Delhi District Court
Cs No. 1966/2014 Bhana Mal Rana @ Bhagwan ... vs . Sanjay Rana & Ors. Dod: 01.04.2015 on 1 April, 2015
CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015
IN THE COURT OF ADDL. DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS: NEW DELHI
PRESIDED BY :MS. PINKI
Civil Suit No. 1966/2014
IN THE MATTER OF :
Mr. Bhana Mal Rana @ Bhagwan Singh
S/o Late Mr. Uday Singh
R/o House No. 375,
Vill & PO Bijwasan
New Delhi 110061
.....Plaintiff
(Through Mr. Satish Kumar, Advocate)
Versus
1. Mr. Sanjay Rana
S/o Sh. Bhana Mal Rana @ Bhagwan Singh
R/o Plot No. 587,
Village & Post Office Bijwasan.
2. Ms. Lalita
W/o Mr. Sanjay Rana
Village & Post Office Bijwasan
New Delhi 110061
....Defendants
( Defendant No. 1 and No. 2 are Exparte)
Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 1 of 27
CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015
Date of Institution of Suit : 27.03.2012
Date of reserving judgment : 31.03.2015
Date of pronouncement : 01.04.2015
SUIT FOR RECOVERY OF POSESSION, PERMANENT AND
MANDATORY INJUNCTION
JUDGMENT:
1. In the instant case litigation is amongst the family. Plaintiff (senior citizen) is father of defendant no.1 ( differently abled) and father inlaw of defendant no.2. Defendants initially contested the suit, filed their written statement but later preferred not to appear and were proceeded expare vide order dated 12.12.2013 passed by learned Predecessor of this court. Suit bearing No. 1101/2012 titled as "Rakesh Kumar Rana Vs. Sanjay Rana" is also pending besides execution petition bearing No. 103/13/11 titled as "Bhana Mal Vs. Sanjay Rana" qua judgment / compromise decree dated 03.07.2010 passed by Ms. R. Kiran Nath, the then learned Additional District Judge, Dwarka Courts, New Delhi. Suit is being dismissed for the following reasons.
2. The plaintiff has prayed for the following relief :
" .......... the defendants, their agents, servants, nominees, assigns, employees, representatives, or any other person acting through them be restrained permanently from creating any third party interest by way of sale, mortgate or any Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 2 of 27 CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015 mode or part with possession of the suit property in part or whole in any manner whatsoever to third party and further restrained from carrying out any constructions in H.No. 587, Village & Post Office Bijwasan, New Delhi and particularly in the portion shown in red colour in the site plan annexed hereto by a decree for permanent injunction in favour of the plaintiff and against the defendants.
A decree for mandatory injunction, be also passed, directing the defendants/ their agents / servants / assigns / representative acting through them to remove the entire constructions / erections done by him and more particularly, to remove the unauthorized construction of the wall in the suit property No. 587, Village & Post Office Bijwasan, New Delhi - 110061 as shown in red colour in the site plan, attached to the suit.
A decree of possession in favour of the plaintiff and against the defendants, thereby directing the defendants, their legal heirs,attorneys, servants, representatives, assignees, agents, associates, successors or any other person acting on their behalf to handover the vacant and physical possession of the portions occupied in the property bearing No. 587, Village & Post Office Bijwasan, New Delhi - 110061 as shown in the green colour in the site plan attached to the suit."
PLAINTIFF'S CASE :
3. It has been averred that plaintiff is the owner and in Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 3 of 27 CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015 occupation of property bearing H.No. 375, Village & Post Office Bijwasan, New Delhi - 110061 and is living there with his family for past several years. It has been stated that plaintiff is also joint owner of the property bearing No. 587, Village & Post Office Bijwasan, New Delhi - 110061 (hereinafter referred as "suit property") along with his brothers. Plaintiff is a senior citizen and has been harassed and embarassed by his son, defendant no.1. Defendant no. 2 is the daughter - in - law of the plaintiff. Defendant no.1 is also occupying certain portion in the suit property, as permissive user and the portion occupied by defendant no.1 has been shown in green colour in the site plan Ex. PW 1/2.
4. It has been averred that defendant No.1 had filed a suit for partition, permanent injunction and declaration and same was disposed off as compromised vide judgment & decree dated 03.07.2010 passed by Ms. R.Kiran Nath, the then learned Additional District Judge, Dwarka Courts, New Delhi, upon an application under order XXIII Rule 3 read with section 151 of the Code of Civil Procedure, 1908 filed by the parties herein.
