Delhi District Court
Swati Kachhap vs Shivram & Ors on 18 October, 2014
Page 1 of 9
IN THE COURT OF Ms. SUNENA SHARMA
Addl. Distt Judge - 04 (SE)
SAKET COURTS COMPLEX: NEW DELHI
CS No.46/2014
Unique Case ID No.02406C0019212014
Date of Institution : 25.01.2014
Arguments concluded : 18.10.2014
Date of decision : 18.10.2014
Swati Kachhap versus Shivram & Ors
O R D E R
1. Vide this order, I shall decide the injunction application filed by plaintiff under Order 39 Rule 1 & 2 CPC. However, perusal of the prayer clause of instant application shows that plaintiff has not specified as to what interim injunction she is seeking therein against the defendants at this stage as the prayer clause just itself reads that 'grant exparte injunction order in favour of plaintiff against the defendants'.
2. During course of arguments, learned counsel appearing on behalf of plaintiff submitted that he is pressing for adinterim injunction order against the defendants only to the extent of restraining defendants from creating any third party interest in the suit property.
3. Briefly stated the facts born out from the plaint are as follows: Plaintiff had purchased the property admeasuring 50 Square Yards CS No.46/2014 Swati Kachhap v Shiv Ram & Ors Page 2 of 9 (along with fittings & fixtures) out of total area of 100 Square Yards of premises bearing No. C5, Shyam Nagar, Kalkaji, New Delhi from defendant No.1 vide registered sale deed dated 09.10.2007 and became owner thereof. At the time of execution of said sale deed, the possession of said 50 Square Yards (hereinafter referred as the 'suit property') was also handed over to the plaintiff and she remained in possession thereof. It is averred that as the husband of plaintiff was employed in Ranchi and was terminated from service on 28.03.2012, therefore, he had started living in his native place at Ranchi, whereas the plaintiff alongwith children was staying at Mehrauli, New Delhi as the children were studying in the nearby school. However, husband of plaintiff used to visit the suit property off and on whenever he visited Delhi. On 18.01.2014 when plaintiff and her husband went to the suit property they were shocked to see that some construction was going on after demolition of the old structure on the entire property admeasuring 100 Square Yards including the suit property. Later on they came to know that defendant Nos.1 to 3 have executed certain documents and on the basis thereof, they were raising construction over the demise property. It is also alleged that defendants are in collusion with each other and want to grab the suit property belonging to the plaintiff. Hence, the instant suit.
4. The claim of plaintiff has been contested by the defendants by filing separate written statements; defendant No.1 has filed a separate WS whereas defendant Nos.2 & 3 filed a joint WS. Defendant No.1 though had CS No.46/2014 Swati Kachhap v Shiv Ram & Ors Page 3 of 9 not disputed the execution of the sale deed by him in favour of the plaintiff, but has taken a plea that he had apprised the plaintiff and plaintiff was well aware of the revocation of the probate of the 'Will' granted in his favour on the basis of which he had been claiming title in the suit property and had transferred the same to the plaintiff vide sale deed dated 09.10.2007. The defendant No.1 has categorically denied that he is in collusion with the defendant Nos.2 & 3 as alleged by the plaintiff.
5. In the WS filed by the defendant Nos.2 & 3 it is averred that Smt.Rewati Devi w/o late Sh Hans Raj was the absolute owner of the property bearing No.C5, Shyam Nagar, Kalkaji, New Delhi admeasuring 100 Square Yards and she transferred the same in favour of defendant No.2 vide GPA, Agreement to Sell, Receipt, Registered Will, Affidavit, Possession Letter, all dated 22.06.2002 and after the death of Smt.Rewati Devi, defendant No.2 was in possession of said premises. Later on, vide sale deed dated 16.02.2009, defendant No.2 transferred the entire property admeasuring 100 Square Yards for a sale consideration of Rs.2.30 Lacs in favour of defendant No.3. After the execution of the sale deed, the possession of the suit property was also handed over to the defendant No.3, who is now absolute owner and in possession thereof. It is also averred that defendant No.1 and his associates had always an evil eye to grab the property in dispute and defendant No.1 in collusion with his associates filed a probate petition bearing No.150/06/02 before learned District Judge, on the basis of a forged and fabricated will dated 08.02.2002, allegedly CS No.46/2014 Swati Kachhap v Shiv Ram & Ors Page 4 of 9 executed by Smt.Rewati Devi in favour of defendant No.1. By misleading the Court, the defendant No.1 became successful in obtaining a judgment dated 21.02.2004 by virtue of which the letter of administration dated 12.07.2006 was issued in favour of defendant No.1 in respect of said forged Will. However, when defendant Nos.2 & 3 came to know about the said letter of administration dated 12.07.2006 and judgment passed in probate case No.150/06/02, they immediately filed a petition bearing No.LA No. 110/11 for revocation of judgment dated 21.02.2004 and letter of administration dated 12.07.2006. Vide judgment dated 03.02.2012, the said LA petition was decided in favour of defendant Nos.2 & 3 and the judgment dated 21.02.2004 was revoked by the Court of Ms.Neelam Singh, the then learned Addl. District Judge holding that second 'Will' executed by owner of premises on 22.06.2002 was the last 'Will' and same was deemed to have revoked all her earlier Wills. It is also averred that against the said judgment dated 03.02.2012, defendant No.1 has preferred FAO No.334/2012 before Hon'ble High Court of Delhi, but till date no relief or stay has been granted to defendant No.1 therein.
