Delhi District Court
Sh. Chander Pal Pathak S/O Sh. Om Prakash ... vs Sh. Brij Bhushan Tyagi S/O Sh. Rishipal ... on 4 June, 2013
IN THE COURT OF MS. PRABH DEEP KAUR
CIVIL JUDGE 05: (WEST DISTRICT)
TIS HAZARI COURTS: DELHI
Suit No. 252/12
Unique ID No
Sh. Chander Pal Pathak S/o Sh. Om Prakash Pathak,
R/o 279, LIG Flats, Hastsal,
Uttam Nagar, New Delhi.
.............Plaintiff
Versus
Sh. Brij Bhushan Tyagi S/o Sh. Rishipal Tyagi,
R/o Sh. 266, Village Hastsal,
Uttam Nagar,
New Delhi.
.............Defendant
Date of filing : 10.09.2012
Date on which order has been reserved: 31.05.2013
Date of pronouncement of judgment : 04.06.2013
Suit No. 252/12 Sh. Chander Pal Pathak Vs. Sh. Brij Bhushan Tyagi Page No. 1/7
JUDGMENT
1. Plaintiff has filed the present suit praying that the defendant be directed not to create/make any nuisance or hindrance in the peaceful atmosphere of the suit property.
2. Plaintiffs Version: In the present suit, plaintiff stated that the plaintiff is the owner and landlord of the property/plot of land measuring area about 109 Sq. Yards out of Khasra No. 43/11 bearing plot No,. 49 & 50, situated at Villge Hastsal Colony known as Mohan Garden (hereinafter referred the suit property) more particularly shows in the red color in the site plan. The suit property was purchased by the plaintiff vide sale deed dated 23.08.2004 from its erstwhile owner against the valuable consideration. However, it is submitted that the plaintiff ha spurchased the total land area measuring 190 Sq. Yards vide the aforesaid sale deed and the plaintiff has sold out the land area measuring 81 Sq. Yards out of 190 Sq. Yards to Smt. Chanderkanta in the month of February, 2008. The defendant is trying to grab the aforesaid suit property of the plaintiff. The suit property measuring area 109 Sq. Yards is a vacant land and adjacent portion of the same mesuring about 81 Sq. Yards which was earlier in the name of plaintiff being owner, has been constructed by its owner after its purchase from the plaintiff.
Suit No. 252/12 Sh. Chander Pal Pathak Vs. Sh. Brij Bhushan Tyagi Page No. 2/7
On 20.07.2012, the plaintiff received an information that some unknown persons/property dealers are frequently visiting to the suit property and once and twice they inspected the suit property from inside and they told that they are interesting to purchase the suit property that is why they are inspecting the same. On 03.08.2012, the plaintiff saw that there are some building material lying outside the suit property and the defendant was also present on the spot with some labour/mason. The plaintiff asked about the matter from the defendant, then the defendant told to the plaintiff that the defendant has already purchased the suit property and he is going to construct the suit property on the basis his alleged forged ownership documents but the defendant did not show any alleged document to the plaintiff. The defendant is trying to grab the suit property of the plaintiff on the basis of forged and fabricated documents, if any, and the same is liable to declare as null and void as the plaintiff is the lawful owner and in possession of the suit property since the date of its purchase through sale deed dated 23.08.2004. Thereafter, on 28.08.2012, the defendant again visited to the suit property and asked the plaintiff to leave the suit property immediately as the suit property belongs to the defendant, then the plaintiff tried to make him understand that the suit property belongs to the plaintiff only, then the defendant threatened the plaintiff that he will sell/create any third party interest over the suit property and the defendant also threatened the plaintiff to raise unlawful, illegal and unauthorized constructions over the suit property. Thereafter, on 04.09.2012, the defendant along with his associated again visited Suit No. 252/12 Sh. Chander Pal Pathak Vs. Sh. Brij Bhushan Tyagi Page No. 3/7 the suit property and created nuisance. The defendant has no right, title or interest in the suit property in any manner as the suit property belongs only to the plaintiff. Hence, the present suit has been filed.
3. Defendant has been served by way of affixation on 18.12.2012 but none has appeared on behalf of the defendant despite ample opportunities, therefore, vide order dated 06.02.2013, defendant was proceeded with Exparte.
4. In Exparte PE, plaintiff has examined himself as PW1 and Sh. R.K. Thakur as PW2. Plaintiff has relied upon the following documents:
(i) Chain of documents of the suit property is mark P1.
