Delhi District Court
Dr. Swami Shayam Sunder Dassji Shastri vs Sh. Rishi Ram on 31 July, 2013
IN THE COURT OF MS. SHAMA GUPTA: CIVIL JUDGE :
TIS HAZARI COURTS : DELHI
Suit No. 872/11
1. Dr. Swami Shayam Sunder Dassji Shastri,
Chela Mahant Nirbhaynand, Sanchalak,
R/o Garibdasi Dharamshala,
Mayapur (Haridwar).
2. Swami Bhagat Ram Avdhoot,
Chela Swami Brahm Sagar Bhooriwale,
Sanchalak, Prabandhak Trust Gharibdasi Acharya Peeth
(Sat Guru Sant Mandir) Chhudani Dham.
Kothi Swami Dayal Dass,
District Rohtak
.......... Plaintiffs
VERSUS
1. Sh. Rishi Ram
Chela Mahant Sadhu Ram,
R/o C4/360, Yamuna Vihar,
Delhi.
2. M/s. Kharbanda Paper Private Ltd.
2435, Naiwara,
Chowk Bar Shahbulla,
Chawri Bazar, Delhi110006.
Another Address for service:
H. No. 257071, Naiwara,
Chowk Bar Shahbulla,
Chawri Bazar, Delhi110006.
.........Defendants
SUIT FOR INJUNCTION
Date of institution : 30.10.1984
Date for reserving for orders : 30.07.2013
Date of decision : 31.07.2013
Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 1/27
J U D G M E N T
1. Vide this judgment, I shall dispose off the present suit filed by the plaintiffs against the defendants seeking mandatory injunction thereby directing the defendants to restore the property bearing Municipal No. 2433 to 2435 situated at Naiwara, Chowk Bar Shahbulla, Chawri Bazar, Delhi110006 (herein after wards referred as suit property) in its original condition as a four storeyed building and defendant no. 1 be also directed to restore the articles, as per list attached in the two parchatties as they were originally kept.
2. Briefly stated the facts as averred by the plaintiffs in the plaint which are necessary for the disposal of the present suit are that the suit property was earlier a four storeyed building consisting of ground, first, second and third floor and the entire ground floor bears municipal no. 2433 and 2434 and is in occupation and use of Sh. Bishan Sarup Gheewala on rent. It is further stated that the staircase leading from the ground floor to upper floor bears Municipal no. 2435 which is under the tenancy of Sh. Kishan Kagzi. On the second floor there were two small rooms and one big hall and in one of the small room, Mahant Sadhu Ramji used to live, the other small room was being used as a "Guru Gaddi" and in the corner of the big hall, there were two "Moortees" one of "Maa Bhagwati Devi" and other of "Acharaya Garib Dass Ji", founder of the "Garib Dassi Sampradae" and the remaining portion of the hall was being used as a satsang hall for religious discourses including Vani (Granth Saheb) of Acharya Garib Dassji. It is further pleaded that on the third floor (i.e. fourth storey) there were two rooms and one kitchen Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 2/27 which were being used for accommodating Mahatmas and other Sadhus and Sewaks visiting the place and the kitchen was used for preparing meals for Mahant Sadhu Ramji, Sewaks and other visitors.
3. It is further pleaded that the suit property is being managed by a Mahant who is so appointed by the earlier Mahant. In this process Mahant Sadhu Ramji was appointed as a Mahant by his Guru Mahant Swantantra Dev vide Will dated 01.07.1933 and he started managing the property. The second and third floor have all along been used as "Gaddi", residence of Mahant, Satsang Bhawan, for preparing meals and for accommodating other Mahants, Sadhus and Sewaks for the last more than 100 years. Mahant Sadhu Ramji had been so managing the suit property since 1932.
4. It is further averred that though Mahant Sadhu Ramji wanted to create a Trust for the management of the suit property and maintaining the Parampara regarding the use and religious teaching, but the defendant no.1 persuaded Mahant Sadhu Ramji and obtained a Will on 22.04.1952. It is further pleaded that Mahant Sadhu Ramji was not happy with the same and he persuaded his idea of forming a trust and various trusts deeds were executed but could not be registered due to the persuasions and influences of defendant no. 1 and in these circumstances, Mahant Sadhu Ramji executed a deed dated 24.08.1983 and appointed the plaintiffs to look after the interest of the suit property and to see that defendant no. 1 does not act contrary to his wishes. It is further pleaded that Mahant Sadhu Ramji died at Delhi on 02.11.1983 in the suit property.
Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 3/27
5. It is further pleaded that since 02.11.1983, defendant no. 1 started managing the property and continued to follow the use of the suit property as before and performed the acts and deeds as before for about eight months, but thereafter, defendant no. 1 in collusion and connivance with the defendant no. 2 left the property in suit and shifted to C4/360, Yamuna Vihar, Delhi and is residing there.
6. It is further stated that the defendants in collusion and connivance with each other, demolished the previous construction of the second and third floor, reconstructed these two floors and converted them into 4 floors without obtaining prior permission from the Municipal Authorities and the property is now a six storeyed building. It is further averred that at the site, even the Moorties (Idols) have been removed and temple housing those Moorties have been demolished and even there is no sign which could show that there was ever any temple or Gaddi, thus the defendants are bound to restore the property in which it was before and the temple and Satsang Bhawan etc. are to be reconstructed and restored in the original position.
7. It is further averred that the construction now existing at site is meant for commercial use and thus defendants are liable to restore it in the same position as it was before. It is averred that the defendant no. 1 had acted against the wishes and instructions of his Guru Mahant Sadhu Ramji by leaving the suit property, by demolishing the aforesaid old nature of construction and temple and removal of Moorties installed in the Satsang hall and Guru Gaddi, by discontinuing the acts for Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 4/27 furtherance of the principles and parampara of Garibdasi Sampradae. It is further stated that the defendant no. 1 had removed and misappropriated the articles, as per list attached, which were stored in the two parchhatties in aforesaid two rooms on the second floor, thus defendant no. 1 is liable to restore the same and to place them in the original old parchhatties for use as before.
8. It is further averred that the aforesaid construction is not only contrary to the wishes and directions as mentioned in the Wills dated 01.07.1933 and 22.04.1952, but also contrary to the Municipal bye laws against which Municipal Corporation of Delhi can take the action and demolish the same and thus by virtue of deed dated 24.08.1983, the plaintiffs averred to have a right to pray for the grant of the relief prayed for and to get the property in question restored in the same original position for the earlier use.
9. The defendants contested the suit by filing joint written statement (here in after wards referred as W.S) and there are certain admissions in the W.S, the defendant no. 1 and 2 had admitted that the suit property bearing no. 24332435 is situated at Naiwara, Bar Shah Bulla, Chawri Bazar, Delhi and that the ground floor bearing no. 2433 and 2434 is under the tenancy of Sh. Bishen Sarup Gheewale and first floor bearing no. 2435 is in the tenancy of Sh. Prem Kishan Kagzi, which consisted of one big room, one small room and the toilet, but it is averred that on the second floor, there has been one big room and one small room and toilet and on the third floor and fourth floor, there has been one hall, one store and on the fifth floor, there has been a hall, kitchen, toilet and Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 5/27 open terrace. It is further averred that on the second floor, Sadhu Ram Ji, Mahant Guruji of Garibdass Panth was residing but he had denied that any moorties were there and he had also denied any religious discourses being held on the same and he had stated that no Sadhus, Mahants and Sewaks used to reside in any portion of the said building who were preparing meals for them in the kitchen and in reply to the para no. 2, defendants have admitted that Mahant Sadhu Ramji has been appointed by his Guru Swatantra Dev .
10. It was stated that second floor and all the upper floors have been used as residence of Mahant only and Mahant Sadhu Ramji and Guruji has been residing at the said portion of the property. Defendants had denied the existence, legality and validity of the Will dated 01.07.1933 and further denied that Sadhu Ramji wanted to create any trust and stated that Sadhu Ramji was Guru of Rishi Ram and executed the Will dated 22.04.1952 in favour of his chela Rishi Ram. Defendant no.1 has denied that his guru was not happy with Rishi Ram and it is stated that Sadhu Ramji has no power and authority to create any trust and thus he had denied execution of any trust deed. Defendants had further denied deed dated 24.08.1983 on the ground that it is absolutely without any legal authority and stamp duty.
11. It was admitted by the defendant no.1 that he has been dealing with the tenants and realizing the rent as owner by virtue of Will dated 30.07.1983. He had also admitted that he had shifted to C4/360, Yamuna Vihar, Delhi, but denied that the defendants in collusion and in connivance with each other demolished the previous constructions of Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 6/27 second and third floor and converted two floors into four floors. He has stated that all the construction are the old construction.
12. It is averred that defendant no. 1 has only carrying out the necessary repairs and renovations for which no permission of M.C.D. was required. It is further stated that the defendant no. 2 has provided wooden panelling and wooden partitions for which no permission of M.C.D. was necessary and it is averred that entire property was and is six storey building and he has denied that there is any temple in the premises and he had also denied the entitlement of the plaintiffs to claim the injunction as prayed for.
