Delhi District Court
Sh. Pradeep Kumar Jha @ Pradeep Kumar Jha ... vs Sh. Dalip Kumar Jha on 20 April, 2018
IN THE COURT OF SH. RAJINDER SINGH
SCJ/RC(WEST), TIS HAZARI COURTS, DELHI
CS. No. 8154/16
In the matter of:
1. Sh. Pradeep Kumar Jha @ Pradeep Kumar Jha (Advocate)
S/o Late Sh. Satrughan Jha,
R/o Village Pararia, P.S Bihari Ganj,
(V.P.O Pararia)
District. Madhepura (Bihar)
At Present:
H. No. A10A, DCM Colony,
Ibrahimpur Extension, Area144 Sq. Yards.
Gali No. 3, Khasra No. 100, P.O Burari,
P.S Swaroop Nagar, Delhi - 110084.
Also at:
D.B.A Office, Tis Hazari Courts,
Delhi 110054
........Plaintiff
Versus
1. Sh. Dalip Kumar Jha
S/o Late Sh. Satrughan Jha
R/o V.P.O Pararia, P.S Bihariganj,
District Madhepura, (Bihar).
At Present:
H. No. A10A, D.C.M Colony,
Ibrahimpur Extension, Area144 Sq. Yards.
Gali No. 3, Khasra No. 100, P.O Burari,
P.S Swaroop Nagar, Delhi - 110084.
Judgment CS. No. 8154/16
Pradeep Kumar Jha Vs. Dalip Kumar Jha Page..... 1/25
Also at:
Hon'ble Secretary, Delhi Bar Association,
District Courts, Tis Hazari,
Delhi - 110054.
2. The Registrar, Registrar Office,
B.D.O Office Complex,
Alipur, Delhi.
3. Smt. Somwati Devi
W/o Late Sh. Raj Kumar
R/o Village Mind Kali, P. O Budhana,
Tehsil Budhana, District Muzafar Nagar (U.P)
4. Sh. K.S Malik, A.S.I
P.S Swaroop Nagar,
Delhi - 110084.
5. Smt. Saroj Devi (H. M)
W/o Sh. Raj Kumar
6. Sh. Raj Kumar
S/o Sh. Harish Chander
7. Sh. Chetan Sharma (Goldy)
S/o Smt. Saroj Devi
Father's name Sh. Raj Kumar
8. Sh. Anil Sharma (Ankit / Sunny)
S/o Smt. Saroj Devi (H. M)
Father's name Sh. Raj Kumar
9. Rohit Sharma (Lucky)
S/o Smt. Saroj Devi (H. M)
Father's name Sh. Raj Kumar
Judgment CS. No. 8154/16
Pradeep Kumar Jha Vs. Dalip Kumar Jha Page..... 2/25
All Defendants 5 to 9 Residents of :
C/o Sh. Pradeep Kumar Jha @ Pradeep Kumar Jha, Advocate
S/o Late Sh. Shatrughan Jha,
All Residents of :
H. No. A10A, DCM Colony,
Ibrahimpur Extension, Gali No. 3,
Khasra No. 100, P.O Burari,
P.S Swaroop Nagar, Delhi - 110084.
2 nd Address
C/o Smt. Saroj Devi (H. M),
Ever Green Public School English Medium, (Regd.),
Gali No. 3, Prem Nagar, Nathupura,
P.O Burari, Delhi - 110084.
.......Defendants
Date of filing of the Suit : 15.07.2006
Date of reserving order : 28.03.2018*
Date of pronouncement : 20.04.2018
*On 10.04.2018, no time was left.
J U D G M E N T
Brief Facts:
1. Plaintiff's case:
1.1 The plaintiff has filed the present suit seeking recovery of possession, mesne profits and damages against defendants no. 5 to 9 and also against defendant no. 3. It is observed that the original plaint was filed by plaintiff no. 1 Sh. Pradeep Kumar Jha & plaintiff no. 2 Smt. Lakho Devi Jha. Vide order dated 13.03.2015 application Under Order 22 Rule 3 Judgment CS. No. 8154/16 Pradeep Kumar Jha Vs. Dalip Kumar Jha Page..... 3/25 CPC was dismissed and the suit abated with regard to plaintiff no. 2.