5. It has been further averred that, as per the terms of the compromise decree as mentioned in the application under order XXIII Rule 3 read with section 151 of the Code of Civil Procedure, 1908 filed by the parties, it was agreed that an area comprising of 96 square yards falling in the share of the plaintiff, as shown in the dotted marks in the site plan,shall be transferred wholly and absolutely to the defendant No.1 Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 4 of 27 CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015 subject to the condition that the right to sell / transfer shall vest only with the children of defendant No.1. It has been further averred that, it was agreed that defendant No.1 and his children shall have no right to interfere or obstruct in any manner in peaceful possession and enjoyment of the remaining portion/share of the property as mentioned in the said appliction. It was also agreed that the portion shown and marked in red colour (now dotted mark) in the site plan attached with the application under Order XXIII Rule 3 read with section 151 of the Code of Civil Procedure, 1908, shall be in exclusive possession of the defendant No.1 and he or his wife or his legal heirs shall have no right or interest in respect of the portion other than the portion shown and marked in red colour in the site plan annexed as Annexure - X to the said application. It has been further stated that the other terms of the said compromise are also mentioned in the application filed by the parties.
6. It has been averred that the plaintiff, after passing judgment & decree dated 03.07.2010 passed by Ms. R.Kiran Nath, the then learned Additional District Judge, Dwarka Courts, New Delhi, collected BRICKS, BADARPUR, CEMENT and other building material to partition the portion, to be given to the defendant. It has been stated that defendants, in utter defiance of the compromise decree did not allow the said portion to be partitioned and the plaintiff was left with no other alternative but to file the exeuction petition for executing the compromise decree entered into between the parties dated 03.07.2010. It has been further stated that Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 5 of 27 CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015 defendant instead of adhering to the terms of the compromise, all of a sudden, unauthorisedly and illegally started making construction in the suit property as shown in red colour in the site plan attached to the present suit. Plaintiff immediately on 08.01.2012 made a call to 100 number, and reported the matter to the police. The police officials visited the suit premises and asked the defendant No.1 to stop the work being carried out by him in view of the compromise decree, however, the defendant in complete defiance of the decree and instructions of the local police has raised approximately eight feet boundary wall in the said property as shown in the red colour in the plan attached hereto. The photographs in respect of the same and police complaints are annexed with the plaint. The plaintiff raised objections to the said unauthorized and illegal construction of wall by the defendant and started extending threat of life and dire consequences to the plaintiff and his other family members.
7. On 13.01.2012 the defendants have once again collected the BRICKS, BADARPUR, CEMENTS and other building materials and plaintiff again reported it to the police. The police intervened and stopped the construction work. It has been further stated that defendant no.1 is differently abled person and due to this factor he always succeed in getting misplaced sympathy and both the defendants are habitual offenders. The plaintiff had also made several requests to the defendant No.1 to vacate the portion occupied by him as permissive user as shown in green colour in the site plan attached with the present suit but, he did not pay heed to the Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 6 of 27 CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015 requests made by plaintiff.
8. Replication on behalf of plaintiff was filed on 03.06.2013. In replication, the plaintiff has denied the averments made by defendant and reiterated once made by him in the plaint.
DEFENDANTS' CASE
9. Defendants contested the case and filed their written statement on 27.07.2012. They have contested the suit inter alia, on the grounds that, they are in the possession of the entire property, since defendant no.1 is residing there with his wife i.e. defendant no.2 and had given part of the suit property on rent to various tenants. They have further stated that plaintiff is neither the owner nor has any right to be in possession of the suit property. It is further stated that the suit property is admeasuring 350 square yards and, accordingly, the plaintiff has only 1/3rd share which comes to 116.6 square yards, out of the said 1/3rd share, the plaintiff had already donated 25 square yards to Delhi Jal Board for construction of a tubewell and in lieu of the same, Mr. Ishwar Rana, son of the plaintiff was appointed as BELDAR in Delhi Jal Board. It has been further stated that remaining 92 square yards was left with the plaintiff which has already been given in the share of the defendant No.1, in lieu of the compromise under Order XXIII Rule 3 of the Code of Civil Procedure, 1908 in the civil suit for partition filed by the defendant bearing Suit No. 141/2009, titled as "Sanjay Rana versus Bhanamal & Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 7 of 27 CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015 Anr." which was decreed as compromised by the court of Ms. R. Kiran Nath, the then learned Additional District Judge, Dwarka Court vide order dated 03.07.2010 and the defendant is a nullity and the plaintiff himself has reslied from it. Further, the same was entered into fraudulently by the plaintiff by concealing the material facts from the Court.
