Delhi District Court
Smt. Asha Rani vs Delhi Development Authority on 28 July, 2011
Suit No. 1369/2006
IN THE COURT OF MS. SHEFALI SHARMA
CIVIL JUDGE (WEST): TIS HAZARI COURTS: DELHI
SUIT NO. 1369/2006
1. Smt. Asha Rani
w/o late Sh. Om Prakash
2. Km. Komal (Minor)
D/o late Sh. Om Prakash
through her mother and natural guardian
Smt. Asha Rani, plaintiff no. 1.
Both residents of
3. Janta Flat no. 14C, Ashok Vihar,
PhaseIII, Delhi110052.
.......PLAINTIFFS
VERSUS
Delhi Development Authority
through its Dy. Director, LAB (Housing)
Vikas Sadan, I. N. A.
New Delhi.
........DEFENDANT
DATE OF INSTITUTION : 23.05.2006
DATE OF RESERVATION : 27.07.2011
DATE OF DECISION : 28.07.2011
JUDGMENT: This is a suit for Mandatory Injunction and Permanent injunction filed by the plaintiffs against the defendant. The brief facts as averred in the plaint are as follows:
1. That the plaintiff no. 2 is a minor, who is the daughter of plaintiff no. 1. That the fatherinlaw of the plaintiff no. 1 Sh. Pyare Lal was the original allottee of the Janta Smt. Asha Rani & Ors. vs. DDA 1/11 Suit No. 1369/2006 Flat bearing no. 14C, Ashok Vihar, PhaseIII, Delhi110052 under the defendant. That the said Sh. Pyare Lal died intestate at Delhi on 17.06.1995. His son Sh. Om Prakash i.e husband of plaintiff no. 1 had already predeceased him. That on 21.05.2001, the plaintiff no. 1 applied to the defendant for grant of mutation of suit property in favour of the plaintiffs, which was alloted by the defendant in the name of Sh. Pyare Lal. The defendant vide notice dated 10.06.2002, demanded several documents from the plaintiffs. The plaintiff no. 1 submitted Indemnity Bond, Affidavit from legal heirs, Affidavit, Relinquishment deed, photographs and attested signatures, proof of relationship, original death certificate etc., as per the demand of the defendant for the purpose of mutation of the said flat. That the officials of the defendant assured the plaintiffs that the said flat would be mutated in the name of the plaintiffs jointly. Thereafter, the plaintiffs kept on visiting the office of the defendant but the officials of the defendant kept on lingering on the matter. That the plaintiff again made a request to the defendant regarding the mutation of the abovesaid flat with reference to the letter no. 86/(100)/79 dated 18.06.2011 and 10.06.2002. However, no action was taken by the defendant. Thereafter the defendant through its Asstt. Director (LAB) served a notice dated 16.01.2006 thereby directing the plaintiffs to appear in person on 24.02.2006 at 02:30 PM. The plaintiff appeared before him but the said official of the defendant/ DDA again assured them that soon the mutation would be done in her favour jointly with her daughter. Thereafter, the plaintiff wrote a letter dated 28.02.2006 to the defendant thereby requesting the defendant to mutate the said flat in her name and in the name of her daughter i.e. plaintiff no. 2 but of no avail. This constrained the plaintiff to send a legal notice dated 08.03.2006 to the defendant.
Smt. Asha Rani & Ors. vs. DDA 2/11 Suit No. 1369/2006 That on 16.05.2006 some fourfive persons visited the said flat and stated themselves to be from the office of DDA and they said that the plaintiffs are not entitled to live in the said flat and also threatened the plaintiffs that the said flat is going to be transferred to some other person and plaintiffs have to vacate the suit property/ flat.
2. The aforesaid factual matrix gave the cause of action to the plaintiff to file the present suit seeking the relief that the defendant be directed to mutate/ transfer the Janta Flat bearing no. 14C, Ashok Vihar, PhaseIII, Delhi110052 in the name of the plaintiffs and further the defendant be restrained from interfering in the peaceful enjoyment of the flat in any manner whatsoever and they be also restrained from dispossessing the plaintiffs from the flat, transferring, alienating, selling and/ or creating any third party interest in suit property/ flat.
