Delhi District Court
Pooja Khanna vs Ashwani Khanna on 15 April, 2021
Pooja Khanna & Ors. V. Ashwani Khanna & Ors.
IN THE COURT OF SH. ARUN SUKHIJA,
ADDL. DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
CNR NO. DLCT01-007182-2019
RCA NO.:- 19/2019
ID NO.:- 64/2019
IN THE MATTER OF:-
1. Pooja Khanna
W/o Late Sh. Vijay Khanna
2. Drishti Khanna
D/o Late Sh. Vijay Khanna
3. Simran Khanna
D/o Late Sh. Vijay Khanna
4. Shivam Khanna
D/o Late Sh. Vijay Khanna
All Residents of:
BH-305, Shalimar Bagh (East),
Delhi-110088. ... Appellants/Plaintiffs
Versus
1. Ashwani Khanna
S/o Late Sh. Mangat Ram Khanna
2. Jolly Khanna
S/o Late Sh. Manohar Lal Khanna
3. Sarita Khanna
W/o Late Sh. Manohar Lal Khanna
RCA No. 19/2019 Page - 1 of 32
Pooja Khanna & Ors. V. Ashwani Khanna & Ors.
All Residents of:
H. No. 5672, Street No.2,
Kolhapur Road Extension,
Delhi-110007. ... Respondents/Defendants
REGULAR FIRST APPEAL UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND ORDER DATED 02.03.2019 IN CS NO. 594303/2016 PASSED BY LD. CIVIL JUDGE-5 (CENTRAL DISTRICT), TIS HAZARI COURTS, DELHI Date of institution of the Appeal : 25/05/2019 Date on which Judgment was reserved : 31/03/2021 Date of Judgment : 15/04/2021 ::- J U D G M E N T -::
1. The Appellants were plaintiffs and Respondents were defendants in the suit. The appellants and respondents are respectively referred in this Judgment according to the original status before the Ld. Trial Court. The Appellants/plaintiffs are dissatisfied with the Judgment and Decree dated 02.03.2019 passed by the Ld. Trial Court. The Ld. Trial Court has dismissed the suit of the plaintiffs.
2. The Appellants/plaintiffs had filed a suit for perpetual and mandatory injunction and for rendition of accounts against the respondents/defendants, inter-alia on the following facts that:-
(a) The plaintiff no.1 is the widow of Sh. Vijay Kumar Khanna and Plaintiffs no.2 to 4 are the minor children of Sh.Vijay Kumar Khanna. Sh. Vijay Kumar Khanna had expired on 11.11.2001.
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(b) The deceased Sh. Vijay Kumar Khanna was the proprietor of M/s. Khanna Trading Co. and was the exclusive owner of Shop no. 8, Gali Jugal Kishore (Gali Ghante Wali), Chandni Chowk, Ilaqa no.4, Delhi-110006 (hereinafter referred to as 'Shop no.8').
Sh. Vijay Kumar Khanna was also a partner in the business of shawls & cloths etc. at Shop no.14 Gali Jugal Kishore (Gali Ghante Wali), Chandni Chowk, Ilaqa no.4. Delhi-110006 (hereinafter referred to as 'shop no. 14'), which was being run under the name and style of M/s. Manohar Lal Vijay Kumar. The said firm of M/s. Manohar Lal Vijay Kumar had a stock of about Rs.29 lacs when Sh. Vijay Kumar Khanna had expired, apart from the other movable assets in the form of cash, bank accounts etc.
(c) The deceased Sh. Vijay Kumar Khanna was also owner of a residential property bearing no. 5672, Gali no.2, New Chandrawal, Kolhapur, Delhi (hereinafter referred to as property no. '5672') and he was also the owner of two godowns no. 9 & 10 in property bearing no. 1875, Haveli Jugal Kishore, (Gali Ghante Wali), Chandni Chowk, Ilaqa no.4, Delh-110006 (hereinafter referred to 'godown no. 9 & 10').
(d) Taking advantage of the death of Sh. Vijay Khanna, the defendants had taken over all the assets of the two businesses namely, M/s. Manohar Lal Vijay Kumar and M/s. Khanna Trading Company and they RCA No. 19/2019 Page - 3 of 32 Pooja Khanna & Ors. V. Ashwani Khanna & Ors.
have been making petty payments to plaintiff no.1. All the assets which belonged to the deceased Sh. Vijay Kumar Khanna devolved upon the plaintiffs, being his only legal heirs.
(e) The defendant no.3, in collusion with the other defendants, mischievously filed a suit for mandatory and permanent injunction in her own name and in the names of the plaintiffs nos.2 to 4, alleging herself to be their guardian and next friend, against the plaintiff no.1, which is pending adjudication.
(f) The plaintiffs are not being allowed to enter their own property no.5672, though plaintiffs have possession of one room and a kitchen in the aforesaid property, which has been kept locked by the plaintiffs. Defendant no.1 had mischievously got his name included in the municipal records of the aforesaid property.
(g) In view of the deceased Sh. Vijay Khanna being the owner of Shop no.8, the plaintiff no.1 had applied for the mutation of the said shop in the names of the plaintiffs, which was duly effected in the records of the MCD.
(h) In the month of April, 2007, the plaintiff no.1 demanded aforesaid properties/assets and rendition of accounts from the defendants, but they flatly refused the same.
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In this background, plaintiffs have filed the present suit seeking decree of perpetual injunction, thereby restraining the defendants from creating third party interest in shop no. 8, in property bearing no. 5672 and in Godown no. 9 & 10. The plaintiffs have also sought decree of mandatory injunction, thereby directing the defendants to remove the locks from shop no.8 and from shop no.14 and for directions to the defendants to quit the aforesaid properties. Plaintiffs have also sought decree of rendition of accounts against the defendants, thereby directing the defendants to render true and correct accounts of M/s. Manohar Lal Vijay Kumar and of M/s. Khanna Trading Company.