10. It is stated that the suit property is a joint property in the name of Mr. Om Prakash and Mr. Dharam Singh and the plaintiff as they all are sons of Late Mr. Uday Singh, to the extent of 1/3rd share each. It has been further stated that Ms. Shikha, daughter of the plaintiff has also filed a suit for partition, pertainting to the family properties including the suit property. The suit is bad for non - joinder of Ms. Shikha and brothers of plaintiff who are cosharers. The suit is bad for want of pecuniary jurisdiction and relief for possession is sought without seeking relief of declaration.
11. It has been averred that plaintiff has not affixed proper court fee for seeking the relief of possession, since the market value of the land in question is much higher than Rs. 3,50,000/.
COURT PROCEEDINGS
12. After filing of the present suit summons for settlement of issues were issued against the defendants. Defendants were served for 10.04.2012. Written statement on behalf of defendants was filed on 27.07.2012. Defendants were proceeded ex parte by the learned Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 8 of 27 CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015 Predecessor of this court on 12.12.2013.
ISSUES
13. With the aforesaid pleadings of the parties, the learned Predecessor of this court vide order dated 12.12.2013, framed the following issues:
"(i) Whether the suit is bad for nonjoinder of necessary parties? If so, its effect ? OPD
(ii) Whether the present suit is not competent before this court for lack of pecuniary jurisdiction ? OPD.
(iii) Whether the present suit is bad for want of relief of declaration ? OPD.
(iv) Whether the plaintiff is entitled to the decree of possession, as prayed for ? OPP
(v) Whether the plaintiff is entitled to the decree of mandatory injunction, as prayed for ? OPP.
(vi) Whether the plaintiff is entitled to the decree of
permanent injunction, as prayed for ? OPP
(iv) Relief."
PARTIES EVIDENCE
14. In order to discharge the onus of proving the issues put upon the parties, plaintiff has examined four witnesses. He has examined himself as PW1 and has proved on record the following documents :
a) Affidavit as Ex. PW1/A
b) Khasra Girdawari as Ex. PW 1/1.
c) Site plan as Ex. PW 1/2.
d) Complaint made to the police as Ex. PW 1/3 (colly).
c) Copy of the WS filed before the court of Ms. R.Kiran
Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 9 of 27
CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015
Nath, the then learned Additional District Judge as Mark B.
15. Ms. Geetanjali Malik, Junior Judicial Assistant, Record Room (Sessions) has been examined as PW2. She has produced the summoned record i.e. case file of Suit bearing No. 141/2009, titled as "Sanjay Rana Vs. Bhanamal Rana" and proved the application under Order XXIII Rule 3 of the Code of Civil Procedure, 1908 along with affidavit and site plan as Ex. PW 2/1 ( colly).
16. Mr. Krishan Vir, Patwari, SDM Kapashera has been examined as PW3. He has proved the copy of Register KARAWAI in respect of Khasra No. 315 and 587 Village Bijwasan as Ex. PW 3/1 and copy of Khasra Girdwari in respect of aforesaid property as Ex. PW3/2. During examination of this witness learned Predecessor of this court has observed with respect to Ex. PW 3/1, that the name of the plaintiff has been mentioned as Bhagwan Singh S/o Mr. Uday Singh, whereas, in Ex. PW3/2 it has been clarified that, his name is Bhagwan Singh @ Bhana Mal S/o Mr. Uday Singh.
17. Mr. Raj Kumar, Naib Nazir has been examined as PW4. He has proved the copy of objections and petition filed in execution petition No. 103/13/11 titled as "Bhana Mal Vs. Sanjay Rana" as Ex. PW 4/1 and Ex. PW 4/2.
18. The testimonies of PW1 to PW 4 are unchallenged / un rebutted.
Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 10 of 27 CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015 FINDINGS
19. Contentions of either side have been heard and considered.
Record perused.
