Delhi District Court
Sh. Satya Prakash Singh vs Sh. Prem Prakash Singh on 14 March, 2011
1
IN THE COURT OF SH. S. K. SARVARIA, DISTRICT JUDGEVIII
DISTRICT COURTS ROHINI, DELHI
Civil Suit No. 328/2010
In the matter of :
1.Sh. Satya Prakash Singh S/o Late Sh. Magan Singh R/o 22D, DDA Flats, Mansarovar Park, Shahdara, Delhi.
2. Smt. Urmila Singh W/o Sh. Satya Prakash Singh R/o 22D, DDA Flats, Mansarovar Park, Shahdara, Delhi. .... Plaintiffs VERSUS Sh. Prem Prakash Singh S/o Late Sh. Magan Singh R/o LIG Flat No. 68, Pocket5, Sector2, Rohini, Delhi. .... Defendant Date of institution: 20.05.2010 Date when arguments were heard: 28.02.2011 Date of order: 14.03.2011 Satya Prakash vs Prem Prakash Singh 2 Suit for recovery of Possession, mesne profits and injunction : JUDGMENT :
1. This suit for recovery of possession, mesne profits and injunction is filed by the plaintiffs against the defendant. PLAINTIFFS' CASE :
2. The case of the plaintiffs in brief is that late Sh. Magan Singh, father of the plaintiff no.1 and defendant had applied for an LIG Flat with DDA in his own name and also applied for another flat in the name of defendant and the payments towards registration of these two flats were made by Late Sh. Magan Singh. It is alleged that the flat applied in the name of Late Sh. Magan Singh was meant for plaintiff no.1 and his family members and the other flat was for the defendant. The DDA allotted LIG Flat No. 68, Pocket5, Sector2, Rohini, Delhi (in short suit flat) to late Sh. Mangan Singh in the draw held on 26.03.2009 and the same was allotted on hire purchase scheme and 180 installments of Rs.951.65 were required to be deposited. Possession of the flat was received in November 1989.
3. It is the case of the plaintiffs that when the suit flat was Satya Prakash vs Prem Prakash Singh 3 alloted, the plaintiff no.1, defendant and their father late Sh. Magan Singh were residing in property No. 22D, DDA Flats Mansarovar Park, Shahdara which was purchased by the plaintiff no.1. On 25.02.1990, the plaintiff no.1 was married to the plaintiff no.2 and since the flat of Mansarovar Park was a small flat, therefore, the defendant was asked to make arrangement for his own accommodation as he had also started earnings by then. It is alleged that since the defendant requested that he be allowed to live in the suit property and that the installments payable to DDA would be paid by him in consideration for such permissive occupation, the plaintiff no.1 and late Sh. Magan Singh accepted this request of the defendant and allowed him to live in the suit flat as a licencee.
4. It is further alleged that defendant did not pay installments to the DDA and late Sh. Magan Singh made a complaint to PS Mangolpuri, Delhi because the defendant was asked to vacate the suit premises and he had refused to do so and was also maltreating late Sh. Magan Singh. A settlement took place during the course of investigation on the said complaint under which the defendant undertook in writing to pay the installments due to DDA and plaintiff no.1 had agreed to provide help to him in making such payment. The concession to live in the suit property was given to the defendant till the flat is allotted to him by the DDA or he Satya Prakash vs Prem Prakash Singh 4 had made some other alternative arrangement for his residence.
5. According to the plaintiff, since the suit flat was always meant for the plaintiff no.1 and his family members, therefore, to avoid any controversy after his death, late Sh. Magan Singh executed a GPA, Agreement to Sell, Receipt, SPA, Will, Indemity Bond, three affidavits and possession letter all dated 17.04.2000 in favour of plaintiff no.2. The plaintiff no.2 with a view to confer this ownership upon plaintiff no.1 has executed a registered GPA and registered SPA both dated 26.05.2000 and as such the plaintiff no.1 has become the owner of the suit premises. It is submitted that Sh. Magan Singh died on 23.04.2000. The defendant obtained allotment of flat in his name from DDA at Bakarwala, Nangloi and took over its possession in February 2007. Thereafter, the defendant was repeatedly called upon the vacate the suit flat and ultimately a legal notice dated 03.12.2007 was sent to the defendant but instead of vacating the suit flat, the defendant sent a reply dated 20.03.2008.
