Delhi District Court
Sh. Ashok Kumar vs Smt. Rani Sharma on 31 July, 2018
Ashok Kumar v. Rani Sharma & Ors.
Suit no. 1152/14 (83613/16)
IN THE COURT OF MS. NEHA PRIYA, CIVIL JUDGE01 (SOUTH)
SAKET COURT, NEW DELHI
In the matter of:
Suit no.1152/14 (83613/16)
CNR No.DLST030001462011
Sh. Ashok Kumar
S/o Late Shri Chunva Ram,
R/o J4/81B, DDA Flats, Kalkaji,
New Delhi110019. ...............Plaintiff
Versus
1. Smt. Rani Sharma
W/o Sh. Manohar Lal Sharma
2. Sh. Manohar Lal Sharma
S/o Sh. Salig Ram Sharma
Both R/o:
H. No. RZ12, Fourth Floor,
Gali No. 5, Tughlakabad Extension,
New Delhi110019. ..............Defendants
Date of Institution :03.08.2011.
Date of Pronouncement :31.07.2018.
Decision :Dismissed.
SUIT FOR MANDATORY INJUNCTION (AND IN THE
ALTERNATIVE FOR POSSESSION), BESIDES PERPETUAL
INJUNCTION AND MESNE PROFITS (PENDENTE LITE AND
FUTURE) AS ALSO INTEREST AND COSTS.
Present: None.
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Ashok Kumar v. Rani Sharma & Ors.
Suit no. 1152/14 (83613/16)
JUDGMENT:
1. This is a suit for mandatory injunction (in the alternative for possession) perpetual injunction and mesne profits along with interest filed by plaintiff against defendant no.1 and 2. By virtue of this suit the plaintiff seeks to remove defendants from the suit property i.e 4th floor and above in premises bearing no. RZ12, (admeasuring 45 Sq. Yards, 37.62 Sq. meters) Gali no.5, Tuglakad Extension, New Delhi110019 (hereinafter referred to as "Suit Property") and to permanently restrain them from obstructing the plaintiff from inspecting the Suit Property along with payment of occupancy charges, mesne profits and interest.
Averments in the plaint:
2. The case of the plaintiff is that he is the sole and absolute owner of the Suit Property. The Suit Property comprising of two rooms, two bathroom, one small kitchen and open space along with terrace and common scooter garage on the back side. In the year 2009, plaintiff had purchased the Suit Property from the defendants. The defendant no. 1 had represented to be the absolute owner and in possession of the Suit Property. The Suit Property was purchased for a total sale consideration of Rs.1,55,000/ and all the customary documents such as Agreement to Sell, General Power of Attorney, Special Power of Attorney, Receipt, Will and affidavits all dated 01.12.2009 were executed in favour of the plaintiff. All original documents of the property executed in favour of the defendants by Sh. Chhedi Singh in May 2004 were handed over to the plaintiff by the defendants. A letter of possession was also executed in favour of the plaintiff and electricity connection of the premises was transferred in the name of the plaintiff.
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Suit no. 1152/14 (83613/16) Thereafter, at request of defendants, plaintiff permitted them to continue to use and occupy Suit Property as their new residence was not fit for use. Defendants had assured that they would vacate Suit Property latest by January 2010. Despite repeated requests till date Suit Property has not been vacated. No occupancy charges have been paid. Defendants are not allowing the plaintiff to enter and inspect the Suit Property. Having left with no other option, this suit is filed by plaintiff.
Written statement:
3. By virtue of the joint written statement, it has been submitted by defendants that they are the owners and in possession of the Suit Property. Defendants never executed any sale related documents in favour of the plaintiff in 2009. The documents sought by defendants are not reliable in eyes of the law as they are not duly executed. The defendants had signed on the General Power of Attorney as they had friendly relations with plaintiff, and were not aware about the contents of the documents. The original title documents of the Suit Property had been taken by the plaintiff from the defendants on false pretext and with promise to return the same within a week, however plaintiff failed to do so. The Suit Property is very valuable and the plaintiff is habitual of filing suit to grab the Suit Property. The present suit is completely false and frivolous therefore suit be dismissed with cost.
