Delhi District Court
Smt. Meena Sharma vs Chhipiwara Temple Trust on 13 July, 2018
IN THE COURT OF SH. HARISH KUMAR : ADDITIONAL DISTRICT
JUDGE -13 : CENTRAL DISTRICT : TIS HAZARI COURTS : DELHI
I CS No. 12826/16
In re :-
Smt. Meena Sharma
W/o Sh. Pradeep Sharma
D/o Late Shyam Sunder Sharma
R/o H.No. 2362, Bara Chhipiwara,
Jama Masjid, Delhi
..........Plaintiff
VERSUS
1. Chhipiwara Temple Trust
2484, Chhipiwara, Jama Masjid,
Delhi
2. SHO, PS Jama Masjid
(deleted vide order dated 10.01.2008)
...........Defendants
SUIT FOR PERPETUAL AND MANDATORY INJUNCTION
Date of institution of present suit : 10.01.2008
Date of receiving in this court : 24.08.2016
Date of hearing arguments : 10.07.2018
Date of Judgment : 13.07.2018
AND
II Counter Claim Suit No. 16604/16
In re :-
Chhipiwara Temple Trust
2484, Chhipiwara, Jama Masjid,
Delhi
..........Plaintiff
VERSUS
Smt. Meena Sharma
W/o Sh. Pradeep Sharma
D/o Late Shyam Sunder Sharma
R/o H.No. 2362, Bara Chhipiwara,
Jama Masjid, Delhi
...........Defendant
CS No. 12826/16 Meena Sharma Vs. Chhipiwara Temple Trust
Suit Counter Claim No. 16604/16 Chhipiwara Temple Trust Vs Meena Shara Page No. 1 of 24
Date of institution of present suit : 13.08.2012
Date of receiving in this court : 24.08.2016
Date of hearing arguments : 10.07.2018
Date of Judgment : 13.07.2018
JUDGMENT
1. This common judgment shall dispose of two suits. One suit bearing No. 12826/16 has been filed by the plaintiff Meena Sharma against the defendant Chhipiwara Temple Trust for perpetual and mandatory injunction. Another suit bearing No. 16604/16 has been filed by the defendant Chhipiwara Temple Trust against Meena Sharma for declaration for entitlement to possession of the suit property. In fact defendant Chhipiwara Temple Trust had filed Counter Claim in the suit filed by the plaintiff Meena Sharma but due to lack of pecuniary jurisdiction said Counter Claim was returned to be represented before competent Court.
2. After return of the counter Claim defendant Chhipiwara Temple Trust represented the said Counter Claim as independent suit though without changing its form, before the Court of Ld. District Judge and accordingly same came to be registered as independent suit bearing No. 16604/16 titled as "Chhipiwara Temple Trust Vs Meena Sharma". Thereafter, suit filed by the plaintiff which was then pending before the Court of Ld. Civil Judge was transferred to the Court of Addl. District Judge where the said Counter claim Suit was pending, for disposal along with said Counter Claim Suit and Counter claim Suit came to be treated as leading case. Hence, for the purpose of clarity and convenience, in the present judgment plaintiff means Meena Sharma and defendant means Chhipiwara Temple Trust. SHO of the area was impleaded as defendant No.2 in Suit No.12826/16 but was subsequently it was deleted and therefore if anywhere term "defendant No1" has been used in the CS No. 12826/16 Meena Sharma Vs. Chhipiwara Temple Trust Suit Counter Claim No. 16604/16 Chhipiwara Temple Trust Vs Meena Shara Page No. 2 of 24 body of this judgment it means defendant Chhippiwara Temple Trust.
Case of the plaintiff i.e. Meena Sharma
3. Briefly stated the case of the plaintiff is that plaintiff is the great granddaughter of late Nanak Chand Pujari who was the owner of the Temple i.e. Prachin Shiv Mandir in Chhipiwara and the owner of the property bearing No. 2362, Bara Chhipiwara, Jama Masjid, Delhi and the same was constructed by late Nanak Chand Pujari in the year 1920 to 1925. Further generations of Nanak Chand Pujari have been till date enjoying the possession and occupation of the aforesaid property being owner and have been living there along with their respective families. The plaintiff has shown her peaceful possession and occupation being owner in the site plan. The British Government awarded late Nanak Chand Pujari with the designation of "CHAUDHARY" and Nanak Chand Pujari was known on "CHAUDHARY".
4. Nanak Chand Pujari changed the name of the temple from Prachin Shiv Mandir to Babe Lalu Ji Maharaj Ka Mandir and since then the Mandir be known as Babe Lalu Ji Maharaj Ka Mandir and since then the Mandir be known as Babe Lalu Ji Maharaj Ka Mandir till date and also Nanak Chand Pujari made a Trust i.e. defendant No. 1. It is pertinent to mention here that Nanak Chand Pujari has been one of the founder member of defendant No. 1 and the trustee of the defendant No.
1. As a mark of respect to Chaudhary Nanak Chand Pujari, the temple affixed a marble stone in the premises of the temple in the name of Chaudhary Nanak Chand Pujari.