6. It is the case of the plaintiff that license/permissive occupation of the defendant in the suit premises has already been revoked and the status of the defendant is that of unauthorized occupant, hence he is liable to be evicted from the suit premises. The defendant is also liable to pay and clear all the outstanding installments with interest due to DDA Satya Prakash vs Prem Prakash Singh 5 till the date of handing over vacant possession of the suit premises to the plaintiffs. The defendant is also liable to pay and clear the water and electricity charges due till the date of handing over the vacant and complete possession of the suit premises to the plaintiffs.
7. Hence the suit is filed by the plaintiffs against the defendant praying for decree of possession in favour of plaintiffs thereby directing the defendant to handover vacant and complete possession of the suit flat bearing No. 68, LIG Flat Pocket5, Sector2, Rohini, Delhi. In addition, the plaintiffs have also prayed for decree of mesne profits thereby holding the defendant liable to pay mesne profits @ Rs.5,000/ per month from the date of institution of the suit till delivery of possession of suit premises alongwith interest @ 18% per annum. The plaintiffs have also prayed for decree of mandatory injunction thereby directing the defendant to pay and clear all the monthly installments with interest and to clear all other dues of DDA till the date of delivery of possession of suit flat and have also prayed for decree of permanent injunction restraining the defendant from creating any third party interest in the suit premises and also from parting with its possession to anyone. DEFENDANT'S CASE
8. The defendant has contested the suit and filed written Satya Prakash vs Prem Prakash Singh 6 statement taking preliminary objections with regard to maintainability, cause of action, valuation, nonjoinder of necessary parties and suppression of material facts. It is contended on behalf of defendant that Sh. Magan Singh, father of plaintiff no.1 and defendant had purchased the DDA flat bearing No. 22D, Mansarovar Park, Shahdara in the name of plaintiff. Sh. Magan Singh also applied for the suit flat with the DDA and same was allotted in the year 1989 in the name of Sh. Magan Singh and possession of the suit flat was handed over to Late Sh. Magan Singh in the year 1990. It is further submitted that in the lifetime of Late Sh. Magan Singh, oral family partition took place as a result of which it was settled that the suit flat would go to the defendant and the flat at Mansarovar Park which was purchased by late Sh. Magan Singh in the name of plaintiff no.1 would go to the plaintiff no.1. The said family partition was accepted by both the brothers in the presence of Late Sh. Magan Singh. It is submitted that plaintiff no.1 was running a small transport company and he gave his truck to South Eastern Roadways at his warehouse near UP Border. The plaintiff no.1 had to visit frequently to the said warehouse, hence he accepted the partition and to reside in Mansarovar Park flat as the same is near UP Border.
9. It is further contended on behalf of defendant that document relied upon by the plaintiff shows that consideration amount of Rs.
Satya Prakash vs Prem Prakash Singh 7 60,000/ was paid by plaintiff no.2 to late Sh. Magan Singh. In fact, the true facts are that the said amount was never paid by plaintiff no.2. It is further submitted that present suit is liable to be dismissed as the attorney on the basis of whom the plaintiff no.2 executed further documents in favour of plaintiff no.1 is an unregistered document.
10. On merits, it is denied on behalf of defendant that payment towards registration of two flats was made by late Sh. Magan Singh or that the flat applied in the name of late Sh. Magan Singh was meant for plaintiff no.1 and his family members and other flat was for defendant. Rather it is submitted that the flat situated at Barkkarwala Nangloi, Delhi was applied by defendant from his own sources in his own name. Denying other averments of the plaint, the defendant has prayed for dismissal of suit with exemplary cost.
