Delhi District Court
Sunita Rani @ Babli vs Manoj @ Rajender on 18 July, 2016
In the Court of Virender Kumar Goyal
Additional District Judge01 (East)
Karkardooma Courts, Delhi.
RCA No. 173/16/2009
Unique Case ID No.02402C0166792009
In the matter of:
Sunita Rani @ Babli
w/o late Shri Man Singh
r/o 739, Jheel Khuranja,
Delhi - 51. ....Appellant
Versus
1. Manoj @ Rajender
2. Rajesh Kumar
Both s/o late Shri Man Singh
r/o 739, Jheel Khuranja,
Delhi - 51. ....Respondents
Date of institution : 01.06.2009
Arguments heard on : 11.07.2016
Date of Judgment : 18.07.2016
JUDGMENT
1. This is an appeal against the impugned judgment and decree dated 11.5.2009 passed by Shri G N Pandey, Civil Judge, KKD, Delhi, vide which the Ld. Trial Court had dismissed the suit of the plaintiff.
2. The said order has been challanged by the appellants on various grounds. It is contended that the ld. trial court has failed to consider the chief examination of PW1, where she has categorically deposed that she is residing in a part of property bearing no. 739, Jheel Khuranja, Delhi. In the cross examination, Pw1 had also deposed that after the marriage, she started living RCA: 173/16/2009 Sunita vs Manoj and another. 1 Of 9 at 739, Jheel Khuranja, Delhi. However, in the cross examination Pw1 has denied the suggestion regarding the fact of her living at property no. 739, Jheel Khuranja, Delhi. The statement of Pw1 stands corroborated by the statement of Pw2, where he has deposed that after the marriage, his daughter Sunita Rani started living as legally wedded wife of late Shri Man Singh at 739, Jheel Khuranja, Delhi. This statement of PW2 also corroborated by PW5, wherein in the cross examination PW5 has stated that Sunita is residing at H.no. 739, Jheel Khuranja, Delhi and Rajesh and Rajender used to quarrel with her and plaintiff also filed DD no. 24B on 25.9.2004 Ex.PW5/1. It is further stated that the corroborative evidence of the appellant proves the fact that she is in possession of the suit property and is residing at property bearing no. 739, Jheel Khuranja, Delhi, therefore, the impugned judgment in respect of issue no. 4 and 5 is liable to be set aside.
3. It is further contended that the ld. Trial court has passed the impugned judgment in respect of issue no. 4&5, which is self contradictory as on one hand, while deciding the issue no. 1,2&3 ld. Trial court decided these issues in favour of the plaintiff and against the defendants, which means the plaintiff has locus standie to file the present suit and her suit is not barred and not bad for misjoinder and nonjoinder of necessary parties and further stated that if the plaintiff has right to file the present suit then the issue no. 4 and 5 are to be decided in favour of the plaintiff and against the defendants, therefore, the impugned judgment in respect of issue no. 4 and 5 are liable to be set aside.
RCA: 173/16/2009 Sunita vs Manoj and another. 2 Of 9
4. It is further contended that the ld. Trial court also failed to consider the fact that DW2 has identified himself in photographs Ex.PW2/A and PW2/E and had also identified late Shri Man Singh at pt. B and the appellant produced these photographs to prove her marriage and the same fact was also proved by her in her cross examination, wherein she has deposed that in her marriage Shri Baldev Singh, Hukam Singh, Suraj Singh on behalf of Man Singh and her father, mother and brother Satpal, Raj Rani, Anita and Rani were present.
5. It is further contended that when issue no.1 to 3 have been decided in favour of the appellant then the testimony of PW1 was relied upon by the ld. Trial court but when issue no. 4 and 5 have been decided then it became unreliable and further contended that the ld. Trial court has committed grave error in holding the testimony of PW2 regarding the possession of suit property by the plaintiff. It is further contended that the ld. Trial court has not considered the age of PW2, who is aged about 70 years old, while deciding the fact that PW2 has failed to depose the house number.
6. It is further contended that the ld. Trial court also committed grave error in holding the testimony of PW3,PW4 and PW5 and the ld. Trial court has also not considered the testimony of PW1, PW2 and PW5, where all these Pws corroboratively depose that the plaintiff is in exclusive possession in the suit property and also failed to go through the Ex.PW5/1 and Ex.PW5/2, which are DD no. 24B and kalandra u/s 107/151 CrPC and also failed to consider the relevant laws on the issues while holding the issue RCA: 173/16/2009 Sunita vs Manoj and another. 3 Of 9 no. 4 and 5 against the appellant and prayed for setting aside the impugned judgment and decree dated 11.5.2009 passed by Shri G N Pandey, Ld. Civl Judge, KKD,Delhi.