13. It was further stated that defendant no. 2 had taken premises for running his business which is being run there from July 1984. It was further stated that there was no such thing as Guru Gaddi in the premises and therefore, alleged restoration is absolutely false and fictitious. Defendant no. 1 has stated that he has not acted against the wishes and instructions of his Guru Sadhu Ramji. It is further pleaded that since articles mentioned in the list filed by the plaintiffs was not stored in the portion of the suit premises, therefore, the question of restoration of the same by defendant no.1 does not arise and he had denied the locus standi of plaintiffs to file the present suit.
14. Defendant no.2 had denied cause of action in favour of the plaintiffs to file the present suit as well as stated that suit is not properly valued for the purpose of court fee and jurisdiction. It is stated that value of the articles mentioned in the list was more than 75,000/ at the Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 7/27 time of filing of the suit, therefore, the plaintiffs have to pay court fee on the same. The defendant no. 2 had taken certain additional pleas averring that he is tenant under the defendant no. 1 since July 1984 in respect of second, third and fourth floor of the property @ Rs. 500/ per month which is paid to defendant no. 1.
15. Defendant no.2 had admitted that he had done certain renovation and had put certain wooden partitions in connection with its business and it is stated that at the time of taking premises on rent, he had ascertained the ownership of the defendant no.1 from the Municipal records and it is further stated that the alleged construction was in existence before defendant no. 2 occupied the premises as tenant and it is further averred that since defendant no. 2 is bonafide occupant of premises for value and without notice, therefore the tenancy of the defendant no.2 cannot in any way be affected by virtue of present suit.
16. It is further averred that the plaintiffs are neither in possession of suit property nor having any right, therefore present suit is barred under section 34 and U/s 41(h) of Specific Relief Act.
17. Replication to the written statement was filed by the plaintiffs denying the averment made by the defendants in their W.S and reiterating the averments of the plaint.
18. On completion of pleadings of the parties following issues were framed on 22.01.1990:
Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 8/27
1. Whether Mahant Sadhu Ramji appointed plaintiffs to look after the suit property by execution of deed dated 24.08.1983? OPP
2. Whether the defendants demolished the second and third floors and converted three floors into four floors illegally and unauthorizedly? OPP
3. Whether the defendants have removed and misappropriated the articles mentioned with list attached with plaint and are liable to restore these articles by way of this suit? OPP
4. Whether Sadhu Ramji bequeathed the suit property to defendant no. 1 by Will dated 22.04.1952 and 30.07.1983 as alleged in W.S? OPD
5. Whether Mahant Sadhu Ramji was not competent to execute any such deed dated 24.08.1983 as alleged by plaintiff by force of custom and deed dated 24.08.1983 is illegal? OPD
6. Whether the suit property devolved upon defendant no.1 from Mahant Sadhu Ramji as per customs of Garib Dass sect?OPD
7. Whether the suit has been valued properly for the purpose of court fee and jurisdiction, if not what should be the valuation? Onus on parties.
8. Whether the defendant no. 2 is tenant in the suit property bonafidely and without notice of the dispute between the parties and if so what should be its effect upon the relief of prayed for? OPD no. 2
9. Whether the suit is barred by Section 34 and 41(h) of Specific Relief Act? OPD
19. After framing of issues, plaintiffs and defendant no.1 had compromised the matter by moving joint application under order XXIII Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 9/27 Rule 1 r/w section 151 CPC and said compromise was accepted by the court on 09.03.1994.
20. In support of his case, plaintiffs had examined six witnesses, plaintiff no.1 had examined himself on oath and he had relied on the document Ex. PW1/A i. e Will executed by Swami Swatantra Dev in favour of Swami Sadhu Ramji in 1933, but same is in Urdu and translated copy of same is not placed on record. The plaintiff no.2 was examined as PW2 and his examination in chief by way of affidavit is Ex. P2.
21. The plaintiffs had further examined Sh. Ashok Kumar as PW3 and his examination in chief by way of affidavit is Ex. P3 and he had placed reliance on Deed dated 24.08.1983 and deposed that he had signed the same as witness, but exhibit mark was not put on said document, however, the same is on record as Ankush Patra, therefore same can be read in evidence. Swami Ram Devanand Pathi was examined as PW5 and his examination in chief by way of affidavit is Ex. P5. Smt. Shanno Devi was examined as PW6 and his examination in chief by way of affidavit is Ex. P6.
