Delhi District Court
Gayatri Devi vs Upender Sharma & Buli on 31 March, 2022
IN THE COURT OF SH. SUSHIL KUMAR, ASCJ-JSCC-GJ, NORTH -WEST
DISTRICT, ROHINI COURTS, DELHI.
Suit No. 59240/16
Gayatri Devi
W/o Late Sh. Shankar Lal Sharma,
Aged about 64 years,
R/o E-167, Sector II, Pocket E,
Bawana, Delhi. ......Plaintiff
Versus
1. Upender Sharma & Buli
S/o Late Sh. Shankar Lal Sharma,
Aged about 34 years,
R/o 2662/196, Onkar Nagar,
Tri Nagar, Delhi.
2. Mrs. Tanuj Sharma @ Rinki
W/o Upender Sharma @ Buli,
R/o 2662/196, Onkar Nagar,
Tri Nagar, Delhi. .....Defendants
SUIT FOR MANDATORY AND PERMANENT INJUNCTION
Date of Institution : 06.05.2015
Date of pronouncing judgment : 31.03.2022
JUDGMENT
1. The brief facts of the case of Plaintiff are that Plaintiff is the mother of Defendant No.1 and mother-in-law of Defendant No.2. That Plaintiff is the absolute owner of property bearing No.2662/196, Onkar Nagar, Tri Nagar, Delhi, measuring 96 square yards which was purchased by Plaintiff vide sale deed dated 14.05.2004 whereby her husband had transferred the property in her name. That the sale deed was for proper consideration though the property was purchased by the Plaintiff from her own husband.
2. That Defendant No.1 is the son of the Plaintiff, however, he has been a person of loose character and never kept good company, therefore, the Plaintiff and her husband Suit No. 59240/16 GAYATRI DEVI v. UPENDER SHARMA @ BULI & ANR. PAGE NO.1/10 who was then alive disowned Defendant No.1 due to his conduct. That a notice with respect to the same was given by the Plaintiff and her husband in a Newspaper through their advocate. That the Plaintiff and her husband filed a civil suit bearing no.522 of 2008 before the Ld. SCJ, Delhi, in respect of the afore-mentioned property. That during the pendency of the afore-mentioned suit, husband of the Plaintiff died on 01.03.2009 and the afore-mentioned suit stood compromised between the Plaintiff and Defendant No.1 and the aforementioned suit was decreed in terms of the compromise between the parties vide order dated 02.04.2009.
3. That Defendant No.1 and 2 wanted to get married to each other and their marriage took place on 29.10.2009 which was a simple dowry-less marriage. That after marriage, Defendant No.1 approached the Plaintiff and requested her that he would mend his ways and wanted to live in her property. That, though, the Plaintiff was reluctant to allow the Defendant No.1, re-entry into the house, but owing to the pressure from relatives, Plaintiff agreed to allow Defendant No.1 to live in her house, thus, the Plaintiff allowed them to live in her property bearing No.2662/196, Onkar Nagar, Tri Nagar-A, Delhi, subject to the condition that they would not interfere in her day to day affairs.
4. That, in fact, Defendant No.1 and 2 were given a separate unit with separate entrance and exits, separate kitchen as also separate bathrooms and toilets in the suit bearing No.2662/196, Onkar Nagar, Tri Nagar-A, Delhi, thus, there existed a separate kitchen for the Plaintiff and Defendants and it was agreed that the Defendants would not interfere in the life of the Plaintiff. That this arrangement was objected to by the Defendant No.1, thus, the elder son of the Plaintiff Sh. Mukesh Sharma and his family moved out the afore-mentioned property along with his family members and shifted to Bawana and since then they are living there. That, unfortunately, Defendant No.1 and 2 regularly used to quarrel with each and creates ruckus in the property where they were staying. That they also used to regularly harass the Plaintiff and the Plaintiff compelling the Plaintiff to sell the property and give them the proceeds of the sale.
