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[Cites 3, Cited by 0]

Delhi District Court

Sh. Shri Pal Sharma vs Sh. Mahesh Kumar on 29 January, 2020

       IN THE COURT OF CIVIL JUDGE, SHAHDARA DISTRICT,
                KARKARDOOMA COURTS, DELHI

Presided By : Sh. Vaibhav Chaurasia, DJS

Civil Suit No:580/2017

Sh. Shri Pal Sharma
S/o Sh. Ram Khaldi,
R/o V­154/3, Arvind Nagar,
Ghonda, Delhi­110053.                               ... Plaintiff
                                      Versus
1. Sh. Mahesh Kumar
R/o Office at: V­154/3, Arvind Nagar,
Ghonda, Delhi­110053.
2. Sh. Sunil Gupta @ Sanjay Gupta
S/o Sh. Mahesh Chand,
R/o V­154/2, Arvind Nagar,
Ghonda, Delhi­11053.
3. Sh. Om Prakash
S/o Late Sh. Babu Lal,
R/o Bikaner Rajasthan.                              ... Defendants


                SUIT FOR PERMANENT INJUNCTION
                AND MANDATORY INJUNCTION

                                       DATE OF INSTITUTION : 24.05.2017
                                 DATE OF FINAL ARGUMENTS : 09.12.2019
                                         DATE OF DECISION : 29.01.2020

                                   JUDGMENT

1. The plaintiff has filed the present suit seeking decree for permanent injunction and mandatory injunction. The plaintiff pleaded in Civil Suit No.580/2017 Shri Pal Sharma v Mahesh Kumar Page No.1 of 10 the following terms: -

"(a) In view of above, it is therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to pass a decree for permanent injunction in favour of the plaintiff and against the defendants restraining the defendants, their agents, legal heirs etc., from entering in the suit property i.e. property bearing no.V­154/3, Arvind Nagar, Ghonda, Delhi­11053 and from dispossessing the plaintiff from the suit property as shown red in site plan.
(b) It is therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to pass a decree for permanent injunction in favour of the plaintiff and against the defendants, restraining the defendants from breaking the walls of the suit property as marked green in the site plan or interfering in the suit property.
(c) It is therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to pass a decree for permanent injunction in favour of the plaintiff and against the defendant no.1 restraining him from to giving/handing over the possession of the tenanted office in the suit property to defendant no.2 or any other person as shown yellow in the Civil Suit No.580/2017 Shri Pal Sharma v Mahesh Kumar Page No.2 of 10 site plan.
(d) It is further prayed that this Hon'ble Court may pass a decree for mandatory injunction in favour of the plaintiff and against the defendant no.2, directing the defendant no.2 his agent, legal heirs etc., to remove the heavy machines from the factory at V­154/2, Arvind Nagar, Ghonda, Delhi­ 110053 and take suitable steps to control pollution and vibrations in the said factory."

Vide order sheet dated 09.12.2019, the plaintiff has submitted that he does not wish to press the prayer for mandatory injunction qua the defendant no.2 (prayer (d)).

2. The case of the plaintiff as discernible from the plaint and documents is that the plaintiff is the owner/landlord of the suit property viz. property bearing no.V­154/3, Arvind Nagar, Ghonda, Delhi­110053 and he is residing in the suit property along with his family members since 1999; that the defendant no.1 is running a business of transport services in one room in the suit property at a monthly rent of Rs.4000/­ including electricity and water charges since July 2015; that the defendant no.2 is running an iron wire factory which is adjacent to the suit property; that the defendant no.2 indulges himself in running heavy machines which produces air pollution, noise pollution etc. and the defendant no.1 and 2 are in collusion with each other and that despite repeated requests, the defendant no.2 has not paid any heed to the Civil Suit No.580/2017 Shri Pal Sharma v Mahesh Kumar Page No.3 of 10 requests and further there is apprehension that the defendant no.1 would give possession of one room in the suit property to some other person or to the defendant no.2 and further the defendant no.2 could break the walls. It is pertinent to mention herein that the plaintiff has already dropped the prayer of mandatory injunction against the defendant no.2.