5. In the year 1930-1935 Nanak Chand Pujari performed the marriage of his son and his daughter-in-law Smt. Bhagwati Devi came into the H.No. 2362, Bara Chhipiwara, Jama Masjid, Delhi as it was her matrimonial home. After passing more than 45-50 years, on 10.03.1970 CS No. 12826/16 Meena Sharma Vs. Chhipiwara Temple Trust Suit Counter Claim No. 16604/16 Chhipiwara Temple Trust Vs Meena Shara Page No. 3 of 24 defendant No. 1, with ulterior motive and dishonest intention and just only to usurp the property of the family of the plaintiff, filed a petition before the Assistant Commissioner under Section 19 of the Slum Areas (J&C) Act, under Clause (a) and Sub-Section (1) bearing No. ECN/1003/70 on false and frivolous grounds for taking the permission to file the suit of the eviction of the widow Bhagwati Devi i.e. the grand daughter-in-law of Chaudhary Nanak Chand Pujari from 2362, Bara Chhipiwara, Jama Masjid, Delhi. On 20.031973, the competent authority dismissed the petition of the defendant No. 1 in favour of grandmother of the plaintiff Smt. Bhagwati Devi.
6. On 19.04.1973, defendant No. 1 filed an appeal against the order dated 20.03.1973 in the Court of Financial Commissioner and the same appeal was allowed on 15.04.1974 in favour of the defendant No. 1 and against the grandmother of the plaintiff Smt. Bhagwati Devi. On 22.07.1974 the grandmother of the plaintiff Smt. Bhagwati Devi filed a Civil Writ Petition in the Hon'ble High Court of Delhi bearing No. 1107/1974 against the impugned order dated 15.04.1974 passed by the court of the Financial Commissioner. Vide order dated 10.02.1975, the Hon'ble High Court of Delhi allowed the writ petition No. 1107/1974 in favour of the grandmother of the plaintiff and against the defendant No. 1 and set-aside the order dated 15.04.1974 passed by the court of Ld. Financial Commissioner with the remarks to remand back the same to the competent authority. On 03.06.1976 the court of Competent Authority passed the order and set aside the order dated 15.04.1974 passed by the Financial Commissioner and adjourned the matter sine die with the direction to approach the competent court of law.
7. In the mid of December, 2000, late Shyam Sunder Sharma i.e. the father of the plaintiff and grandson of Chaudhary Nanak Chand Pujari started repair of the first floor and construction of the second floor CS No. 12826/16 Meena Sharma Vs. Chhipiwara Temple Trust Suit Counter Claim No. 16604/16 Chhipiwara Temple Trust Vs Meena Shara Page No. 4 of 24 of his property bearing No. 2362, Bara Chhipiwara, Jama Masjid, Delhi. On 14.01.2001, while almost major construction was complete, the defendant No. 1 called the defendant No. 2 and the defendant No. 2 got initiated the proceedings under Section 107/150 of Cr.P.C. against the plaintiff's father and Defendant No. 1. Vide order dated 09.04.2001, the father of the plaintiff and defendant No. 1 were discharged from the proceedings under Section 107/150 Cr.P.C.
8. On 02.02.2001, defendant No. 2 registered a kalandra u/s 145 of Cr.P.C. over the dispute of the possession of the second floor of the property No. 2362, Bara Chhipiwara, Jama Masjid, Delhi with the collusion of the defendant No. 1. Vide order dated 20.11.2007, the Sub Divisional Magistrate, Darya Ganj called the status report from defendant No. 2. It is further submitted that during the proceedings under Section 145 Cr.P.C. the father of the plaintiff expired in the year 2004 and since then plaintiff represented her father before the Sub Divisional Magistrate, Darya Ganj. On 25.11.2007, the defendant No. 2 filed the status report before the Court of Sub Divisional Magistrate, Darya Ganj mentioning therein that second floor is in the possession of Smt. Meena Sharma/plaintiff herein and old household articles of Smt. Meena Shara are lying in the same and the electricity connection of the property in question is from the old electricity meter of plaintiff and the way to reach the suit property goes from the first floor. The Sub Divisional Magistrate passed order dated 22.12.2007 in case u/s 145 Cr. P. C thereby ordering that suit property be kept sealed till the time Competent Court decide the dispute between the parties. It is pertinent to mention here that the Sub Divisional Magistrate gave the aforesaid observation on the report given by the defendant No. 2 in collusion with defendant No. 1 and defendant No. 1 and 2 also misguided the Ld. Sub Divisional Magistrate over the physical and peaceful possession of the plaintiff over the suit property.
CS No. 12826/16 Meena Sharma Vs. Chhipiwara Temple Trust Suit Counter Claim No. 16604/16 Chhipiwara Temple Trust Vs Meena Shara Page No. 5 of 24
9. The aforesaid acts of the defendants are highly illegal, unwanted, unjustified and against the principles of natural justice and law of land and they succeeded in their ulterior motive to convince the Ld. SDM that the plaintiff are not enjoying the possession of the suit property. If the defendants and their associates are not restrained from harassing and threatening the plaintiff or creating any third party interest over the suit property in question, which is in the lawful and peaceful possession of the plaintiff being bona fide owner of the suit property, the plaintiff would suffer irreparable loss and injury. Hence, plaintiff filed the present suit seeking decree of perpetual injunction thereby restraining the defendants No. 1 and 2, their associates, agents, servants, any person acting and representing on behalf of the defendants from forcibly dispossessing the plaintiff from using and enjoying the peaceful physical possession of the suit property or creating any third party interest in the suit property bearing No. 2362, Bara Chhipiwara, Jama Masjid, Delhi. Plaintiff also made prayer of mandatory injunction thereby directing the defendants not to create any kind of disturbance or hindrance in the peaceful construction of the remaining portion of the suit property.