3. The defendant no.1 filed Written Statement, wherein, he took the preliminary objections that suit has not been valued correctly for the purpose of court fees and jurisdiction and that the present suit has been filed without any cause of action against him. On merits, it is denied Sh. Vijay Kumar Khanna is the exclusive owner of property bearing no.5672-73, New Chandrawal, Kolhapur, Delhi and it is averred that the same is jointly owned by Sh. Vijay Kumar Khanna and defendant no.1, by virtue of sale deed dated 14.06.1989. It is also averred that shop no.14 is owned by defendant no.2 and that the godowns no. 9&10 were taken on tenancy by M/s. Manohar Lal Vijay Kumar. It is denied that M/s. Khanna Trading Company was the sole proprietorship of Sh. Vijay Kumar Khanna and the said firm is stated to be a partnership firm of Sh. Vijay RCA No. 19/2019 Page - 5 of 32 Pooja Khanna & Ors. V. Ashwani Khanna & Ors.
Kumar Khanna and Sh. Manohar Lal Khanna. It is further averred that subsequently, defendant no.3 became a partner in both the aforesaid firm. It is denied that M/s. Manohar Lal Vijay Kumar had a stock of Rs.29 lac at the time of death of Sh. Vijay Kumar Khanna. It is further averred that defendant no.1 had taken into his custody cash amounting to Rs.4,45,000/- and that he had returned the said amount alongwith an additional amount of Rs.2500/- to plaintiff no.1 and defendants nos.2 and 3, on joint requests made by them to that effect, from time to time. Defendant no.1 also states that the key to one of the locks in shop no. 8 is in his custody, as the same was given to him as per direction of Delhi Commission for Women and that he is willing to return the same to any person as may be directed by the court. On basis of above averments, defendant no.1 states that suit of the plaintiffs is devoid of merit and accordingly, prays for its dismissal.
4. The defendants nos.2 and 3 filed their joint Written Statement, wherein, they took preliminary objections that suit has not been valued correctly for the purpose of court fees and jurisdiction and that the present suit has been filed without any cause of action. On merits, it is denied that Sh. Vijay Kumar Khanna was the sole proprietor of M/s. Khanna Trading Company and it is averred that the said business was actually a partnership firm. It is further averred that defendant no.3 had subsequently become a partner in both M/s. Khanna Trading Company and M/s. Manohar Lal Vijay Kumar. It is denied that the defendants RCA No. 19/2019 Page - 6 of 32 Pooja Khanna & Ors. V. Ashwani Khanna & Ors.
had taken over the assets of the two aforesaid firms. It is further denied that Sh. Vijay Kumar Khanna was the exclusive owner of property bearing no.5672 and it is averred that the same was purchased out of the earnings from businesses run by Sh. Manohar Lal Khanna but the title documents regarding the aforesaid property were executed in the joint name of Sh. Vijay Kumar Khanna and defendant no.1, thereby depriving the LRs of Sh. Manohar Lal Khanna from the aforesaid property. It is also averred that shop no.14 is owned by defendant no.2 and that the godowns no. 9&10 were taken on tenancy by M/s. Manohar Lal Vijay Kumar. It is denied that M/s. Manohar Lal Vijay Kumar had a stock of Rs.29.00 Lakh at the time of death of Sh. Vijay Kumar Khanna. It is further averred that defendant no.1 had taken into his custody, cash amounting to Rs.4,45,000/- and that he had returned the said amount alongwith an additional amount of Rs.2500/- to plaintiff no.1 and defendants nos.2 and 3, on joint requests made by them to that effect, from time to time. On basis of above averments, defendants nos.2 and 3 state that suit of the plaintiffs is devoid of merit and accordingly pray for its dismissal.
5. The plaintiffs filed separate replications to the Written Statement of the defendant no.1 and to the joint Written Statement of defendant nos.2 and 3, wherein they denied the averments made in the aforesaid written statements and reiterated the averments made in the plaint.
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6. On the basis of the pleadings, vide order dated 30.03.2011, following issues were framed:-
ISSUES
(i). Whether the present suit has been valued correctly for the purpose of Court fees and jurisdiction? OPP.
(ii). Whether the present suit is filed without any cause of action against the defendant no. 1? OPD.
(iii). Whether the plaintiff is entitled for perpetual injunction as prayed in para A of the prayer clause ? OPP.
(iv). Whether the plaintiff is entitled for mandatory injunction as prayed in para B of the prayer clause?
OPP.
(v). Whether the plaintiff is entitled for the decree of rendition of accounts? OPP.
7. The plaintiff stepped into the witness box as PW-1 and tendered her evidence by way of affidavit which is Ex. PW-1/A. She relied upon THE following documents:-
(i) Death certificate of Sh. Vijay Kumar as Ex. PW-
1/1.
(ii) Hand written stock list as Ex.PW-1/2.
(iii) Certified copy of order dated 06.07.2011 as Ex.PW-
1/3.
(iv) Letter dated 06.03.2003 and letter dated 17.03.2003 as Ex.PW-/4.
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PW-1 was cross-examined by counsels for the defendants. Vide separate statement of counsel for plaintiffs, recorded on 22.03.2016, PE was closed.
8. The matter was then put up for DE. The defendant no.1 tendered his evidentiary affidavit as Ex.D1W1/A. The defendant no.1 was cross-examined by way of a Local Commissioner appointed for the purpose. Thereafter, evidence of defendant no.1 was closed on 31.08.2018.
9. Sh. Jolly Khanna/Defendant no.2 stepped into witness box as D2W1 and tendered his evidence by way of affidavit which is Ex.D2W1/A and relied upon following documents:-
(i) Ex.D2W1/1 is the bank statement of current account no. 10628842259 of M/s Khanna Trading Company maintained in the State Bank of India.