Thereafter, in compliance of order dated 16.09.2015, the amended plaint was filed by the present plaintiff Sh. Pradeep Kumar Jha only. 1.2 In prayer no. II, the plaintiff has again sought mesne profits / damages against defendants no. 5 to 9 in favour of the plaintiff himself as well as for his sister (erstwhile plaintiff no. 2). 1.3 In view of language employed in the prayer clauses of the plaint, before proceeding further, it is deemed fit that the reliefs sought by the plaintiff may be clearly spelled out .
1.4 Plaintiff has prayed for decree of recovery of possession of the area shown in red colour in the site plan of property no. A10A. DCM Colony, Ibrahimpur Extension, Gali NO. 3, Khasra No. 100, P.O Burari, P.S Swaroop Nagar, Delhi - 110084 (hereinafter referred to as the suit property). It is prayed that defendant no. 3 may be directed to hand over the vacant peaceful possession of the suit property to the plaintiff. 1.5 During the pendency of the suit, the suit property was "sold" number of times. Accordingly, defendants no. 5 to 9 were also impleaded Judgment CS. No. 8154/16 Pradeep Kumar Jha Vs. Dalip Kumar Jha Page..... 4/25 in the present suit. Plaintiff has sought decree of mesne profits / damages in his favour and against defendants no. 5 to 9 @ Rs. 5000/ per month w.e.f 05.12.2007 "till the date that are illegal and unauthorized occupants in the suit property of the plaintiff" (SIC). It appears that the plaintiff is seeking mesne profits w.e.f 05.12.2007 till the defendants hand over the vacant peaceful possession of the suit property to him. 1.6 Plaintiff has also sought recovery of mesne profits / damages against defendant no. 3 @ Rs. 5000/ per month w.e.f. 10.06.2006 to 04.12.2007. It is stated that she inducted several tenants in the suit property during the said period.
1.7 In prayerII, the plaintiff has made prayer similar to the prayer as mentioned in para no. 1.2, however this time he has sought decree of mesne profits / damages in his favour as well as in favour of his sister, rest of the contents of the prayers are same.
1.8 Plaintiff and defendant no. 1 are living in the aforementioned property since 15.08.1994. In para no. 2 of the plaint, it is stated that the said property is bound by the property of Sh. Madan Chaudhary & Sh. Sharda Prasad on East side. There is a 20 feet wide road on the West Judgment CS. No. 8154/16 Pradeep Kumar Jha Vs. Dalip Kumar Jha Page..... 5/25 side. On the North side is the property of the plaintiff. Property situated on the South side of the suit property was owned by Sh. Mahak Singh, the same was sold by him to Smt. Sumitra Devi.
1.9 "The plaintiff purchased the above said property vide GPA, Agreement to Sell, WILL, Affidavit and receipt all dated 10.07.1995 which were purchased from Sh. Suresh Chand Gupta, stamp vendor having license No. 328, Tis Hazari Courts, Delhi in his own name....." (SIC) (it appears that the said Sh. Suresh Chand Gupta was the stamp vendor from whom the stamp paper were purchased for preparing the aforementioned documents). Plaintiff also took financial help from his sister for constructing the suit property. Defendant no. 1 being the real elder brother of the plaintiff was allowed to live in the suit property. Defendant no. 1 assured the plaintiff that he will vacate the suit property as and when asked to do so. Defendant no. 1 became dishonest and on 24.05.2006 sold the suit property to defendant no. 3. It is stated that defendant no. 1 executed "Sale deed" of the suit property in favour of defendant no. 3.