5. That Defendant No.2 also threatened that she would implicate the Plaintiff in some false criminal case. That, the Plaintiff gave a police complaint on 11.02.2012 upon Suit No. 59240/16 GAYATRI DEVI v. UPENDER SHARMA @ BULI & ANR. PAGE NO.2/10 the threat of Defendant No.1. That, since the Defendants did not show any redemption in their behavior, the Plaintiff gave another complaint to the police on 07.02.2013 in regard to the harassment caused to her by Defendants but all in vain. That, during this period, the Defendants used to threaten the daughters of the Plaintiff who used to come there to enquire about the well being of the Plaintiff and in such circumstances, the daughters of the Plaintiff stopped coming to the said property. That, since the elder son of the Plaintiff had moved out of the house, he did not use to come to the afore-mentioned property to take care of the Plaintiff.
6. That, occasionally, Plaintiff used to visit her elder son at Bawana and meet him and his family. That again on occasions, when the fight between the Defendant No.1 and 2 or between the Defendants and the Plaintiffs used to flare up, then the Plaintiff used to take shelter in the house of her elder son at Bawana. That, finally, the Defendants approached the Plaintiff and requested her to pay the Defendants some money so that Defendant No.1 could start his own business. That, after seeing their attitude, the Plaintiff told the Defendants that she would pay them money only if they left the house and allowed the Plaintiff to stay in the house of peace. That, the Defendants, thus, assured that they would leave the house and go to a rented accommodation if the Plaintiff gave them money. That in order to ensure peace in the family, the Plaintiff gave her jewellery to the Defendants so that they could sell the same and peacefully live somewhere else. That upon giving the jewellery, the Defendants moved of the property bearing No.2662/196, Onkar Nagar, Tri Nagar-A, Delhi, in May, 2013 and shifted to a rented accommodation thereafter.
7. That, in view of the dilapidated condition of the afore-mentioned property, Defendants had agreed to move of the afore-mentioned property in the month of March / April 2013. That the Plaintiff entered into a collaboration with builder namely Sh. Satya Narayan Agarwal S/o Sh. Rameshwar Dayal Agarwal for development of the afore- mentioned property. That the understanding of the Plaintiff with the builder was that he would construct a stilt parking with a small room and a bathroom as also four floors, i.e., Upper Ground Floor, 1st Floor, 2nd Floor and 03rd Floor on the afore-mentioned property. That each floor would consist a unit consisting of three rooms, a kitchen, a bathroom and Suit No. 59240/16 GAYATRI DEVI v. UPENDER SHARMA @ BULI & ANR. PAGE NO.3/10 a toilet. That the afore-mentioned builder agreed to develop the afore-mentioned property at his own cost and further kept on floor i.e., second floor with himself.
8. That sometime in early 2014, the afore-mentioned builder constructed the aforementioned property and thereafter, retained the second floor with himself and gave possession of the remaining portion of the property to the Plaintiff herein and handed over the possession of the afore-mentioned property i.e., stilt parking with one room, the ground floor, the first floor and the third floor of the afore-mentioned property to the Plaintiff herein and thus, the Plaintiff came in possession of the above said property except the 02nd floor in the afore-mentioned property which was in the possession of the afore-mentioned builder / his subsequent vendee.
9. That, however, the Defendants once again forcibly entered and occupied the room in the stilt parking on the ground floor initially, which was objected to by the Plaintiff and a complaint was sought to be lodged with the police. That the police did not entertain any complaint with regard to the same as they claimed that since the case was family dispute, therefore, they asked the Plaintiff to approach the Courts for any relief, therefore, the Defendants continued to live in the said premises forcibly and continue to stay in the premises. That on 24.07.2014, Defendant No.2 abused the Plaintiff and threatened her to transfer the property in her name, failing which she threatened that she would implicate the Plaintiff and her family members in false and frivolous criminal cases.
10. That on 27.07.2014, Defendant No.2 got Defendant No. 1 arrested in a criminal case and at that time, she also threatened the Plaintiff that she would file false criminal cases against the Plaintiff and her family members. That since the Plaintiff was on old senior citizen, therefore, she lodged a complaint on 25.08.2014 with the Senior Citizen Cell and copies of the same were sent to the Commissioner of Police and SHO, PS Keshav Puram, Delhi but all in vain. That the Defendants got encouragement from the same and thus, forcibly, took over the possession of the first floor of the afore-mentioned property sometime in October, 2014. That while do so, the Defendants vacated the room occupied by them on the stilt parking. That, Plaintiff being an old woman could not stop Suit No. 59240/16 GAYATRI DEVI v. UPENDER SHARMA @ BULI & ANR. PAGE NO.4/10 the Defendants from taking forcible possession of the First Floor of the afore-mentioned property, however, the Plaintiff gave the stilt parking on rent to a tenant.