3. In the written statement filed on behalf of the defendant/ DDA, the allegations of the plaintiff in the plaint are denied and it is stated that the suit of the plaintiff is bad for nonjoinder of necessary party i.e. Sh. Hari Kishan s/o Sh. Mool Chand. It is further stated that after the completion of the required formalities, the possession of the flat in dispute was handed over to Sh. Pyare Lal on 23.04.1979 who died on 17.06.1995. It is not denied by the defendant/ DDA that the plaintiff no. 1 had vide her application dated 21.05.2001, applied for mutation of the suit flat in her favour and the defendant vide their letter dated 10.06.2002 requested her to furnish the requisite documents. It is submitted that one Sh. Hari Kishan, s/o Sh. Mool Chand, R/o 7/26, Vijay Nagar, Delhi vide his application no. 128770 dated 25.08.1995 had applied for conversion of the suit flat from leasehold to freehold and had deposited the requisite conversion fee and other required documents including agreement to sell and GPA. The said Smt. Asha Rani & Ors. vs. DDA 3/11 Suit No. 1369/2006 conversion request was pending for want of outstanding dues. On Perusal of the agreement to sell, it came to the notice of the defendant that late Sh. Pyare Lal had sold the flat in question before his death. The sale agreement was executed on 20.03.1995 by Sh.Pyare Lal original allotee of the flat. Thereafter, the defendant vide their letter dated 16.01.2006 requested the plaintiff to attend the office on any working Monday/ Thursday between 2.30 to 5.00 pm along with all the original documents of flat in question as her request for mutation of flat was pending before them. It is further submitted that in her reply dated 28.02.2006 to the letter of the defendant dated 16.01.2006, the plaintiff had stated that during the life time of her fatherinlaw late Sh. Pyare Lal, Sh. Pyare Lal had given the original documents of the flat in dispute to Sh. Hari Kishan in the year 1995 for transfer of the suit flat in favour of the plaintiff. Thereafter she made repeated requests and demand to Sh. Hari Kishan for return of the original documents but he avoided the same saying that the original documents have been misplaced. Owing to the said controversy, the mutation application of the plaintiffs was kept pending. Rest of the contentions of the plaintiff are categorically denied.
4. The plaintiff had filed replication to the written statement of defendant wherein the plaintiff denied the averments made by the defendant in its written statement and reiterated and reaffirmed the contents of the plaint.
5. During the course of final arguments and perusal of judicial file, it was revealed that inadvertently the issues were not framed earlier, however, in the presence of both the parties, following issues have been framed on 27.07.2011:
1. Whether the plaintiff is entitled to relief of mandatory injunction as prayed for?
Smt. Asha Rani & Ors. vs. DDA 4/11
Suit No. 1369/2006
OPP.
2. Whether the plaintiff is entitled to relief of permanent injunction as prayed for? OPP.
3. Whether the suit of the plaintiff is bad for nonjoinder of necessary party i.e. Sh. Hari Kishan, S/o Sh. Mool Chand? OPD.
4. Relief.
6. In order to prove his case, plaintiff examined only one witness i.e. plaintiff herself as PW1 who vide her affidavit Ex. PW1/X testified on the lines of the plaint and relied upon the documents Ex. PW1/1 to Ex. PW1/29. Ex. PW1/1 is the death certificate of Sh. Om Prakash, Ex. PW1/2 is the death certificate of Sh. Pyare Lal, Ex. PW1/3 is the application for mutation dated 21.05.2005, Ex. PW1/4 is the Indemnity Bond, Ex. PW1/5 is the Affidavit from legal heirs, Ex. PW1/6 is the electricity bill, Ex. PW1/7 is the bill from Delhi Jal Board, Ex. PW1/8 is the Property Tax Bill, Ex. PW1/9 is the Form issued by DDA, Ex. PW1/10 is the cheque dated 29.08.2003, Ex. PW1/11 is the charges paid to the Delhi Jal Board, Ex. PW1/12 to Ex. PW1/18 are the various bills paid to the NDPL, Ex. PW1/19 is the HUA FormA issued by DDA, Ex. PW1/20 is the notice dated 16.01.2006, Ex. PW1/21 and Ex. PW1/22 are the notices dated 18.06.2001 and 10.06.2002, Ex. PW1/23 is the letter dated 28.02.2006, Ex. PW1/24 is the legal notice dated 08.03.2006, Ex. PW1/25 and Ex. PW1/26 are the UPC receipts, Ex. PW1/27 is the copy of ration card, Ex. PW1/28 is the application and Ex. PW1/29 is the publication in the newspaper "Veer Arjun" dated 02.05.2007.
7. In order to prove their case, defendant/ DDA has also examined one witness i.e. DW1 Sh. S. N. Vats, Asstt. Director, LAB (Housing), DDA who vide his affidavit Ex.
Smt. Asha Rani & Ors. vs. DDA 5/11 Suit No. 1369/2006 DW1/X testified on the lines of written statement and relied upon the documents Ex. DW1/1 to Ex. DW1/10. Ex. DW1/1 and Ex. DW1/2 are the letter dated 16.01.2006 issued by the DDA and the reply dated 28.02.2006 filed by the plaintiff, Ex. DW1/3 is the application no. 128770 dated 25.08.1995, Ex. DW1/4 to Ex. DW1/9 are the letters dated 15.01.1996, 20.11.1996, 12.09.1997, 03.03.1999, 28.01.2002 and 30.10.2003 respectively and Ex. DW1/10 is the reply dated 07.06.2006 sent by DDA.