Replication:
4. Plaintiff had filed replication denying the contents of the written statement and reaffirming claim sought.
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Suit no. 1152/14 (83613/16) Issues:
5. Vide order dated 05.12.2012, following issues framed in this matter:
Issue no.1 Whether the suit has been properly valued for the purpose of court fees and pecuniary jurisdiction of this court? OPP Issue no.2 Whether the plaintiff is entitled to a decree of mandatory injunction directing the defendants to remove themselves from the suit premises shown in red color or in alternative for a decree of possession of the suit property? OPP Issue no.3 Whether plaintiff is entitled to any pendente lite and future interest, if so, for what period and for what rate? OPP Issue no.4 Relief.
Evidence:
6. In order to prove his case, plaintiff examined himself as PW1.
He tendered his evidence by way of affidavit Ex. PW1/A and relied upon the following documents:
(i) Ex. PW1/ 1 i.e. General Power of Attorney dated 01.12.2009.
(ii) Ex. PW1/ 2 i.e. Will dated 01.12.2009.
(iii) Ex. PW1/3 i.e. Agreement to sell dated 01.12.2009.
(iv) Ex. PW1/4 i.e. Special Power of Attorney dated 01.12.2009.
(v) Ex. PW1/5 i.e. Special Power of Attorney dated 01.12.2009.
(vi) Ex. PW1/6 i.e. Affidavit dated 01.12.2009.
(vii) Ex. PW1/7 i.e. Affidavit dated 01.12.2009.
(viii) Ex. PW1/8 i.e. Receipt dated 01.12.2009.
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(ix) Ex. PW1/9 i.e. General Power of Attorney dated 21.05.2004.
(x) Ex. PW1/10 i.e. Will dated 21.05.2004.
(xi) Ex. PW1/11 i.e. Indemnity bond dated May 2004.
(xii) Ex. PW1/12 i.e. Special Power of Attorney dated May 2004.
(xiii) Ex. PW1/13 i.e. Agreement to sell dated May 2004.
(xiv) Ex. PW1/ 14 i.e. Receipt.
(xv) Ex. PW1/15 i.e. Possession letter.
(xvi) Ex. PW1/16 i.e. Affidavit.
(xvii) Ex. PW1/17 i.e. Site plan.
(xix) Ex. PW1/18 i.e. Possession letter dated 01.12.2009.
7. Ld. Counsels for the parties put forth their arguments in accordance with their pleadings.
8. I have carefully perused the entire case record including the pleadings and evidence. I have also gone through the prevailing law in this regard and have heard the submissions of the learned counsel for plaintiff. My issue wise findings are as under:
Issue no. 1:
Whether the suit has been properly valued for the purpose of court fees and pecuniary jurisdiction of this court?OPP
9. The onus of proof of this issue is on the plaintiff. It is the case of the plaintiff is that since defendant is a licensee in the Suit Property, this simplicitor suit for injunction is maintainable. Per contra, it is contended by the defendants in their written statement that since the suit for mandatory injunction has been filed on the basis of an alleged agreement to sell, without seeking title, right and possession in the Suit Property, it is not maintainable. Plaintiff was necessarily required to file a suit for possession and had to value the suit accordingly.
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10. The Hon'ble Supreme Court of India has held in the case of Anathula Sudhakar v. P. Buchi Reddy,1 and I quote:
"13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/ or possession with injunction as a consequential relief, are well settled. We may refer to them briefly:
13.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie.
A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 13.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 13.3 Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction (Emphasis supplied)".
11. It has further held that "A cloud is said to raise over a person's title when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property".
12. In the present case, as far as possession is concerned, it is admitted case of the plaintiff himself that till date he has not received actual 1 (2008) 4 SCC 594 6 of 15 Ashok Kumar v. Rani Sharma & Ors.
Suit no. 1152/14 (83613/16) possession of the Suit Property. In his affidavit of evidence Ex. PW1/A, PW1 has stated that by execution of Ex. PW1/1 to Ex. PW1/8 including possession letter dated 01.12.2009 i.e. Ex. PW1/18, the possession of the Suit Property had been handed over to him. However, at para (k) and (l), PW1 has stated that:
"k.After having executed and completed the formalities of conveyance of title in respect of the 'premises in suit 'on 01.12.2009 in my favour and particularly after handing over to me the legal possession of the 'premises in suit', the defendants, jointly and severally, requested me to permit them to continue to use and occupy the 'premises in suit' so as to enable them to slowly and gradually remove their belongings to their new residence which [on their own saying] was not completely fit for use and occupation by the defendants herein, on that day. l. the deponent having known the defendants very well for quite some time, agreed to permit the defendants, jointly and severally, to continue to use and occupy the 'premises in suit' for a short time so as to enable them to conveniently hand over actual physical vacant possession thereof to me, latest by January, 2010. Notwithstanding the expiry of period which the deponent had granted to the defendants, jointly and severally, a licence/permission to continue to use and occupy the 'premises in suit', the defendants citing flimsy reason(s) avoided to shift to their newly acquired residence, if any at all, and hand over actual physical vacant possession of the 'premises in suit' to me. (Emphasis supplied)"
13. Thus as per averments of the plaintiff himself, although possession letter Ex. PW1/18 had been executed, same had not been acted upon. Thus, as on date of filing of the suit, plaintiff was not in possession of the Suit Property and had never been in possession of the Suit Property.