22. The plaintiffs had further examined Sh. Kuldeep Kumar, UDC, M.C.D. as PW7. All the witnesses of plaintiffs were duly cross examined by the defendant no.2.
23. In defence, the defendant no.2 had examined Sh. Shashikant Kharbanda as DW1 and his examination in chief by way of affidavit is Ex. D1 and he had placed reliance on following documents:
Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 10/27 Ex. DW1/1 : Copy of demand and collecting register of MCD. Ex. DW1/2 : Receipt from the MCD department in the name of Mahant Rishi Ram.
Ex. DW1/2A : Mutation of property bearing no. 24332435/Ward
no. I, Delhi in name of Mahant Rishi Ram
Ex. DW1/3 to
Ex. DW1/7 : Rent receipts
24. After conclusion of evidence, arguments were addressed by Ld. Counsel for the plaintiffs, but defendant no.2 had failed to appear to address arguments on behalf of defendant no.2, therefore on the basis of the records of the case, issue wise findings of this court are as follows: ISSUE No. 1 Whether Mahant Sadhu Ramji appointed plaintiffs to look after the suit property by execution of deed dated 24.08.1983? OPP
25. The onus of proving this issue is on the plaintiffs, as the plaintiffs had averred in the plaint that Mahant Sadhu Ramji had appointed plaintiffs to look after the suit property by execution of deed dated 24.08.1983.
26. In the present case, the defendant no. 1 is also claiming right in the suit property on the basis of two Wills allegedly executed by Mahant Sadhu Ramji in his favour, thus there was no challenge in the present suit right of Mahant Sadhu Ramji to create right in favour of any person in respect of the suit property and the plaintiffs are only required to Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 11/27 prove due execution of deed dated 24.08.1983 by Mahant Sadhu Ramji in their favour, as the same was denied by both the defendants.
27. Further, it is worthwhile to mention here that the defendant no. 2 has right in respect of the suit property only as a tenant, deriving the said right from defendant no. 1 and thus right of defendant no. 2 is dependent on the right of defendant no. 1 and since it is settled principle of law that no one can give better right than he himself has, thus defendant no.2 has no better right than the right of defendant no.1 in respect of the suit property and his defence cannot be more than the defence of the defendant no.1.
28. In the present case, the plaintiffs had averred that subsequent to the execution of the Will in favour of the defendant no. 1, Mahant Sadhu Ramji had executed the deed dated 24.08.1983, thereby appointing plaintiffs to look after the suit property if the defendant no.1 acted contrary to the wishes and instructions of Mahant Sadhu Ram Ji.
Further, it is averred that acts which are basis of the present suit are contrary to the wishes and instructions of Mahant Sadhu Ramji as stated by him in Will dated 22.04.1952, thus on the basis of deed dated 24.08.1983, the plaintiffs got right to manage the suit property.
29. The defendants had challenged the deed dated 24.08.1983 averring that the said document was without any legal authority and power and is illegal and void, the defendants had also averred that the said document was inadmissible in evidence for want of stamp duty and registration. Defendants had further denied the factum and validity of Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 12/27 deed dated 24.08.1983 averring that same was not executed by free Will and volition of Mahant Sadhu Ramji and his signatures are not genuine, as on that date, he was about hundred years old and his hands used to shake while signing.
30. The defendant no. 1 had further relied on subsequent Will dated 30.07.1983 by virtue of which he is claiming to be owner of suit property.
31. In present case, though the defendant no.1 had denied due execution of deed dated 24.08.1983, but he is himself relying on Will dated 30.07.1983 i.e executed one month prior to the alleged execution of deed dated 24.08.1983, thus the contention of defendants that Sadhu Ram Ji was not in sound deposing mind and that his hands used to shake while signing is not tenable particularly in absence of any medical report to this effect.
32. In the present case, the deed dated 24.08.1983 was relied by PW3 in his examination in chief by way of affidavit (Ex. P3) but the marking on deed dated 24.08.1983 ( Ankush Patra) was not done, but as the same is identifiable, therefore, same can be relied in evidence.
33. PW3 had deposed that he had signed the deed dated 24.08.1983 as a witness and it was relied by him in his affidavit(Ex. P3) as Ex. PW3/1 and PW3 duly withstood rigours of cross examination so as to prove due execution of deed dated 24.08.1983. Thus the plaintiffs by testimony of PW3 who is one of the witness to the said deed had proved execution of Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 13/27 deed dated 24.08.1983.