(ii) Ex.D2W1/2 is the bank statement of current account no. 307701010023338 in the name of M/s Manohar Lal Vijay Kumar maintained in the Union Bank of India w.e.f. 01.04.2014 to 22.03.2016. Witness D2W1 was cross-examined by counsel for plaintiffs.
10. Sh. Manish, Special Assistant from Union Bank of India, SB Sarrafa Market Branch, Chandni Chowk, DelhI-110006 was summoned, to depose as D2W2 and he tendered the Account Opening Form and documents pertaining to M/s. Manohar Lal Vijay Kumar as Ex.D2W2/1 and an authority letter as Ex.D2W2/2. Witness D2W2 was cross-examined by counsel for plaintiffs.
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11. Summoned witness Sh. Hans Kumar, Branch Manager, Jama Masjid Branch, State Bank of India, Delhi deposed as D2W3 who brought on record the following documents:-
(i) Ex.D2W3/1 is the copy of account opening form dated 28.02.1984 pertaining to current account no.
10628842259 in the name of M/s Khanna Trading Company.
(ii) Ex.D2W3/2 is the copy of partnership deed of M/s Khanna Trading Company.
(iii) Ex.D2W3/3 is the copy of partnership letter dated 29.02.1984.
(iv) Ex.D2W3/4(colly) is the copy of statement of account of aforesaid account.
The witness D2W3 was cross-examined by counsel for plaintiffs. Vide separate statement of counsel for defendants nos.2 and 3 recorded on 21.11.2017, DE on behalf of defendants Nos.2 and 3 was closed.
12. The Ld. Trial Court has passed the impugned judgment and decree dated 02.03.2019, whereby, the suit of the plaintiffs was dismissed. The appellants/plaintiffs were aggrieved from the judgment and decree passed by the Ld. Trial Court and praying to set aside the judgment and decree dated 02.03.2019 inter-alia on the following grounds:-
(A) Because the Ld. Trial Court has wrongly appreciated the facts and wrongly decided the issue no.1 relating to Court Fee against the Appellants. That the suit of RCA No. 19/2019 Page - 10 of 32 Pooja Khanna & Ors. V. Ashwani Khanna & Ors.
the appellants was valued properly as they have only sought a relief of injunction against the respondents with respect to properties of Late Sh. Vijay Khanna. The appellants are the legal heirs of the deceased Sh. Vijay Khanna. The possession of the properties was with the deceased and thereafter, it was with the appellants. The appellants were forced to stay out of the properties of the deceased and hence, the relief of injunction was prayed and accordingly suit was valued. Therefore, the Ld. Trial Court, thus, erred in dismissing the suit.
(B) Because the Ld. Trial Court in para 19 of the impugned judgment has given a categorical finding that "However, during the cross examination of the plaintiff no.1/PW1, she was shown copy of a registered sale deed dated 18.10.2014, which is Ex.PW1/D2A. Perusal of the sale deed in Ex.PW1/D2A reveals that the aforesaid sale deed was executed in favour of Sh. Vijay Kumar Khanna qua aforesaid shop no.8. The sale deed in Ex. PW1/D2A is duly registered. In view of the aforesaid sale deed in Ex.PW1/D2A, what is established is that Sh. Vijay Kumar Khanna was the owner of the property bearing shop no. 8." The Ld. Trial Court, however, still failed to appreciate that the appellants are entitled for the reliefs claimed in the plaint.
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(C) Because the Ld. Trial Court failed to appreciate and went on to dismiss the suit of the appellants that the registered sale deed in Ex.PW1/D2A reveals that Sh. Vijay Kumar Khanna was the owner of the property bearing shop no.8. That despite being a clear finding of ownership and a genuine apprehension of property being disposed of by the respondents, the Ld. Trial Court erroneously proceeded to dismiss the suit.
(D) Because the Ld. Trial Court did not appreciate that the defendants/ respondents have not led any evidence on record that the plaintiffs are not the owners of the property after the death of Sh. Vijay Kumar Khanna and in spite of this, the Ld. Trial Court has decided the issue against the plaintiffs. The ownership of Sh. Vijay Kumar Khanna was never disputed by the defendants/ respondents. (E) Because the Ld. Trial Court erred in holding that the appellants are not entitled to relief of injunction contrary to the findings of Hon'ble Supreme Court in (2012) 5 SCC 370 Maria Margadia Sequeria Fernandes & Ors. Vs. Erasmo Jack De Sequeria (Dead) through LRs "63. Possession is important when there are no title documents and other relevant records before the Court, but, once the documents and records of title come before the Court, it is the title which has to be looked at first and due RCA No. 19/2019 Page - 12 of 32 Pooja Khanna & Ors. V. Ashwani Khanna & Ors.
weightage be given to it. Possession cannot be considered in vacuum."
(F) Because the Ld. Trial Court erred in holding that the appellants are not entitled to relief of injunction in the facts and circumstances of the case. The said finding is perverse, illegal and is contrary to law.
13. In the aforesaid background, the following points for determination arise for the consideration of the present case:-
i) Can the order under question be termed as perverse, capricious and arbitrary?
ii) Does the impugned order run against the legal framework operating in and principles enunciated in this sphere?
iii) Does determination of point for determination no.1 or 2 warrants any indulgence or interference of the present Court with the order appealed against?
iv) What order?
FINDINGS AND CONCLUSIONS OF THE COURT ON THE APPLICATION UNDER SECTION 5 OF THE LIMITATIOIN ACT The Plaintiffs/Appellants have filed the application under Section 5 of the Limitation Act inter-alia on the following facts:-
1. That the plaintiffs/ appellants applied for certified copy of judgment on 05.03.2019, the same was prepared and delivered on 12.03.2019.