Case of the defendant/counter claimant i.e. Chhipiwara Temple Trust
10. Defendant filed written statement cum counter claim (which was filed subsequently as independent suit as noted above) raising preliminary objection that the plaintiff has suppressed material facts apart from misrepresenting some facts. The suit has not been properly valued for the purposes of court fee and jurisdiction. The plaintiff has no locus standi to file the present suit. On merits, defendant denied that late Sh. Nanak Chand Pujari was the owner of the temple i.e. Prachin Mandir in Chhipiwara. It has been denied that generation of Nanak Chand Pujari have been till date enjoying the possession and occupation of the said property being owner as alleged. It has been however submitted that CS No. 12826/16 Meena Sharma Vs. Chhipiwara Temple Trust Suit Counter Claim No. 16604/16 Chhipiwara Temple Trust Vs Meena Shara Page No. 6 of 24 ground floor of property bearing No. 2361, Chhipiwara, Jama Masjid, Delhi, is in possession of Maya Ram & Sons on a monthly rental of Rs. 121/-, who is running flour mill and the rent is being paid to the defendant No. 1. The property No. 2362 have been given to the staircase and plaintiff was permitted to use and occupy the first floor of the said property only. It is denied that any award was given to late Sh. Nanak Chand and name of the temple was changed. It is further denied that defendant No. 1 trust was created by Nanak Chand Pujari. The certificate of registration of Chhipiwara Temple Trust clearly depicts the name of the founder member. The trust owns temple bearing municipal number 2484, and the properties bearing No. 2361-62, 2363-66, and 2385, Chhipiwara, Jama Masjid, Delhi-110 006.
11. It is pleaded that plaintiff has admitted that she is using the first floor of the premises in suit as a licensee. In the year 1980 the second floor came in possession of Chhipiwara Temple Trust. On 13.11.1980, the second floor was let out to Sh. Ajay Kumar Rohtagi s/o Sh. Kanhaiya Lal Rohtagi on a monthly rental of Rs.125/- and a rent note to this effect was executed. Sh. Ashok Kumar Rohtagi vacated and handed over the possession to Chhipiwara Temple Trust of the second floor of the said property sometime in the year 1990 and since then the second floor is in possession of Chhipiwara Temple Trust. The second floor portion was not only under the lock and key, but also were being used by Chhipiwara Temple Trust for keeping their goods. It is further submitted that plaintiff was never in possession of any portion of the second floor of property No. 236162, Chhipiwara, Delhi-110 006, nor was permitted to use any portion of second floor at any point of time.
12. On the night of 13.01.2001, the plaintiff broke open the locks of the second floor of the property and threatened to raise unauthorized construction of the walls on the second floor. The matter was reported to CS No. 12826/16 Meena Sharma Vs. Chhipiwara Temple Trust Suit Counter Claim No. 16604/16 Chhipiwara Temple Trust Vs Meena Shara Page No. 7 of 24 the police. The SDM sealed the second floor of the property bearing No. 2361-62, Chhipiwara, Jama Masjid, Delhi on 22.12.2007 vide order No. 1214-15. Rest of the averments made in the plaint have been are denied.
13. In counter claim suit, it has been submitted that the property has been assessed to house tax in the name of Sh. Nandu Mal & ors., who were the president and member of the defendant trust. It is further submitted by defendant No. 1 that Trust owns temple bearing municipal No. 2484, and the properties bearing No. 2361-62, 2363-66 and 2385, Chhipiwara, Jama Masjid, Delhi-110 006. It is prayed that it be declared that the defendant No. 1 is entitle for possession of second floor of the property No. 2361-62, Chhipiwara, Jama Masjid, Delhi-110006, and after removing the seal, the possession be handed over to the defendant No.
1. Replication
14. Plaintiff filed replication to the written statement filed by the defendant thereby reiterating the contents of the plaint and denying the contents of the written statement. Plaintiff also filed written statement to the counter claim filed by M/s Chhipiwara Temple Trust whereby she again reiterated the contents of the plaintiff to pray for the dismissal of the suit.
Issues
15. From the pleadings of the parties following issues were framed in CS No. 12826/16 vide order dated 04.04.2012:
1. Whether the plaintiff is entitled to a decree of perpetual injunction as prayed for? OPP
2. Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for? OPP CS No. 12826/16 Meena Sharma Vs. Chhipiwara Temple Trust Suit Counter Claim No. 16604/16 Chhipiwara Temple Trust Vs Meena Shara Page No. 8 of 24
3. Whether the plaintiff has not valued the suit property for the purposes of court fees and jurisdiction?OPD
4. Whether the plaintiff has no locus standi to file the present suit?
5. Relief
16. Again on 03.01.2014 issues were framed in this case without clarifying whether these were in addition to or in suppression of issues framed on 04.04.2012. Following issues were framed in CS No. 12826/16 vide order dated 03.01.2014:-
1. Whether the suit property is owned by trust? OPD
2. Whether the counter claimant in entitled to the possession of the suit property as prayed? OPD
3. Whether the suit of the counter claimant is barred by limitation? OPP
4. Whether the suit is barred u/s 19 sub section 1 clause A of the slum area employment act? OPP
5. Relief.
17. These issues appear to have been framed keeping in mind counter claim in the suit accordingly this issues would be taken up as having been framed in Counter Claim suit bearing CS No. 16604/16 and will be adjudicated along with issues framed therein so far as same would be harmoniously possible.