1.10 On 30.05.2006 at about 09:30 PM, plaintiff came to know Judgment CS. No. 8154/16 Pradeep Kumar Jha Vs. Dalip Kumar Jha Page..... 6/25
that defendant no. 1 had sold the suit property to defendant no. 3. Plaintiff called PCR at 100 number. The matter was reported to the local police also. Defendant no. 3 along with her relatives took forcible possession of the suit property.
1.11 On 03.06.2006, defendant no. 3 along with accomplices came to demolish the latrine and bathroom at the suit property. The matter was again reported to police. Again on 04.06.2006, defendant no. 3 and her accomplices tried to demolish the latrine and bath room at the suit property. The matter was again reported to the police. On 07/08 th June' 2006, defendant no. 3 along with her accomplices forcibly demolished the latrine shown as A, B & C (SIC). They also closed the tanks situated at point A, C & C (SIC). It is further stated that by putting clothes defendant no. 3 closed the use of latrine which is shown in portion W, X, Y & Z (?). 1.12 On 10.06.2006, defendant no. 1 handed over the possession of the suit property (shown in red colour in the site plan) to defendant no. 3. On 28.06.2006, the plaintiff inspected the record of defendant no. 2 and came to know about the said sale. Plaintiff asked defendant no. 2 for providing the copies of the documents. Plaintiff was told that without Judgment CS. No. 8154/16 Pradeep Kumar Jha Vs. Dalip Kumar Jha Page..... 7/25 court orders, such documents cannot be provided. The attesting witnesses on the said documents told the plaintiff in writing that their signatures were fraudulently obtained by defendant no. 3 and her brotherinlaw. 1.13 There is mention about the father and sister of the plaintiff missing from the suit property on 12.01.2005. It is stated that dead body of the father of the plaintiff was found and the same was handed over to the plaintiff by Railway Police on 18.01.2005. There is also mention about other litigations filed by the plaintiff.
2. Written statement filed by defendant no. 1. It is stated that the plaintiff no. 1 and defendant no. 1 are real brothers. The said property measuring 100 sq. yards was purchased jointly by plaintiff no. 1 and defendant no. 1. It was agreed that the said plot measuring 100 sq. yards would be divided into two equal portion for their use and enjoyment over their respective shares. The sale consideration was supplied equally by both the parties. Plaintiff no. 1 and defendant no. 1 separately raised construction over the said plot. The type of construction of both the portions is also different. Due to financial problem, defendant no. 1 sold his property to defendant no. 3 and also handed over the Judgment CS. No. 8154/16 Pradeep Kumar Jha Vs. Dalip Kumar Jha Page..... 8/25 vacant peaceful possession of the same to defendant no. 3. The said property is not joint property of plaintiff no. 1 and defendant no. 1. The vacant plot was purchased by plaintiff no. 1 and defendant no. 1. Further, defendant no. 1 has plainly and simply denied the case of the plaintiff.
3. Defendants no. 2 & 3 were proceeded exparte. They did not file any written statement.
4. Written statement filed by defendants no. 5 to 9. It is stated that defendants no. 6 & 7 are family members of defendant no. 5. They have supported the case of defendant no. 1. Defendant no. 3 has already transferred the possession of the suit property to defendant no. 5. Further, defendants no. 5 to 9 have plainly and simply denied the case of the plaintiff.
5. ISSUES:
5.1 Vide order dated 16.05.2012, Ld. Predecessor framed the following issues:
1. Whether the plaintiff is entitled for possession of area of 50 sq. yards in property bearing khasra no. 100, Gali no. 3, Post office Burari, PS. Judgment CS. No. 8154/16 Pradeep Kumar Jha Vs. Dalip Kumar Jha Page..... 9/25 Swaroop Nagar, Delhi ? OPP
