Delhi District Court
Sh. Kapil Goel vs . Smt. Shakuntla & Anr. on 2 April, 2019
IN THE COURT OF SH. RAJINDER KUMAR, JSCC-CUM-
ASCJ-CUM-GUARDIAN JUDGE (WEST): DELHI
Suit No. 10426/16
Sh. Kapil Goel,
S/o Sh. Sumer Chand Goel,
Through his attorney
Sh. Prem Chand Goel,
S/o Sh. Mukand Lal,
R/o C-407/A, Karn Vihar Part III,
Aman Vihar, Delhi. .....Plaintif
Versus
1. Smt. Shakuntla,
W/o Sh. Duli Chand,
R/o House No. 160, Harsh Vihar,
Pitampura, Delhi.
2. Sh. Harbans Singh,
S/o Sh. Amar Singh,
R/o H-1/41-B, First Floor,
Bangali Colony, Palam,
New Delhi. ...... Defendants
Date of filing of the suit : 18.02.2008
Date of reserving judgment : 29.03.2019
Date of pronouncement : 02.04.2019
Sh. Kapil Goel Vs. Smt. Shakuntla & Anr.
Suit No. 10426/16 Page no.1/12
JUDGEMENT
1. Vide this judgment, I shall decide the present suit for permanent injunction filed by the plaintif as well as counter-claim filed by the defendant no.1.
2. The brief facts of the suit as per the plaintif are that the suit is being filed through the attorney, who is the uncle of the plaintif. That the plaintif is the rightful owner and in possession of the property/plot land measuring 100 sq. yds out of khasra no. 532 & 534, village Kirari Suleman Nagar, Delhi. That the plaintif has purchased the same on 23.01.2008 from the defendant no.2 and since then is in possession of the same. That the defendant no.1 alongwith her associate and some property dealer, is harassing the plaintif and threatening that the same belongs to her. That on 28.01.2008 and again on 12.02.2008, the defendant no.1 alongwith some persons came to the plaintif and asked to vacate the suit property or otherwise to face the dire consequences. That there is apprehension that the defendant no. 1 alongwith her associates may dispossess the plaintif from the suit property.
3. It is pertinent to mention here that alongwith written statement, the defendant no.1 has filed the counter-claim by pleading that the suit was without cause of action, plaintif has no locus-standi, suit was not maintainable as the plaintif has Sh. Kapil Goel Vs. Smt. Shakuntla & Anr.
Suit No. 10426/16 Page no.2/12 not annexed any registered documents. It is also pleaded that the alleged sale has been challenged by the defendant no.1 in a separate suit which is pending disposal. It is also pleaded that the defendant had purchased the plot bearing no. 233 out of khasra no. 534, village Kirari on 06.04.1992 from Smt. Saroj Kapoor by virtue of GPA, Agreement to Sell, Receipt etc. and physical possession of the same was handed over to the defendant. That the plaintif is claiming ownership on the basis of forged documents. It is also pleaded that the plot allegedly purchased by the plaintif is bearing no. 158, whereas the plot which was purchased by the defendant bearing no. 233 and even the area with the defendant is 110 sq.yds.
4. It is pertinent to mention here that the defendant no.2 is running ex-parte since 04.07.2011.
5. Replication as well as reply to the counter-claim was filed by the plaintif to the written statement of the defendant no.1, the plaintif controverted the contentions raised in the written statement of defendant no.1 and re-affirmed the averments made in the plaint.
6. From the pleadings of the parties, following issues were framed on 30.08.2012 :-
1. Whether the plaintiff is entitled to permanent Sh. Kapil Goel Vs. Smt. Shakuntla & Anr.
Suit No. 10426/16 Page no.3/12 injunction as prayed for ?OPP
2. Whether the plaintiff has no locus-standi to file the suit?OPD
3. Whether the suit is not maintainable in the present form?OPD
4. Whether the defendant no.1/counter claimant is entitled to relief of permanent injunction as prayed for?OPD1/OPCC.
5. Relief.
7. The plaintif got examined himself as PW-1 in support of the pleadings of his case. PE was closed on 13.09.2018.
The defendant no.1 got examined four witnesses i.e. Sh. Raj Goyal (DW-1), Ct. Arun Kumar Arya (DW-2), Sh. Anup Singh (DW-3) and Sh. Omesh (DW-4). DE was closed on 18.01.2019.
Issue-wise findings are as under :
ISSUE NO. 2"2.Whether the plaintiff has no locus-standi to file the suit?OPD
8. The onus to prove this issue was put upon the defendants and is based on the objections raised by the defendant no.1 in her written statement. It is pleaded by the defendant no.1 that the plaintif has no locus-standi to file the Sh. Kapil Goel Vs. Smt. Shakuntla & Anr.
