Delhi District Court
Delhi vs Sh. Asha Ram S/O Late Sh Bhola Ram on 18 July, 2012
1 CS No 192/12
IN THE COURT OF SH. SUSHANT CHANGOTRA: CIVIL JUDGE(WEST)
DELHI
SUIT NO. 192/12
Smt. Shanti Devi D/o Late Sh. Shobha Ram,
R/o H. No. 16I/69091, Bapa Nagar, Padam Singh
Road, Karol Bagh, New Delhi05. ....Plaintiff
Versus
Sh. Asha Ram S/o Late Sh Bhola Ram,
R/o H. No. 16I/69091, Bapa Nagar, (First Floor),
Padam Singh Road, Karol Bagh, New Delhi05. ....Defendants
Date of Institution: 23.05.2005
Date of decision : 18.07.2012
Suit for Recovery of Possession and Permanent Injunction.
JUDGMENT
1. The case of the plaintiff in brief is that plaintiff is living in house no. 16I/69091, Bapa Nagar, Padam Singh Road, Karal Bagh, New Delhi as an absolute owner. The plaintiff was declared sole beneficiary of property no. 16I/69091 , Bapa Nagar, Padam Singh Road, Karol Bagh, New Delhi in Probate no. 216/90 & 232/1994 by the Court of Sh. S.N. Aggarwal Ld. ADJ:Delhi vide order dated 26.02.98. Plaintiff has given 2 CS No 192/12 notice to the defendant for handing over vacant possession of the part portion of the suit property consisting of three rooms/tin shed on the first floor of the property no. 16I/69091 , Bapa Nagar, Padam Singh Road, Karol Bagh, New Delhi. The defendant after receiving notice dated 03.06.00 has not handedover vacant possession of property and has not paid the damages to the plaintiff at the rate of Rs 3,000/ per month since 26.02.98.
2. The plaintiff filed complains to the police that the defendant has threatened the plaintiff that if she would file a case against him then she will face hardships in her life. The plaintiff is in possession of entire ground floor, room on first floor with her tenants and she is receiving rent regularly since long time from her tenants. The plaintiff lastly raised demand to the defendant on 16.01.05 to handover the vacant possession of the property. Thus, the plaintiff prayed that a decree of permanent injunction be passed in favour of the plantiff and against the defendant, his agents, servants, attornies, LR's whatsoever by way of restraining them from creating third party interest and addition and alteration in the suit property. The plaintiff further prayed for decree of recovery of possession by giving directions to the defendant to handover possession of vacant property in question on first floor of house no 16I/69091, Bapa Nagar , Padam Singh Road, Karol Bagh, New Delhi.
3 CS No 192/12
3. The defendant filed written statement taking preliminary objections that the plaintiff has no locus standi to file the present suit as defendant is in occupation of suit property as owner thereof having acquired the possession of the said plot along with his father Sh. Sobha Ram after partition of the country. Both of them were working together as masons and they raised the construction of suit property. The defendant had gone to Bahrain for working as a mason and had been remitting amount to his father which had been used for raising of construction on the property. No one has come otherwise to challenge the right, title and/or interest of the defendant who had become owner by way of adverse possession along with his father being in hostile possession for the last more than fifty years.
4. He further took objection that plaintiff had earlier filed two suits for declaration and injunction which have been disposed by the court of Sh. Sanjeev Jain, Ld. Civil Judge, Delhi, vide the common judgment dated 15.03.02. No such relief was sought by the plaintiff and as such present suit is barred under the provisions of Order 2 Rule 2 of CPC.
5. The defendant filed an appeal before the Hon'ble High Court against the order passed by the court of Sh. S.N. Aggarwal, the then Additional District Judge, Delhi. The said decision does not operate as resjudicata and the probate court is a court of limited jurisdiction and it is not 4 CS No 192/12 competent to adjudicate with regard to title of the suit property.