REPLICATION
11. In their replication, the plaintiffs denied the averments made in the written statement and have reiterated their case as contained in the plaint.
Satya Prakash vs Prem Prakash Singh 8 ISSUES :
12. After completion of the pleadings, the following issues were framed vide order dated 16.09.2010 :
1. Whether suit is not maintainable in view of the preliminary objection no.2 in the WS? OPD
2. Whether the suit is not maintainable, as alleged in preliminary objection no.3 in WS ? OPD
3. Whether the suit is bad by non joinder of DDA ? OPD
4. Whether the suit is valued properly for the purposes of court fees and jurisdiction ? OPP
5. Whether the plaintiff is entitled to decree of possession as prayed for ? OPP
6. Whether the plaintiff is entitled to any mesne profits, if so at what rate, for which period and to what amount ? OPP
7. Whether the plaintiff is entitled to decree of mandatory injunction as prayed ? OPP
8. Whether plaintiff is entitled to decree of permanent injunction as prayed ? OPP
9. Relief.
EVIDENCE
13. In the evidence of the parties, the parties have filed their Satya Prakash vs Prem Prakash Singh 9 respective affidavits in evidence and have examined their respective witnesses. For expeditious disposal of the case, the crossexamination and the statement of witnesses of the parties were got recorded through Ld. Local Commissioner by invoking Order 18 rule 4 CPC.
14. In support of their case, the plaintiffs have examined two witnesses. Plaintiff no.1 Satya Prakash has examined himself as PW1 and filed his affidavit in evidence as Ex. PW1/A. He proved the allotment letter in respect of suit property as Ex. PW1/1, copy of possession letter dated 26.10.1989 is Ex. PW1/2, possession slip is Ex. PW1/3, No objection certificate for water and electricity connection is Ex. PW1/4, copy of compromise/settlement between the defendant and late Sh. Magan Singh before the IO PS Mangolpuri is Ex. PW1/5, original GPA, Agreement to Sell, receipt, SPA, Will, Indemnity Bond, three affidavits and possession letter are from Ex. PW1/6 to PW1/15 respectively, original registered GPA and SPA are Ex. PW1/16 and PW1/17, copy of legal notice dated 03.12.2007 is Ex. PW1/18 and its reply is Ex. PW1/19, a document regarding comparison of signatures of Sh. Magan Singh is Ex. PW1/20.
PW2 is Smt. Urmila Singh, plaintiff no.2 herself who also filed her affidavit in evidence and has also proved the same documents as is done by PW1.
Satya Prakash vs Prem Prakash Singh 10
15. On the other hand, the defendant has examined four witnesses in the witness box. He examined himself as DW1 and filed his affidavit in evidence. He proved the receipts of installments paid by him to the DDA which are collectively Ex. DW1/1.
DW2 is Sh. Virender Singh Rana, brother in law of the defendant. He deposed on the lines of the stand taken by the defendant in his written statement and affidavit.
DW3 is Ms. Vijay Kumari, elder sister of the defendant. She also deposed on the lines of the stand taken by the defendant in his written statement and affidavit.
DW4 is Sh. Manoj Kumar, LDC in DDA Branch, LAB (Housing). He brought the summoned record i.e. challan register to prove that challan payment in respect of suit property according to which payment has been deposited by Sh. Prem Prakash. He proved the copies of challan from Ex. DW4/1 to DW4/9. He further deposed that the suit property was allotted to Late Sh. Magan Singh and initial payment was deposited by late Sh. Magan Singh copy of which is Ex. DW4/10. After crossexamination, defendant closed his evidence.
Satya Prakash vs Prem Prakash Singh 11 ARGUMENTS AND FINDINGS
16. I have gone through the written arguments filed by the parties, record of the case and relevant provisions of law. No authority is cited by either of the parties.