(ii) Certified copy of the sale deed of the suit property is Ex. PW1/1.
(iii) Photographs are Ex. PW1/2 (colly).
(iv) Copy of statement of the deponent is mark P2.
(v) Voter Identity Card of the deponent is Ex. PW1/3.
(vi) Site plan of the suit property is Ex. PW1/4.
(vii) Copy of statement of the defendant made before police is Mark P3.
5. The testimonies of both the witnesses remained uncontroverted, unchallenged and unrebutted.
6. In the present suit plaintiff is seeking relief of declaration and mandatory injunction on the ground that plaintiff is owner of the property vide registered sale deed dated 23.08.2004 and the suit property is a vacant land and defendant is trying to grab the property and has forged some documents relating Suit No. 252/12 Sh. Chander Pal Pathak Vs. Sh. Brij Bhushan Tyagi Page No. 4/7 to the property and on 28.08.2012 and on 04.09.2012, defendant has tried to make illegal construction over the property, hence the plaintiff has filed the suit for declaration that the forged and fabricated documents of defendant regarding the suit property be declared as null and void. As far as ownership is concerned, the plaintiff has proved the registered sale deed in his favour and his testimony has remained uncontroverted and unchallenged and thus plaintiff has proved that he is owner of the property. But the relief of declaration sought by the plaintiff is not a specific relief as plaintiff has not given the details of the documents allegedly forged and fabricated by the defendant regarding the suit property nor plaintiff has given the nature of these documents and in absence of any evidence, even the existence of any such documents can not be determined. It is settled principle that Court Under Section 34 of the Specific Relief Act can give a specific declaration or in other words, under section 34 of the Specific Relief Act, declaration in personam can be granted and declaration in rem can not be granted. Therefore, court can not grant a blank declaration or declaration in vacuum that the documents of the defendant regarding suit property be declared as null and void in absence of particulars of the documents or details regarding nature of the documents. In view thereof, plaintiff is not entitled to the relief of declaration.
Further, the plaintiff has sought the relief of permanent injunction thereby restraining the defendant from selling, transferring, alienating or parting with the possession or from raising any unlawful or illegal construction over the Suit No. 252/12 Sh. Chander Pal Pathak Vs. Sh. Brij Bhushan Tyagi Page No. 5/7 suit property. Now as per the admission by the plaintiff himself, the plaintiff is not in possession of the property as plaintiff has specifically stated in prayer clause 2 of the plaint "Part with possession". Plaintiff has not filed the suit of declaration of ownership or a suit for possession that on the basis of averments of ownership, he be declared as owner and consequently he is entitled for possession. When the plaintiff averred that he is owner of the property, then this averment can not be decided in vacuum. Thus, the efficacious remedy available to the plaintiff is to seek relief of declaration as to ownership along with relief of possession. In view thereof, the plaintiff can not be said to be entitled for the relief of permanent injunction.
Further, plaintiff has sought the relief of mandatory injunction thereby directing the defendant not to create any nuisance in the peaceful atmosphere of the suit property.
It is settled legal principle that the court should not grant injunction in cases where the continuous supervision and control of the court is required. In other words, injunction can not be granted in cases where the relief requires regular and continuous intervention and assistance or supervision of the court. Further, it is also settled principle that the court should not grant mandatory injunction in negative form. In the present suit, plaintiff is seeking relief that the defendant should be directed not to create nuisance or hindrance in peaceful atmosphere of the suit property and the same is such kind of a relief where continuous supervision of the court is required and moreover the plaintiff is Suit No. 252/12 Sh. Chander Pal Pathak Vs. Sh. Brij Bhushan Tyagi Page No. 6/7 seeking the relief of mandatory injunction in negative form which is not permissible in law.
In view of the above discussion, the suit is dismissed being devoid of merits.
Decree sheet be prepared accordingly.
File be consigned to the record room after due compliance. Announced in the open court on 04th June, 2013 (Prabh Deep Kaur) Civil Judge05(West) THC/Delhi/04.06.2013 Suit No. 252/12 Sh. Chander Pal Pathak Vs. Sh. Brij Bhushan Tyagi Page No. 7/7 Suit No. 252/12 Sh. Chander Pal Pathak Vs. Sh. Brij Bhushan Tyagi Page No. 8/7