6. The defendant also took objections that the suit has not been properly valued for the purposes of court fees and jurisdiction. The value of the property is more than Rs. 10 lakhs and which is situated in commercial area in Karol Bagh, New Delhi. The suit is barred by limitation as defendant is in occupation of possession of property for the last more than 50 years. Defendant also took objection that plaint has not been properly verified.
7. On merits the defendant denied the averments of the plaint. He specifically denied that the plaintiff is absolute owner of the suit property. The plaintiff has been a destitute sister of defendant and had been allowed to stay in the suit property by the defendant and his deceased father. She has no other legal heirs after the death of her husband who died issueless.
8. The defendant denied that plaintiff had given any notice for handing over vacant possession. He further stated that plaintiff is not only in occupation of three rooms but also in occupation of terrace on the second floor where a tarpaulin room has been constructed by defendant. The defendant is also in possession of common latrine on the ground floor of suit property. The site plan is not correct in the eyes of law. The receiving of notice dated 03.06.00 was denied. The defendant has been in lawful 5 CS No 192/12 and hostile possession of the suit property for last more than 50 years. The question of payment of damages of Rs. 3000/ per month is also denied. The defendant had permitted the father and even plaintiff to recover the rent from the tenants for their survival but it cannot create any right in favour of plaintiff. The remaining averments of the plaint were denied being wrong and incorrect. The defendant prayed that the suit be dismissed with costs.
9. The plaintiff filed replication and denied the averments of the written statement and reiterated the contents of the plaint. From the pleadings of the parties following issues were framed:
1. Whether the defendant is the owner of the suit property? OPD
2. Whether the suit has not been properly valued for the purposes of court fees and jurisdiction? OPD
3. Whether suit is barred by the provisions of Order 2 Rule 2 of CPC? OPD
4. Whether the suit has not been properly verified, if so, its effect? OPD
5. Whether the plaintiff is entitled for the relief of possession as prayed? OPP
6. Whether the plaintiff is entitled for relief of permanent injunction as prayed for ? OPP
7. Relief.
6 CS No 192/12
10. In order to prove her case plaintiff stepped into the witness box as PW1. She tendered her affidavit as PW1/A alongwith site plan Ex. PW1/B, notice dated 03.06.00 Ex. PW1/C, report of UPC and registered A.D as Ex. PW1/D and 1/E respectively. Reciept of registered letter as Ex. PW1/F and 1/G and receipt of UPC as Ex.PW1/H and 1/I. The witness was cross examined at length and plaintiff closed evidence on 05.07.00
11. The defendant also stepped into witness box as DW1/I. He tendered his affidavit as Ex DW1/A, employer certificate Ex. DW1/1, copy of passport Ex. DW1/2, copy of ration card Ex. DW1/3, copy of election I card Ex. DW/1/4 copy of acknowledgment card Ex. DW1/5 and copy of Will Ex. DW1/6. The witness was cross examined at length. DE was closed on 16.01.12.
12. The counsel for plaintiff argued that the probate was granted in favour of plaintiff. The plaintiff is the sole beneficiary of the original owner Sh. Shobha Ram who is father of the parties. The order of probate has been proved on record as Ex. PW1/X. The notice dated 03.06.00 was duly served on the defendant. The defendant was inducted as licencee in the suit premises. The defendant had filed a suit for declaration that he is owner of the suit property against the plaintiff. The said suit was dismissed by the Court of Sh. Sanjeev Jain, Ld. Civil Judge vide 7 CS No 192/12 judgment Ex.PW1/Z. The defendant in his cross examination admitted that father of plaintiff deposited house tax in MCD. The counsel for plaintiff placed reliance on law laid down in Mansa Ram Vs. Sohan Singh and anr. 54 (1994) DLT, 434 wherein it has been held that, " I think the payment of house tax and damages in respect of nazul property indicate ownership of a particular person." He also placed reliance on law laid down in Rajinder Pal Singh vs. Daljeet Kaur, in the Hon'ble High Court of Delhi, RSA No. 163166/2006, Laxmappa and ors. vs. Smt. Balawa Kom Chavdi AIR 1996 SC 3497, Vijay Pal Singh and anr. vs. Deputy Direcdtor of Consolidation and Ors. AIR 1996 SC 146, Narayanan Anandan vs. R. Rakesh AIR 1995 Kerela 205. Thus prayed that the suit may be decreed.