2. Whether the plaintiff is entitled for damages @ Rs. 5000/- per month ?
OPP
3. Whether the plaintiff is entitled for mesne profits ? OPP
4. Whether the defendant is owner of area of 50 sq. yards in terms of title documents i.e GPA, WILL, Affidavit, Receipt, Agreement to sell all dated 21.10.1995? OPD-1
5. Whether the plaintiff has no cause of action to file the present suit ? OPD
6. Whether the plaintiff has not approached this court with clean hands and suppressed material facts regarding purchase of the property in question jointly ? OPD-1
7. Whether the suit of the plaintiff is not maintainable without seeking declaration of cancellation of title document i.e GPA, WILL, Affidavit, Receipt, Agreement to sell all dated 21.10.1995 ? OPD-1
8. Whether plaintiff has no locus standi to file the present suit as plaintiff is neither owner nor in possession of the portion of 50 sq. yards of property bearing khasra no. 100, Gali no. 3, Post Office Burari, PS Swaroop Nagar, Delhi ? OPD-1 5.2 Vide order dated 23.02.2016, Ld. Predecessor framed the following additional issues No. 9 & 10 as follows:
9. If answer to issue no. 4 is in affirmative, then whether defendant no. 1 Judgment CS. No. 8154/16 Pradeep Kumar Jha Vs. Dalip Kumar Jha Page..... 10/25 legally transferred his title and rights with regard to 50 sq. yards to defendant no. 5 ? Onus on defendant no. 5
10. Whether the transfer of property to defendant no. 5 is hit by principle of 'lispendens' ? OPP
11. Relief.
6. EVIDENCE:
6.1 Plaintiff's Evidence:
6.2 Plaintiff examined himself as PW1. He tendered his evidence by way of affidavit Ex. PW1/A. He relied upon the documents i.e Ex. PW1/1 is Voter ID Card, Ex. PW1/2 is ADHAAR Card, Ex. PW1/3 is the certified copy of GPA dated 17.05.2010 (Colly), Ex. PW1/4 is the certified copy of GPA dated 17.10.1995 (Colly), Ex. PW1/5 is the certified copy of GPA dated 24.05.2006 (Colly), Ex. PW1/6 is de exhibited as the same is not on record, Ex. PW1/7 is certified copy of order dated 16.09.2015 in suit No. 14/15 titled as "Pradeep Kumar Jha Vs. Dilip Kumar Jha & Ors.", Ex. PW1/8 is the certified copy of order dated 03.05.2014 in execution No. 31/2012 case titled as "Pradeep Kumar Jha Vs. Smt.Saroj Sharma & Ors", Ex. PW1/9 is the certified copy Judgment CS. No. 8154/16 Pradeep Kumar Jha Vs. Dalip Kumar Jha Page..... 11/25 documents for installation of water connection in the suit premises measuring 144 sq. yards, Ex. PW1/10 is the certified copy of cash receipt NO. 40 dated 30.06.2006, Ex. PW1/11 is the certified copy of receipt NO. 6115 book No. 31 dated 28.06.2006, Ex. PW1/12 is the certified copy of statement of witness namely Veerpal /Beer Pal dated 28.06.2006, Ex. PW1/13 is the certified copy of statement of witness namely Narender dated 01.07.2006, Ex. PW1/14 is the certified copy of police complaint, LIC paper, postal receipt, telegram receipt in suit No. 1387/2006 (old no.) and new number 15/15, Ex. PW1/15 is the certified copy of statements of PW1 to PW26 along with affidavit in suit No. 152/2006, Ex. PW1/16 is the certified copy of service report of Ahlmad dated 30.01.2006 along with stay order dated 08.10.2006, Ex.