11. That, Defendants kept threatening the Plaintiff of dire consequences in case she did not transfer the properties in the name of Defendant No.2. That apprehending threat to her life, Plaintiff left the upper ground floor of the afore-mentioned property after locking the same and joined the company of her other son who was staying in Bawana. That, this upper ground floor had already been gifted by Plaintiff to her elder son in 2014, thus, the elder son of the Plaintiff gave the upper ground floor of the aforementioned property on rent to a tenant.
12. That the Plaintiff had also given the third floor of the afore-mentioned property on rent to tenants. That the tenants vacated the third floor of the property on 28.03.2015 from whom the Defendant No.2 has taken possession and put her lock in the afore- mentioned property as well. That, later on, the Plaintiff came to know that in a tiff between the Defendant No.1 and 2, Defendant No.2 has registered a complaint / FIR against Defendant No.1. That, in fact, the Plaintiff sought to visit the ground floor of the property in 18.04.2015 when some property dealers of the area were looking at the afore- mentioned property. That the Plaintiff made enquiries from them and was informed that Defendant No.2 was on the lookout for selling the house to some third parties.
13. Hence, the Plaintiff has filed the present suit and prayed for Decree for mandatory injunction in favour of Plaintiffs and against the Defendant, their relatives, agents, associates or any other person claiming through them, thereby, directing the Defendants to remove their articles, belongings etc, from the suit property bearing No.2662/196, 1 st Floor and 03rd Floor, Onkar Nagar, Tri Nagar, Delhi-110035 and thereafter direct the Defendants to hand over the vacant and peaceful possession of the suit property to the Plaintiff. The plaintiff has also prayed for a decree of permanent injunction in favour of the Plaintiff and against the Defendant, their relative, agents etc., thereby restraining them from interfering in any manner with the peaceful occupation and possession and so also the user of the suit property by the Plaintiff and a decree of permanent injunction restraining the Defendants or their agents or any other person acting through them from Suit No. 59240/16 GAYATRI DEVI v. UPENDER SHARMA @ BULI & ANR. PAGE NO.5/10 alienating or creating third party interest or parting with the possession to a third party in a property bearing No. 2662/196, 1st Floor and 03rd Floor, Onkar Nagar, Tri Nagar, Delhi-
35.
14. Defendants were served with the summons. Defendant No.2 filed written statement in the Court. In her Written Statement, Defendant No.2 has taken the preliminary objection that Plaintiff has filed the present suit in collusion with Defendant No.1 to coerce and harass the Defendant No.2 who is legally wedded wife of Defendant No.1 and daughter-in-law of the Plaintiff. That the collusion and connivance of the Plaintiff with Defendant No.1 is writ-large from a bare perusal of the allegations leveled in the Plaint, therefore, on this ground, suit of the Plaintiff is liable to be dismissed. That the present suit is a sheer abuse of the process of law and has been filed in counter blast to the petition u/s 18, 19, 20 and 22 read with section 12 of the Protection of Women from Domestic Violence Act, 2005 filed by the Defendant No.2 against the Defendant No.1, Plaintiff and their other family members.
15. The Plaintiff filed replication to the written statement of Defendant No.2 and denied the averments of the written statement and reiterated the contents of the plaint.
16. It is pertinent to mention here that Defendant No.1 was proceeded ex-parte vide order dated 23.05.2018. Defendant No.2 was also proceeded ex-parte vide order dated 02.08.2018 and the matter was fixed up for Ex-Parte PE.