13. On the other hand Counsel for defendant vehemently argued that the plaintiff has failed to prove that their father namely Sh. Shobha Ram was the owner. No document of title has been proved on record. He never purchased property in dispute and it was never allotted to him. He further argued that plaintiff has not led any evidence to establish that her father has constructed the property. Probate court cannot decide the question of title. It does not have the jurisdiction to decide the question of title which does not have the jurisdiction to decide whether the testator has any right 8 CS No 192/12 with respect to property mentioned in the Will. The counsel for defendant further argued that the payment of house tax by father of paties will not make him the owner. The defendant has established beyond doubt that he alongwith his father came into possession of the property. In support of his contention he placed reliance on law laid down in DDA vs. Dr. K.K. Srivastava of Hon'ble Delhi High Court reported in 109(2004) DLT 849, Kanwarjit Singh Dhillon vs. Hardayal Singh Dhillon, JT 2007 (13)SC 50. In both the said judgments it has been laid down that probate court is not competent to determine the question of title of suit property. He further placed reliance on Bharmanand Puri vs. Neki Puri, AIR 1965 SC 1506 and in this case it has been held that, " Plaintiff's suit being one of ejectment he has to succeed or fail on the title that he establishes and if he cannot succeed on the strength of his title, his suit must fail notwithstanding that the defendant in possession has no title to the property." He prayed that the suit of the plaintiff be dismissed with costs.
14. I have considered the arguments of both the counsels and gone through the evidence on record very carefully. My issuewise findings are given as under:
ISSUE NO 1 9 CS No 192/12
15. The onus to prove this issue was on the defendant. The defendant has set up a case that he alongwith his father came in possession of vacant piece of plot on which suit property has been built subsequently. The case set up by the defendant is that the construction was raised by the funds generated by the defendants. However, the defendant has not proved any documentary evidence to establish his title.
16. The defendant has set up the defence that he is owner by virtue of adverse possession. The law with regard to essential ingrediants for establishing adverse possession has been laid down in Wg. Cdr. (Retd.) R.N. Dawar vs. Shri Ganga Saran Dhama AIR 1993 Delhi 19 it has been held that, "Long possession of property is not necessarily adverse possession. A person who claims title to a property by adverse possession must definitely allege and prove as to how and when the adverse possession commenced and what was the nature of his possession and whether the fact of his adverse possession was known to the real owner. The mere fact that he was in uninterrupted possession for several years and in that way he acquired absolute right and title is not enough to raise such a plea." In the present case the defendant has not pleaded and led evidene to show as to who was the rightful owner and how his possession became hostile towards true owner. Thus, in absence of knowledge of true owner the possession could not have been hostile to 10 CS No 192/12 the knowledge of true owner." Since the defendant has failed to establish this fact, therefore, he has not been able to prove his ownership by way of adverse possession.
17. Moreover in previous case titled as Asha Ram vs. Shobha Ram the present defendant had sought a declaration that he is owner of the half of the suit property. The subject matter of the suit was the same property. The parties were contesting in the same capacity in which they are litigating in the present case. The perusal of the judgment Ex PW1/Z vide which the said suit was disposed off shows that this issue was decided against the defendant. It was held that Asha Ram has failed to prove that he is owner of the premises to the extent of half share.