7. Reply to the appeal has not been filed by the respondents.
8. Written submission filed on behalf of the respondent no.1.
9. Heard the ld. counsel for the parties and perused the record with written submissions.
10.Suit has been filed by the appellant/plaintiff for permanent and mandatory injunction before the ld. Trial court and in the suit she has prayed for decree of mandatory injunction against the defendants not to forcibly dispossess the plaintiff from the part of the property bearing no. 739, Jheel Khuranja, Delhi, in her possession or to create third party interest in the suit property and further not to interfere in the peaceful use and occupation of the part of the property in her possession. She has also prayed for mandatory injunction, directing the defendants not to create any hindrances, obstacles, problems in the way of the plaintiff in obtaining the rent of the tenanted shop, which is under the legal possession of the appellant, as per the oral family settlement.In the written statement, right, title and interest of the plaintiff was denied and on the basis of the pleadings, certain issues were framed.
11.According to the impugned judgment issue no.1,2 and 3 regarding locus standi, barred u/s 41(h) of Specific Relief Act and bad for mis joinder and nonjoinder of the necessary parties have been decided in favour of the plaintiff/appellant. So, there is no dispute about the findings of the ld. Trial court in this respect. But, while giving the findings on issue no.4, the ld. Trial court held that plaintiff has failed to prove the settled possession in the suit property, as well as, factum RCA: 173/16/2009 Sunita vs Manoj and another. 4 Of 9 of marriage with the deceased Man Singh. So, the suit has been dismissed.
12.Findings on these issues have been challenged on various grounds. It is contended that the findings of the ld. Trial court on issue no. 4 and 5 are self contradictory. It is also contended that the evidence of the plaintiff/appellant has been overlooked and has not been appreciated in the correct perspective. Plaintiff has not been able to prove her marriage with late Shri Man Singh. It is also contended that the ld. Trial court has committed grave error while appreciating the testimony of PW3,4 and 5.
13.In view of the grounds as raised in the appeal, the evidence led by the appellant before the ld. Trial court as plaintiff has to be looked into again. PW1 is the appellant herself. In her cross examination she has stated that she was married with the deceased Man Singh at Gauri Shankar Mandir, Chandni Chowk and Baldev Singh, Hukum Singh, Suraj Singh and some other persons were present in the marriage. However, no issue was framed on the legality or illegality of the marriage of the plaintiff/appellant before the ld. Trial court. Hence, this cross examination has no consequence, nor, was required to be considered in any manner. In the suit, the plaintiff has claimed that she is residing in a part portion of the suit property bearing no. 739, Jheel Khuranja, Delhi 51, shown red in colour in the site plan. She had claimed different types of mandatory injunctions, but only one issue was framed. She had also claimed that defendants used to pay maintenance of Rs. 1500/ per month, as per the oral family settlement, but, in the cross examination, she has stated that she has no proof to show that the defendants had paid the maintenance to her. She had denied the suggestion that the defendants were not having evil eye on her property and are not humiliating her. This RCA: 173/16/2009 Sunita vs Manoj and another. 5 Of 9 suggestion itself shows that she was in part possession of the suit property as claimed by her, as shown red in colour in the site plan. She has also denied the suggestion that she is not residing in the suit property and the defendants never tried to dispossess her by removing her articles. She has also denied the suggestion that defendants are the sole owner of the suit property.
14.PW2 is Lal Chand Gupta. He is father of the plaintiff. According to his deposition, marriage of the plaintiff had taken place with deceased Man Singh. Again there is no issue about the marriage. So, there was no requirement to examine or cross examine the witness about the legality of the marriage taken place between the plaintiff and late Man Singh, if any.
15.According to PW3 Shri Laxmi Narayan, the name of the plaintiff was not appearing in the voter list against H.no. 739, Jheel Khuranga, Delhi.
16.PW4 Anil Kumar failed to prove the record of the ration card
17.PW5 is Bhagwat Singh,ASI. According to him on 25.09.2004, a DD entry was recorded and Kalandra u/s 107/151 of CrPC was prepared. According to Kalandra u/s PW5/2, this witness alongwith Ct. Chagan Lal, while on patrolling duty reached H.no. 739, Jheel Khuranja, Delhi and found crowd collected there and on inquiry, he found that Rajender and Rajesh were quarreling with the plaintiff/Sunita in filthy language and were bent upon to cause her injuries. Which, itself shows that the plaintiff is residing at the house in question . In Kalandra itself, she has been shown as wife of late Man Singh r/o 739, Jheel Khuranja and this fact has never been challenged by the defendants since 2004, by filing any separate proceedings.