34. Further, in present case, the defendant no. 1 and plaintiffs had filed joint application U/o XXIII Rule 1 CPC on 08.03.1994 duly signed by plaintiff no.2 as well as defendant no. 1, plaintiff no.2's signatures was at point A and defendant no. 1's signature at point B and application U/o XXIII was marked as Ex. C1 on 09.03.1994.
35. In para 4 of Ex. C1, defendant no. 1 had admitted the execution of deed dated 24.08.1983 and it is admitted by the defendant no.1 that because of violation of written terms of Will dated 20.04.1952 which was registered on 22.04.1952, he had lost his rights mentioned in the Will. It is further admitted by the defendant no.1 that the present suit has been rightly filed by the plaintiffs and he also stated that he had signed the Ex C1 without any force and he is bound by the terms mentioned in same. The compromise(Ex. C1) was admitted by the court vide order dated 09.03.1994 and statement of attorney of plaintiff no. 1, who is the plaintiff no. 2 and defendant No.1 was recorded on the same date i.e on 09.03.1994, thus, suit stands satisfied as against defendant no. 1.
36. After recording of settlement, an application was moved on 11.08.1994 for withdrawal of compromise by a person namely Shishpal claiming himself as attorney of defendant no. 1, but on 25.01.1995, defendant no. 1 himself appeared and deposed on oath that he had not authorized Shishpal to file the said application and thus the application for withdrawal of compromise was dismissed on 25.01.1995 and there Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 14/27 was no challenge to compromise Ex. C1 till date and thus compromise had attained finality. Thus the deed dated 24.08.1983 whereby Mahant Sadhu Ramji had given right to the plaintiffs to look after the suit property, in case defendant no.1 had violated the terms and conditions of same stands duly proved to be executed by Mahant Sadhu Ramji qua defendant no.1 in view of his admission in Ex. C1, as admitted facts need not be proved.
This issue is accordingly decided in favour of the plaintiffs.
ISSUE No. 2Whether the defendants demolished the second and third floors and converted three floors into four floors illegally and unauthorizedly? OPP
37. The onus of proving this issue was on the plaintiffs, as the plaintiffs had averred in the plaint that the suit property originally consisted of three floors but the defendants had demolished the second and third floor and converted two floors into four floors illegally and unauthorizedly, and it is averred that now suit property is six storeyed building.
38. According to the averments of the plaint, the suit property was earlier four storeyed building and it was so mentioned in deed dated 24.08.1983 consisting of ground, first, second and third floor.
39. It is further averred in the plaint that after about eight months from the date of death of Mahant Sadhu Ramji (02.11.1983), defendant no. 1 Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 15/27 in collusion and connivance with defendant no. 2 demolished previous construction of second and third floor and reconstructed second and third floor and converted them into four floors and now suit property is a six storeyed building.
40. In the W.S., defendants had given the description of second and third floor which is contrary to the description given by the plaintiffs in the plaint, as plaintiffs had averred that on second floor there were 2 small rooms and one big hall and on the third floor there were 2 rooms and one kitchen whereas the defendants had averred that on second floor there has been one big room, one small room and a toilet, on 3rd floor there has been 1 hall. Further, the defendants had averred that there has been fourth and fifth floor. It is averred that on fourth floor, there has been one hall, one store and a toilet and on fifth floor, there has been one room, a kitchen, a toilet and open terrace.
41. Thus, it is an admitted fact that the structure of suit property as existing at the time of execution of deed dated 24.08.1983 and at the time of filing of present suit are different, but the plaintiffs have to specifically plead as to when the alleged unauthorized demolition and reconstruction took place.
42. In order to prove this issue, plaintiff no. 1 was examined as PW1 and in his examination in chief on oath, PW1 deposed that at the time of filing of the present suit, the suit property was four storeyed building and his testimony is contradictory to the stand taken by the plaintiffs in the plaint, wherein it was averred that at the time of filing of the present Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 16/27 suit, the suit property was six storeyed building. PW1 further deposed in his examination in chief that now the suit property is six storeyed building thus, the testimony of PW1 is contradictory.
43. But, in the present case, the deed dated 24.08.1983 already stood proved in view of the findings of this court on Issue no. 1 above, and in the same description of property was mentioned as stated by the plaintiffs in the plaint and since the said deed was executed on 24.08.1983, thus it was duly proved that on 24.08.1983, the suit property was four storeyed building , now the plaintiffs are only required to prove when the alleged reconstruction was done by the defendants.