8. I have heard the counsels for parties and carefully perused the material available on record.
9. My issuewise findings are as follows:
Issue No. 1: Whether the plaintiff is entitled to relief of mandatory injunction as prayed for? OPP.
The onus to prove this issue was upon the plaintiff.
The plaintiff vide the testimony of PW1 has categorically testified that the plaintiff no. 2 is a minor, who is the daughter of plaintiff no. 1. That the fatherinlaw of the plaintiff no. 1 Sh. Pyare Lal was the original allottee of the Janta Flat bearing no. 14 C, Ashok Vihar, PhaseIII, Delhi110052 under the defendant. That the said Sh. Pyare Lal died intestate at Delhi on 17.06.1995. His son Sh. Om Prakash i.e husband of plaintiff no. 1 had already predeceased him. That on 21.05.2001, the plaintiff no. 1 applied to the defendant for grant of mutation of suit property in favour of the plaintiffs, which was alloted by the defendant in the name of Sh. Pyare Lal. The defendant vide notice dated 10.06.2002, demanded several documents from the plaintiffs. The plaintiff no. 1 submitted Indemnity Bond, Affidavit from legal heirs, Affidavit, Relinquishment deed, photographs and attested signatures, proof of relationship, original death certificate Smt. Asha Rani & Ors. vs. DDA 6/11 Suit No. 1369/2006 etc., as per the demand of the defendant for the purpose of mutation of the said flat. The death certificate of Sh. Om Prakash is proved as Ex. PW1/1, death certificate of Sh. Pyare Lal is proved as Ex. PW1/2, the application for mutation dated 21.05.2005 is proved as Ex. PW1/3, the Indemnity bond and the affidavit from the LRs are proved as Ex. PW1/4 and Ex. PW1/5.
The said fact has not been disputed by the defendants. In fact it is an admitted case that after the completion of the required formalities, the possession of the flat in dispute was handed over to Sh. Pyare Lal on 23.04.1979 who died on 17.06.1995. That the plaintiff no. 1 had vide her application dated 21.05.2001, applied for mutation of the suit flat in her favour and the defendant vide their letter dated 10.06.2002 requested her to furnish the requisite documents. It is further proved by PW1 that plaintiffs no. 1 and 2 are in actual physical possession of the said flat in question and has been paying the house tax, electricity and water charges for the same. The electricity bill is proved as Ex. PW1/6, the notice of Delhi Jal Board is proved as Ex. PW1/7, the property tax has proved as Ex. PW1/8, the form issued by defendant/ DDA itself is proved as Ex. PW1/9, the various charges paid to the MCD and Delhi Jal Board are proved as Ex. PW1/10 and Ex. PW1/11, the various electricity bills raised by NDPL are proved as Ex. PW1/12 to Ex. PW1/18. In all these said documents, the address of the plaintiff no. 1 who is the daughterinlaw of Sh. Pyare Lal and the address of disputed flat in question is the same which clearly proves that the plaintiffs are in possession of the suit property.
The main controversy arose when one Sh. Hari Kishan, S/o Sh. Mool Chand, R/o 7/26, Vijay Nagar, Delhi vide his application no. 128770 dated 25.08.1995 applied for conversion of same flat in question from leasehold to freehold on the basis of Smt. Asha Rani & Ors. vs. DDA 7/11 Suit No. 1369/2006 the documents viz. GPA, agreement to sell dated 23.03.1995 etc purported to have been executed by late Sh. Pyare Lal, Fatherinlaw of plaintiff prior to his death on 17.06.1995. The defendants have proved the said application of Sh. Hari Kishan as Ex. DW1/3.
It is pertinent to mention here that Sh. Hari Kishan was not a party in the present case originally, however, an application under Order I Rule 10 CPC was moved of plaintiff to implead him as necessary party in the present case which was allowed by my Ld. Predecessor vide orders dated 18.08.2006. Since Sh. Hari Kishan did not put his appearance, he was ordered to be served by means of publication through newspaper "Veer Arjun" dated 02.05.2007. The said publication report is also proved as Ex. PW1/29. However, since he failed to enter his appearance, he was proceeded against ex parte vide orders dated 23.05.2007. Thus not an iota of documentary or oral evidence has been adduced on behalf of Sh. Hari Kishan in lieu of his alleged claim and thus the testimony of PW1 remained unimpeached and unchallenged.