18. From the pleadings of the parties following issues were framed in CS No. 16604/16 vide order dated 29.08.2013:
1. Whether the suit is not maintainable in the present form?
(onus on counter claimant)
2. Whether the counter claimant trust is the owner? (onus on CS No. 12826/16 Meena Sharma Vs. Chhipiwara Temple Trust Suit Counter Claim No. 16604/16 Chhipiwara Temple Trust Vs Meena Shara Page No. 9 of 24 counter claimant)
3. Whether plaintiff Meena Sharma tried to take forcible possession of the property in night on 13.01.2001 as alleged? (onus on counter claimant)
4. Whether the counter claimant is entitled to possession of the second floor of the property bearing No. 2361-62, Chhipiwara, Jama Masjid, Delhi (onus on counter claimant)
5. Whether the counter claim is barred by limitation?
6. Relief Evidence in CS No. 12826/16
19. In support of her case, plaintiff examined herself as PW-1 and tendered her affidavit in examination-in-chief as PW-1/A relying upon following documents:
1. Site Plan Ex. PW1/12. certified copy of order dated 20.03.1973 passed in ECN 1003/1970 Ex. PW1/2
3. certified copy of order dated 15.04.1974 Ex. PW1/3
4. certified copy of order dated 03.06.1976 Ex. PW1/4
5. certified copy of DD No. 10A dated 18.01.2001 Ex. PW1/5
6. certified copy of kalandara under Section 145 Cr.P.C. Ex.PW1/6
7. certified copy of order dated 09.04.2001 Ex. PW1/7
8. copy of status report Ex. PW1/8
9. certified copy of order dated 22.12.2007 Ex. PW1/9
10. photographs Ex. PW1/10 (colly.)
11. certified copy of order dated 03.03.2008 Ex. PW1/11
12. copy of election identity card of the deponent Ex. PW1/12
13. certified copy of permission/order dated 24.07.2000 Ex.PW1/13
14. original letter dated 25.03.1974 issued by Delhi Electric Supply Undertaking Ex. PW1/14
15. Birth Certificate Ex. PW1/15 CS No. 12826/16 Meena Sharma Vs. Chhipiwara Temple Trust Suit Counter Claim No. 16604/16 Chhipiwara Temple Trust Vs Meena Shara Page No. 10 of 24
16. Receipt dated 18.05.1977 Ex. PW1/16
17. Receipt dated 16.08.1977 Ex. PW1/17
18. Death Certificate Ex. PW1/18
19. Electricity Bill dated 16.01.1981 Ex. PW1/19
20. Electricity Bill dated 30.06.1980 Ex. PW1/20
21. Letter dated 23.02.1982 issued by Post & Telegraph Department Ex. PW1/21
22. Bill of water supply dated 01.12.1983 Ex. PW1/22
23. Bill of water supply dated 12.12.1985 Ex. PW1/23
24. Bill of water supply dated 18.06.1985 Ex. PW1/24
25. Receipt dated 09.09.1985 Ex. PW1/25
26. Bill dated 19.05.1988 Ex. PW1/26
27. Water supply bill dated 05.03.1990 Ex. PW1/27
28. Death Certificate dated 20.12.1989 Ex. PW1/28
29. Watter supply bill dated 13.09.1991 Ex. PW1/29
30. Death Certificate dated 28.09.2004 Ex. PW1/30
31. Bill dated 06.01.2012 issued by Electricity Department Ex.PW1/31
32. Receipt dated 05.09.1985 Ex. PW1/32
33. Receipt dated 18.07.1989 Ex. PW1/33 She was cross examined by the defendant.
Evidence in Counter Claim Suit No. 16604/16
20. Counter claimant/Defendant examined Sh. Raj Kapoor as PW-1 who tendered his affidavit in examination in chief as Ex. PW1/A and relied upon certified copy of certificate of Registration of Societies dated 12.04.1949 Ex. PW1/1 and original house tax receipt dated 28.06.2007 Ex. PW1/2. He was cross examined by the respondent.
21. Defendant examined Sh. Virender Singh, Patwari in its counter claim suit as PW-2. He produced record of Wilson Survey of the year 1910-1914 and proved the same vide Ex. PW2/1. He was cross CS No. 12826/16 Meena Sharma Vs. Chhipiwara Temple Trust Suit Counter Claim No. 16604/16 Chhipiwara Temple Trust Vs Meena Shara Page No. 11 of 24 examined.
22. Defendant examined Sh. S.K. Jha, Record Keeper in its counter claim suit as PW3 (wrongly typed as CW-3) and proved the record Ex. PW3/1. He was cross-examined.
23. Defendant examined Sh. Tara Chand, ASO, House Tax Department in its counter claim suit as PW-4. He deposed that summoned record in respect of property bearing No. 2361-62/IV, Chhipiwara, Chandni Chowk, Delhi-110 006 is not traceable. He proved letter dated 18.04.2018 in this regard as Ex. PW4/A. He was cross examined.
24. Plaintiff examined herself as DW-1 and tendered her affidavit in examination-in-chief as DW-1/A and relied upon the same documents which she had relied in CS No. 12826/16. Defendant adopted her cross examination as was conducted in the plaintiff's suit. Thereafter, she closed her evidence.