18. There is no doubt that the previous suit was between the same parties in the same capacity with respect to same subject matter. The matter in present issue that whether defendant is owner of the suit property was directly and subsequently in issue in the previous suit. In Sajjadanashin Sayed vs. Musa Dadabhai Ummer, (2000)3 SCC 350. The Hon'ble Apex Court has held that, " A matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter directly and substantially in issue, but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or 11 CS No 192/12 substantially in issue. It mayor may not be. It is possible that it was "directly and substantially" in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was "necessary" to be decided for adjudicating on the principal issue and was decided, it would have to be treated as "directly and substantially" in issue and if it is clear that the judgment was in fact based upon that decision, then it would be resjudicata in a latter case ." Since the same issue has already been decided in the previous suit for declaration filed by the plaintiff, it operates resjudicata in the present suit.
19. Thus, in view of the aforesaid discussion the defendant has failed to prove that he is the owner of the suit property. Accordingly this issue is decided against the defendant and in favour of the plaintiff. ISSUE NO. 2.
20. Onus to prove this issue was on the defendant. The counsel for the defendant has not argued on this issue. Perusal of the affidavit of DW1 shows that he has stated that value of the property is not less than Rs. 10 lakhs. No independent oral evidence has been led by the defendant in 12 CS No 192/12 support of his contention. The defendant has not filed any documentary evidence in the form of circle rate or document relating to transaction of sale and purchase with respect to any property of the same locality. The oral evidence of the defendant has been duly rebutted by the oral evidence of plaintiff. The oral evidence of the defendant is pitted against the oral evidence led by the plaintiff, hence the defendant has failed to prove that the value of the suit property was either Rs. 10 lakhs or the suit has not been properly valued for the purposes of court fees and jurisdiction. Accordingly this issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO. 3
21. Onus to prove this issue was on the defendant . No argument has been advanced by counsel for defendant with regard to this issue. I have perused the judgment Ex PW1/Z. The aforesaid suits No. 402/89 and 147/96 respectively were filed by the plaintiff against the present defendant for permanent injunction. In the suit no. 402/89 the plaintiff has sought injunction against the defendant for interfering in the portion in her possession. In the other suit bearing no. 147/96 the plaintiff prayed for injunction restraining the defendant from raising construction in the suit premises and from restraining the defendant from dispossessing the plaintiff from the suit property and from using electricity from 13 CS No 192/12 disconnected lines as well as for mandatory injunction for direction to the defendant to remove cemented roof and new construction over suit property.
22. The present suit has been filed for recovery of possession of the portion in possession of defendant. The case of the plaintiff rests on the averments that she terminated the licence of the defendant by service of notice dated 03.06.00 and the cause of action for permanent injunction as prayed in the present suit on 16.01.05 when the defendant gave threat to the plaintiff. Order 2 Rule 2 CPC bars the filing of suit with respect to one of the reliefs arising of same cause of action which he has omitted to seek in a previous suit. The previous suits were filed in the year 19891996 respectively. At that time the notice for termination of licence had not been issued. Neither a threat as alleged had been given. Therefore, it cannot be said that the cause of action to file the present suit for declaration and permanent injunction had arisen at the time of institution of the above mentioned two suits. Hence provisions of Order 2 Rule 2 of CPC do not apply to the facts of present suit.
23. Thus the plaintiff has failed to prove that the suit is barred by Order 2 Rule 2 of CPC. Therefore, this issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO. 4 14 CS No 192/12
24. Onus to prove this issue was on the defendant . Neither any argument has been advanced nor any evidence has been led by the defendant with respect to this issue. The defendant has failed to prove that the plaint has not been properly valued. Accordingly this issue is decided against the defendant and in favour of the plaintiff. ISSUE NO. 5
25. Onus to prove this issue was on the plaintiff. In Addagada Raghavamma and Anr vs Addagada Chenchamma and Anr , 1964 SCR (2) 933, the Hon'ble Apex Court has held that, "There is an essential distinction between burden of proof and onus of proof, burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts." Therefore the initial burden to prove that the plaintiff is entitled to relief of possession lied on the plaintiff. Plaintiff has filed the present suit on the basis that Shri Sobha Ram was the owner of the suit property. Shri Sobha Ram executed a valid Will in favour of plaintiff. The plaintiff obtained a decree of probate which has been proved on record as Ex. PW1. Thus the plaintiff being the owner of the suit property terminated the licence of the defendant who was inducted as licencee in the suit property in or about year 1980 by her father.
