Delhi District Court
Suit No.6866/16 Sumitra vs . Geeta And Ors. on 18 October, 2019
Suit no.6866/16 Sumitra vs. Geeta and Ors.
IN THE COURT OF SWAYAM SIDDHA TRIPATHY CIVIL JUDGE,
EAST, KARKARDOOMA, NEW DELHI
Suit no.6866/16
In the Case of--
Sumitra
w/o late Sh. Daya Chand
r/o 17/458, Trilok Puri, Delhi110091
.......Plaintiff
versus
1.Geeta
w/o Sh. Sanjay Kumar
2. Sanjay Kumar
s/o Sh. Jai Prakash
both r/o 17/458, 2nd Floor,
Trilok Puri, Delhi110091
Also at:
22/222, Trilok Puri,
Delhi110091
.......Defendants
Date of Institution: 05.01.2016
Date for reservation of judgment: 24.09.2019
Date for judgment:18.10.2019
Page No.1/13
Suit no.6866/16 Sumitra vs. Geeta and Ors.
JUDGMENT:--
1. The present suit has been filed for mandatory injunction, permanent injunction and mesne profits/ damages by the plaintiff against the defendants.
2. It is the case of the plaintiff that plaintiff is the absolute owner of the property bearing no. 17/458, Trilok puri, Delhi. It is further stated that the said property was transferred in the name of the plaintiff by her husband Late Sh. Daya Chand on 20.05.1977 through a GPA, Gift Deed, Affidavit and Will Deed. However, the aforesaid original documents have been misplaced somewhere, which was informed to the police vide information report dated 30.09.2014 and the same have not been traced out till now. It is further stated that copies of the said documents are in possession of the plaintiff. It is further stated that plaintiff has executed registered Will deed in favour of her two sons namely Mahender and Ravinder on 18.10.2014 in the officer of SubRegistrar VIII, Delhi.
3. It is further stated that defendants have been residing at the second floor of the property bearing No. 17/458, Trilokpuri, Delhi as she had no shelter to live with her family and the plaintiff permitted her to reside in the said premises being her daughter and the plaintiff helped the defendants for her residential problem but the defendants were cruel and misbehaved with the plaintiff and her family. In this regard, the plaintiff had filed a complaint against the defendants vide DD No. 44B, P.S Mayur Vihar on 21.11.2014 and debarred them by way of publication in Hindi newspaper 'Virat Vaibhav'.
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4. It is further stated that defendants have filed a suit for permanent and mandatory injunction against the plaintiff before the court of Sh. Ashish Gupta, CJ (East), KKD Courts, Delhi suit no. 296/2014 which was fixed for 28.01.2016. It is further stated that on 15.11.2015, the plaintiff has the defendants that they have no right in the suit property and she is liable to vacate floor of the suit property peacefully. However, the defendants kept on saying that they are having the documents with respect to the ownership/possession of the suit property. When the plaintiff asked them to produce the same, they threatened the plaintiff of dire consequences and to implicate her in some false criminal cases.
5. It is further stated that plaintiff has every apprehension that the defendants with their ulterior motive and in collusion have made some forged and fabricated documents regarding the suit property and they might sale or create any 3 rd party interest for the same, illegally and unlawfully. It is further stated that despite several requests made by the plaintiff, the defendant no.1 and 2 neither vacated the suit property in question and nor compensated and gave any heed towards the request made by the plaintiff and flatly refused to vacate and hand over or compensate the plaintiff so finding no way, the plaintiff has filed the suit. It is further stated that the suit property at present may easily be let out on rent at the rate of Rs. 5000/ per month excluding electricity and other charges and in this way, the plaintiff is incurring a tentative loss of Rs. 5000/ per month on account of use, occupation and possession of the suit property by the defendants and therefore, the defendants are liable to pay Rs.
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1,00,000/ approximately, for mesne profit, damages for recovery of possession, permanent injunction and for award of mesne profit from 21.04.2014 to till the final disposal of present suit of the plaintiff.