Suit No. 10426/16 Page no.4/12 present suit as the plaintif is not the owner of the property.
This is a suit for permanent injunction. The plaintif has pleaded himself to be the rightful owner and in possession of the suit property/plot land having purchased the same from the defendant no. 2. The defendant no.1 has not denied the contents of para 3 of the plaint in the corresponding para of her written statement. It is however, pleaded by the defendant no.1 that the defendant no.2 has already challenged the alleged sale by filing a civil suit.
There is no evidence led by the defendants in this case. The pleadings of the defendants remained unproved. Accordingly, the court is having no hesitation in holding and deciding this issue against the defendants and in favour of the plaintif.ISSUE NO. 4
"4.Whether the defendant no.1/counter claimant is entitled to relief of permanent injunction as prayed for? OPD1/OPCC.
9. The onus to prove this issue was put upon the defendant no. 1/counter-claimant, who has pleaded that she had purchased a plot no. 233 out of khasra no. 534, Village Kirari Suleman Nagar on 06.04.92 from Smt. Saroj Kapoor by GPA etc. That in order to grab the property of the defendants, the plaintif and his associates executed some false and frivolous documents. That the said documents have already Sh. Kapil Goel Vs. Smt. Shakuntla & Anr.
Suit No. 10426/16 Page no.5/12 been challenged by Sh. Harbans Singh by filing a suit for declaration which is pending disposal. That accordingly, the plaintif be restrained from taking forcible possession of the plot no. 233 without due process of law and also interfering in the peaceful possession of the defendants over the property.
In para 5 of the replication-cum-written statement filed by the defendant no.1, there is no specific denial to the contents of para 5 of the written statement relating to the conspiracy for the execution of false and frivolous documents.
During his examination-in-chief, the plaintif (PW-1) re-iterated and re-affirmed the contents of the plaint. It is pertinent to mention here that in his evidence affidavit the plaintif (PW-1) did not deny the pleadings of the defendant no.1/counter-claimant regarding the purchase of the property i.e. plot no. 233 out of kharsa no. 534 by defendant no.1. Similarly, the defendants have failed to apprise the court as to what happen in a suit for declaration filed by the defendant no.2 for getting the documents under consideration declared a null and void. Accordingly, the issue is decided in favour of the defendant no.1/counter-claimant and against the plaintif.ISSUE NO. 1 & 3
"Whether the plaintiff is entitled to permanent injunction as prayed for ?OPP".
"Whether the suit is not maintainable in the present form?OPD".
Sh. Kapil Goel Vs. Smt. Shakuntla & Anr.
Suit No. 10426/16 Page no.6/12
10. Both the issues are taken up together as the same are inter-connected. The onus to prove the issue no. 1 was put upon the plaintif and that of issue no. 3 was upon the defendants. It is pleaded by the plaintiff that he is the rightful owner and in possession of the property in question having purchased the same on 23.01.2008 from the defendant no.2. It is also the plea taken by the plaintif that the defendant no.1 alongwith her associates and some property dealers is threatening the plaintif that the suit property belongs to her.
It is the plea of the defendant no.1 that the plaintif is not having any registered documents. It is also pleaded that the alleged sale has been challenged by the defendant no.1 in a separate suit. It is also the plea of the defendant no.1 that she had purchased the plot no. 233 out of khasra no. 534 on 06.04.92 from Smt. Saroj Kapoor.
In his examination-in-chief, the plaintif (PW-1) re- iterated and re-affirmed the contents of the plaint but while under cross-examination dated03.08.2018, it was deposed by him that he purchased the plot in question from Sh. Harbans and said Sh. Harbans filed a case against him and the same was dismissed-in-default. It was also deposed that he never appeared in that case. While the attention of the witness was drawn towards a certified copy of order dated 29.08.2008 in CS no. 544/08 (Ex. PW1/D1), it was submitted by the witness that it might be possible that he had attended the court on that day. It was further deposed by him that DD which was issued to Sh. Harbans by him which was not got encashed as Sh. Kapil Goel Vs. Smt. Shakuntla & Anr.
Suit No. 10426/16 Page no.7/12 he got the payment stopped in bank. It was also admitted to
be correct by him that the said DD was given to said Sh. Harbans against the sale consideration. It was also deposed that he did not possess any receipt of the making of the payment in cash to Sh. Harbans. At page no. 2, it was deposed by the witness that he personally did not make any complaint to the police but when the attention was drawn towards a copy of complaint dated 15.02.2008 Ex. PW1/D2, the witness admits his signatures at point A. At page no. 3, it was deposed by the witness that he was not aware from where the stamp papers were purchased and also from where, the documents were got attested. It was also deposed by him that he was not present at the time of attestation of the documents.