26. Thus, the plaintiff has claimed possession on the basis of title. In Bharamand Puri Vs. Neki Puri AIR 1965 SC 1506, it has been held 15 CS No 192/12 that ," In a suit for ejectment plaintiff has to succeed or fail on the title that he establishes and if he cannot succeed on the strength of his title the suit must fail notwithstanding that defendant in possession has no title to the suit property. "In Bajrang Lal Vs. Shashikant 2004 (5) SCC 272 it has been held that, "Burden lay on the plaintiff to prove title and on failing to do so suit would fail not with standing that the defendant in possession may or may not have title to the suit property". Further in Ram Chandra Sakharam vs. Damodar (2007) 6 SCC 737, it has been held that in the suit for recovery of possession on the strength of title, obviously the burden was on the plaintiff to establish that title. No doubt in appreciating the case of title set up by the plaintiff, the court was also entitled to consider the rival title set up by the defendant. But the weakness of defence or the failure of the defendants to establish the title set up by them would not unable the plaintiff to a decree. There cannot be another demur to these prepositions." Therefore the plaintiff had to establish her title in order to succeed in seeking decree of possession against the defendant irrespective of the fact that the defendant has failed to prove his title in the suit property.
27. The plaintiff has proved the judgment of probate Ex. PW1/X. The aforesaid judgment is conclusive with respect to proof of Will of deceased Sobha Ram in favour of plaintiff. However, the law relied upon 16 CS No 192/12 by the counsel for defendant as laid in DDA vs. Dr. K.K. Srivastava 109(2004) DLT 8498 and in Kanwarjit Singh Dhillon vs. Hardayal Singh Dhillon, JT 2007 (13)SC 50, clearly hold that the probate court cannot give any declaration of title of the properties as mentioned in the Will. The probate court also cannot decide that the deceased had valid title to the properties as mentioned in the Will.
28. The perusal of the judgment of probate Ex. PW1/X shows that there is no funding qua the title of deceased Sobha Ram with respect to suit property. Thus the plaintiff was under strict obligation to establish the title of her father in order to succeed in the present suit. The judgment so relied by the counsel for plaintiff as given in Rajinder Pal Singh vs. Daljeet Kaur, Supra do not apply to the facts of the present case. In the said judgment it has been held that, "Suffice would it be to record that the brother and sister were not at variance on the issue that their mother was the owner of the property in question." Therefore it was held that appellate judge wrongly permitted to raise an issue which was not the subject matter of the pleadings of the parties. However, in the present case the defendant has throughout seriously disputed the title of his father. The defendant has pleaded and also led evidence that he alongwith his father came in possession of suit property after independence of the country. His father was not the absolute owner of the suit property, 17 CS No 192/12 therefore, the judgment mentioned above does not apply to the facts of the case.
29. In order to prove the title of her deceased father Sh. Sobha Ram the plaintiff has pleaded that his father used to pay house tax and he collected rent from the tenants of same premises. The plaintiff has not pleaded execution of any document in favour of late Sobha Ram vide which the ownership rights were vested in him. There is also no pleading to the effect that the property in dispute was allotted to deceased Sobha Ram by any authority. The plaintiff has not led any documentary evidence to establish title of her father in the suit property. In her cross examination the defendant admitted that she does not have any documentary evidence in respect of ownership of suit property. She further deposed that she does not have any document to show ownership of her father in respect of the suit property. Thus, it is established on record that no document was ever executed in favour of deceased Sobha Ram which could create ownership rights in his favour.