6. Written statement was filed on behalf of defendant no.1 wherein defendant has stated that plaintiff is not the sole owner of the suit property but is only a coowner of the same. Further, the defendant is entitled to 1/7th share in the suit property being the daughter of the deceased Sh. Daya Chand as per the provisions of Section 8 (a) and 10 of the Hindu Succession Act, 1956. It is further stated that the contention of the plaintiff is that the she is the sole owner of the suit property is wrong as the documents relied upon by the defendants are forged and fabricated and have been obtained fraudulently.
7. It is further stated that plaintiff is not entitled to the relief of permanent injunction and mesne profits as the plaintiff and defendant have an equal share in the suit premises and hence the defendant is well within her right to reside in the suit property without any interference on the part of the plaintiff and defendant's occupation over the suit property is not by way of permitted possession as claimed by the plaintiff but as a matter of right in the capacity of coowner.
8. Further, the defendant alleges that the plaintiff in collusion with her sons Sh. Mahender and Sh. Ravinder have filed forged documents before this court. Further, it is contended by the defendant that she has placed a driver's license of deceased Sh. Daya Chand on record and a close comparison of the signature of the deceased on the Page No.4/13 Suit no.6866/16 Sumitra vs. Geeta and Ors.
driver's license and in the documents filed by the plaintiff show a clear deviation.
9. It is further submitted by the defendant that the FIR/lost item report does not contain any reference of the alleged GPA, gift deed etc., but it is only mentioned certain property papers and more particularly death certificates had been misplaced. Further, the defendant also submits that the witnesses to the alleged Will, GPA etc. dated 20.05.1977 and Will dated 18.10.2014 are the same. However, the likelihood of two witnesses affirming documents spaced 37 years apart his remote and highly suspicious. Further, the address quoted by one of the witnesses viz. Sh. Om Chand (H. No.17/278, Trilokpuri) was not even in existence at the time of execution of all the documents. It was only in the early 1980 that the local slum development authorities constructed pucca quarters with house numbers in that area.
10.On merits, the defendant denied all the averments made by the plaintiff in his plaint.
11.Plaintiff filed replication and denied the averments of the written statement of the defendant and simultaneously reiterated and reaffirmed the contents of the plaint.
12.On , the following issues were framed in the present matter--
1. Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for? OPP
2. Whether the plaintiff is entitled to a decree of permanent Page No.5/13 Suit no.6866/16 Sumitra vs. Geeta and Ors.
injunction as prayed for? OPP
3. Whether the plaintiff is entitled to relief of damages @ Rs.5000/ per month excluding electricity and other charges as prayed for? OPP
4. Whether the defendants are coowners of the suit property?
OPD
5. Whether the documents of the plaintiff are forged documents?
OPD
6. Relief
13.In evidence, the plaintiff examined four witnesses. The plaintiff examined herself as PW1 and placed on record her testimony by way of affidavit Ex. PW1/A. She placed on record the following documents in support of her contentions--
Ex. PW1/A Site plan
Ex. PW1/B (OSR) Copy of agreement
Ex. PW1/C Copy of NCR regarding lost
documents of the suit property
Mark A (colly) Copy of GPA, Gift Deed, Affidavit,
Will Deed
Ex. PW1/E Copy of complaint dated 21.11.2014
Mark B Copy complaint dated 22.11.2014
Ex. PW1/F (OSR) Copy of registered Will
Mark C (colly) Copies of affidavit, public notice
PW1/G (OSR) Copy of newspaper
Ex. PW1/H (OSR) Copy of aadhar card
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Suit no.6866/16 Sumitra vs. Geeta and Ors.
Ex. PW1/I (OSR) Copy of voter ID
14.Plaintiff summoned and examined Sh. Deepak Kumar, Computer Operator as PW2. He has produced summoned record i.e. Will dated 20.10.2014, registration no. 1,016, Book No.3, Volume No. 1176, Page No. 106 to 108 Ex. PW2/A (OSR). Thereafter, plaintiff examined Smt. Kasturi as PW3. She tendered her evidence by way of affidavit Ex. PW3/A and relied upon copy of aadhar card Ex. PW3/1 (OSR). Plaintiff then, examined Om Chand as PW4. He has tendered his evidence by way of affidavit Ex. PW4/A and relied upon copy of aadhar card Ex. PW4/1 (OSR). Evidence of the plaintiff was closed on 09.10.2018.
