sq. yard situated at F-274, Abadi of Janta Garden, Pandav Nagar, Patparganj, Delhi. The plaintiffs are also granted a decree of possession in their favour and against the defendants thereby directing the defendants to hand over the possession of the plot of land measuring about 200 sq. yards situated at F-274, Abadi of Janta Garden, Pandav Nagar, Patparganj, Delhi. I also pass a decree in favour of plaintiffs and against the defendants directing the defendants to pay Rs.2,000/- per month as mesne profits/ damages from 09.03.1994 till the date of handing over of the possession of the suit property by defendants to the plaintiffs subject to condition that plaintiffs shall file the balance/deficient court fee, if any, within one month from the date of passing of this order. Cost of the suit is also awarded to the plaintiffs.
32. Decree Sheet be prepared accordingly.
33. File be consigned to Record Room after completion of necessary formalities.
(Announced in the open (RAKESH KUMAR)
court today on 27.10.2007) ADDL. DISTRICT JUDGE
DELHI