Moreover, it is the case of defendant/ DDA that by virtue of documents i.e. GPA, Agreement to sell dated 23.03.1995, Sh. Pyare Lal had allegedly agreed to sell the suit property to Sh. Hari Kishan and in view of the submissions of Sh. Hari Kishan, the mutation was not carried out in favour of plaintiffs. Neither the agreement to sell nor the alleged GPA has been placed on record by defendant/ DDA on the basis of which they came to the conclusion that there is a dispute of title between Sh. Hari Kishan and the plaintiff. Even if for the sake of arguments, the said documents had been filed by Sh. Hari Kishan with the defendant/ DDA, it is a settled law that as is held in "G. Ram Vs. DDA", AIR 2003 Delhi 120 passed by Hon'ble High Court wherein it is stated that an agreement of sale is not a document of transfer not by reason of execution of a power of Smt. Asha Rani & Ors. vs. DDA 8/11 Suit No. 1369/2006 attorney, the right, title or interest of an immovable property can be transferred. Such a transfer can only be effected by executing a registered document as provided for under Section 54 of the Transfer of Property Act read with Section 17 of the Indian Registration Act. Admittedly no sale deed was ever executed by the fatherinlaw of the plaintiff in favour of Sh. Hari Kishan.
Moreover, in the crossexamination of DW1, the said witness has categorically admitted that the allotment letter dated 20.02.1979 was issued by the defendant in favour of Sh. Pyare Lal and even the possession of the flat in question was granted on 30.03.1979. It is also admitted that Sh. Hari Kishan had simply applied for conversion and never applied for mutation of the suit property in his name. Upon a suggestions given by Ld. counsel for plaintiff during his crossexamination, the witness DW1 has categorically denied that Sh. Hari Kishan was neither a relative nor even an LR of the original allotee Sh. Pyare Lal.
In the absence of any cogent or substantive documentary proof that the original allotee Sh. Pyare Lal had sold the property to Sh. Hari Kishan, I am of the considered opinion that there are no plausible grounds afforded by defendant/ DDA in not executing the mutation in favour of the plaintiffs who are admittedly the actual LRs of the original allotee.
Thus in view of my abovesaid findings, this issue is decided in favour of the plaintiffs and against the defendant.
Issue no. 2: Whether the plaintiff is entitled to relief of permanent injunction as prayed for? OPP.
The onus to prove this issue was upon the plaintiff. However, in view of Smt. Asha Rani & Ors. vs. DDA 9/11 Suit No. 1369/2006 my findings in the issue no. 1, this issue is also decided in favour of plaintiffs and against the defendant.
Issue no. 3: Whether the suit of the plaintiff is bad for nonjoinder of necessary party i.e. Sh. Hari Kishan, S/o Sh. Mool Chand? OPD.
The onus to prove this issue was upon the defendant/ DDA.
It is the case of the defendant/ DDA that the main controversy arose when one Sh. Hari Kishan, S/o Sh. Mool Chand, R/o 7/26, Vijay Nagar, Delhi vide his application no. 128770 dated 25.08.1995 applied for conversion of same flat in question from leasehold to freehold on the basis of the documents viz. GPA, agreement to sell etc purported to have been executed by late Sh. Pyare Lal, Fatherinlaw of plaintiff prior to his death on 17.06.1995 and vide agreement to sell dated 23.03.1995 specifically. The defendants have proved the said application of Sh. Hari Kishan as Ex. DW1/3. It is pertinent to mention here that Sh. Hari Kishan although was not a party in the present case originally, however, an application under Order I Rule 10 CPC was moved of plaintiff to implead him as necessary party in the present case which was allowed by my Ld. Predecessor vide orders dated 18.08.2006. Since Sh. Hari Kishan did not put his appearance, he was ordered to be served by means of publication through newspaper "Veer Arjun" dated 02.05.2007. The same is also proved as Ex. PW1/29. However, since he failed to enter his appearance, he was proceeded against exparte vide orders dated 23.05.2007. Thus this issue is disposed of accordingly. Relief In view of the aforesaid discussions, the suit of the plaintiff is hereby decreed. The defendant is directed to mutate/ transfer the Janta Flat bearing no. 14C, Smt. Asha Rani & Ors. vs. DDA 10/11 Suit No. 1369/2006 Ashok Vihar, PhaseIII, Delhi110052 in the name of the plaintiffs and further the defendant is restrained from interfering in the peaceful enjoyment of the flat in any manner whatsoever and they be also restrained from dispossessing the plaintiffs from the flat, transferring, alienating, selling and/ or creating any third party interest in suit property/ flat. No order as to cost. Decree sheet be prepared accordingly. File be consigned to record room.
Pronounced in the open court today on 28.07.2011.
(SHEFALI SHARMA)
CIVIL JUDGE (WEST)
THC, DELHI/ 28.07.2011
Smt. Asha Rani & Ors. vs. DDA 11/11