Findings
25. After going through the pleadings, evidence and material on record as well as after appreciating arguments of Counsels for parties, it is noted that both plaintiff and defendant are claiming ownership of the suit property. Suit property is actually second floor of the constructed building ground floor of which undisputedly bears municipal No. 2361 and first floor bears municipal No. 2362. As per plaintiff portion above the 2362 is part of floor bearing No. 2362 and bears No. 2362 as well, whereas per defendant said portion does not bear any number and said portion including portion bearing No. 2361 and 2362 is owned by defendant. Inspite of such claim neither of the parties has placed and proved on record any document of title such as sale deed, gift deed, CS No. 12826/16 Meena Sharma Vs. Chhipiwara Temple Trust Suit Counter Claim No. 16604/16 Chhipiwara Temple Trust Vs Meena Shara Page No. 12 of 24 lease deed, award, etc. in their respective favour.
26. As per plaintiff in the mid of December 2000, late Shri Shyam Sunder Sharma i.e. father of the plaintiff and grandson of Chaudhary Nank Chand Pujari started repair of the first floor and construction of Second floor of his property bearing No. 2362, Bara Chhippiwara, Jama Masjid Delhi. Thus, as per plaintiff herself construction on the Second floor was not in existence prior to mid December 2000 and on 14.01.2001 when major construction was complete, defendant No.1 called the defendant No.2 SHO (since deleted) and proceedings under Section 107/150 of IPC was initiated and since then suit property is in dispute. Subsequently, suit property stands sealed by SDM following procedure under Section 145 Cr.P.C. and parties were directed to get their dispute settled through civil court and get back the possession.
27. As per defendant the ground floor i.e. property no. 2361 was in possession of Sh. Chattaru Mal and first floor i.e. 2362 was under the tenancy of Smt. Bhagwati (grand mother of the plaintiff) on the monthly rental/license fees of Rs. 18/- and second floor i.e. disputed portion was in possession of Pandit Tellu Ram and Ram Gopal pujaris of the Chippiwara Temple Trust located in the vicinity. As per defendant, some time in the year 1964 Pt. Telu Ram had allowed his relative Sh. Ramesh Chand to stay with him and he started paying Rs. 50/- per month as rent. In the year 1980 second floor was vacated and it came in possession of Chippiwara temple Trust and again on 13.11.1980 second floor was let- out to Ajay Kumar Rohtagi s/o Kanhiya Lal Rohtagi and the rent note to this effect was executed by Sh. Ajay Kumar Rohtagi who vacated and handed over the possession of second floor i.e. disputed portion to Chippiwara Temple Trust some time in the year 1990 and since then second floor is in possession of Chippiwara Temple Trust where it was CS No. 12826/16 Meena Sharma Vs. Chhipiwara Temple Trust Suit Counter Claim No. 16604/16 Chhipiwara Temple Trust Vs Meena Shara Page No. 13 of 24 keeping its goods under its own lock and key.
28. Thus, as per plaintiff till January 2001 the disputed portion was only roof situated above 2362 and upon which father of the plaintiff had started raising construction since mid December 2000 whereas as per defendant the said portion was already constructed and was in use earlier by Telu Ram since 1960 and subsequently by Ramesh Chand, Ajay Kumar Rohtagi and defendant in the manner stated above. Thus, at least plaintiff is seeking relief on the basis of her ownership whereas defendant although claiming it to be owner of property is claiming its entitlement to the possession of the suit property on the basis of previous possession. Aforesaid facts has to be kept in mind while rendering issue wise finding which are as under:-
ISSUE No. 3 (in suit No. 12826/16 framed on 04.04.2012 ):- Whether the plaintiff has not valued the suit properly for the purposes of court fees and jurisdiction?OPD
29. Issue No.3 is taken up ahead of issues No. 1 & 2 framed on 04.04.2012. Onus to prove this issue is upon the defendant. Defendant has raised this issue submitting therein that plaintiff has not valued the suit properly for the purposes of court fee and jurisdiction. Defendant has examined Sh. Raj Kapoor as PW-1 in the counter claim suit and filed his examination-in-chief by way of affidavit Ex. PW1/A wherein he did not aver a single word regarding the valuation of the suit property by the plaintiff. Defendant examined other witness but they are not witness to this aspect. Plaintiff had filed suit for permanent and mandatory injunction wherein plaintiff is required to pay fix court fee which plaintiff has paid and thus there is nothing on record to show that the valuation done by the plaintiff is improper. Accordingly, issue no. 3 (framed on 04.04.2012 in suit No. 12826/16) is decided against the defendants and in favour of plaintiff.
CS No. 12826/16 Meena Sharma Vs. Chhipiwara Temple Trust Suit Counter Claim No. 16604/16 Chhipiwara Temple Trust Vs Meena Shara Page No. 14 of 24 ISSUE No. 4 (in suit No. 12826/16 framed on 04.04.2012):- Whether the plaintiff has no locus standi to file the present suit?
30. Onus to prove this issue is upon the plaintiff. As noted above plaintiff has filed the present suit claiming herself to be owner of the property and claiming to be in possession of the suit property. Plaintiff has not filed and proved any document of title in respect of the suit property. Hence, plaintiff has failed to prove her ownership and therefore she has no locus standi to claim relief on the basis of ownership.
31. Admittedly, suit property has been sealed by the order of the SDM and therefore, in the circumstance plaintiff's prayers for restraining the defendant from interfering in the possession etc. does not survive alone without prayer for declaration that she be held to be in possession of the suit property and that she is entitled to possession from SDM. Though not claimed but plaintiff's claim to possession from SDM on the basis of ownership would not survive in the absence of ownership document. Now plaintiff's claim to possession is being examined on the basis of her previous possession.