44. As per averment of plaint itself, after about eight months from the date of death of Mahant Sadhu Ram Ji, the defendant no.1 had started contravening the terms and conditions of the Will and since admittedly Mahant Sadhu Ram Ji had expired on 02.11.1983, this reveals that till July 1984, no unauthorized act was done by the defendant no.1, so there is no question of any alleged unauthorized construction till July 1984. PW1 further deposed during his cross examination that he had came to know of the demolition at the end of September or October 1984 and since the present suit was filed on 30.10.1984, this implies that the alleged unauthorized construction was raised by the defendants in between July 1984 to September or October 1984.
45. In present case, though the raising of construction by the defendants is proved, but to claim the injunction as prayed for, the plaintiffs are required to prove that the construction was unauthorized, since the Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 17/27 cause of action to file the present suit as averred by the plaintiffs in the plaint is alleged unauthorized construction, and the plaintiffs had averred that the construction was unauthorized because :
a. The construction was raised without the consent and permission of the plaintiffs.
b. The construction was done without the sanction from M.C.D.
46. During his cross examination, PW2 deposed that after the death of Mahant Sadhu Ramji, the defendant no. 1 became owner of the suit property by virtue of Will in his favour and he had started managing the same, and if the testimony of PW2 is accepted to be true on face of it, and if the defendant no. 1 had got right to manage the property as an owner thereof by virtue of Will as deposed by PW2 in his cross examination, then this court is of the considered opinion that there is no question of seeking permission from the plaintiffs before taking any decision in respect of the suit property by the defendant no. 1.
47. Further, perusal of deed dated 24.08.1983 reveals that there was no restriction on raising construction, though there was restriction in giving second and 3rd floor to the tenant, but that does not mean restriction on raising any construction and as per deed dated 24.08.1983, the plaintiff's were given right to look after the affairs of Sampradae, if the defendant no. 1 had failed to run the same as per terms and conditions of Will dated 22.04.1952, thus the plaintiffs got the right to look after the suit property in consequence of the act which were alleged to be contrary to the terms and conditions of the Will in favour of defendant no.1 and Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 18/27 since the plaintiffs had themselves averred that raising of unauthorized construction and using the property for commercial purpose and not for religious purposes are violations of terms, thus the plaintiffs right arose subsequently after alleged violation, thus at the time of raising the construction, consent of plaintiffs are not required as they have no right even to look after the suit property at the time of alleged construction, and when the construction was not unauthorized at the time when the same was raised, then it cannot be termed as unauthorized subsequently when the plaintiffs had acquired such rights by virtue of deed dated 24.08.1983.
48. Further, the plaintiffs are required to prove that the defendants have raised the construction without any sanction from M.C.D. The plaintiff's witness PW1 merely deposed that the construction was without the sanction of the M.C.D., but failed to substantiate the said averment by any independent witness or by any documentary evidence.
49. Further, the summoned witness from M.C.D. had deposed during his examination in chief that as per their record, according to survey conducted on 02.02.1985, suit property was four storeyed building and his deposition was contrary to the stand taken by the plaintiffs in the plaint and since testimony of PW7 as per records was contrary to factual position as per admission of the defendants and averments of plaint, therefore testimony of PW7 is not supporting the case of plaintiffs.
50. But be that as it may, even if the averments of the plaintiffs are believed to be true on face of it, then on coming to know of the same, Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 19/27 the plaintiff's are required to prove the steps taken by them to bring the same within the notice of M.C.D, as M.C.D was duty bound to demolish unauthorized construction if any.
51. PW1 had admitted in his cross examination that he had not filed any complaint, thus the plaintiffs had failed to avail of the efficacious remedy against alleged unauthorized construction, i.e to approach M.C.D for redressal of their grievance against the unauthorized construction if any and without proving the same, the plaintiffs are not entitled to seek mandatory injunction as prayed for.
This issue is decided against the plaintiffs.
ISSUE No. 3Whether the defendants have removed and misappropriated the articles mentioned with list attached with plaint and are liable to restore these articles by way of this suit? OPP
52. The onus of proving this issue is on the plaintiffs, though the plaintiffs annexed with the plaint the list of articles allegedly removed and misappropriated by the defendants, but none of plaintiff's witnesses had relied on the list in their evidence and in the evidence, the plaintiff's witness PW 1 had deposed that the other goods might have been taken by defendant no. 1 and 2, thus PW1 was not sure that who had removed the articles if any, and further said deposition was without even mentioning the details of the articles.
53. Further, in his examination in chief by way of affidavit (Ex. P2), Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 20/27 PW2 had deposed that defendants had removed Moorties (Idols). Further PW5 had deposed in his examination in chief by way of affidavit (Ex. P5) that there were 2 idols, one of Maa Bhagwati and other of Acharya Garibdass Ji, but no other articles were mentioned in the same and without relying on the list of articles annexed with the plaint and without proving the existence of the same in the suit property, the question of restoration of the same by way of present suit does not arise.