17. In her Ex-Parte PE, the Plaintiff stepped into witness box as PW-1. PW-1 Ms. Gayatri Devi tendered her evidence by way of affidavit Ex. PW-1/A and relied upon the following documents :-
1. Copy of sale deed of the suit property dated 14.05.2004 as Ex. PW1/1 (OSR);
2. Copy of notice regarding disowning the defendant no.1 as Mark A (de- exhibited from Ex. PW1/2);
3. Copy of compromise deed in form of under Order 23 Rule 3 CPC dated 31.03.2009 as Mark-B (de-exhibited from Ex. PW1/3);
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4. Copy of statement of plaintiff and defendant no.1 alongwith decree dated 02.04.2009 as Mark C (de-exhibited from Ex. PW1/4);
5. Copy of police complaint dated 11.02.2012 as Ex PW1/5 (OSR);
6. Police complaint dated 07.02.2013 as Mark D (de-exhibited from Ex. PW1/6);
7. Copy of collaboration agreement between plaintiff and Sh. S N Aggarwal dated 26.04.2013 as Ex PW1/7 (Colly) (OSR);
8. Copy of sale deed between plaintiff in favour of Naresh Gupta and S N Aggarwal dated 21.06.2013 as Mark-Y (de-exhibited from Ex. PW1/8);
9. Copy of bank statement of plaintiff as Ex. PW1/9 (OSR);
10. Copy of police complaint dated 25.08.2014 as Ex.PW1/10 (OSR);
11. Copy of gift deed between plaintiff and Mukesh Sharma i.e., elder son of plaintiff as Ex. PW1/11 (OSR);
12. Copy of site plan as Ex. PW1/12;
13. Copy of FIR dated 24.03.2015 u/s 308 IPS registered at PS Keshav Puram against defendant no.1 as Ex. PW1/13 (OSR);
14. Copy of bail application alongwith annexures filed by defendant no.1 in FIR No.210/2015 u/s 308 IPD registered at PS Keshav Puram against defendant No.1 as Mark-X1 (de-exhibited from Ex. PW1/14);
15. Copy of suit for permanent injunction vide suit no.400/2015 filed by elder son of plaintiff pending in the Court of Ms. Divya Malhotra, Ld. CJ, Rohini, Delhi as Mark-E (de-exhibited from Ex. PW1/15);
16. Copy of FIR No.184/15 u/s 341/323/506 IPD dated 29.12.2015 as Ex. PW1/17 (OSR);
18. Copy of site plan filed in suit no.400/2015 filed by elder son of the plaintiff pending in the Court of Ms. Divya Malhotra, Ld. CJ, Rohini, Delhi as Mark-F (de-exhibited from Ex. PW1/18);
19. Copy of rent agreement dated 03.09.2015 vide suit no.400/2015 filed by elder son of the plaintiff pending in the Court of Ms. Divya Malhotra, Ld. CJ, Rohini, Delhi as Ex. PW1/19 (OSR);
20. Copy of statement of Om Prakash Jain dated 29.12.2018 as Mark-G (de- exhibited from Ex. PW1/20);
21. Copy of written statement filed by defendant no.2 herein vide suit Suit No. 59240/16 GAYATRI DEVI v. UPENDER SHARMA @ BULI & ANR. PAGE NO.7/10 no.400/2015 filed by elder son of the plaintiff pending in the Court of Ms. Divya Malhotra, Ld. CJ, Rohini, Delhi as Mark-H (de-exhibited from Ex. PW1/21)
22. Copy of application u/s 151 CPC and reply vide suit no.400/2015 filed by elder son of the plaintiff pending in the Court of Ms. Divya Malhotra, Ld. CJ, Rohini, Delhi as Mark-I (de-exhibited from Ex. PW1/22);
23. Copy of statement of defendant no.1 herein recorded under Order 10 CPC before Ms. Sonam Gupta, Ld. CJ, Rohini Courts, vide suit no.400/2015 filed by elder son of the plaintiff pending in the Court of Ms. Divya Malhotra, Ld. CJ, Rohini, Delhi as as Mark-J (de-exhibited from Ex. PW1/23);
24. Copy of petition under Domestic Violence Act filed by the defendant no.2 as Mark-K (de-exhibited from Ex. PW1/24);
25. Copy of income affidavit filed by defendant no.2 in the complaint filed under Domestic Violence Act is annexed as Ex. PW1/25 (OSR);
26. Copy of application under Section 340 Cr PC filed by the Plaintiff against the defendant no.2 herein in the complaint filed under Domestic Violence Act is annexed as Mark-L (de-exhibited from Ex. PW1/26);
27. Copy of reply to the complaint filed under Domestic Violence Act on behalf of plaintiff is annexed as Mark-M (de-exhibited from Ex. PW1/27).