32. It has already been noted herein before that plaintiff has pleaded that her father started raising construction on the second floor i.e. disputed portion in the mid December 2000. So, as per plaintiff herself a constructed second floor was not in existence prior to mid December 2000. Therefore, even otherwise also plaintiff cannot claim possession of the disputed portion on the basis of previous possession as plaintiff cannot be held to be in possession of portion which was not in existence.
33. It is not the case of the plaintiff that her father started raising construction on the second floor after demolishing the old one. Plaintiff CS No. 12826/16 Meena Sharma Vs. Chhipiwara Temple Trust Suit Counter Claim No. 16604/16 Chhipiwara Temple Trust Vs Meena Shara Page No. 15 of 24 has placed on record photographs Ex PW1/10 (colly) but same have not been proved as per law as neither the negatives were produced nor who clicked the photographs was examined. Even if said photographs are considered it fails to connect itself with second floor of any property. From the photographs it is not clear whether it is of ground floor, first floor or second floor of any property. Similarly, it is also difficult to connect the same with building over which suit property is situated.
34. Though on the basis of document Ex CW3/1 called and proved by defendant, existence of two tin roofed rooms on the second floor at least since 1970 as the document is signed in the year 1970, stands proved but plaintiff has to stand on her own legs. She has herself set up case that her father started raising construction in mid December 2000 therefore she cannot be in possession of rooms which were not in existence prior to mid December 2000. Besides, plaintiff has not led any evidence to prove on record the extent of construction raised when same was undisputably stopped due to obstruction by defendant. Case of the defendant is that plaintiff attempted to forcible take possession of the second floor on 13.01.2000 and therefore it was more important for plaintiff to prove that construction of the second floor was going on since mid December 2000 and construction has reached a particular stage so as to enable the Court to infer her possession of the suit property but there is no evidence on this point. Hence, plaintiff failed to prove her possession over the second floor/suit property and therefore she is not in position to claim entitlement to possession on the basis of her previous possession also.
35. Since plaintiff fails to prove her ownership in respect of the suit property and she also failed to prove her previous possession over the suit property, hence she has no locus standi to file the present suit. Accordingly issue No. 4 framed on 04.04.2012 in suit No. 12826/16 is CS No. 12826/16 Meena Sharma Vs. Chhipiwara Temple Trust Suit Counter Claim No. 16604/16 Chhipiwara Temple Trust Vs Meena Shara Page No. 16 of 24 hereby decided against the plaintiff.
ISSUE No. 1 (in suit No. 12826/16 framed on 04.04.2012):- Whether the plaintiff is entitled to a decree of perpetual injunction as prayed for? OPP ISSUE No. 2 (in suit No. 12826/16 framed on 04.04.2012):- Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for? OPP
36. Issues No. 1 and 2 framed on 04.04.2012 in suit No. 12826/16 is taken up together and in view of findings rendered on the issue No. 3 above (framed on 04.04.2012 framed in suit No. 12826/16), these issues No. 1and 2 are decided against the plaintiff.
ISSUE No. 1 (in suit No. 12826/16 framed on 03.01.2014):- Whether the suit property is owned by trust? OPD
37. Onus to prove this issue is upon the defendant. As is the case with plaintiff, defendant also does not have any document of title in its favour. Defendant's witness only deposed that the trust owns temple bearing municipal no. 2484 and properties bearing no. 2361-62, 2363-66 and 2385 situated at Chippiwara Jama Masjid, Delhi. Nothing has been deposed by the witness of the defendant as to how temple trust became the owner of the said properties and suit property. It has not been stated whether the suit property was purchased by defendant or gifted to defendant or settled upon the defendant by any one. Witness of the defendant is completely silent on this aspect except for oral testimony as noted above.
38. Defendant also did not prove on record that suit property was let out by the defendant to Sh. Telu Ram and subsequently to Ajay Kumar Rohtagi or that they were paying rent to defendant. Merely on the basis of house tax receipt defendant cannot claim ownership of the suit property. Hence, in the absence of any document of ownership in favour CS No. 12826/16 Meena Sharma Vs. Chhipiwara Temple Trust Suit Counter Claim No. 16604/16 Chhipiwara Temple Trust Vs Meena Shara Page No. 17 of 24 of defendant, defendant cannot be held to be the owner of the suit property. Hence, issue No.1 is decided against the defendant.
ISSUE No. 2 (in suit No. 12826/16 framed on 03.01.2014):- Whether the counter claimant in entitled to the possession of the suit property as prayed? OPD
39. Onus to prove this issue is upon the plaintiff and findings on it depends upon defendant successfully proving that it is owner of the owner of the property or that it was in possession of the property prior to alleged attempt by plaintiff to take forcible possession of the suit property. It has been seen above that defendant has failed to prove its ownership in respect of the suit property. Therefore defendant is not entitled to possession of the suit property on the basis of ownership.
40. Defendant has pleaded that suit property was under the tenancy earlier under Tellu Ram, thereafter under Ramesh Chand and then under Ajay Kumar Rohtagi and since 1990 it was in possession of the suit property. Defendant examined one witness from Municipal Corporation namely Sh S.K.Jha as PW3 (wrongly typed as CW3) and he brought summoned record i.e. Form - "Ka" which used to be prepared for the purpose of assessment of house tax by MCD after verification regarding possession of immovable property. Said form is of the year 1970 as is apparent from the date put under the signature. As per this documents Ground Floor bearing No. 2361 was in possession of Chattrumal, First Floor bearing No. 2362 was found locked and Second Floor not bearing any number was in possession of Ramesh Chand and comprised of two tin roofed rooms. This document does prove the existence of second floor and that second floor does not have any independent municipal number.