ISSUE NO.1 :
17. The defendant had taken the preliminary objection no.2 in the WS that present suit is liable to be dismissed as attorney on the basis of which the plaintiff no.2 had executed further documents in favour of plaintiff no.1 is an unregistered document. It is contended that according to Indian Registration Act, unregistered power of attorney holder cannot present sale document for registration before Subregistrar.
18. As per Section 33 of Registration Act, the power of attorney recognizable for the purposes of Sec. 32 for presentation of documents before SubRegistrar for registration must be a registered power of attorney. It is pertinent to note that in embargo for presentation of document for sale before SubRegistrar for registration on a person presenting these documents on the basis of unregistered Power of Attorney apply only when the documents are to be produced before Sub registrar for their registration. This bar under the Indian Registration Act Satya Prakash vs Prem Prakash Singh 12 does not apply to the filing of the suit based on execution of Power of Attorney by one of the plaintiffs. The plaintiffs are not seeking the registration of documents before this court this exercise can only be performed by the SubRegistrar concerned, therefore, the objection of defendant on the ground of unregistered Power of Attorney executed by plaintiff no.2 in favour of plaintiff no.1 cannot be a ground for dismissal of the suit, more so when both plaintiffs have jointly filed the present suit.
In view of the above, Issue no.1 is decided in favour of the plaintiffs and against the defendants.
ISSUE NO.2 :
19. According to preliminary objection no.3 taken by the defendant in the written statement, late Sh. Magan Singh had already partitioned the entire properties possessed by him in his life time. In the said partition, the suit flat fell to the share of defendant, so this suit is not maintainable.
20. As argued on behalf of plaintiffs, I am also of the view that a partition oral or documentary in respect of immovable properties is possible only when the properties in question are joint family properties or more than one person are its coowners. In the context of the present Satya Prakash vs Prem Prakash Singh 13 suit, the partition of the properties of late Sh. Magan Singh would have been possible only when late Sh. Magan Singh and plaintiff no.1 being his son and defendant being his son were the coowners of the immovable properties including the suit property. The inherent defect in this plea taken by the defendant is that there is no documentary evidence filed and proved on record to show that the suit flat and the property in possession of the plaintiffs at Mansarovar Park were coowned by plaintiff no.1, defendant and late Sh. Magan Singh. The facts and circumstances of the case clearly show that suit flat was owned by late Sh. Magan Singh. Further there is no evidence on record that suit flat is part of the joint family property in which late Sh. Magan Singh, plaintiff no.1 Sh. Satya Prakash and Sh. Prem Prakash were coparceners. Therefore, it cannot be held that plaintiffs have no cause of action on the ground taken by the defendant in the WS that there was a partition of properties of late Sh. Magan Singh and suit flat fell to the share of defendant. The issue no.2 is, therefore, decided in favour of the plaintiffs and against the defendant. ISSUE NO.3 :
21. According to the defendant, as per preliminary objection no. 8 in the written statement, DDA is a necessary party as property is still vested in DDA, so suit is bad for non joinder of DDA as a party in it.
Satya Prakash vs Prem Prakash Singh 14
22. During the pleadings, it is not disputed that late Sh. Magan Singh was allottee and owner of the suit flat. No relief is claimed by the plaintiffs against the DDA. Therefore, had the DDA been made a party, it would have been a proforma party with no interest in fate of litigation between the plaintiffs and defendant. The DDA being not a necessary party, the suit in my view, is not bad for non joinder of DDA as a party in the present suit. This issue is also decided in favour of plaintiffs and against the defendant.