2. Thereafter, discussing amongst each other the appellants decided to file an appeal against the impugned order. The RCA No. 19/2019 Page - 13 of 32 Pooja Khanna & Ors. V. Ashwani Khanna & Ors.
appellants sought the complete record of the file from their earlier counsel which took some time. Thereafter, the appellants engaged new counsels for the purpose of filing of the appeal which again took some days. However, the counsels of the appellant found that the record of file given by the earlier counsel was not complete and complete file was required for the purpose of bringing on record the entire record of the lower Court before this Hon'ble Court.
3. The Counsels of the appellant suggested to obtain certified copy of the entire record of available with the Court. The application for obtaining certified copy of the entire record was made on 28.03.2019 and the same was received by the appellants herein on 03.04.2019. Since the case filed in the year 2007, it contained a good number of papers, which were thoroughly perused by the Counsels of the Appellant which further took some time.
4. In the meanwhile, the drafting counsel of the Appellants suffered from viral fever and was suggested by the doctor to take rest without fail. After re-joining the work and again giving plenty amount of time to read the huge paper trail, the draft of the appeal was finally prepared and was sent to the Appellants for their comments and perusal. On receiving the comments, the Counsel of the Appellants immediately prepared the Appeal for filing it before this Hon'ble Court and by now there is a delay of 47 days in filing of the instant appeal. The said delay is neither deliberate nor intentional.
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5. That the Hon'ble Supreme Court has number of time has held that when substantial justice is pitted against technical considerations cause of justice deserves to be preferred for the other side cannot claim to have vested right in injustice beign done because of non-deliberate delay. The Hon'ble Supreme Court in Collector, Land Acquisition Vs. Katiji (AIR 1987 SC 1353) has observed that refusal of condone the delay can result in a meritorious matter being thrown out at a very threshold and causes justice being defeated. As against this, when delay is condoned, the highest that can happen is that a case would be decided on merits after hearing the parties.
6. That the appellants have a good case on merits and are confident of succeeding in the present appeal and as such cause of justice requires that the petitioners are given a fair opportunity to present their case before this Hon'ble Court.
There was no serious opposition on the said application by the defendants/respondents. Considering the aforesaid averments made in the application, the application is allowed, however, subject to cost of Rs.5,000/- to be paid equally to defendant No.1, on the one side and defendants No.2 and 3 on the other side. The said cost be paid by the Plaintiff within a period of 15 days from today.
ISSUE NO.5 Ld. counsel for the appellants has given a statement dated 31.03.2021 and as per the statement, the appellants have confined their claims only in respect of property bearing shop no. 8 and RCA No. 19/2019 Page - 15 of 32 Pooja Khanna & Ors. V. Ashwani Khanna & Ors.
property bearing no. 5672 for the relief of permanent and mandatory injunctions. It is submitted by Ld. Counsel for the appellants that appellants are not claiming any other reliefs including the relief of rendition of accounts. Accordingly, this Court is not considering/ adjudicating this issue as the same is not pressed by the appellants.
ISSUE NO.2 The Ld. Trial, while deciding issue no.2, has categorically held that there is a cause of action in favour of the plaintiffs and against the defendants. The defendants have not assailed the said findings of Ld. Trial Court and this Court also does not find any infirmity in the findings of Ld. Trial Court with respect to issue no.2. Accordingly, issue no.2 is decided in favour of the plaintiffs and against the defendants.
ISSUE NO.3 The issue no.3 was "Whether the plaintiff is entitled for perpetual injunction, as prayed in Para A of the prayer clause". Sh. Vijay Kumar Khanna had purchased the property bearing Shop No. 8, Gali Jugal Kishore (Gali Ghante Wali), Chandni Chowk, Illaka no.4, Delhi-110006 by means of registered Sale Deed dated 18.10.1993. There is no dispute that Sh. Vijay Kumar Khanna had expired on 11.11.2001. The MCD vide Letter dated 17.03.2003 (Ex.PW-1/4) had informed the plaintiff no.1 that mutation was done in favour of the plaintiffs. There is no dispute that mutation itself does not create any title in favour of the plaintiffs but the Sale Deed dated 18.10.1993 was proved on record and as per the said Sale Deed, the predecessor-in-interest of the plaintiffs became the owner of the property in question.
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The Ld. Trial Court has also held that Sh. Vijay Kumar Khanna was the owner of the property bearing shop no. 8, Gali Jugal Kishore (Gali Ghante Wali), Chandni Chowk, Illaka no.4, Delhi- 110006. The contention of Defendants no. 2 and 3 is that they have never tried to create any third party interest in the said shop and for this reason the Ld. Trial Court has not granted the relief in respect of shop no. 8. The Ld. Trial Court has also not granted any relief on the ground that the plaintiffs have placed no material on record to show that any of the defendants intended to alienate Shop no. 8.
The Ld. Trial Court, in my considered view, has not correctly appreciated the facts in the correct perspective. It has been brought on record by the plaintiffs that Sh. Vijay Kumar Khanna was the owner of the said shop and the plaintiffs are the successors in interest of Sh. Vijay Kumar Khanna. None of the defendants, including defendants no. 2 and 3, have brought any material on the record to show that the said property was actually purchased in the name of Sh. Vijay Kumar Khanna, however, it is benefit for all the defendants. The plaintiffs became exclusive owners of the property but the defendants, specifically defendants No.2 & 3, denied their right in the property, as stocks of the partnership firm were stacked in the said shop. The defendants have put the locks in the said property despite the fact that the said property exclusively belongs to Plaintiffs/Appellants. The defendants, including Defendants no. 2 and 3, have no right, title and interest, whatsoever, in the said property and in order to maintain and preserve the said property, the proprietary of justice demands that the defendants were restrained from creating any RCA No. 19/2019 Page - 17 of 32 Pooja Khanna & Ors. V. Ashwani Khanna & Ors.
third party interest in the said property as prayed by the Plaintiffs.