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14. Further the entire suit of the plaintiff is based on his customary title documents i.e. Ex. PW1/1 to Ex. PW1/8 and Ex. PW1/18 being the general power of attorney, will, agreement to sell, special power of attorney, affidavit, receipt and possession letter all dated 01.12.2009. It is noted that all these documents are in respect of "entire terrace of 3rd Floor and above of the property bearing no. RZ12, Gali no. 5, Measuring no.45 Sq. yards, covered out of Khasra no.491, situated at Tughlakabad Extension, New Delhi19". However, the claim of possession of the plaintiff set up in the plaint is in respect of "4th Floor and above in entire premises bearing no. RZ12, Gali no.5, Measuring no.45 Sq. yards, covered out of Khasra no.491, situated at Tughlakabad Extension, New Delhi19". Thus, prima facie these documents are not in respect of the Suit Property, for which relief of injunction is being sought. Infact, previous chain of documents executed by one Mr. Chhedi Singh in respect of the defendants i.e. PW1/9 to Ex. PW 1/16 are in respect of the 4 th Floor of the said property which is also Suit Property in the present case. Thus, there is apparent defect in the title of the plaintiff to the property in respect of which this suit has been filed, and prima facie right of the defendant is made out in light of Ex. PW1/9 to Ex. PW1/16. Therefore, cloud is raised over the title of the plaintiff to the Suit Property in the present case.
15. Since plaintiff is not in possession, and his title is under cloud, as per law laid down in Anathula Sudhakar case2, plaintiff was required to necessarily sue for declaration, possession and injunction and had to value his suit accordingly.
16. Ld. Counsel for plaintiff relied on Sant Lal Jain v. Avtar 2 Supra note 1.
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Suit no. 1152/14 (83613/16) Singh3, to contend that his suit for simplicitor injunction is maintainable. While quoting the judgment of Milka Singh v. Diana4, it was held in that case that:
"Where a licensor approaches the court for an injunction within a reasonable time after the licence is terminated, he is entitled to the injunction. On the other hand, if the licensor causes huge delay the court may refuse the discretion to grant an injunction the ground that the licensor had not been diligent, and in that case the lincesor will have to bring a suit for possession which will be governed by S. 7(v) of Court fee Act".
17. It was further held that:
"The respondent was a licensee, and he must be deemed to be always a licence. It is not open to him during the subsistence of the licence or in the suit for recovery of possession of the property instituted after the revocation of the licence to set up title to the property in himself or anyone else. It is his plain duty to surrender possession of the property as a licence and seek his remedy separately in case he has acquired title to the property subsequently through some other person. He need not do so if he has acquired title to the property from licensor or from some one else lawfully claiming under him in which case there would be clear merger. The respondent has not surrendered possession of the property to the appellant even after the termination of the licence and the institution of the suit. The appellant is therefore, entitled to recover possession of the property".
18. However, in the present case, the plaintiff has never been in possession of the Suit Property, so there is no question of him being a 3 (1985) 2 SCC 332.
4 AIR 1964 J & K 99.
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Suit no. 1152/14 (83613/16) licensor and defendant being a licensee, which is the context in which Sant Lal Jain case was decided. Thus, the aforesaid precedent is not applicable to the present set of facts and circumstances, and does not assist the case of the plaintiff.
19. Currently the suit is valued for the relief of mandatory injunction, and court fee is paid accordingly. However, in view of my findings above, plaintiff was necessarily required to sue for declaration, possession and injunction. Presently, the suit is not valued for all these reliefs, and court fee has not been paid thereupon. Also at present, suit is valued at Rs.130/ for alternative relief of possession, however, in terms of Section 7 (v) of the Court Fees Act,1870, court fee is payable on an ad valorem basis on the value of the property. Thus, the suit has not been properly valued for the purpose of court fee.