PW1/17 is NDPL Bill, Ex. PW1/18 is MTNL Bill, Ex. PW1/19 is Indane Gas connection bill, Ex. PW1/20 is certified copy of order dated 23.03.2016 in TRP No. 71/2014, Ex. PW1/21 is site plan, Ex. PW1/22 is public notice issued in Vir Arjun newspaper, Ex. PW1/23 is the public notice issued in Vir Arjun Newspaper, Ex. PW1/24 are the copies of ADHAAR cards (colly), Ex. PW1/25 are the copies of Election ICard and Judgment CS. No. 8154/16 Pradeep Kumar Jha Vs. Dalip Kumar Jha Page..... 12/25 ADHAAR card of wife of plaintiff, Ex. PW1/25A is copy of SEM proceedings, Ex. PW1/26 is the certified copy of order and decree dated 30.10.2004, Ex. PW1/27 is the certified copy of order of Justice Jayant Nath, Ex. PW1/28 is the certified copy of criminal court proceedings of case titled as " Pradeep Kumar Jha Vs. Megh Raj Gupta & Ors" & Copy of bills of building material, labour charges are marked as MarkB. 6.3 Plaintiff examined his wife Ms. Ranjana Devi as PW2. She tendered her evidence by way of affidavit Ex. PW2/A. She relied upon the documents exhibited as Ex. PW2/1 is PAN Card of deponent, Ex. PW 2/2 is PAN card of plaintiff, Ex. PW2/3 is the birth certificate of the son of the plaintiff, Ex. PW2/4 is the letter bearing No. 1952 dated 03.09.2010 issued by Sh. Krishan Tyagi, MLA, Ex. PW2/5 is the ration card of deponent and the plaintiff, Ex. PW2/6 to Ex. PW2/9 & Ex. PW 2/14 are not on record. Ex. PW2/10 is the pass book of bank account of deponent, Ex. PW2/11 is the pass book of bank account of plaintiff, Ex. PW2/12 is the pass book of bank account of son of the deponent Master Krishan Kumar Jha, Ex. PW2/13 is the pass book of bank account of son of the deponent Master Tripurari Kumar Jha & SDM Proceedings is Judgment CS. No. 8154/16 Pradeep Kumar Jha Vs. Dalip Kumar Jha Page..... 13/25 Mark - A ( colly running in to 12 pages).
6.4 Plaintiff examined Sh. Maninder Pal Singh, J.J.A, Record Room Sessions, Tis Hazari Courts, as PW3. He brought the summoned record i.e the transfer petition file bearing No. 68/14 titled as " Pradeep Kumar Jha Vs. Smt. Saroj Sharma & Ors." from record room. Order dated 27.01.2015 of the said file is Ex. PW3/1. Letter from the office of Dy. Commissioner of Police is Ex. PW3/2. Ex. PW3/3 is the reply dated 15.10.2014 of SI Madan Mohan, PS Swaroop Nagar, Delhi. Ex. PW3/4 is status report dated 25.11.2014 filed by SHO PS Samai Pur Badli, Delhi. Ex. PW3/5 (colly running into 04 pages) is the newspaper publication dated 12.12.2014 in the newspaper "Veer Arjun". 6.5 Plaintiff examined Sh. Anand Kumar, J.J.A, Record Room Civil, Tis Hazari Courts, as PW4. He brought the summoned record i.e record file bearing Goshwara No. 270/RC Central E NO. 42/08 titled as "Pradeep Kumar Jha Vs. Saroj Devi & Ors" decided by Ms. Savita Rao, Ld. ARC, Tis Hazari Courts. Date of decision 11.03.2008. Copy of certified copy of order dated 11.03.2008 is Ex. PW4/1. UPC receipt at page No. 33 and back is Ex. PW4/2. Postal receipts from page No. 39 to 45 are Judgment CS. No. 8154/16 Pradeep Kumar Jha Vs. Dalip Kumar Jha Page..... 14/25 exhibited as Ex. PW4/3 (colly) . Copy to copy of register A.D page No. 47 and back is Ex. PW4/4 (colly) and on page no. 49 & 51 are the envelops and A.D Card are Ex. PW4/5 (colly).
6.6 Plaintiff examined Sh. Vikram, Record Room Civil, Tis Hazari Courts, as PW5. He brought the summoned record i.e Judgment and decree dated 03.12.2011 passed by Sh. S. K. Malhotra, the then Ld. Senior Civil Judge, North, in case title "Pradeep Kumar Jha Vs. Delhi Jal Board" bearing suit NO. 186/10. Copy of certified copy of the same is Ex. PW5/1 (running into 08 pages).