41. But this document does not prove that Ramesh Chnad was CS No. 12826/16 Meena Sharma Vs. Chhipiwara Temple Trust Suit Counter Claim No. 16604/16 Chhipiwara Temple Trust Vs Meena Shara Page No. 18 of 24 tenant of defendant. Further perusal of the CW3/1 shows that the documents was issued in the name of Shri Nandu Lal and Gopi Nath who must be assessor. Though Shri Nandu Lal is shown as founder member of the temple trust as per document Ex PW1/2 (colly) but that does not ipso facto or in connection with other documents proves that defendant was owner or landlord of the suit property. No record was produced that any rent was paying paid to it. Defendant also did not examine the person in occupation of ground floor bearing No. 2361 who is allegedly paying rent to it. There is no other documents to show that defendant was in possession of the suit property. Hence, defendant has failed to prove continuous possession over the suit property prior to the beginning of dispute. This court has not gone into question whether the person who was examined on behalf of the defendant at all was authorised to appear, depose and sign pleadings on behalf of the defendant.
42. Thus, when defendant failed to prove its ownership or continuous prior possession over the suit property, defendant cannot be held entitled to possession of the suit property. Hence, issue No. 2 (in suit No. 12826/16 framed on 03.01.2014) is decided against the defendant.
ISSUE No. 3 (in suit No. 12826/16 framed on 03.01.2014):- Whether the suit of the counter claimant is barred by limitation? OPP
43. Onus to prove this issue is upon the plaintiff. As noted above defendant has filed the present claim in the shape of counter claim in the suit filed by the plaintiff and which counter claim was returned due to lack of pecuniary jurisdiction for presentation before court of competent jurisdiction. Said Counter claim was filed on 1 March 2008 and same was ordered to be returned to defendant vide order dt 05.05.2011. defendant received the returned counter claim on 08.02.2012 and refiled CS No. 12826/16 Meena Sharma Vs. Chhipiwara Temple Trust Suit Counter Claim No. 16604/16 Chhipiwara Temple Trust Vs Meena Shara Page No. 19 of 24 it on 13.08.2012. Thus, the initial institution of the claim of the defendant is 01.03.2008. Defendant's present suit is in respect of declaration to the effect that it is entitled to possession and after which it would approach SDM for handing over the possession of the suit property to itself. Vide order dt 22.12.2007 SDM directed parties to suit to get their entitlement decided by competent Civil Court. For the relief of declaration one has to approach the Civil Court within 3 years from the date of first accrual of cause of action as mentioned in Article 58 of the Schedule to The Limitation Act. Defendant has claimed declaration for entitlement to possession as it was in possession of the suit as claimed before SDM in the proceedings under Section 145 CrPC. Present suit has been filed within the period of three years after excluding the period spent by the defendant in the counter claim i.e. from 1.03.2008 to 05.05.2011, from the date of order of SDM. Hence , issue No.3 (in suit No. 12826/16 framed on 03.01.2014) is decided in favour of the defendant.
ISSUE No. 4 (in suit No. 12826/16 framed on 03.01.2014):- Whether the suit is barred u/s 19 sub section 1 clause A of the slum area employment act? OPP
44. Onus to prove this issue is upon plaintiff. But since the suit of the defendant is not for possession and therefore question of there being bar to the suit for possession without the permission of Competent Authority(Slum) as required under Section 19(1)(a) of Slum Area Improvement and Clearance Act 1956, does not arise. Hence, this issue does not call for any adjudication and accordingly stands disposed of.
ISSUE No. 1 (in suit No. 16604/16 framed on 29.08.2013):- Whether the suit is not maintainable in the present form? (onus on counter claimant).
45. This issue although has been framed in the counter claim suit but onus has been cast upon the defendant to prove that suit is not maintainable, therefore it appears that defendants objection with respect CS No. 12826/16 Meena Sharma Vs. Chhipiwara Temple Trust Suit Counter Claim No. 16604/16 Chhipiwara Temple Trust Vs Meena Shara Page No. 20 of 24 to maintainability of plaintiff's suit has been framed inadvertently in the counter claim. Accordingly, this issue is treated as having been framed in the suit no. 12826/16 filed by plaintiff.
46. Counsel for defendant did not lead any argument as to how the suit filed by plaintiff is not maintainable. This court on its own has analysed this aspect in the light of the stand of the plaintiff. Plaintiff filed the present suit on 09.01.2008 seeking relief of decree of perpetual and mandatory injunction. Under perpetual injunction, plaintiff prayed for restraining the defendants from forcibly dispossessing the plaintiff; from using and enjoying the peaceful and physical possession of the suit property or to create any third party interest. Under the relief of mandatory injunction plaintiff prayed directions to the defendant not to create any kind of disturbance or hindrance in the peaceful construction of the remaining portion of the suit property.
47. Admittedly, plaintiff has filed the present suit after the order dated 22.12.2007 passed by SDM in the proceedings u/s 145 Cr.P.C as Ld. SDM found it difficult to decide as to who was in possession of the suit property and therefore, he directed that property be kept sealed till a Competent Court decide the case. In this background the prayer of the plaintiff should have been in the form of declaration that she is entitled to possession of the suit property with consequent relief of injunction that after re-delivery of possession by the SDM defendant should be restrained from the forcible dispossession or creating third party interest or from creating any kind disturbance or hindrance in the peaceful construction of the remaining portion of the suit of the property in question.