30. In fact, there is no dispute that this suit property was neither owned by Sh. Sobha Ram or by Sh. Asha Ram. In judgment Ex. PW1/Z it has been noted that, "Both Sobha Ram and Shanti Devi had admitted that in 1949 Asha Ram and Sobha Ram jointly occupied the suit property. But they denied that construction thereupon was gradually raised with joint 18 CS No 192/12 funds." It is settled proposition of law that contents of judgment are presumed to be correct. Moreover, the plaintiff has filed and proved the said judgment by herself. Therefore, she is bound by the facts mentioned therein. This statement of plaintiff and her predecessor in interest Sh. Sobha Ram serves as admission that Sobha Ram and Asha Ram came in joint possession of the suit property.
31. I am conscious of the fact that this admission has not been put to the plaintiff but it has to be borne in mind that this judgment containing admissions of plaintiff have been proved by the plaintiff herself. In a landmark case titled as Ajodhya Prasad Bhargava vs Bhawani Shanker Bhargava And Anr. on 8 May, 1956 AIR 1957 All 1, the Hon'ble Allahabad High Court framed a question and laid the law which are as follows:
Q: "Where in a civil suit a party produces documents containing admissions by his opponent, which documents are admitted by the opponent's counsel, and the opponent enters the witnessbox is it obligatory on the party who produced those documents to draw in cross examination the attention of the opponent to the said admissions before he can be permitted to use them for the purpose of contradicting the opponent"?
A. " Where in a civil suit a party produces documents containing 19 CS No 192/12 admissions by his opponent, which documents are admitted by the opponent's counsel, and the opponent enters the witness box, it is not obligatory on the party who produces those documents to draw in cross examination the attention of the opponent to the said ad missions before he can be permitted to use them for the purpose of contradicting the opponent provided that the admissions are clear & unambiguous but where the statements relied on as admissions are ambiguous or vague it is obligatory on the party who relies on them to draw, in crossexamination the attention of the opponent to the said statements before he can be permitted to use them for the purposes of contradicting the evidence on oath of the opponent."
32. Therefore, the aforesaid statement recorded in the judgment Ex. PW1/X is admissible in evidence and the same can be relied in the present case.
33. In the present case the defendant admitted that his father used to pay house tax. The judgment relied on by the counsel for plaintiff as held in Mansa Ram Vs. Sohan Singh and anr. 54 (1994) DLT, 434 does not apply to the facts of the present case for three reasons. Firstly, most importantly the decision of the case was on the basis of independent findings that the defendant was inducted as a licence by the plaintiff and the Hon'ble High Court had given a finding as mentioned 20 CS No 192/12 above in addition to the other findings. The complete perusal of the judgment does not even give the impression that the Hon'ble High Court has laid law that by making payment of house tax and damages with respect to nazul properties a person become owner thereof. The case was decided by holding that the defendant was a licence of the plaintiff. The head note as mentioned in the citation does not present the correct law as laid down in the said judgment. Secondly, the Hon'ble High Court in the aforesaid judgment has held that since the payment of house tax and damages in respect of Nazul property were made, therefore, it was sure indication about the ownership of a particular person. Whereas, there is no evidence in the present case, that the suit property is nazul property. Thirdly, it is the admitted case that father of the plaintiff himself Sh. Sobha Ram and defendants were encroacher in continuous possession of the suit land. In the case before Hon'ble High Court, the dispute was between two unconnected persons and the finding of the Hon'ble High Court was with respect to the fact that if the defendant had occupied the land and had constructed the disputed premises of his own, it was certain that he would have paid the house tax as well as the damages to the aforesaid authorities. However, in the present case Sh. Sobha Ram and defendant were father and son and it is admitted fact that both of them came in joint possession of the suit land.