20. A perusal of record shows that plaintiff is father of defendant no.1 and father in law of defendant no.2 and the parties are in litigation in number of matters. It is admitted case of parties that, an application Under Order XXIII Rule 3 of the Code of Civil Procedure, 1908 and another application under Section 151 of the Code of Civil Procedure, 1908 were moved before Ms. R. Kiran Nath, the then learned Additional District Judge, Dwarka. Vide order dated 03.07.2010, the learned Additional District Judge-01, Dwarka had recorded compromise and suit was disposed of as settled and a decree was ordered to be prepared in suit bearing No. 141/2009, titled as "Sanjay Rana verses Bhanamal Rana & Ors".
21. Thereafter, execution petition No. 103/13/11 titled as "Bhana Mal Vs. Sanjay Rana" was filed on 11.05.2011 and objections have been filed by parties on 12.09.2011, wherein, it has been objected that as per settlement, wherein, decree holder Bhana Mal Rana @ Bhagwan Singh agreed to give 96 square yards to the judgment debtor Sanjay Rana. judgment debtor Sanjay Rana came to know that Bhana Mal Rana @ Bhagwan Singh is not the absolute owner in respect of plot no. 587 and, accordingly, he has managed to obtain the mutation record of the said plot Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 11 of 27 CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015 from the office of Tehsildar, Vasant Vihar. There were three cosharers of the property bearing Khasra No. 587 admeasuring 350 square yards and Mr. Bhana Mal Rana, father of the judgement debtor is owner of 1/3rd share of the property. Further, in respect of the status report of property bearing No. 587, Bijwasan, from the Office of Tehsildar, Vasant Vihar, it was reported in the report dated 20.07.2011, that Mr. Bhana Mal Rana is recorded owner of only 1/3rd share in Khasra No. 587 of Village Bijwasan, New Delhi, which is approximately 117 square yards and out of 117 square yards Mr. Bhana Mal Rana has already donated 25 square yards of the aforesaid property to Delhi Jal Board for construction of a Tubewell and in lieu of said donation, Mr. Ishwar Rana son of Bhana Mal Rana was appointed as BELDAR in Delhi Jal Board. Further, Mr. Bhana Mal Rana handed over the vacant and physical possession of 25 square yards in lieu of the aforesaid donation. Mr. Bhana Mal Rana has now left with only 92 square yards pertaining to his share of the land. This fact was intentionally and deliberately concealed by Mr. Bhana Mal Rana when he entered into compromise dated 03.07.2010.
22. As per order dated 10.12.2012, passed by Ms. R. Kiran Nath, learned Additional District Judge in execution petition No. 48/11 titled as "Bhana Mal Rana Vs. Sanjay Rana", learned counsel for the judgment debtor / objector has submitted that since the area is 4 square yards short of agreed area the present decree cannot be executed and in fact is nullity in the eyes of law. However, decree holder has submitted that executing Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 12 of 27 CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015 court cannot go beyond the terms of decree and the area within the red sketch in Ex. C2 does have 96 square yards. Further, Mr. Vikas Anand was appointed as Local Commissioner, to measure the area within red sketch in exhibitC2. As Mr. Vikas Anand has expressed his inability to act as Local Commissioner, Mr. Piyush Jain was appointed as Local Commissioner. As per order dated 27.02.2013, judgment debtor deliberately had not paid the fee fixed by learned Additional District Judge and not cooperated with Mr. Piyush Jain, Local Commissioner for preparation of the report. Local Commissioner has submitted before learned Additional District Judge, that he has conducted the local inspection, as directed by the court and a report is also filed on 16.01.2013. As per order dated 13.09.2013, judgment debtor no. 1 and no. 2 agreed that they would withdraw the complaint / cases mentioned in Ex.C1 of the decree passed by learned Additional District Judge and have sought four weeks time to withdraw all the proceedings and after such withdrawals the further settlment talks would be proceeded in this court. The modalities whereof is that the decree holder would agree to give possession of some more land at the site, to the family of judgment debtors.
23. The settlement was arrived at in suit bearing No. 141/2009, in respect of house bearing No. 587, Village & P.O Bijwasan, New Delhi, in respect of 95 square yards area, falling in the share of Mr. Bhana Mal Rana, which was decided to be transferred wholly and absolutely to Mr. Sanjay Rana subject to the condition that the right to sell, transfer, Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 13 of 27 CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015 mortgage, lease about the property shall vest only to the children of Mr. Sanjay Rana. Further, Mr. Sanjay Rana and their children shall have no right to interfere or obstruct in any manner in peaceful possession and enjoyment of the remaining portion / share of the property No. 587, Village & P.O Bijwasan, New Delhi. The portion shown as red in site plan Annexure - X Ex.C2 was to be in exclusive possession of Mr. Sanjay Rana. It was also settled that in respect of entire undivided ancestral agricultural land which is being held by Mr. Bhana Mal Rana and his brothers along with other coparceners, plaintiff agreed and undertook that Mr. Sanjay Rana will be entitled to his due legal share coming to plaintiff exclusively in the event of partition of the joint ancestral agricultural land situated in Shyalapur, Tehsil Kapasehra, Village Bijwasan, New Delhi.