3. No written statement was filed on behalf of the defendant no.1.

4. The defendant no.2 has filed the written statement wherein he has denied that the plaintiff has any right, title or interest over the suit property. It is further denied that the defendant no.2 is carrying any iron factory in the alleged property adjacent to the suit property. It is denied that there is a relationship of landlord­tenant between the plaintiff and the defendant no.1. It is submitted that the plaintiff and the defendant no.1, in collusion with each other, has filed the present suit. It is further submitted that one Sh. Om Prakash Newad is the owner/landlord of the suit property and the plaintiff is the licensee of said Sh. Om Prakash Newad. It is submitted that the defendant no.1 is not running any business of transport in the suit property and in view thereof, since there is no cause of action, the present suit is liable to be dismissed with heavy cost.

5. Vide order sheet dated 03.06.2016, the Ld. Predecessor Civil Suit No.580/2017 Shri Pal Sharma v Mahesh Kumar Page No.4 of 10 Judge has appointed a local commissioner and the local commissioner has submitted the report wherein it was clearly stated that the defendant no.1 though was found in the one room of the suit property, however, the bill books were blank and there were some belongings and upon inquiry from the neighbours, nobody knew about him and they were further ignorant that there was any office in the said property. The local commissioner has submitted his opinion in his report that the defendant no.1 was not in possession for a long time and there was no proof of running of any business in the suit property. Further, it was during the inspection by the local commissioner that it was found that the plaintiff is not the owner of the suit property and one person namely Sh. Om Prakash Sharma had showed his GPA and sale agreement showing that Sh. Om Prakash Sharma is the owner of the suit property. Accordingly, Sh. Om Prakash Sharma was impleaded as a party vide order sheet dated 03.12.2018 wherein Sh. Om Prakash Sharma has submitted that he is the owner qua the suit property via application under Order I Rule 10 of CPC.

6. In the replication qua the written statement of the defendant no.2, the plaintiff has denied the contents of the said written statement of the defendant no.2, made the necessary denials and reaffirmed the contents of the plaint.

7. On the basis of the aforesaid pleadings of the parties, the following issues were framed, on 24.07.2019:­ Civil Suit No.580/2017 Shri Pal Sharma v Mahesh Kumar Page No.5 of 10 "1. Whether the plaintiff is entitled to the decree of permanent injunction, as prayed in para 1 of the prayer clause? OPP

2. Whether the plaintiff is entitled to the decree of permanent injunction, as prayed in para 2 of the prayer clause?

OPP

3. Whether the plaintiff is entitled to the decree of permanent injunction, as prayed in para 3 of the prayer clause?

OPP

4. Whether the plaintiff is entitled to the decree of mandatory injunction, as prayed for? OPP

5. Whether the defendant no.3 is the owner qua the suit property and the plaintiff is tenant of the defendant no.3?

OPD3

6. Relief."

8. During the trial of this suit, the plaintiff has examined himself as PW1 and called the witness i.e. PW2 Sh. Mahesh Chand. PW1 Sh. Shri Pal Sharma has tendered his evidence by way of affidavit Ex.PW1/A and has relied upon the documents viz. aadhar card, Ex.PW1/1 (OSR), voter ID card, Ex.PW1/2 (OSR), ration card, Civil Suit No.580/2017 Shri Pal Sharma v Mahesh Kumar Page No.6 of 10 Ex.PW1/3 (OSR) (2 pages), receipt of Indane gas connection, Ex.PW1/4 (OSR), driving license, Ex.PW1/5 (OSR), discharge summary of baby of Mrs. Rekha dated 11.04.2000, Ex.PW1/6 (OSR), birth certificate of Ms. Chetna, Ex.PW1/7 (OSR), receipt dated 25.02.1999, issued by Sh. Vijay Kumar Maheshwari, Ex.PW1/8 (OSR), site plan, Ex.PW1/9, rent receipt dated 01.02.2017, Ex.PW1/10 (OSR), rent receipt dated 01.01.2017, Ex.PW1/11 (OSR), rent receipt dated 01.03.2017, Ex.PW1/12 (OSR), rent receipt dated 01.04.2017, Ex.PW1/13 (OSR) and 11 photographs, Ex.PW1/14 to Ex.PW1/24. PW2 Sh. Mahesh Chand, ASO from Election Office has brought before this Court the computer generated copy of electors detail of plaintiff, electoral roll 2014, electoral roll of 2016 and electors details for checking particular duly attested, Ex.PW2/A (6 pages). Both witnesses were cross examined by the Ld. Advocate for the defendant no.3.