20. As far as pecuniary jurisdiction is concerned, the only indication of value of property is as specified in the documents i.e. Ex. PW 1/1 to Ex.PW1/8 Rs.1,55,000/ which is within pecuniary jurisdiction of this court. Defendant has not led any evidence to refute the same. Thus, this issue is partly decided in favour of the plaintiff and against the defendant.
Issue no. 2:
Whether the plaintiff is entitled to a decree of mandatory injunction directing the defendants to remove themselves from the suit premises shown in red color or in alternative for a decree of possession of the suit property?OPP
21. The onus of proof of this issue is on the plaintiff. It is true that defendant had been proceeded against exparte in the present case vide order dated 02.03.2016. Ld. Counsel for plaintiff has relied on the case of 10 of 15 Ashok Kumar v. Rani Sharma & Ors.
Suit no. 1152/14 (83613/16) Rajinder Pershad (Dead) By Lrs.v. Darshana Devi5 to contend that in absence of crossexamination, statement of plaintiff has to be taken to be gospel truth. However, as per the findings of aforesaid case:
"In the absence of crossexamination of the postman on this crucial aspect, his statement in the chief examination has been rightly relied upon. There is an age old rule that if you dispute the correctness of the statement of a witness you must give him opportunity to explain his statement drawing his attention to that part of it which is objected to as untrue, otherwise you cannot impeach his credit".
22. This case was on its own facts and circumstances and does not apply to facts and circumstances of the present case. Infact, it has been held in the case of Shri Sunil Dang v. Dr. R. C. Gupta6 that:
"Even though defendant is exparte, but same does not dilute the responsibility of the plaintiff to prove his case. On the contrary, on the defendant being exparte, the onus is more on the plaintiff required to prove his case. When the defendant is contesting the suit, the matters which are not disputed by the defendant are deemed to be admitted and need not be proved. However, when defendant fails to appear, there can be no admissions and the plaintiff is to prove the entire case in accordance with law."
23. It is an elementary rule of civil litigation in this country that a plaintiff must stand or fall on the strength of his own case. 7 Therefore, in the present case as well, the plaintiff has to prove his case and stand on his own legs. He cannot be entitled to a decree merely because the defendant failed to 5 V (2001) SLT 280.
6 Judgment dated 13.01.2009 of the Hon'ble High Court of Delhi in CS(OS) 1617/2007. 7 Ganpatlal v. Nandlal Haswani, AIR 1998 MP 209; Harish Mansukhani v. Ashok Jain 2009 (109) DRJ 126 (DB).
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Suit no. 1152/14 (83613/16) crossexamine him or lead his own evidence.
24. The entire claim of the plaintiff to the possession of the Suit Property is based on the title of the Property. He has stated in the plaint as well as in his affidavit of evidence Ex. PW1/A that he is the sole/ absolute owner of the "4th Floor and above comprising of two rooms, two bathrooms, one small kitchen and open space along with terrace rights and a common scooter garage on the ground floor". For this purpose he has relied upon, agreement to sell, general power of attorney, special power of attorney, receipt and affidavit, possession letter Ex. PW1/1 to Ex. PW1/8 and Ex. PW1/18. Plaintiff claims that these documents had been executed by the defendants in his favour thereby confirming upon him ownership of the Suit Property i.e. 4th Floor. The rights of the defendants in the Suit Property to execute these documents is also sought to be proved by the plaintiff by virtue of defendant's title documents Ex. PW1/9 to Ex. PW1/16 that had been executed by one Mr. Chhedi Singh in favour of the defendants.
25. Firstly, the chain of documents is not complete since the right of Mr. Chhedi Singh in the Suit Property is not established. Neither his right has been set up in the recitals in any of these documents nor have any documents showing his initial rights or title in Suit Property have been placed before the court.
26. Secondly, and more importantly, documents Ex. PW1/1 to Ex. PW1/8 and Ex. PW1/18 are in respect of the "terrace over third floor and above" executed on 01.12.2009, and documents in favour of defendants executed by Mr. Chhedi Singh (Ex. PW1/9 to Ex. PW1/16) dated 21.05.2004 are in respect of the "4th Floor and above". Thus, documents relied by plaintiff to establish his title or right in the Suit Property, do not 12 of 15 Ashok Kumar v. Rani Sharma & Ors.