15. Defendant examined herself as DW1. She has tendered her evidence by way of affidavit Ex. DW1/A and relied upon documents which are already exhibited as Ex. PW1/D1 i.e. Driving licence of deceased Daya Chand. Evidence of the defendant was closed on 26.07.2019.
16.Final arguments heard. Record perused. Following are the issue wise conclusions reached by the Court on the basis of the arguments heard and the record available:
Issue no.5: Whether the documents of the plaintiff are forged documents? OPD
17.The burden of proving this issue was on the defendant. The defendant has stated in her WS that the claim of ownership by the plaintiff is based on forged and fabricated documents. The defendant Page No.7/13 Suit no.6866/16 Sumitra vs. Geeta and Ors.
has also challenged the authenticity of GPA, gift deed, affidavit, Will all dated 20.05.1977 which are exhibited as Mark A. The defendant also moved an application for appointment of hand writing experts. However, the same was dismissed by this court on the ground that the above mentioned documents of the plaintiff were lost by her and have not been filed on record. Therefore, photocopy of documents as such are not admissible in evidence and no purpose will be served if the hand writing expert is appointed. Even otherwise, in absence of original documents, the verification of handwriting of the deceased could not have been properly conducted.
18.During final arguments, it was contended by the counsel for defendant that PW3 during her cross examination have stated that at the time of execution of documents Mark A, PW3 was present alongwith PW4, their sister and her two children. It was further stated by the witness PW3 that no other person was present with them. It is therefore argued by counsel for defendant that the documents Mark A are forged and fabricated as even the deceased Sh. Daya Chand was not present and therefore his signatures put in those documents are forged. However, in my opinion, the counsel for defendant failed to give a suggestion regarding the same to the witness at that time. Having failed to do so, it cannot be said that Sh. Daya Chand was not present during the execution of the documents.
19.Therefore, in my view, defendant has not been able to discharge the burden put on him to prove the present issue. Accordingly, this issue is decided against the defendant and in favour of the plaintiff.
Issue no. 4: Whether the defendants are coowners of the suit Page No.8/13 Suit no.6866/16 Sumitra vs. Geeta and Ors.
property? OPD
20. The burden to prove this issue was on the defendant. In order to prove this issue, the defendants have to firstly prove that the title documents Mark A are forged and fabricated or are not admissible in evidence. It is a settled law that photocopy of documents are not admissible in evidence.
21.In the present matter, it is the case of the plaintiff that the original documents Mark A were lost by the plaintiff and an NCR report Ex. PW1/C was filed in this regard. However, the said NCR report has also been challenged by the defendant stating that the NCR report nowhere specifically mentions the exact documents lost by the plaintiff. Perusal of Ex. PW1/C reveals that on 30.09.2014, an information report with respect to documents lost was filed before the police by the plaintiff. Property papers have been mentioned as the lost articles and in its description death certificate is mentioned.
22.Further, it is incumbent on the person who tenders secondary evidence to show that it is admissible. However, in this case the plaintiff has failed to establish the foundation for entitling him to tender secondary evidence in the place of primary evidence or fulfilled any conditions laid down in Section 65 of IEA, 1963. It has also not been presented before the court that if the copies of the title documents were made from the original from mechanical process as provided under Section 63 of Evidence Act. It is also a well settled law that for the purpose of allowing the secondary evidence, the court has only to form an opinion about the loss of the document and not with regard to its existence. However, in the present matter, the Page No.9/13 Suit no.6866/16 Sumitra vs. Geeta and Ors.
plaintiff has even failed to sufficiently prove that these documents were lost by the plaintiff and appropriate steps have been taken by her to recover the same. The plaintiff even failed to specify as to when, where and under what circumstances, the documents were lost/misplaced by the plaintiff. It seems that the issue of proving the misplaced/lost documents have been taken too casually by the plaintiff.
23.Thus, in my considered opinion, the plaintiff has not been able to prove that she is entitled to lead secondary evidence and in absence of primary evidence, the photocopies of documents cannot be said to be admissible in law.