9. The opportunity was given to the defendant no.3, however, the defendant no.3 has not availed any opportunity to prove his case. No one has appeared on behalf of the defendants no.1 and 2 to put forward their case.

10. In order to adjudicate upon this suit, I had heard the final arguments, on 09.12.2019.

Civil Suit No.580/2017

Shri Pal Sharma v Mahesh Kumar Page No.7 of 10 Appreciation of Evidence

11. It is very clear that the plaintiff and the defendant no.3 have contended that they are the owners of the suit property and there appears to be cloud qua their title over the suit property. Though the plaintiff has sought simplicitor permanent injunction, the same cannot be granted in view of Anathula Sudhakar v P. Buchi Reddy (Dead) by LRs & Ors., (2008) 4 SCC 594 and further the plaintiff was claiming himself to be owner of the suit property. However, on the repeated directions of the Court to file any ownership document, the plaintiff has failed to produce the same or has not relied upon any ownership document. Since, there has been cloud over the title of the suit property and the plaintiff firstly claiming that he is the owner qua the suit property or having better title over the suit property but has not been able to prove. The relief of injunction is a discretionary relief and further there being cloud of title which requires declaration therefore, issue will be decided as such. The issue wise findings, in this case are as follows:

ISSUE NO.1

12. In view of aforesaid findings and since there is cloud qua title of the plaintiff over the suit property and in view of Anathula Sudhakar's case (supra) and the plaintiff firstly claiming himself to be the owner/better title over the suit property, however, he has failed or Civil Suit No.580/2017 Shri Pal Sharma v Mahesh Kumar Page No.8 of 10 have not relied upon any ownership document, since the plaintiff is in possession of the suit property, therefore, from dispossessing the plaintiff from the suit property, without due process of law.

ISSUE NO.2

13. In view of appreciation of evidence and there being cloud over title of the plaintiff over the suit property and in the discretion of this Court, this issue is also decided in favour of the defendants and against the plaintiff.

ISSUE NO.3

14. Since there is cloud qua title of the plaintiff over the suit property and only rent receipts have been placed on record, this Court is of the opinion that the same has not been proved beyond preponderance of probabilities and further doubt is cast in view of the report of the local commissioner. Accordingly, this issue is decided in favour of the defendants and against the plaintiff.

ISSUE NO.4

15. Vide order sheet dated 09.12.2019, the plaintiff has dropped the prayer for mandatory injunction qua the defendant no.2.

Civil Suit No.580/2017

Shri Pal Sharma v Mahesh Kumar Page No.9 of 10 ISSUE NO.5

16. This issue cannot be decided by this Court as the present suit is for simplicitor permanent injunction and therefore, this issue cannot be decided in this particular suit.

RELIEF

17. In view of the aforesaid findings, the present suit is partly decreed. The defendants are only restrained from dispossessing the plaintiff from the suit property, without due process of law. No order as to cost. Upon preparation of the decree sheet by the Reader, the file shall be consigned to the record room.

Announced in open Court (Vaibhav Chaurasia) today on 29.01.2020 Civil Judge/Shahdara district Digitally Karkardooma Courts/Delhi signed by VAIBHAV VAIBHAV CHAURASIA CHAURASIA Date:

2020.01.30 10:08:56 +0530 Civil Suit No.580/2017 Shri Pal Sharma v Mahesh Kumar Page No.10 of 10