Suit no. 1152/14 (83613/16) pertain to the 4th Floor which is the Suit Property in the present case.
27. Site plan Ex. PW1/7 also does not throw any light to resolve this contradiction. Infact, site plan is in respect of constructed portion containing drawing room, bed room, latrinebathroom, kitchen and open space bearing total area of 90 Sq. Yards, whereas the documents Ex. PW 1/1, Ex. PW1/8 and Ex. PW1/18 are in respect of "entire terrace of third floor and above".
28. In support of its case, plaintiff has also relied on photocopy of electricity bill i.e. Mark PW1/19. As per provisions of Indian Evidence Act, a document is required to be proved by the original unless grounds for leading secondary evidence are made out. In the case of U.Sree v. U. Srinivas,8 it has been held by the Hon'ble Apex Court that in the absence of foundational evidence for leading secondary evidence, secondary evidence is not admissible. No foundational evidence has been led by the plaintiff to produce photocopy of the electricity bill in evidence, and the non availability of the original has not been explained/ proved. Therefore, Mark PW1/19 is not admissible in evidence, and does not further the case of the plaintiff.
29. On the other hand, documents of the defendants executed in the year 2004 are in respect of the "4 th Floor" i.e. the Suit Property in the present case. This clearly shows that the property was already constructed upon 4th floor in the year 2004, and therefore, there arises no question of terrace rights over 3rd floor being conferred to the plaintiff in 2009. It is not the case of the plaintiff that 4th floor was demolished after 2004, and thereafter was reconstructed by the plaintiff after 2009 when he purchased the terrace rights over 3rd floor from the defendants. Thus, balance of 8 (2013) 2 SCC 114 13 of 15 Ashok Kumar v. Rani Sharma & Ors.
Suit no. 1152/14 (83613/16) probabilities suggest that the Suit Property was already constructed upto 4 th floor in 2009, and no document, transferring any rights in the 4 th floor i.e. Suit Property have been put forward by the plaintiff. No other oral or documentary evidence is put forward by the plaintiff to support his claim in the Suit Property.
30. Ld. Counsel for plaintiff has relied on the case of Rehmat Bee v. Noor Mohd. and Ors.9, Rama Devi v. Poonam Chand Aggarwal 10, as well as Asha M Jain v. Canara Bank and Ors.11 However, none of these precedents are applicable to the present case since in all these cases, execution of agreement to sell, general power of attorney etc. were coupled with delivery of possession. However, in the present case, as has been held above, plaintiff never came into possession of the Suit property. Besides, the documents relied by the plaintiff are not in respect of the Suit Property. Similarly, D Satyanarayana v. P Jagdish 12, also does not assist the case of the plaintiff since this judgment was in the context of a landlord tenant relationship, whereas no such relationship exists in the present case between the plaintiff and defendants.
31. In light of the above, plaintiff has miserably failed to prove his case and is therefore not entitled to receive possession of the Suit Property from the defendants. This issue is accordingly decided against the plaintiff and in favour of the defendants.
Issue no. 3:
Whether plaintiff is entitled to any pendente lite and future interest, if so, for what period and for what rate?OPP 9 2010 (120) DRJ 85.
10 151 (2008) Delhi Law Times 230.
11 2002 II AD (Delhi) 734.
12 AIR 1987 SC 2192.
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32. Plaintiff has claimed occupancy charges, mesne profits & interest from the defendant. As per findings in issue no. 2 above, plaintiff has failed to prove his entitlement to recover possession of Suit Property from the defendants. Thus, there arises no question of directing the defendant to pay any occupancy charges, mesne profits or pendente lite and future interest to the plaintiff. This issue is accordingly decided against the plaintiff and in favour of the defendant.
Issue no.4:
Relief
33. In view of the findings on the aforesaid issues, documents on record, pleadings of the parties, and evidence led, on the scale of preponderance of probabilities, suit of the plaintiff is dismissed. No order as to costs.
34. Decreesheet be drawn accordingly.
35. File be consigned to the record room after due indexing and pagination.
(NEHA PRIYA) Civil Judge01(South) Saket Courts/New Delhi 31.07.2018 Announced by me in the open court today on 31.07.2018. All the fifteen pages of this order have been checked and signed by me.
Digitally signed (NEHA PRIYA)
NEHA by NEHA PRIYA
Date:
Civil Judge01 (South)
PRIYA
2018.08.01
15:58:08 +0530
Saket Courts/New Delhi
31.07.2018
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