ISSUE NO.4 :
23. The plaintiffs in para 13 of the plaint has valued the suit for the relief of possession in the sum of Rs.5.00 lacs for the purposes of court fees and jurisdiction and for the purposes of relief of injunction it is valued for Rs.130/. For the purposes of reliefs of injunction and possession, the valuation looks to be proper. The total court fees paid by the plaintiffs is Rs.7,294/, therefore, the suit cannot be said to be bad for the purposes of court fees and jurisdiction. So, this issue is accordingly, decided in favuor of plaintiffs and against the defendant. ISSUE NOs. 5 AND 6 :
24. Both these issues are inter connected so are being dealt with together.
Satya Prakash vs Prem Prakash Singh 15
25. It is not disputed that plaintiff no.1 and defendant are the real brothers and sons of late Sh. Magan Singh. It is also not disputed that earlier late Sh. Magan Singh alongwith plaintiff no.1 and defendant was living in another property at Mansarovar Park, Shahdara, Delhi but on account of marriage of plaintiff no.1, there was scarcity of accommodation, so when the suit flat in question was allotted to late Sh. Magan Singh, the defendant was put in possession of the same in 1989.
26. In the backdrop of the above admitted portion, the case of the plaintiffs is that late Sh. Magan Singh before his death executed the documents, Special Power of Attorney, Agreement to sell, Will, Indemnity bond, Affidavits/undertakings regarding sale of the suit flat to plaintiff no.2, possession letter and by virtue of these documents, according to the plaintiffs, the plaintiff no.2 has become the owner of the suit flat. She subsequently executed a Power of Attorney in favour of plaintiff no.1, her husband and also a Special Power Of Attorney in his favour which are Ex. PW1/16 and PW1/17. Thereafter, the plaintiff no.1 got issued a legal notice dt. 03.12.2007 against the defendant calling upon the defendant to hand over the possession of the suit flat to the plaintiff no.1 also specifying in the notice that further occupation of the suit flat would entail damages/mesne profits by the defendant at the market rate of Rs.5000/ per month. The defendant in reply Ex. PW1/19 to the said Satya Prakash vs Prem Prakash Singh 16 notice has denied the claim of plaintiff no.1 with regard to suit flat.
27. The documents relied upon by the plaintiffs with regard to sale of suit flat by late Sh. Magan Singh to plaintiff no.2 need to be appreciated properly to ascertain whether these documents create any right, title or interest of plaintiff no.2 in the suit flat. The defendant has disputed that these documents were executed by late Sh. Magan Singh. Besides this, there is admission in the crossexamination of plaintiff no.1 dated 18.10.2010 recorded before Ld. Local Commissioner that the documents were written on the date when stamp papers were purchased. The stamp of the stamp vendor overleaf of these documents show that these documents were purchased from the stamp vendor on 29.02.2000 while these are shown to be executed on 17.04.2000. Therefore, these were not executed on the same day when these were purchased by late Sh. Magan Singh. This raises a question mark on the authenticity on these documents more so, when these documents were executed on 17.04.2000 and Sh. Magan Singh expired soon thereafter on 23.04.2000.
28. Assuming these documents were executed by late Sh. Magan Singh in favour of plaintiff no.2, the question still is, as referred before, whether these create any kind of valuable right in favour of plaintiff no. 2 ?