48. By filing the present suit, with the prayer as claimed in the present suit plaintiff is representing that she is in physical possession of CS No. 12826/16 Meena Sharma Vs. Chhipiwara Temple Trust Suit Counter Claim No. 16604/16 Chhipiwara Temple Trust Vs Meena Shara Page No. 21 of 24 the suit property on the date of filing of the suit. She may be in legal possession but once Ld. SDM ordered that property be kept sealed till the time Competent Court decide the respective rights of the parties, the form of the present suit of the plaintiff should have been for the relief of declaration for her entitlement to possession, may be on the basis of title or on the basis of possessary right, with consequential relief of permanent and mandatory injunction. In the facts and circumstances as pleaded by the plaintiff, plaintiff's suit without the relief of declaration is not composite or complete, hence, suit of the plaintiff is not maintainable in the present form in the facts of the case as pleaded by the defendant. Hence, the issue under consideration is deiced against the plaintiff.
ISSUE No. 2 (in suit No. 16604/16 framed on 29.08.2013):- Whether the counter claimant trust is the owner? (onus on counter claimant)
49. This issue has already been decided above while deciding issue No.1 framed on 03.01,2914 in suit No. 12826/16.
ISSUE No. 3 (in suit No. 16604/16 framed on 29.08.2013):- Whether plaintiff Meena Sharma tried to take forcible possession of the property in night on 13.01.2001 as alleged? (onus on counter claimant)
50. Onus to prove this issue is upon the defendant. As noted above the defendant has failed to prove that it had let out the suit property to Telu Ram or subsequently to Ajay Kr. Rohtagi or that they were paying rent to it, consequently, defendant failed to prove that it was in possession of the suit property. Similarly, it is the case of the plaintiff that father of the plaintiff started raising construction in the suit property in mid December 2000. It has come on record from Form-Ka Ex. CW- 3/1 issued by MCD that there was two Tin roofed rooms above property no. 2362 which was in possession of Ramesh Chand. While cross examining witness PW-3 (wrongly mentioned as CW-3), the availability of record with MCD and contents thereof has not been disputed by the CS No. 12826/16 Meena Sharma Vs. Chhipiwara Temple Trust Suit Counter Claim No. 16604/16 Chhipiwara Temple Trust Vs Meena Shara Page No. 22 of 24 plaintiff. Said Form Ex. CW-3/1 is of the year 1970 whereas it is the case of the plaintiff that her predecessor in interest has been in possession of the property since 1920-25, though on the other hand plaintiff claimed the her father started raising conctruction of the suit property in mid December 2000. She has not produced any counter record from MCD that her predecessor were mentioned in any of the Form Ka maintained by the MCD earlier. It is also not her case that Ramesh Chand had put her or her predecessor in interest in possession of the suit property. It has already been noted above that plaintiff has failed to prove that she or her predecessor in interest was in ever possession of suit property situated above 2362.
51. Existence of two tin roofed rooms is proved from Form Ka. Plaintiff herself pleaded that construction on the second floor was started in mid December and on 14.1.2001 when almost major construction was complete defendant no. 1 called defendant no. 2 (since deleted) and got proceeding under section 107/150 Cr.P.C initiated. Plaintiff has not produced any record to show the extent of construction raised or completed by January 2001, therefore, it appears probable that plaintiff might have attempted to raise construction on 13.01.2001 and therefore, defendant raised objection on 14.1.2001. Thus, on the prepondrance of probability it is likely that plaintiff attempted to take possession of the property on 13.01.2001. Hence, issue no. 3 is decided in faovur of the defendant and against the plaintiff.
ISSUE No. 4 :- Whether the counter claimant is entitled to possession of the second floor of the property bearing No. 2361-62, Chhipiwara, Jama Masjid, Delhi (onus on counter claimant)
52. While deciding issue No. 2 above (in suit No. 12826/16 framed on 03.01.2014) it has already been held that defendant is not entitled to possession. Accordingly, this issue is decided agains the defendant.
CS No. 12826/16 Meena Sharma Vs. Chhipiwara Temple Trust Suit Counter Claim No. 16604/16 Chhipiwara Temple Trust Vs Meena Shara Page No. 23 of 24 ISSUE No. 5 :- Whether the counter claim is barred by limitation?
53. While deciding issue No. 3 (in suit No. 12826/16 framed on 03.01.2014) it has already been held that defendant suit is not time barred. Accordingly, this issue is decided in favour of the defendant.
RELIEF In view of the findings recorded on all issues suit filed by plaintiff and suit filed by defendant is hereby dismissed. SDM shall keep the suit property sealed till its true owner seeks possession of the suit property.
Parties to bear their own cost. Signed judgment be placed in each file.
Separate decree sheet be prepared accordingly.
File be consigned to Record Room after necessary compliance.
Digitally signed HARISH by HARISH
KUMAR
KUMAR Date: 2018.07.13
16:46:28 +0530
(Harish Kumar)
Announced in open Court ADJ-13(Central)/THC
(Judgment contains 24 pages) Delhi/13.07.2018
CS No. 12826/16 Meena Sharma Vs. Chhipiwara Temple Trust
Suit Counter Claim No. 16604/16 Chhipiwara Temple Trust Vs Meena Shara Page No. 24 of 24