18.The defendants have examined themselves as witness.
RCA: 173/16/2009 Sunita vs Manoj and another. 6 Of 9 DW1/Rajender Kumar has stated in his cross examination that he has nothing to do with the plaintiff nor he has got any dispute with each other. In the cross examination, he has further stated that his father never married to the plaintiff. He has denied that any settlement was arrived on 25.9.2004 between the parties. He has also denied that plaintiff used to stay with his father in the suit property or that after the death of his father, he tried to throw away the plaintiff and her son from the suit property. He has also denied the suggestion that defendants have entered into the premises of the plaintiff forcibly and threatened her to vacate the property.
19.Defendants has also examined Smt Chand Bai as DW3. She is sister of late Man Singh. She has stated in her cross examination that suit property is about 90 square yards. It is comprised of one two rooms and three shops on the ground floor and one room on the first floor. She has denied that plaintiff is wife of late Man Singh. She has also denied about the family settlement.
20.Now, according to the site plan filed on behalf of the plaintiff Ex.PW1/1, there are three rooms on the ground floor alongwith three shops and no counter site plan has been filed by the defendants to controvert the same. According to the site plan, the area shown red in colour is in possession of the plaintiff. However, it is not clear as to whom the tenants of the shops are paying the rent, either to plaintiff or to the defendants. The said tenant has not been examined to prove that after the alleged family settlement, the plaintiff started receiving the rent from the said tenant. The payment of the maintenance has also been denied by the defendants. So, the material brought before the court for consideration and appreciation particularly from the contents of the Kalandra, the plaintiff is found residing in the suit property. The defendants failed to rebut the fact by leading evidence RCA: 173/16/2009 Sunita vs Manoj and another. 7 Of 9 as to who is residing in which portion particularly, the portion shown red in colour in the site plan filed by the plaintiff.
21.So, from the contents of Kalandra, it is proved that plaintiff is residing in the suit property bearing no. 739, Jheel Khuranja, Delhi and ld. Trial court failed to appreciate this fact in its judgment. The factum of marriage was not required to be proved in any manner, as the prayers were only for injunction. The suit was not for declaration in any manner.
22.The plaintiff has prayed that neither she should be forcibly dispossessed from the part of the property bearing no. 739, Jheel Khuranja, Delhi, which is in her possession, nor any third party interest in the suit property be created and further the defendants be directed not to interfere in the peaceful use and occupation of the part of the property in her possession in any manner. It was also prayed that the defendants, their legal heirs , attorneys, agents, successors, representatives etc., be restrained from forcibly dispossessing the plaintiff from the part of the property bearing no. 739,Jheel Khuranja, Delhi 51, as shown red in colour in the site plan and the defendants be also restrained from creating any hurdle in the way of the plaintiff in obtaining the rent of the tenanted shop.
23.In view of above, the plaintiff has been able to prove the fact that she is in possession of the part of the property shown red in the site plan Ex. PW1/1, i.e. one room, kitchen, latrine and bathroom. There are two more rooms in the suit property. So, latrine and bathroom cannot be in exclusive possession of the plaintiff and must be common for all occupants. The plaintiff has failed to examine the tenant of the shops and family settlement could not be proved. However, the plaintiff is in possession of one room and kitchen as shown in Ex. PW1/1.
RCA: 173/16/2009 Sunita vs Manoj and another. 8 Of 9
24.Accordingly, the findings of ld. Trial court in respect of possession of the portion shown red in colour in the site plan i.e. room and kitchen are illegal and against the evidence brought on record, hence, are set aside. Appeal is allowed. The defendants, their legal heirs , attorneys, agents, successors, representatives etc., are hereby restrained from forcibly dispossessing the plaintiff from the part of the property bearing no. 739,Jheel Khuranja, Delhi 51 i.e. from the one room and kitchen as shown in the site plan Ex. PW1/1 without due process of law and the defendants, their legal heirs , attorneys, agents, successors, representatives etc., are also hereby restrained from creating any third party interest in the room and kitchen and latrine(common) and bathroom(common) as shown in the site plan. Decree sheet be prepared accordingly. Parties are left to bear their own costs. File be consigned to the record room. The record of the trial court is ordered to be returned.
Announced in open Court on :18.07.2016 ( Virender Kumar Goyal ) Additional District Judge01 (East)/KKD/Delhi RCA: 173/16/2009 Sunita vs Manoj and another. 9 Of 9 RCA: 173/16/2009 Sunita vs Manoj and another. 10 Of 9