Satya Prakash vs Prem Prakash Singh 17
29. The documents agreement to sell Ex. PW1/7, General Power of Attorney Ex. PW1/6, Special Power of Attorney Ex. PW1/9, Will Ex. PW1/10, affidavits Ex. PW1/13 and Ex. PW1/14, affidavit/undertaking Ex. PW1/12, possession letter Ex. PW1/15, indemnity bond Ex. PW1/11, receipt Ex. PW1/8 executed by late Sh. Magan Singh are short of execution of registered sale deed with regard to suit flat by late Sh. Magan Singh in favour of plaintiff no.2 and can show part performance of the contract and create a valuable right u/Sec. 53 A of the Transfer of Property Act provided the possession of suit flat was also delivered by late Sh. Magan Singh to the plaintiff no.2 at the time of execution of these documents. Only in such a case, the plaintiff no.2 would have been able to claim any right on the basis of part performance of contract with late Sh. Magan Singh to retain possession or obtain relief of injunction against late Sh. Magan Singh from dispossessing from the suit flat and after his death against his legal heirs. But since, admittedly, the possession of suit flat since 1989 continuously is with the defendant, late Sh. Magan Singh, who was living with the plaintiffs at Mansarovar Park, Shashdara Delhi was not having its physical possession, so he was unable to deliver the possession of suit flat to the plaintiff no.2 as on the date of execution these documents. Hence, no valuable right u/Sec. 53 A of Transfer of Property Act 1882, arises in favour of plaintiff no.2 out of these documents in respect of suit flat, notwithstanding the fact that sale Satya Prakash vs Prem Prakash Singh 18 consideration of Rs.60,000/ is alleged to have been paid by plaintiff no.2 to late Sh. Magan Singh which is also disputed by defendant, hence for want of delivery of possession of suit flat by late Sh. Magan Singh to the plaintiff no.2, these documents relied upon by the plaintiffs do not create any right, title or interest in the suit flat to dispossess the defendant from the suit flat.
30. There is one more important document the Will Ex. PW1/10 alleged to be executed by late Sh. Magan Singh and an affidavit Ex. PW1/13 of late Sh. Magan Singh stating that he had executed a Will. The will executed by the testator takes effect after his death. In this Will, late Sh. Magan Singh has alleged that he was owner in possession of the suit flat and has bequeathed the same in favour of the plaintiff no.2. This document in itself is of such a vital importance that it can confer the title of the suit flat upon plaintiff no.2 as admittedly, Sh. Magan Singh after execution of this Will had died on 23.04.2000, but the execution of this Will is disputed by the defendant.
31. There is a specific mode by which a Will can be proved. A will is not required by law to be registered. Section 63, Indian Succession Act, merely requires that will should be attested by two or more witnesses, each of whom has either seen the testator sign, or affix his Satya Prakash vs Prem Prakash Singh 19 mark to the Will, or has received a personal acknowledgment of his signature from the testator, and each of the witnesses should sign the will in presence of the testator; no matter when, but before the will had come into operation.
32. As per Section 68 of the Indian Evidence Act, a document required to be attested cannot be used as evidence until one of the attesting witnesses has been called for the purpose of proving its execution. In deciding how a will is to be proved, the court is required to refer to the provisions of Sec. 67 and 68 of the Indian Evidence Act. These prescribe the requirements and nature of proof which must be satisfied. A will has to be proved like any other document except as to special requirement of attestation prescribed by Sec. 63 of Indian Succession Act. The execution of the Will can be proved in the proceedings for grant of probate by the competent court.
33. The requirements of Section 67 and 68 of Indian Evidence Act are mandatory which is clear from the proviso to Section 68 of the said Act which shows that all other documents may be proved without calling any attesting witness in proof of execution of any document if its execution is admitted by the person who has executed these documents. But this concession given to the other documents is not available to the Satya Prakash vs Prem Prakash Singh 20 Will for the simple reason that the will becomes valuable and proof of its execution is generally required after the death of the testator, so there is no question of admitting the execution of the Will by the testator of the Will.
34. In the backdrop of the above legal position emerging from Sections 67 and 68 of the Indian Evidence Act, the Will of late Sh. Magan Singh though, exhibited on record as Ex. PW1/10 though is witnessed by two persons, the name of witness no.1 is not legible and witness no.2 is Indra Devi. None of these witnesses have been produced on behalf of plaintiffs to prove the execution of the Will, so no benefit can be derived by the plaintiffs out of the document Ex. PW1/10 the will alleged to be executed by late Sh. Magan Singh in favour of plaintiff no.2 with regard to suit flat.
35. The basic position with regard to document of purchase and alleged Will relied upon by the plaintiffs claiming that these were executed by late Sh. Magan Singh in favour of the plaintiff no.2 show inherent defect in these documents. In these documents, late Sh. Magan Singh has claimed to be in possession of suit flat while as per admitted case of the parties, he was not in possession of the suit flat and it was the defendant who is in possession of the suit flat since 1989.