Now, as far as the property bearing no. 5672 is concerned, the record reveals that defendant no.1 and Sh. Vijay Kumar Khanna were owners of the said property. No doubt, in the plaint, the plaintiffs have alleged that even the said property bearing no. 5672 was purchased by Sh. Vijay Kumar Khanna, but defendant no.1 got his name mischievously included in the property documents, however, the plaintiffs have utterly failed to prove on record that the defendant no.1 got his name included in the Sale Deed dated 14.06.1989. The said property was admittedly in the names of Sh. Vijay Kumar Khanna and defendant no.1 i.e. Sh. Ashwani Kumar Khanna. The Sale Deed dated 14.06.1989 (Ex.PW1/D1/1) proves the said fact. The Ld. Trial Court has rightly held that there is no material to show that property bearing no. 5672 exclusively belongs to Sh. Vijay Kumar Khanna. The relief of permanent injunction was not granted by Ld. Trial Court in respect of property bearing no. 5672 on the ground that defendant no.1 is having one half undivided share in the property and further there is no allegation in the plaint to the effect that any of the defendants have ever threatened or attempted to alienate the said property.
The Defendants no. 2 and 3 have disputed that the property bearing no. 5672 was owned by Sh. Vijay Kumar Khanna and defendant no.1 alone. The Ld. Trial Court has come to the conclusion that in view of the contention raised by defendants no. 2 and 3, the plaintiffs ought to have sought declaration qua the title of Sh. Vijay Kumar Khanna over the aforesaid property alongwith consequential relief of injunction regarding the non-
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alienation of the aforesaid property and the plaintiffs have failed to do so.
In my considered view, the observation of Ld. Trial Court to such effect was not called for. The plaintiffs, including defendant no.1, have proved on record the Sale Deed dated 14.06.1989. If, the LRs of Sh. Manohar Lal Khanna were claiming the right in the said property contrary to the Sale Deed dated 14.06.1989, then, the said LRs ought to have filed the suit for declaration claiming their own independent right in the said property.
The Ld. Trial Court has also not correctly appreciated the facts. The Ld. Trial Court has failed to take note of the fact that defendants No.2 and 3 are in possession of the part of the said property. The LRs of Sh. Manohar Lal Khanna are claiming their right in the property bearing no. 5672 and definitely, the plaintiffs may suffer irreparable loss in case the LRs of Sh. Manohar Lal Khanna will create any right in the property bearing no. 5672.
The Ld. Trial Court has, no doubt, come to the conclusion that defendant no.1 cannot be restrained from selling the undivided share in the property bearing no. 5672, however, the Ld. Trial Court has failed to consider that in the property bearing no. 5672, the plaintiffs were also having one half undivided share and defendant no.1 or for that matter, the defendants no. 2 and 3 are not entitled to create any third party interest in the property bearing no. 5672, specifically, as far as the one half share of plaintiffs is concerned.
The Ld. Trial Court has also failed to take into consideration the provision of Section-4 of the Partition Act as RCA No. 19/2019 Page - 19 of 32 Pooja Khanna & Ors. V. Ashwani Khanna & Ors.
well as Section-22 of the Hindu Succession Act. No doubt, the said rights were required to be invoked by the plaintiffs in appropriate proceedings, however, the said right is available with the Plaintiffs. This Court cannot lost the sight of the fact that the property bearing no. 5672 is the dwelling house and the entry of any stranger may detriment the rights of the plaintiffs, which the plaintiffs are entitled to protect under Section-4 of the Partition Act as well as Section-22 of the Hindu Succession Act, 1956.
The findings of Ld. Trial Court qua shop bearing no. 8 and property bearing no. 5672 are not correct and in accordance with law. The said properties were required to be preserved.
As far as other properties, the Ld. Counsel for the Plaintiffs/Appellants has given the statement on 31.03.2021 that the said Plaintiffs/Appellants are not claiming any relief qua the said properties and therefore this Court is not adjudicating this issue for remaining properties.
Accordingly, Issue no.3 is partly decided in favour of the plaintiffs and against the defendants in terms of the aforesaid findings and the findings of Ld. Trial Court qua non-granting of relief of permanent injunction in respect of Shop No.8 and property No.5672 are set-aside.
ISSUE NO.4 In terms of the statement dated 31.03.2021 of Ld. Counsel for the Plaintiffs/Appellants, the plaintiffs/appellants are not claiming any relief qua Shop no.14, therefore, this Court is not adjudicating this issue in respect of the said property.
This issue is now confined only to the relief of mandatory injunction, as prayed in Para-B qua the property bearing shop no.
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8. There is no dispute that Sh. Vijay Kumar Khanna was the owner of property bearing Shop no. 8 by means of Sale Deed Ex.PW1/D2/A. As per admitted case of the parties, M/s. Khanna Trading & Company came into existence on 02.01.1984 (Ex.D2W/2) and the said firm was running from the said premises. The plaintiffs/Appellants have claimed that said firm/ concern was the proprietorship concern of Shri Vijay Kumar Khanna. As per the said document, Sh. Manohar Lal Khanna, Sh. Vijay Kumar Khanna and Smt. Bhagwanti Devi were partners in the said firm. Sh. Vijay Kumar Khanna was having 50% shareholding, Sh. Manohar Lal Khanna was having 30% shareholding and Smt. Bhagwanti Devi was having 20% shareholding. It is the admitted case of the parties that Sh. Manohar Lal Khanna has expired on 09.05.1984. It is the case of Defendants no.2 and 3 that Ms. Sarita Khanna became the sleeping partner in the said partnership firm namely M/s. Manohar Lal Vijay Kumar and M/s. Khanna Trading Company. However, there is no documentary evidence, which is placed on record by Defendants no. 2 and 3 that Smt. Sarita Khanna became the partner of M/s. Manohar Lal Vijay Kumar or M/s. Khanna Trading Company. The perusal of Partnership Deed nowhere reveals that even after the death of one of the partners, the partnership will continue. There is no fresh Partnership Deed, which was produced by Defendants no. 2 and 3 to show that the partnership firms were in continuance after the death of Sh. Manohar Lal Khanna.