18. PW-1 was not cross-examined as both Defendants were proceeded ex-parte at the time of recording of her evidence. Thereafter, Ex-Parte PE was closed vide order dated 01.11.2018 and the matter was fixed up for Ex-Parte Final Arguments. It is pertinent to mention that Defendant No.2 appeared before the Court on 01.12.2018 and moved an application under Order 18 Rule 17 CPC for recalling of witnesses filed by Defendant No.2. The afore-mentioned application was allowed by this Court vide order dated 14.02.2019 thereby Defendant No.2 was allowed to examine herself as a Defence Witness. It is important to mention here that it was specifically observed by this Court in order dated 14.02.2019 that as no application under Order IX Rule 7 CPC was moved by Defendant No.2, therefore, Defendant No.2 was only allowed to join the further proceedings subsequent to the day Defendant No.2 was proceeded ex-parte. However, Defendant No.2 failed to lead Defence Evidence despite sufficient opportunities, therefore, her DE was closed by this Court vide order dated 11.12.2019. The matter was Suit No. 59240/16 GAYATRI DEVI v. UPENDER SHARMA @ BULI & ANR. PAGE NO.8/10 then fixed up for final arguments. However, Defendant did not avail the same and the opportunity of Defendant to advance final arguments was also closed.
19. This Court has heard Ld. Counsel for the Plaintiff and has also gone through the evidence on record carefully.
20. The case of Plaintiff is based on the assertion that Defendants are living in the property against the wishes of Plaintiff and they have forcibly occupied the suit property without the permission of Plaintiff and that they are also trying to create third party interest in the suit property. That the Defendants are illegally deprived the Plaintiff of her property.
21. On the other hand, Defendant No.2 has denied the same in her written statement and has averred that Plaintiff has filed the present suit in connivance with Defendant No.1 with malafide intention and ulterior motive in order to throw the Plaintiff out of the suit property. In the whole written statement, Defendant No.2 has only asserted that Plaintiff has no right, title or interest in the suit property in any manner whatsoever as there was no need of selling the afore-mentioned property by the husband of Plaintiff in favour of his wife for meager sale consideration by causing huge loss of stamp duty to the exchequer. However, Defendant No.2 has not produced any document to prove her assertions that Plaintiff is not the absolute owner of the suit property. No other suit or proceedings has been filed by Defendant No.2 to challenge the sale deed of suit property which is Ex. PW1/1 which is executed in favour of Plaintiff by her husband Late Sh. Shankar Lal Sharma.
22. In the present case, Plaintiff has proved the copy of sale deed of suit property in favour of Plaintiff as Ex.PW-1/1. The said sale deed shows that Plaintiff is the owner of suit property. The relation between the parties is not disputed. Hence, by way of unrebuttal evidence, Plaintiff being owner of the suit property is entitled to unrestricted peaceful enjoyment thereof. Therefore, it has to be concluded that Plaintiff has proved to the preponderance of probability that she being the owner of the suit property is entitled for the permanent and mandatory injunction as prayed by her in her prayer clause.
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23. In view of the above discussion, the suit of the Plaintiff is decree with costs and Defendants are directed to remove their articles, belongings etc from the suit property i.e., first and third floor of property bearing No.2662/196, Onkar Nagar, Tri Nagar, Delhi-110035 and to hand over the vacant and peaceful possession of suit property to Plaintiff. The Defendants are also restrained from creating any third party interest or partying with the possession of suit property to a third party.
24. The Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Announced in the open Court (SUSHIL KUMAR)
on day of 31th March, 2022 Additional Senior Civil Judge cum Judge,
Small Causes Court cum Guardian Judge,
North-West District, Rohini, Delhi.
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