21 CS No 192/12
34. The plaintiff has failed to prove that the entire construction was raised by deceased Sobha Ram. Defendant Asha Ram and late Sobha Ram came in possession of the suit land jointly. Plaintiff has not produced any documentary evidence to show expenditure incurred by Sobha Ram for constructing the house. She has not lead any independent oral evidence to prove this fact. In her cross examination the plaintiff stated that she does not know when property was constructed. Since the plaintiff was not even aware as to when the property was constructed, shows that she did not have knowledge about construction. Her oral statement that it was constructed by her father cannot be relied. The oral evidence of plaintiff has been duly rebutted by the oral evidence of plaintiff. Even otherwise mere raising of construction will not be proof of the ownership of the said property.
35. The fact that earlier deceased Sobha Ram & subsequently the plaintiff has been allowed to collect rent from the tenants does not create estoppel to the effect that plaintiff and deceased Sobha Ram had become owner of the property. The defendant has explained this fact by stating that since plaintiff was his destitute widowed sister therefore she was permitted to collect rent and before her the defendant permitted his father Sobha Ram to collect rent for making their two ends meet. The collection of rent may make the plaintiff a land lady with respect to the portion of 22 CS No 192/12 the suit property but she cannot become the owner. Infact in Baba Kartar Singh Bedi Vs. Dayal Das & Ors. AIR 1939 Privy Counsel 201 it has been held that "there can be no estoppel on a statement of law". Ownership rights can only vest by means of methods prescribed by law may it be by sale, grant, disposition or any other documents such as gift. It is governed by substantive law. The mode of acquiring ownership rights is always established by law. The principle of estoppel cannot operate on the question of law.
36. Therefore in view of the aforesaid discussion plaintiff has failed to prove even to preponderance of probability that deceased Sobha Ram was the owner of the suit property. She has failed to prove that Sobha Ram had capacity to transfer valid title by way of Will. The plaintiff has also failed to prove that defendant was inducted as a licensee by her predecessor in interest i.e Shri Sobha Ram. Therefore, the plaintiff has failed to prove this issue. Accordingly, this issue is decided in favour of the defendant and against the plaintiff may it be by sale, grant, disposition or any other documents such as gift. It is governed by substantive law. Estopple cannot operative on the question of law. ISSUE NO. 6
37. Onus to prove this issue was on the plaintiff. The plaintiff has prayed for permanent injunction restraining the defendant from creating third 23 CS No 192/12 party interest, making addition and alterations in the suit property. In the discussion of issue no. 4 mentioned above, it has already been held that plaintiff does not have any ownership rights in the suit property. It has also been held that the defendant and the deceased Sobha Ram came in possession of the suit property jointly. Plaintiff has failed to prove that the construction of the suit property was raised solely by Sh. Sobha Ram. Though the defendant does not have any right to alienate the same because he has also failed to prove his title with respect to suit property, but in order to seek the relief plaintiff had establish her locus standi and existence of cause of action in her favour. The term cause of action has been defined in Rajasthan Advocates Association V/s Union of India, AIR 2001 SC416, the Hon'ble Apex Court held that, "the expression cause of action has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense it means the necessary condition for the maintenance of the suit, including not only the infraction of right, but the infraction coupled with right itself. Every fact which is necessary to be proved, as distinguish for every peace of evidence which is necessary to prove each fact, comprises in cause of action." 24 CS No 192/12
It has been proved that defendant is in exclusive possession of the area in his possession in his own capacity as encroacher, therefore, the plaintiff does not have any right in the said area. Therefore, if the defendant alienates the property in his possession no prejudice will be caused to the plaintiff and no right of the plaintiff will be infringed. Hence the plaintiff failed to show existence of cause of action in her favour.
38. Since the plaintiff has failed to prove existence of cause of action as well as her locus standi to seek possession from defendant, therefore, the plaintiff has failed to prove this issue. Accordingly this issue is decided in favour of defendant and against the plaintiff.
RELIEF
39. In view of the finding given on issues no. 5 and 6 suit of the plaintiff is dismissed with no order as to costs. Decree sheet be prepared and file be consigned to Record Room after due compliance.
Announced in the open court (SUSHANT CHANGOTRA) on 18.07.2012 Civil Judge6 (West) Delhi