As per Section-42 of the Indian Partnership Act, 1932 subject to contract between the partners, a firm is dissolved by RCA No. 19/2019 Page - 21 of 32 Pooja Khanna & Ors. V. Ashwani Khanna & Ors.
the death of the partner. Accordingly, in terms of the provision of Section-42 of the Indian Partnership Act, the partnership, whether under the name and style of M/s. Khanna Trading Company or M/s. Manohar Lal Vijay Kumar, was dissolved by operation of law on the death of Sh. Manohar Lal Khanna i.e. on 09.05.1984. Further, the Defendants no. 2 and 3 have failed to produce any of the record qua their alleged contention of partner in the said partnership firms after the death of Shri Manohar Lal Khanna. The LRs of the deceased do not becomes the partner in partnership firm and they have only right to claim the entitlement of deceased partner.
The Ld. Trial Court, while deciding issue no.4 in respect of property bearing Shop no. 8, came to the conclusion that since M/s. Khanna Trading Company was not the sole proprietorship firm of Sh. Vijay Kumar Khanna, but was actually the partnership firm of Sh. Manohar Lal Khanna, therefore, the stocks lying in the Shop bearing no. 8 were of Sh. Vijay Kumar Khanna and Sh.Manohar Lal Khanna. The Ld. Trial Court has failed to consider the relevant and important fact that Sh. Manohar Lal Khanna admittedly expired on 09.05.1984. In terms of Section-42 of the Indian Partnership Act, the said partnership firm came to an end immediately after the death of partner of Sh. Manohar Lal Khanna. It is also borne-out from the record that Sh. Vijay Kumar Khanna expired on 11.11.2001. It cannot be expected that the stocks of 1984 were lying in the Shop no. 8 till 2001. It is the case of defendants no. 2 and 3 that defendant no.3 became the partner after the death of Sh. Manohar Lal Khanna, however, there is no record, which has been placed by defendants no. 2 and RCA No. 19/2019 Page - 22 of 32 Pooja Khanna & Ors. V. Ashwani Khanna & Ors.
3 that defendant no.3 was even the sleeping partner of the said M/s. Khanna Trading Company. There is no dispute that from Shop No.8, M/s. Khanna Trading Company was running its business from the said Shop.
It is the case of Defendants no. 2 and 3 that Shop no. 8 was purchased by Sh. Vijay Kumar Khanna and after completing the studies, the defendant no.2 joined the business of his father with his uncle i.e. Sh. Vijay Kumar Khanna, however, as held above, the business of the father of defendant No.2 with Shri Vijay Kumar Khanna came to an end after the death of his father in 1984. The defendant no.2 has vaguely submitted that after completing his studies, he has joined the business of his father, but no exact date was given by defendant no.2 in the entire pleadings and no document worth name has been produced by defendant No.2 in order to support the said plea. Further, as per the case of defendants No.2 and 3, the relations between Shri Vijay Kumar Khanna and defendant No.2 were not cordial and therefore, he was compelled to leave the said business and thereafter, he joined with his another uncle i.e. defendant No.1, who was doing separate business in Paharganj, Delhi.
It is further pleaded by defendants no. 2 and 3 that after the death of Sh. Vijay Kumar Khanna on 11.11.2001, in a road accident, Jolly Khanna i.e. defendant no.2 has continued the business, which was abandoned after the death of Sh. Vijay Kumar Khanna.
The perusal of record reveals that after the death of Sh. Vijay Kumar Khanna i.e. predecessor-in-interest of the plaintiffs, there were serious disputes between the parties. At the relevant RCA No. 19/2019 Page - 23 of 32 Pooja Khanna & Ors. V. Ashwani Khanna & Ors.
time the Plaintiffs No.2 to 4 were minors. The plaintiff no.1 has lodged a complaint before the D.C.W., Delhi and on account of the same, the defendant no.3 has filed the suit for mandatory and permanent injunction not only for self, but on behalf of plaintiffs no. 2 to 4 as their next friend. In the said suit, the defendant no.3 has basically sought a relief against plaintiff no.1 and D.C.W. The said suit was dismissed vide Order dated 06.07.2011 (Ex.PW1/3). The Ld. Civil Judge came to the conclusion that defendant no.3 cannot be considered as a next friend of plaintiffs no. 2 to 4 as she has adverse interest to that of the said minor children of Sh. Vijay Kumar Khanna. It was also held by Ld. Civil Judge that the plaint is ambiguous to the right, title and interest of any of the parties in respect of the property bearing no. 5672, Gali No.2, New Chandrawal, Delhi-110007 and the cause of action is also illusionary and unreal. The Ld. Civil Judge has dismissed the suit by observing that the suit is not maintainable in the present form. The said order was not challenged at any point of time and the same has attained finality.
The perusal of evidence of the respective parties reveals that defendant no.2, who had appeared as D2/W1, has submitted in his cross-examination that after the death of Sh. Vijay Kumar Khanna, the dispute arose between plaintiff no.1 and plaintiff no.1 had also filed one complaint before D.C.W. It is admitted by defendant no.2 that the keys of the shop were demanded by D.C.W. and he has handed-over the same in the proceedings of D.C.W. and when the entire proceedings of D.C.W. came to an end, the keys were again returned to him. However, the defendants No.2 and 3 have failed to place on record that D.C.W., RCA No. 19/2019 Page - 24 of 32 Pooja Khanna & Ors. V. Ashwani Khanna & Ors.
at any point of time, has handed-over the keys of the said shop to defendant no.2.