6.7 On 17.01.2018, cross examination of PW2 was deferred. Thereafter, on 31.01.2018 she appeared, the court was on half day leave on that day. The matter was posted for 08.02.2018, on that day, plaintiff closed P.E, vide his own statement dated 08.02.2018. In view of this, it is clear that PW2 was not produced again for cross examination.
7. Defendant's Evidence:
7.1 Defendant No. 1 examined himself as DW1. He tendered his evidence by way of affidavit Ex. DW1/A. He relied upon the Judgment CS. No. 8154/16 Pradeep Kumar Jha Vs. Dalip Kumar Jha Page..... 15/25 documents, the same are marked as MarkA photocopy of GPA dated 21.10.1995, MarkB is photocopy of Agreement to sell dated 21.10.1995, MarkC is photocopy of WILL dated 18.10.1995 duly attested on 21.10.1995 and MarkD is photocopy of affidavit dated 21.10.1995. 7.2 Defendant no. 5 examined herself as D5W1. She tendered her evidence by way of affidavit Ex. D5W1/A. She relied upon the documents i.e Ex. D5W1/1 are GPA dated 21.10.1995, agreement to sell dated 21.10.1995, WILL dated 18.10.1995, Affidavit and receipt of payment, Ex. D5W1/2 are GPA, Deed of Sale, Agreement, SPA, Affidavit, receipt, possession letter, Deed of WILL, all dated 24.05.2006 & Ex. D5W 1/3 are GPA, Receipt, Agreement to Sell, Affidavit, Possession letter, Deed of WILL all dated 17.11.2007.
7.3 Defendant no. 5 examined Smt. Somwati as D5W2. She tendered her evidence by way of affidavit Ex. D5W2/A. She relied upon the documents which were already exhibited as Ex. D5W1/2 and Ex.
D5W1/3.
7.4 All the DWs was duly cross examined by Ld. Counsel for the plaintiff.
Judgment CS. No. 8154/16 Pradeep Kumar Jha Vs. Dalip Kumar Jha Page..... 16/25 7.5 Vide separate statements both dated 22.11.2017, defendant
no. 1 and Ld. Counsel for defendants no. 5 to 9, closed D.E.
8. Final arguments heard.
8.1 Final Arguments were heard on 28.03.2018. Ld. Counsels for the parties only repeated the facts already mentioned in the pleadings. Liberty was granted to the parties for filing the written submissions. 8.2 Written submissions filed by the plaintiff and defendants no. 5 to 9 perused.
8.3 Additional written submissions filed by the plaintiff also perused. In his written submissions, the plaintiff has merely repeated the facts already mentioned in the pleadings. The plaintiff has filed photocopies of certain applications and court orders in his additional written submissions.
8.4 In their written submissions, defendants no. 5 to 9 have mentioned court observations dated 21.11.2017.
Judgment CS. No. 8154/16 Pradeep Kumar Jha Vs. Dalip Kumar Jha Page..... 17/25
COURT'S FINDINGS AND REASONING: Now, issuewise findings are as under:
9. ISSUE NO.1: Whether the plaintiff is entitled for possession of area of 50 sq. yards in property bearing khasra no. 100, Gali no. 3, Post office Burari, PS. Swaroop Nagar, Delhi ? OPP The onus to prove this issue is upon plaintiff.
9.1 The plaintiff claims to have purchased the suit property vide GPA, Agreement to Sell, WILL, Affidavit and receipt. In para no. 3 of the plaint it is stated that these documents are dated 17.10.1995 (?). However, in his examination in chief, plaintiff has not produced all of these documents. He claims to be relying only upon GPA dated 17.10.1995 Ex. PW1/4. The other documents relied upon by the plaintiff are GPA dated 17.10.2010, Ex. PW1/3 (collectively). In the original Ex. PW1/3, the date of execution is not mentioned. Upon perusal of the record, it appears that Ex. PW1/3 (collectively) comprises of GPA, Agreement to Sell, WILL, Affidavit, receipt and possession letter. All these documents are executed by Sh. Mukesh Kumar Tyagi in favour of the plaintiff. In the plaint, there is no specific mention of the documents Ex.