This issue is decided against the plaintiffs.
ISSUE No. 4Whether Sadhu Ramji bequeathed the suit property to defendant no. 1 by Will dated 22.04.1952 and 30.07.1983 as alleged in W.S? OPD
54. The onus of proving this issue is on the defendants and it is an admitted fact that Will dated 22.04.1952 and 30.07.1983 were executed by Mahant Sadhu Ramji in favour of the defendant no. 1 by virtue of which he had bequeathed the suit property to the defendant no. 1, but both the Wills were not proved, Will dated 22.04.1952 was in Urdu and translated copy of the same had not been placed and proved on record and Will dated 30.07.1983 was never placed and proved on record.
55. But, in the present case, the plaintiffs witnesses PW2 and PW5 had admitted existence and due execution of the Will dated 22.04.1952 and 30.07.1983. PW2 had deposed during his cross examination that the defendant no. 1 became owner by virtue of Will dated 22.04.1952 and it is further deposed that Mahant Sadhu Ramji had executed another Will dated 30.07.1983. Further, PW5 during his cross examination had Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 21/27 admitted execution of the Will dated 22.04.1952 by Mahant Sadhu Ramji in favour of the defendant no. 1, thus execution of Will dated 22.04.1952 and 30.07.1983 stood duly proved, as admitted facts need not be proved, therefore for the purpose of present suit , it is proved that Mahant Sadhu Ram Ji had bequeathed the suit property to the defendant no.1 by virtue of Wills dated 22.04.1952 and 30.07.1983.
56. But this court constrained itself to give findings on merits as to due execution of Will dated 22.04.1952 and 30.07.1983, as said document is neither placed and proved on record.
This issue is decided accordingly.
ISSUE No. 55. Whether Mahant Sadhu Ramji was not competent to execute any such deed dated 24.08.1983 as alleged by plaintiff by force of custom and deed dated 24.08.1983 is illegal? OPD
57. The onus of proving this issue is on the defendants as the defendants had raised the objection that deed dated 24.08.1983 was not duly executed by Mahant Sadhu Ramji, as he was more than 100 years old at the time of alleged execution of deed dated 24.08.1983 and his hands used to shake at that time, so his signatures on same was not genuine.
58. But the defendant no.1 at the same time had relied on Will dated 30.07.1983 executed by the same person and it was only one month prior to the alleged execution of deed dated 24.08.1983, so contention Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 22/27 as to old and infirm person is not tenable, particularly in absence of any documentary proof, to prove the age of Mahant Sadhu Ram Ji and about his medical condition.
59. Further, the defendant no. 1 had admitted due execution of deed dated 24.08.1983 by Mahant Sadhu Ramji in compromise Ex. C1 and since the defendant no. 2 has no independent claim and his rights in suit property is dependent on the rights of defendant no.1, thus admission by defendant no. 1 is binding on him.
60. In his examination in chief (Ex D1), sole witness of the defendant(DW1) had challenged the compromise Ex. C1 averring that same was fabricated by the plaintiffs, but in present case, compromise Ex. C1 was admitted by the court and affirmed by the defendant no. 1 who had given statement that is biding on him.
61. It was further deposed in Ex. D1 that on 28.07.1994, defendant no. 1 had filed an application and affidavit signed by Sh. Shishpal Singh for withdrawal of settlement (Ex. C1), but said application already stood dismissed as the defendant no. 1 had given a statement that he had never filed any such application or affidavit and never authorized Sh. Shishpal to file the same , therefore admission by defendant no.1 binds defendant no.2.
62. Thus, deed dated 24.08.1983 stood duly proved and same is binding on the defendant no. 2.
This issue is decided against the defendant.
Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 23/27 ISSUE No. 6 Whether the suit property devolved upon defendant no.1 from Mahant Sadhu Ramji as per customs of Garib Dass sect?OPD
63. The onus of proving this issue is on the defendants and plaintiff no. 1/PW1 during his cross examination had admitted that as per the custom of Garibdas Sect, the properties of said sect devolve from Guru to Chela, even if there is no Will, the Chela becomes owner as per custom and tradition . It is further deposed that after the guru, his chela inherits its property and takes over the management.
64. PW1 further deposed that generally guru executes a Will in favour of the chela and PW2 had also deposed that the defendant no. 1 became owner by virtue of Will dated 22.04.1952 and 30.07.1983 and PW3 had also admitted execution of Will by virtue of which property devolve on defendant no. 1, thus by the cross examination of plaintiff's witness, defendant no. 2 had proved the devolution of suit property upon defendant no. 1 from Mahant Sadhu Ramji as per the custom of Garibdass Sect.