24. Further, Mr. Sanjay Rana shall have no right or claim in any other agricultural land which has been acquired or may be acquired by the plaintiff. It was also agreed by Mr. Sanjay Rana that the properties bearing No. 377 & 610 are self acquired properties of the plaintiff. It was also agreed by Mr. Sanjay Rana that Mr. Bhana Mal Rana has invested huge money in constructing building over the plot no. 585, 315 and 375 and the construction raised by the plaintiff was not with intention to treat the construction / building as ancestral house / building.
25. Mr. Sanjay Rana also undertook to uncondtionally withdraw the litigation / dispute initiated by Mr. Sanjay Rana or by his wife against Mr. Bhana Mal Rana and other family members. The details of disputes / Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 14 of 27 CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015 litigations are as under :
"(a) Complaint dated 23.06.2008 with Police Station, Kapashera, New Delhi.
(b) Complaint dated 05.07.2009 with Police Station, Kapashera, New Delhi by Smt. Lalita, wife of the plaintiff.
(c) The defendant no.1 Mr. Sanjay Rana and defendant no.2 Smt. Lalita wife of the defendant no.1 immediately withdraw by taking all necessary steps. Mr. Arjun Singh for getting the FIR bearing No. 149 dated 19.07.2009 PS Kapashera, South West District, New Delhi quashed or / and henceforth cooperate and take steps immediately withdraw the case which has been registered against him, at present pending in the court of Ms. Rekha : MM : Dwarka Courts, New Delhi including by filing appropriate petition for quashing.
Defendant no.1's wife has also given an affidavitcum undertaking in this regard with this application separately which forms integral part of this compromise. If such steps are not taken immediately by the plaintiff and his wife to get the said FIR quashed and to withdraw the case pending in the court of Ms. Rekha : MM : New Delhi, then in that event the defendant no.1 Mr. Sanjay Rana shall not be entitled to the property as mentioned herein.
(d) Complaint Dated 18.08.2009 with the Police Sation, Kapashera.
(e) Complaint on the basis of which a case has been registered before the Special Executive Magistrate, South West district vide DDNo.36A dated 13.11.2009 against defendant no. 1.
(f) Any other complaint filed by the Mr. Sanjay Rana and his wife against the Mr. Bhana Mal Rana and other family members before any authority or police station / chowki. The Mr. Sanjay Rana and his wife undertake that the entire expense is withdrawal of complaints / case or quashing of the case shall be exclusively borne by them." Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 15 of 27 CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015
26. The plaintiff has sought permanent injunction against the defendants restraining them from creating any third party interest by way of sale, mortgage or any other mode or part with possession of the suit property in part or whole in any manner, whatsoever, to third party and further restrained from carrying out any constructions in House No. 587, Village & Post Office Bijwasan, New Delhi and particularly in the portion shown in red colour in the site plan. Plaintiff has also sought direction to defendants to remove the entire construction / errection done by him. More particularly, to remove the unauthorized construction of the wall in the suit property bearing No. 587, Village and Post Bijwasan, New Delhi - 110061 shown in red colour in the site plan. Plaintiff has also sought direction to the defendant to hand over vacant and physical possession of the portions occupied in the property bearing No. 587, Village & Post Bijwasan, New Delhi as shown in the green colour in the site plan.
27. Vide order dated 12.12.2013, the application under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure, 1908 was disposed of by learned Predecessor of this court by restraining the defendants from creating third party right in respect of suit property and further from raising construction in the portion, shown in red colour in the site plan.
28. Issue wise findings in the matter are as under.
Issue No. (i) "Whether the suit is bad for nonjoinder of necessary parties? Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 16 of 27 CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015 If so, its effect ? OPD"
29. The onus to prove this issue is upon the defendants. In preliminarly objection no.1, objection has been raised that the suit is bad for non joinder of necessary party. It has been stated that plaintiff has concealed the fact that his daughter Ms. Shikha has already filed a suit for partition pertaining to the family properties including the present suit property and the same is pending in the court of Mr. K. Venu Gopal, learned Additional District Judge, Dwarka, New Delhi. Ms. Shikha has not been impleaded, as a defendant, who is also a cosharer in the suit property. Plaintiff has filed rejoinder and submitted that Ms. Shikha is not necessary party.