Judgment CS. No. 8154/16 Pradeep Kumar Jha Vs. Dalip Kumar Jha Page..... 18/25
PW1/3 (collectively) or Sh. Mukesh Kumar Tyagi. The plaintiff nowhere states that he purchased the suit property from Sh. Mukesh Kumar Tyagi that too in the year 2010. In fact the plaintiff has nowhere mentioned any specific date when he purchased the suit property or any specific name of a person from whom he purchased the suit property. In the documents Ex. PW1/3 the measurement of the said property is given as 144 Sq. yards whereas in the plaint there is no mention regarding measurements of the said property. All these documents Ex. PW1/3 were attested by the Notary Public on 17.05.2010. As already observed above, this date as well as the name of Sh. Mukesh Kumar Tyagi is not specifically mentioned in the plaint. It is not clear why the plaintiff has filed these documents and how it supports the case of the plaintiff.
9.2 The plaintiff has stated that he claims the recovery of possession of the suit property on the basis of the ownership. Plaintiff has not produced any document(s) to show his ownership of the suit property (Even if the documents Ex. PW1/3, Ex. PW1/4 & Ex. PW1/5 are taken to have been proved. They do not prove ownership of the plaintiff over the suit property). It is pertinent to observe that the plaintiff is not Judgment CS. No. 8154/16 Pradeep Kumar Jha Vs. Dalip Kumar Jha Page..... 19/25 claiming recovery of suit property on the basis of better title. In this regard, it is further pertinent to observe that even the defendant is relying upon documents Ex. D5W1/1 (collectively) this is also a "GPA set"
executed by Sh. Mukesh Kumar Tyagi in favour of the defendant as well as the plaintiff. In view of these documents, it is clear that the plaintiff cannot claim better title with regard to the suit property. 9.3 In view of the above, plaintiff has failed to prove issue no. 1. Accordingly, issue no. 1 is decided in favour of the defendants and against the plaintiff.
10. ISSUE NO. 2: Whether the plaintiff is entitled for damages @ Rs. 5000/- per month ? OPP & ISSUE NO. 3: Whether the plaintiff is entitled for mesne profits? OPP The onus to prove these issues is upon plaintiff.
10.1 In view of the findings of this court on issue no. 1, issues no. 2 & 3 are also decided in favour of the defendants and against the plaintiff.
11. ISSUE NO. 4: Whether defendant is owner of area of 50 sq. yards in terms of title documents i.e GPA, Judgment CS. No. 8154/16 Pradeep Kumar Jha Vs. Dalip Kumar Jha Page..... 20/25 WILL, Affidavit, Reciept, Agreement to sell all dated 21.10.1995 ? OPD-1 The onus to prove this issue is upon defendant no. 1. 11.1 It is pertinent to observe that defendant no. 1 in his written statement though claimed to have purchased the suit property vide documents dated 21.10.1995 from one Sh. Mukesh Kumar Tyagi has not preferred any counter claim seeking declaration of the ownership regarding the suit property. As such, issue no. 4 appears to have been wrongly framed. The court should not venture to give findings on the issues which are not required to be decided for effective adjudication of the plaint.
11.2 Accordingly, issue no. 4 is struck off.
12. ISSUE NO. 5: Whether plaintiff has no cause of action to file the present suit ? OPD The onus to prove this issue is upon defendants. 12.1 No specific arguments were addressed in this regard. No specific evidence has been led by any of the defendants in this regard. Accordingly, issue no. 5 is decided in favour of the plaintiff and against Judgment CS. No. 8154/16 Pradeep Kumar Jha Vs. Dalip Kumar Jha Page..... 21/25 the defendants.