This issue is decided in favour of the defendants.
ISSUE No. 7Whether the suit has been valued properly for the purpose of court fee and jurisdiction, if not what should be the valuation? Onus on parties.
Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 24/27
65. The onus of proving this issue is on both the parties, but primarily the plaintiffs had to prove that suit is properly valued for the purpose of court fee and jurisdiction, plaintiffs had filed the present suit claiming mandatory injunction for restoration of certain articles as they were lying in the suit property, and valued it at Rs. 130 for the purpose of court fee and jurisdiction and paid fixed court fee of Rs. 13/ and it is averred by the defendants that in the garb of mandatory injunction, the plaintiffs are seeking recovery of those articles, the list of which is annexed with the plaint, and the value of articles is not less than Rs. 75,000/ .
66. The plaintiffs in the present case had failed to prove even the existence of those articles in the suit property and the defendants had averred that that value of the articles of which plaintiffs are seeking recovery is not less than Rs. 75,000/ on the date of filing of the suit and said factum was so deposed by DW 1 in his cross examination in chief, but without any documentary evidence or report of approved valuer, therefore the arbitrary value given by the defendants cannot be said to be the basis for coming to the conclusion that suit is not properly valued , thus in absence of proving that the suit is not properly valued, the court would lean in favour of the interpretation, that it had jurisdiction to try the present suit, and that the suit is properly valued for purpose of court fee and jurisdiction.
This issue is accordingly decided against the defendant.
ISSUE No. 8Whether the defendant no. 2 is tenant in the suit property bonafidely Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 25/27 and without notice of the dispute between the parties and if so what should be its effect upon the relief of prayed for? OPD no. 2
67. The onus of proving this issue is on the defendant no. 2 and the plaintiffs had not deposed anything that the defendant no. 2 had any knowledge of the dispute between the plaintiffs and the defendant no. 1, and defendant no. 2's witness/DW1 deposed that he had taken the suit property on rent after satisfying himself of right of defendant no. 1 by virtue of Will and said testimony was withstood during his cross examination.
68. But in the considered opinion of this court, even if the defendant no. 2 is a bonafide tenant, it would have no effect upon relief prayed by plaintiffs.
This issue is decided accordingly.
ISSUE No. 9Whether the suit is barred by Section 34 and 41(h) of Specific Relief Act? OPD
69. The onus of proving this issue is on the defendants as the defendants had raised the objection that the plaintiffs had no right, title or interest in the suit property and no personal interest, therefore, suit is not maintainable and though the defendant no. 1 in Ex. C1 had admitted deed dated 24.08.1983, but that gives right to plaintiff's consequent to the acts of defendant no. 1 not following the customs and traditions of Garib dass Sect.
70. Therefore, in the considered opinion of this court, the right of plaintiffs are consequential to the declaration that defendant no. 1 had Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 26/27 not followed the custom and traditions of Garib Dass Sect and consequently all the rights in respect of the suit property vested in the plaintiffs to the exclusion of defendant no. 1, thus suit for mandatory injunction simpliciter is barred U/s 34 r/w section 41(h) of Specific Relief Act.
71. Further more, by present suit by claiming mandatory injunction for demolition of tenanted portion, the plaintiffs are in fact seeking recovery of possession of the suit property from the defendant no.2 whose tenancy is an admitted fact, thus equal efficacious remedy is to file suit for declaration with consequential relief of possession and injunction. Thus suit is barred U/s 34 r/w section 41 (h) of Specific Relief Act, 1963.
This issue is thus decided against the plaintiffs. RELIEF
72. In view of findings of this court on the aforesaid issues, the suit of the plaintiffs is dismissed. Parties to bear their own costs.
Decree sheet be prepared accordingly. File be consigned to Record Room, after necessary compliance. Ahlmad to do the needful.
Announced in the open court today i. e. on 31.07.2013.
(SHAMA GUPTA) CIVIL JUDGEC16/THC DELHI /31.07.2013 Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 27/27 CS No. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors.
31.07.2013 Present: None.
Vide separate judgment of even date, the suit of the plaintiffs is dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to Record Room, after necessary compliance. Ahlmad to do the needful.
(SHAMA GUPTA) CIVIL JUDGEN05/THC DELHI /31.07.2013 Suit no. 872/11 Swami Shyam Sunder Vs. Rishi Ram & Ors. 28/27