30. Learned Counsel for the plaintiff has submitted that defendants were in possession of the suit property, and others are not required to be impleaded as party, who are not in possession of the suit property.
31. From the perusal of record the fact remains that defendants preferred to be proceeded ex parte, they neither cross examined the witnesses nor adduced evidence on their behalf. This court is of the considered view that defendants have failed to prove this issue in their favour. Accordingly this issue is decided in favour of the plaintiff and against the defendants.
Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 17 of 27 CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015 Issue No. (ii) "Whether the present suit is not competent before this court for lack of pecuniary jurisdiction ? OPD."
32. The onus to prove this issue is upon the defendants.
Defendants in preliminary objection No. 3 has raised the objection that value of the suit property, is much more than Rs. 30,00,000/ (Rupees Thirty Lacs) and therefore, this court do not have jurisdiction to try the same. The plaintiff in his replication has denied that the value of suit property is much more than Rs. 30,00,000/ (Rupees Thirty Lacs).
33. Learned counsel for the plaintiff has submitted that it is lal dora land and suit has been valued for the purposes of court fee and jurisdiction for relief of possession for Rs. 3,05,000/ lacs. This court is of the considered view that defendants have failed to prove this issue in their favour. Accordingly this issue is decided in favour of the plaintiff and against the defendants.
ISSUE NO. (iii) "Whether the present suit is bad for want of relief of declaration ? OPD."
34. The onus to prove this issue is upon the defendants. In preliminary objection No. 4 of the written statement defendants have taken the objection that suit is not maintainable, since plaintiff has sought Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 18 of 27 CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015 relief of possession without seeking the declaration of the suit property in his favour. In replication the plaintiff has denied that the suit is barred under Section 41 (h) of The Specific Relief Act. Defendants are exparte. Even though arguments were addressed but no one has pressed this issue on behalf of defendants. This court is of the considered view that defendants have failed to prove this issue in their favour. This issue is decided in favour of the plaintiff and against the defendants.
ISSUE NO. (iv)
(iv) "Whether the plaintiff is entitled to the decree of possession, as prayed for ? OPP"
35. Learned counsel for the plaintiff has submitted that compromise was arrived at between the parties before Ms. R. Kiran Nath, the then learned Additional District Judge, Dwarka, New Delhi, and vide Order/decree dated 03.07.2010, the suit was disposed of as settled. He has also referred to an application under Order XXIII Rule 3 read with section 151 of the Code of Civil Procedure, 1908 moved before Ms. R. Kiran Nath, the then learned Additional District Judge, Dwarka, New Delhi. He has further submitted that another suit bearing CS No. 1101/12 titled as "Rajesh Kumar Rana Vs. Sanjay Rana" is pending for 21.04.2015 before this court. He has further submitted that even though objections have been filed by the defendant that the 92 square yards was left with the plaintiff, Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 19 of 27 CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015 therefore 96 square yards cannot be given to the defendant but defendant entered into an agreement for 96 square yards. He has further submitted that in view of unrebutted testimony, plaintiff is entitled to relief claimed for in the plaint.
36. A Perusal of record shows that certified copy of the site plan Ex. C2 filed along with the application under Order XXIII Rule 3 read with section 151 of the Code of Civil Procedure, 1908 moved before Ms. R.Kiran Nath, the then learned Additional District Judge, Dwarka, New Delhi, Ex.C1 have also been filed in the instant case and the original file has been produced by PW 2 Ms. Geetanjali Malik. This application along with affidavit and site plan has been exhibited in the instant case as Ex.PW2/1 (colly), Order dated 03.07.2010 as Ex.PW2/2, Order and decree passed by Ms. R. Kiran Nath, the then learned Additional District Judge, Dwarka, New Delhi, as Ex. PW 2/3.