13. ISSUE NO. 6: Whether plaintiff has not approached this court with clean hands and suppressed material facts regarding purchase of the property in question jointly ? OPD-1 The onus to prove this issue is upon defendant no. 1. 13.1 In this issue, it is stated that whether the plaintiff has suppressed material facts regarding joint purchasing of the suit property. On the other hand as observed in order dated 16.05.2012, both the plaintiffs and defendant no. 1 are relying upon separate set of documents in their favour regarding the suit property. The onus is upon defendant no. 1 to show that the suit property was purchased jointly in the name of the plaintiff and defendant no. 1. Ex. D5W1/1 collectively are GPA, Agreement to Sell, WILL, Affidavit and receipt all dated 21.10.1995 executed by Sh. Mukesh Kumar Tyagi regarding the suit property jointly in favour of the plaintiff and defendant no. 1. All these documents are in harmony with the claim of defendant no. 1 as spelled out in his written statement and preliminary objection no. 1.
Judgment CS. No. 8154/16
Pradeep Kumar Jha Vs. Dalip Kumar Jha Page..... 22/25
13.2 Accordingly, issue no. 6 is decided in favour of defendant no.
1 and against the plaintiff.
14. ISSUE NO. 7: Whether suit of the plaintiff is not
maintainable without seeking declaration of
cancellation of title documents i.e GPA, WILL, Affidavit, Receipt, Agreement to sell all dated 21.10.19095 ? OPD-1 The onus to prove this issue is upon defendant no. 1. 14.1 It is settled law that if the plaintiff himself a party to some document, he cannot seek mere declaration regarding the same. Plaintiff has to seek cancellation of the said documents. In view of the documents dated 21.10.1995, Ex. D5W1/1 (collectively) a cloud is cast over the title of the plaintiff regarding the said suit property. In such circumstances, the plaintiff was required to seek declaration of title of the suit property and also cancellation of the documents Ex. D5W1/1. 14.2 In view of the above, issue no. 7 is decided in favour of defendant no. 1 and against the plaintiff.
15. ISSUE NO. 8: Whether plaintiff has no locus standi to file the present suit as plaintiff is neither owner no Judgment CS. No. 8154/16 Pradeep Kumar Jha Vs. Dalip Kumar Jha Page..... 23/25 in possession of the portion of 50 sq. yards of property bearing Khasra no. 100, Gali no. 3, Post office Burari, P.S Swaroop Nagar, Delhi ?
OPD-1 The onus to prove this issue is upon defendant no. 1. 15.1 In view of the findings of this court on issues no. 1 & 7, issue no. 8 is decided in favour of defendant no. 1 and against the plaintiff. ADDITIONAL ISSUES:
16. ISSUE NO. 9: If answer to issue no. 4 is in affirmative, then whether defendant no. 1 legally transferred his title and rights with regard to 50 sq. yards to defendant no. 5 ? Onus on defendant no. 5.
The onus to prove this issue is upon defendant no. 5. 16.1 Since issue no. 4 has been struck off, no findings can be given on issue no. 5 as issue no. 5 was required to be decided only if answer to issue no. 4 was in affirmative.
16.2 In view of the above, issue no. 9 is also struck off.
17. ISSUE NO. 10: Whether the transfer of property to defendant no. 5 is hit by principle of 'lispendens' ? OPP Judgment CS. No. 8154/16 Pradeep Kumar Jha Vs. Dalip Kumar Jha Page..... 24/25 The onus to prove this issue is upon plaintiff.
17.1 In view of striking of issue no. 4 & 9, issue no. 10 is also struck off.
18. ISSUE NO. 11 Relief.
18.1 In view of the findings on the above issues, the suit of the plaintiff is dismissed.
19. No order as to cost.
20. Decree sheet be prepared accordingly.
21. File be consigned to record room after due compliance.
PRONOUNCED IN THE OPEN (RAJINDER SINGH) COURT ON 20.04.2018 SCJ/RC(WEST)/ DELHI Judgment CS. No. 8154/16 Pradeep Kumar Jha Vs. Dalip Kumar Jha Page..... 25/25