24.Therefore, in absence of any other documents in favour of the plaintiff, it becomes clear that the plaintiff had no right to execute Will Ex. PW1/F in favour of her sons. Moreover, the Will Ex. PW1/F is later in time and was executed after the property documents were misplaced/lost as the NCR report Ex. PW1/C was filed on 30.09.2014 and the Will Ex. PW1/7 was registered on 18.10.2014. Thus, the execution of Will seems like an afterthought and a way to protect their interest in the properties. But, in my view, the plaintiff has miserably failed to show that she is the absolute owner of the suit property.
25.It is an admitted fact that Sh. Daya Chand, late husband of the plaintiff and father of defendant no.1 was the owner of the suit property. No other title documents executed by Late Sh. Daya Chand have been produced by either of the parties. Therefore, in absence of any other title documents, it shall be understood that Sh. Daya Chand Page No.10/13 Suit no.6866/16 Sumitra vs. Geeta and Ors.
died interstate, leaving behind his wife, sons and daughters. Defendant no.1 being one of the children and legal heir of late Sh. Daya Chand is also entitled to a share of the property. Therefore, this issue is decided in favour of the defendants and against the plaintiff.
Issue no. 1: Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for? OPP Issue no. 2: Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP Issue no.3: Whether the plaintiff is entitled to relief of damages @ Rs.5000/ per month excluding electricity and other charges as prayed for? OPP
26. These issues are interconnected and hence are taken up together.
27.As the defendants are able to establish that defendant no.1 is also one of the cosharers of the property, therefore the question is whether injunction can be claimed against the coowners.
28.It was held in Jangir Kaur v. Bhag Singh, RSA No. 2894 of 1986 that:
"The principle that a coowner cannot maintain an action of injunction against another coowner is on a precept that so long as the property is not divided by metes and bounds, each coowner represents the holding of possession of every other coowner. There is another assumption that right of possession must be held in every Page No.11/13 Suit no.6866/16 Sumitra vs. Geeta and Ors.
inch of land to the extent of a coowner's share and not to any specific extent till the property is not predicated and delivered to one coowner as representing his share. Exceptions are when by a common consent of all persons there is enjoyment of specific portion of the property, which is to subsist for a particular time. A person who sues for injunction shall, therefore, prove an arrangement and it will be not sufficient that he is in possession of a particular extent of property. If there had been no particular arrangement which allows for retention of the property the relief of injunction cannot be granted. The relief sought by the plaintiffs would not be possible for the only reason that the plaintiff's case was not more than a plea that they had been in possession of particular portion of the property free of obstruction. If they had received any interference to their possession or apprehended a serious disturbance, the remedy for such coowner was only to sue for partition and seek in equity for allotment of the property in possession to their own share in the final decree proceedings. An injunction which could not have been maintained as an interim relief in a suit for partition could not be converted as a suit for permanent injunction against the defendants/co owners."
29. Therefore, in my view, the appropriate remedy before the plaintiff shall be to file a suit for partition of the suit property as the defendant Page No.12/13 Suit no.6866/16 Sumitra vs. Geeta and Ors.
no.1 also has equal share in the undivided property. Moreover, as a shareholder, the defendant no.1 is entitled to occupy her portion of the suit property and the plaintiff cannot dispossess the defendant from the property. Furthermore, the defendant no.1 can also not be dictated to not create any third party interest as that would amount to interference in the legal rights of the defendant no.1.
30.Further, the plaintiff is not able to prove that she is entitled to relief of mandatory injunction being the sole owner of the property. Therefore, the question of damages/mesne profits to be paid by the defendants does not arise. Accordingly, these issues are decided in favour of the defendants and against the plaintiff.
Relief
31.In the light of aforementioned facts and circumstances of the case, I hold that the plaintiff has not been able to prove her case against the defendants and accordingly no ground is made out for the grant of the reliefs as prayed for in the present suit. The suit of the plaintiff is accordingly dismissed.
32.Parties are left to bear their own costs. Let a decree sheet be prepared in the aforesaid terms. All pending applications, if any, stand disposed of. File be consigned to record room after necessary compliance. Digitally signed by SWAYAM SWAYAM SIDDHA TRIPATHY SIDDHA Location: Karkardooma Announced in Open Court TRIPATHY Courts, Delhi Date: 2019.10.18 16:50:21 +0530 on 18.10.2019 Swayam Siddha Tripathy CJ/East/Karkardooma 18.10.2019 Page No.13/13