37. A perusal of the site plan shows that, it is pertaining to the plot No. 587, however, it is different from site plan Ex. PW 1/2 which has been filed in the instant case, although property number is same in the site plan Ex. C2, which is now exhibited as Ex. PW 2/1 ( Colly) shows 96 square yards area which includes bathroom, latrine etc. and the front portion is A to A1 showing adjoining shop and adjacent to the same is 25 square yards Delhi Jal Board, Tubewell. Further, three rooms are shown in a row on the backside towards North. These three rooms are shown in red in the site plan Ex. PW 1/2. It is pertinent to mention that in Ex. PW1/2, Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 20 of 27 CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015 96 square yards is shown in total and 96 square yards shown in site plan which is part of settlement arrived at before Ms. R.Kiran Nath, the then learned Additional District Judge, Dwarka, New Delhi on 03.07.2010. It is further pertitnent to mention that an application under order IX Rule 7 of the Code of Civil Procedure, 1908 dated 28.10.2014 was moved on 21.11.2014, on behalf of defendants and same was dismissed in default as well as for nonprosecution vide order dated 11.02.2015. Further, during proceedings defendant no.1 Sanjay Rana and no.2 Lalita were proceeded exparte vide order dated 12.12.2013 passed by learned Predecessor of this court.
38. Further, especially in Para No. 14 of the plaint, plaintiff has averred that he had also made several request to defendant no.1 to vacate the portion occupied by him, as permissive user as shown in green colour in the site plan Ex.PW2/1 and these are rear three rooms in a row. There is neither general nor specific pleadings to the effect that when and how and through whom defendant no.1 occupied these rooms as permissive user. It is also pertinent to mention that plaintiff himself has placed on record the Register KARAWAI and Khasra Girdwari which has been proved by PW 3 Mr. Krishan Vir, Patwari as Ex. PW 3/1, the name of the plaintiff has been mentioned as Bhagwan Singh s/oMr. Uday Singh, whereas, in Ex.PW 3/2, it has been clarified that his name is Mr. Bhagwan Singh @ Bhana Mal S/o Mr. Uday Singh. Ex. PW3/1 mentions about Mr Bhagwan Singh @ Bhana Mal and his two brothers Mr. Om Prakash and Mr. Dharampal in Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 21 of 27 CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015 respect of Khasra No. 587, Village and Post Bijwasan, New Delhi110061, Ex.PW 3/2 is Khasra Girdawari and shows the name of three brothers Mr. Om Prakash, Mr. Dharampal Singh and Mr. Bhagwan Singh @ Bhana Mal, having 1/3rd share each of three brothers. It is also clear from the record and the settlement arrived at before Ms. R. Kiran Nath, the then learned Additional District Judge, Dwarka, New Delhi in respect of property bearing No.587, Village and Post Bijwasan, New Delhi - 110061. It is stated that area of 96 square yards shown in site plan annexed " X"
Ex.C2 and now Ex. PW 1/2 is falling in share of Mr. Bhagwan Singh @ Bhana Mal, the present plaintiff without any other area in his share and in absence of specific averments in respect of permissive occupation, as discussed in preceding lines, this court is of the view that plaintiff is not entitled to seek possession of this area shown in green colour in the site plan Ex. PW 1/2.
Therefore, plaintiff has miserably failed to prove the issue in his favour. Issue no. (iv) is decided against the plaintiff and in favour of the defendants.
ISSUE NO. (v) "(v)Whether the plaintiff is entitled to the decree of mandatory injunction, as prayed for ? OPP."
39. It is once again noted at the cost of repetition that a site plan Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 22 of 27 CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015 along with application under order XXIII Rule 3 read with Section 151 of the Code of Civil Procedure, 1908 was filed before Mr. R.Kiran Nath, learned Additional District Judge, Delhi. Hence, in the instant case there are two different site plans. Neither the averments nor the evidence adduced on record, clearly shows anything about the spectific construction, unauthorized, if any, raised by the defendants. This court is of the considered view that plaintiff has failed to prove on record, on the basis of oral testimony as well as on the basis of documents as to whether defendants have raised any construction, if so, whether it was unauthorized construction. Mere oral averments of the plaintiff to this fact that construction is unauthorized does not suffice the purpose, it has to be proved as per law. No specific, unequivocal pleadings are on record, even no such evidence has been adduced in order to prove the same. Therefore, this court is afraid to hold that the plaintiff is not entitled for relief of mandatory injunction in absence of any specific evidence or pleadings in eorder to show particularly unauthorized construction raised by plaintiff.
Therefore, issue no. (v) is decided against the plaintiff and in favour of the defendants.