On 02.02.2017, the following question was put to defendant no.2 and he has answered accordingly. The same is reproduced as under:-
".....It is correct that after death of Vijay Khanna when dispute arose, Pooja Khanna had also filed one complaint before DCW. It is correct that Sarita Khanna had filed one suit for mandatory and permanent injunction. It is correct that the said suit was dismissed on 06.07.2011. It is correct that Ex.PW1/3 is the certified copy of the order passed in the said suit. No appeal was filed against the order of dismissal passed in the said suit. It is wrong to suggest that I had never handed over the keys of shop no. 8 to the officer of DCW during the proceedings before DCW. (Vol. When the keys was demanded from me, I handed over the same in the proceedings of DCW and when the entire proceedings of DCW came to an end, the keys was again returned to me).
Q. Is the lock same of which the key was given to DCW officer:
Ans. No, my uncle Ashwini Khanna once demanded the key from me and I gave it to him. Thereafter, Pooja Khanna had put one lock over the lock which was already there and seeing that lock, I had put my lock over the two locks with chain and at present there are three locks at one place.
It is correct that I did not hand over the key to Pooja Khanna/plaintiff no.1. (Vol. I gave it to Ashwini Khanna)."
There is no dispute that multiple locks are placed by the parties in the shop in question. During the course of arguments, it was specifically pointed-out to the parties that this Court will appoint Local Commissioner for assessing the stocks in the property in question. Both the parties submit that the stocks lying in the shop are more than 18 years' old and at this moment, RCA No. 19/2019 Page - 25 of 32 Pooja Khanna & Ors. V. Ashwani Khanna & Ors.
the said stocks have no value. Ld. Counsel for the appellants submits that in order to avoid controversy, he has no objection even if the entire stocks in the suit shop bearing no. 8 be handed- over to Defendants no. 2 and 3. Ld. Trial Court has not granted the relief of mandatory injunction only on the ground that stocks of the partnership firm namely M/s. Khanna Trading Company were lying in the said premises.
In my considered view, when there is no value of the stocks, then, lying of the said stocks, have absolutely no bearing to deny the reliefs. Furthermore, the defendants No.2 and 3 have failed to produce any documents on the record that either or any of them were partners in said firm i.e. M/s. Khanna Trading Company after the death of Shri Manohar Lal Khanna. Moreover, the plaintiffs/appellants are ready to hand-over the entire stocks to Defendants no.2 and 3 in order to resolve the controversy.
The shop in question was the exclusive property of Sh. Vijay Kumar Khanna and after his death, the plaintiffs are exclusive owners of the said property and none of the defendants have any right, title and interest in the said property. The defendants cannot be allowed to retain the said shops only on the ground that the stocks in the said shops were of the alleged partnership firm. This Court has already held that after the death of Shri Manohar Lal Khanna, the partnership firm came to end in terms of Section-42 of the Indian Partnership Act and further, there is no record which has been produced by defendants No.2 and 3 that defendant No.3 was the partner or defendant No.2 has continued the business after the death of Shri Vijay Kumar RCA No. 19/2019 Page - 26 of 32 Pooja Khanna & Ors. V. Ashwani Khanna & Ors.
Khanna.
Accordingly, the defendants are directed to remove their lock(s) including the chain(s), if any, on the said shop within a period of 15 days from passing of this Judgment. After removing the locks and chain(s) by defendants from the said shop, the plaintiffs/appellants will open their locks only after giving at- least one week's notice to defendants no.2 and 3 and putting them in notice, the date and time, when the Plaintiffs/Appellants will open their locks so that in case, they wanted to take the stocks lying therein, then, they may take the same in their custody. If, the said Defendants no.2 and 3 do not visit on the desired date and time, then, the Plaintiffs/Appellants will be at liberty to take the custody of the stocks lying therein and to dispose off the same in the manner they like.
The issue no.4 is decided in favour of the appellants and against the defendants in the aforesaid terms. The findings of the Ld. Trial Court are modified accordingly. ISSUE NO.1 The Ld. Trial Court was of the view that plaintiffs/ appellants have sought permanent injunction qua the four properties, however, for the purpose of court fees, the valuation is done for Rs.130/- and Court fees of Rs.13/- has been paid on the said valuation. Ld. Trial Court is of the view that each property was required to be valued separately and the appellants were also required to give the separate court fees for each property. This Court is also of the considered view that for the purpose of relief of permanent injunction qua the four properties, the plaintiffs/appellants were required to value them separately. The RCA No. 19/2019 Page - 27 of 32 Pooja Khanna & Ors. V. Ashwani Khanna & Ors.
Ld. Counsel for the appellants has given the statement on 31.03.2021 that the appellants are claiming reliefs only in respect of two properties i.e. property bearing Shop no. 8 and property bearing no. 5672. Still, the appellants/plaintiffs are required to make-up the deficiency of all the reliefs as before the Ld. Trial Court, the plaintiffs/appellants have claimed the reliefs qua all the properties. In terms of provision of Order 7 Rule 11 CPC, the suit of the plaintiffs cannot be rejected on this ground at this stage and the plaintiffs are required to be given opportunity to make-up deficiency in the Court-fees. The Plaintiffs/Appellants are directed to make-up the deficiency of Rs.39/- within a period of 30 days from passing of this judgment. The Court Fees be deposited before the Ld. Trial Court. It is made clear that in case, the plaintiffs/appellants make-up the deficiency within the said period, then, the suit of the plaintiffs is not rejected. Otherwise, it is deemed that the suit of the plaintiffs is deemed to be rejected for want of deficient court fees.