Satya Prakash vs Prem Prakash Singh 21
36. In view of the above, the title of the suit flat does not pass from late Sh. Magan Singh to plaintiff no.2 on the basis of documents Special Power of Attorney, Agreement to sell, Will, Indemnity bond, Affidavits/undertakings, possession letter regarding sale of the suit flat to plaintiff no.2. When the plaintiff no.2 herself is not entitled to any right, title or interest in the suit property her executing a general power of attorney Ex. PW1/16 and Special Power of Attorney Ex. PW1/17 in favour of plaintiff no.1 has got no meaning and does not create any right in favour of plaintiff no.1. After the death of late Sh. Magan Singh all his legal heirs would be entitled to a share in the suit flat as the suit flat was allotteed/owned by late Sh. Magan Singh. Therefore, the plaintiffs are not entitled to decree of possession of suit flat as prayed by them. For the same reasons, the plaintiffs are also not entitled to any mesne profits for use and occupation of the suit flat by the defendant.
In view of the above discussion, both the Issue nos. 5 and 6 are decided against the plaintiffs and in favour of defendant. ISSUE NO. 7 :
37. The plaintiffs have claimed relief of mandatory injunction against the defendant to pay and clear all the monthly installments with interest and to clear all the dues with DDA till the possession of the suit Satya Prakash vs Prem Prakash Singh 22 flat is delivered to the plaintiffs. When the plaintiffs are not entitled to decree of possession in the light of my above discussions on Issue nos.5 and 6, they obviously are not entitled to any decree of mandatory injunction with regard to suit flat. Much reliance is placed upon a compromise between the plaintiff no.1 and defendant and late Sh. Magan Singh, copy of which is proved as Ex. DW1/P4. In this compromise, it is stated that both the brothers (plaintiff no.1 and defendant) would arrange for installments of suit flat and the ground rent as the pension of late Sh. Magan Singh was on lower side. Therefore, the defendant alone was not liable to exclusively make the payments of installments and ground rent to the DDA. Hence, decree of mandatory injunction as prayed cannot be granted to the plaintiffs. This issue is decided in favour of defendant and against the plaintiffs.
ISSUE NO. 8 :
38. The plaintiffs have sought the decree of permanent injunction in favour of the plaintiffs and against the defendant restraining him in any manner to create any third party interest in the suit flat and also parting with its possession to anyone else. This relief is hit by Section 41 (h) of Specific Relief Act as efficacious remedy is available to plaintiff no.1 against the defendant and other legal heirs of late Sh. Magan Singh for filing a suit for partition simultaneously claiming relief Satya Prakash vs Prem Prakash Singh 23 of permanent injunction as prayed in the present suit regarding suit flat. In the facts and circumstances of the case, the plaintiffs when are not entitled to decree of possession, Mandatory injunction and mesne profits the relief of injunction being a discretion relief cannot be granted to the plaintiffs in the present case. The appropriate legal remedy available to the plaintiff no.1, in my view, to file a suit for partition with regard to suit flat by impleading all the legal heirs of late Sh. Magan Singh, of course after clearance of all dues etc. of DDA regarding suit flat by legal heirs of deceased Magan Singh. This issue is, therefore, decided in favour of the defendant and against the plaintiffs.
RELIEF :
39. In the light of my findings on the above issues, the suit of the plaintiffs is dismissed. Keeping in view peculiar facts and circumstance of the case, the parties are left to bear their own costs of the suit. The decree sheet be prepared accordingly. The judgment be sent to the server (www.delhidistrictcourts.nic.in). File be consigned to record room. Announced in the open court on 14th day of March, 2011 (S. K. SARVARIA) District Judge VIII Rohini Courts, Delhi Satya Prakash vs Prem Prakash Singh