ISSUE NO. (vi) "(vi) Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for ? OPP"
40. It is pertinent to mention the settlement / compromise Ex. C1 Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 23 of 27 CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015 arrived at between the parties, which reads as under :
"In respect of property bearing house No. 587, Village and PO Bijwasan, New Delhi - 110061, compromising area of 95 square yards, as particularly shown in the site plan annexed herewith as Annexure - X, failling in the share of the Defendant no.1 shall be transferred wholly and absolutely to the plaintiff subject to that the right to sale / transfer / mortgage/ lease about the above property shall vest only to the children of the plaintiff. The plaintiff and their children shall have no right to interfere or obstruct in any manner in peaceful possession and enjoyment of the remaining portion / share of the property mentioned herein. The portion shown and marked in red colour in the site plan Annexure X annexed to the present application shall be in exclusive possession of the plaintiff. The plaintiff or his wife or his legal heirs shall have no right or interest in respect of the portion other than the portion shown and marked in red colour in the site plan Annexure - X. In the event of children of Plaintiff decide to sell the said house No. 587, the same shall be offered first to defendants and children and the defendants shall have right to purchase the same on payment of market rate and only on express refusal of purchase, the children shall have right to sell the same to any third person. The defendant no.1 has agreed to construct and raise a boundary wall upto 7 feet height at his own expense in the portion shown in red colour in site plan Annexure - X for proper demarcation of the area from rest of the portion. The boundary walls will be constructed within 40 days from the date of permission of the settlement by this Hon'ble Court. The plaintiff and his wife shall completely assist, cooperate and facilitate in constructing the boundary wall in the portion shown in red colour in site plan Annexure ' X and will not create hindrance or obstacle Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 24 of 27 CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015 in any manner."
41. Therefore, by way of this settlement vide which the suit has been decreed as settled, the specific order is already on record showing that the right to sell / transfer / mortgage/ lease about the above property shall vest only to the children of the plaintiff, (defendant no.1 Mr. Sanjay Rana herein). Moreover, the defendants Mr. Sanjay Rana, his wife Ms.Lalita and their children shall have no right to interfere or obstruct in any manner in peaceful possession and enjoyment of the remaining portion / share of the property bearing suit No. 587, Village and PO Bijwasan, New Delhi - 110061. Since, right has been assigned to the children of defendant No.1, therefore, defendants do not have right to hand over vacant and physical possession of occupied portion in the suit property to anyone.
42. Further, the suit bearing No. 141/2009 titled as "Sanjay Rana Vs. Bhanamal Rana @ Bhagwan Singh & Anr." was filed by the defendant No.1. He had filed a suit for partition, permanent injunction and declaration and same was disposed off as compromised vide judgment & decree dated 03.07.2010, passed by Ms. R.Kiran Nath, the then learned Additional District Judge, Dwarka Courts, New Delhi, upon an application under order XXIII Rule 3 read with section 151 of the Code of Civil Procedure, 1908 filed by the parties herein.
43. Further, an execution petition bearing No. 103/13/11 titled as "Bhanamal Rana @ Bhagwan Singh Vs. Sanjay Rana" has been filed filed Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 25 of 27 CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015 by the plaintiff / decree holder and same is pending before this court for disposal.
44. It is further clarified that in case any of the party does not adhere to settlement arrived at and recorded before Mr. R. Kiran Nath:
learned Additional District Judge, Delhi on 03.07.2010, the remedy is not by way of filing the present suit. The remedy is otherwise, the party may opt for further course of action as per law and they are at liberty to take necessary steps as per law, whether by way of filing execution ( which has already been filed ) or the contempt petition etc. as the case may be.
Therefore, plaintiff has miserably failed to prove this issue in his favour. Issue no. (vi) is decided against the plaintiff and in favour of the defendants.
45. RELIEF In view of specific findings on all the aforesaid issues, the plaintiff has miserably failed to prove his case against the defendants. He is not entitled to any relief.
It is clarified that Municipal Corporation of Delhi is always at liberty to take necessary action, as per law in case of unauthorized construction/ encroachment, if any.
46. CONCLUSION Accordingly, suit of the plaintiff is dismissed with no order as Suit for Recovery of Possession, Permanent and Mandatory Injunction "Dismissed " Page 26 of 27 CS No. 1966/2014 Bhana Mal Rana @ Bhagwan Singh vs. Sanjay Rana & Ors. DOD: 01.04.2015 to cost.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
Dictated & Announced in the (PINKI)
open court on 01.04.2015 Addl. DistrictJudge01
SouthWest /Dwarka District Courts
New Delhi
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