As far as the relief of mandatory injunctions, the Ld. Trial Court has held that as per the prayer of mandatory injunction, the plaintiffs are seeking possession of properties of Shop no. 8 and Shop no. 14. The Ld. Trial Court has held that the plaintiffs ought to have prayed for possession of the aforesaid shops and valued the reliefs accordingly, but instead of doing the same, the plaintiffs have sought the relief of possession by way of mandatory injunction, which is not permissible in law.
This Court is of the considered opinion that the said findings of Ld. Trial Court are not correct for various reasons. It is not in dispute that the parties are near relatives and closely RCA No. 19/2019 Page - 28 of 32 Pooja Khanna & Ors. V. Ashwani Khanna & Ors.
related to each other. It is also proved on record that Shop no. 8 was the exclusive property of Sh. Vijay Kumar Khanna and the defendants have no right, title or interest, whatsoever, in the property. The Shop No.8 has never been the part of any partnership firm. At best, the defendants were only considered as permissive users/licencees in the said premises without licence fee. It is well settled law by way of catena of judgments that in case of a near or close relation, it is not a mandatory requirement to file the suit for possession and the suit for mandatory injunction is also maintainable. The plaintiffs have exclusive right over the property bearing shop no. 8 and the defendants have absolutely no right and title, whatsoever, in the said property. The defendants have put the lock on the shop despite the fact that the plaintiffs are the absolute owners of the property.
Looking into the facts & circumstances of the present case, the suit of mandatory injunction, specifically, in respect of shop no. 8, is maintainable in the eyes of law and the findings of Ld. Trial Court that the plaintiffs were required to file the suit for possession qua the said property is set aside.
The Ld. Trial Court has further held that the plaintiffs have claimed the relief of mandatory injunction qua the two properties, but have valued the said relief only for one property. The said findings of Ld. Trial Court are correct. The plaintiffs are required to value each property for the relief of mandatory injunction also. No doubt, the appellants are not claiming any relief for the property bearing no. 14, as per the Statement dated 31.03.2021 given by Ld. Counsel for the appellants, however, during the pendency of the suit, it was to be seen, whether the plaintiffs/ RCA No. 19/2019 Page - 29 of 32 Pooja Khanna & Ors. V. Ashwani Khanna & Ors.
appellants were required to pay the deficient Court fees. This Court is of the considered view that there was deficiency of Rs.13/- and the plaintiffs/ appellants are required to make-up the said deficiency of Court fees. The plaintiffs/appellants are given 30 days' time to make-up the deficiency before the Ld. Trial Court, failing which, the suit of the plaintiffs is deemed to be rejected on this ground also.
Accordingly, Issue no. 1 is decided in the aforesaid terms and the findings of Ld. Trial Court are modified to that extent. RELIEF:
In view of the discussions, as adumbrated above, I hereby pass the following ::- FINAL ORDER -::
(a) The application under Section 5 of the Limitation Act filed by the Plaintiffs/Appellants is allowed subject to cost of Rs.5,000/- to be paid equally to defendant No.1, on the one side and defendants No.2 and 3 on the other side. The said cost be paid by the Plaintiffs/Appellants within a period of 15 days from today. If, the defendants failed to receive the said amount then the plaintiffs/appellants are permitted to deposit the same in this Court within 10 days after the aforesaid 15 days.
(b) In view of the findings of Issue No.1, subject to deposit of deficient Court fees before the Ld. Trial Court and also payment/deposit of the aforesaid cost as mentioned in para (a) above, the Regular Civil Appeal of the Plaintiffs/Appellants is partly allowed RCA No. 19/2019 Page - 30 of 32 Pooja Khanna & Ors. V. Ashwani Khanna & Ors.
and the Judgment and decree dated 02.03.2019 is set-aside on the following terms:-
(i) A decree of permanent injunction is passed in favour of the Plaintiffs and against the defendants thereby directing the defendants, their agents, representatives, assigns etc. from selling, assigning or creating any third party interest in property bearing Shop No.8, Gali Jugal Kishore (Gali Ghante Wali), Chandni Chowk, Illaka No.4, Delhi-110006 and also in respect of residential property bearing No.5672, Gali No.2, New Chandrawal, Kohlapur, Delhi.
(ii) A decree of mandatory injunction is also passed in favour of the plaintiffs and against defendants thereby the defendants are directed to remove their lock(s) including the chain(s), if any, on the Shop No.8, Gali Jugal Kishore (Gali Ghante Wali), Chandni Chowk, Illaka No.4, Delhi-110006 within a period of 15 days from passing of this Judgment. After removing the locks and chain(s) by defendants from the said shop, the plaintiffs/ appellants will open their locks only after giving at-least one week's notice to defendants no.2 and 3 and putting them in notice, the date and time, when the Plaintiffs/Appellants will open their locks so that in case, they wanted RCA No. 19/2019 Page - 31 of 32 Pooja Khanna & Ors. V. Ashwani Khanna & Ors.
to take the stocks lying therein, then, they may take the same in their custody. If, the said Defendants no.2 and 3 do not visit on the desired date and time, then, the Plaintiffs/ Appellants will be at liberty to take the custody of the stocks lying therein and to dispose off the same in the manner they like.
(c) The parties shall bear their respective costs.
The copy of this Judgment may kindly be sent forthwith to the Ld. Trial Court alongwith the record of Trial Court.
Decree-sheet in the Appeal be prepared accordingly, in terms of this Judgment.
Appeal file be consigned to record room after due compliance.
Announced through Video Conferencing on this 15th Day of April, 2021.
(ARUN SUKHIJA)
ADJ-07 (Central)
Tis Hazari Courts, Delhi
RCA No. 19/2019 Page - 32 of 32