11. During the subsequent cross-examination dated 03.08.2018, the plaintif (PW-1) admitted to be correct that the signatures at point A at page no. 1 of GPA, Deed of Sale Agreement, Affidavit, Possession Letter, Receipt and Deed of Will {forming part of the document Ex. PW1/B(colly.)} difer from each other at pint A to I. It was also deposed by him that he was not aware if Sh. D. N. Sharma was having licence No. LN-418 and also that he was not aware if Sh. D. N. Sharma was not having any licence on 04.07.1987. It was also admitted to be correct by the witness that the document Ex. PW1/C does not bear the signatures of Sh. Harbans.
After perusal of the pleadings and evidence led by Sh. Kapil Goel Vs. Smt. Shakuntla & Anr.
Suit No. 10426/16 Page no.8/12 the parties, especially that of the plaintif (PW-1) himself that court has no hesitation in holding that plaintif (PW-1) was not fully reliable that there were several contradictions which come on record during his cross-examination only. The court is also not having any hesitation in holding that the witness did not answer truly and correctly to several material questions put to him and the picture has become clear only when the attention of the witness was drawn towards the documents concerned. In Anathula Sudhakar Vs. P. Buchi Reddy, (2008) 4 SCC 594 it was held by Hon'ble Apex Court that :
"Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy, Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simplicitor."
It was also held in para 14 by the Hon'ble Apex Court that :-
14."But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. It two persons claim to be in possession of a Sh. Kapil Goel Vs. Smt. Shakuntla & Anr.
Suit No. 10426/16 Page no.9/12 vacant site, one who is able to establish titled thereto will be considered to be in possession, as against the person who is not able to establish titled.
This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determined the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintif to the remedy of a full-fledged suit for declaration and consequential reliefs".
12. It is clear that as per the pleadings of the plaintif himself, the defendant no. 1 alongwith his associates and some property dealer was threating the plaintif that the suit property belongs to her. Hence, the plaintif must seek a declaration besides injunction in this case. It is also pertinent to mention here that as per the plaintif, the number of the suit property/plot land falls in khasra no. 532 & 534 but as per Sh. Kapil Goel Vs. Smt. Shakuntla & Anr.
Suit No. 10426/16 Page no.10/12 defendant the number of his property was plot no. 233, out of khasra no. 534. Moreover, in response to para 4 of the written statement there is simple denial by the plaintif in his replication for the reasons best known to him.
13. During his examination-in-chief, the plaintif (PW-1) remained silent. The plaintif (PW-1) also did not depose anything regarding the counter-claim filed by the defendant no.1 in this case for the reasons best known to him. After the taking of the plea that the area belonging to the defendant no.1 having plot no. 233 falls in khasra no. 534, the onus has now shifted to the side of plaintif. Now, the plaintif was supposed to prove that the plot in question does not bear no. 233 or that it does not fall in khasra no. 534 only as pleaded by the defendant no. 1. The plaintif has also failed to bring on record any documentary evidence in this regard.
Accordingly, in view of the above, issue no. 3 is decided in favour of the defendants and against the plaintif and the issue no. 1 is also decided against the plaintif and in favour of the defendants.
Relief.:-
14. In view of above discussion and findings on the issues, the plaintif is not found entitled to any relief. However, Sh. Kapil Goel Vs. Smt. Shakuntla & Anr.
Suit No. 10426/16 Page no.11/12 in the light of the findings on issue no. 4, the counter-claim filed by the defendant no.1 is decreed with the following reliefs:-
(i) The defendant no. 1 is entitled to a decree restraining the plaintiff, his agents, attorneys, associates, representatives etc. from taking forcible possession of plot no. 233 out of khasra no. 534, Village Kirari Suleman Nagar Colony abadi known as extension-III presently bearing MCD no. C-415, Kirari Extension-III, Suleman Nagar Colony, Delhi without due process of law and also interfering in the peaceful possession of the defendant no. 1 over the property.
No order as to costs.
Decree sheet be prepared accordingly.
Announced in the open Court today the 2nd April, 2019 RAJINDER KUMAR Digitally signed by RAJINDER KUMAR Date: 2019.04.04 15:29:10 +0530 Sh. Kapil Goel Vs. Smt. Shakuntla & Anr.
Suit No. 10426/16 Page no.12/12 Sh. Kapil Goel Vs. Smt. Shakuntla & Anr. Suit No. 10426/16 Page no.13/12