6. I have heard arguments of learned counsels appearing for parties including defendant No.1 appearing in person and perused the record as well.
7. The law regarding interim injunction is now settled that for deciding interim injunction under Order 39 Rule 1 & 2 CPC, all the CS No.46/2014 Swati Kachhap v Shiv Ram & Ors Page 5 of 9 ingredients namely prima facie case, balance of convenience and irreparable loss have to coexists in favour of party seeking such injunction.
8. Learned counsel appearing on behalf of defendant Nos.2 & 3 has argued that plaintiff and defendant No.1 are in collusion with each other since beginning in as much as, despite knowing the fact that Smt.Rewti Devi has already transferred the property by executing sale document including a registered 'Will' in favour of defendant No.2, thereby revoking her previous 'Wills' if any, defendant No.1 had got letter of succession issued in his favour on the basis of a forged Will purportedly executed in his favour by Smt.Rewati Devi and the same was done by him in collusion with the plaintiff and her husband. He further argued that plaintiff and her husband were well aware of the entire proceedings of the case for revocation of letter of administration, which is also evident from the fact that they both had executed their surety/administration bonds at the time of issuance of letter of administration and their statements were also recorded before the Court wherein they had stated that defendant No.1 is close friend of husband of the plaintiff. He further pointed out that husband of plaintiff had also been appearing even in the FAO proceedings pending before the Hon'ble High Court of Delhi and same is also evident from the information furnished by the concerned department to the RTI application of the defendant wherein he had sought information about the visits of plaintiff's husband Sh Ujjwal S Tiga in the Hon'ble High Court. He has also drawn my attention to the reply to his application showing that Sh CS No.46/2014 Swati Kachhap v Shiv Ram & Ors Page 6 of 9 Ujjawal S Tiga had appeared before the Hon'ble High Court of Delhi on the recommendation of Mr Deepanker Sabharwal, Advocate in FA No. 334/2012. He further submitted that defendant No.1 herein had also instituted a civil suit No.484/2011 for declaration of sale deed and other documents executed in favour of defendant No.3 by defendant No.2 as null and void before the Court of learned Civil Judge, SouthI, New Delhi, but the same was subsequently withdrawn by him on 02.03.2012. The certified copy (photocopy) thereof has been placed on record. Learned counsel further pointed that said suit was filed by Mr Deepanker Sabharwal, Advocate on behalf of defendant No.1 herein and he is the same person who stood witness in the sale deed executed by defendant No.1 in favour of plaintiff.
9. After considering the rival contentions of both the sides and perusing the entire material available on record, I am of the view that at this stage, there is no prima facie case in favour of plaintiff for grant of injunction in as much as that except the sale deed dated 09.10.2007 showing therein the handing over of possession of 50 Square Yards of land with semipucca construction by defendant No.1 to plaintiff, she (plaintiff) has not placed on record any other document in support of her plea that she had been in possession of the suit property, since the date of its purchase i.e. 09.10.2007. On the other hand, defendant No.3 herein has placed on record various documents such as the electricity bill for the meter installed on 19.03.2012 at the premises in the name of defendant No.3 herein, the CS No.46/2014 Swati Kachhap v Shiv Ram & Ors Page 7 of 9 copy of the passport issued by the concerned authorities in the name of son of defendant No.3 on 28.08.2012 at the very same address as well as the photocopies of election voter identity cards of defendant No.3 and her husband issued on 01.03.2012. All the said documents appear to have been issued prior to the year 2013. As per the averments of para No.6 of plaint, husband of plaintiff was planning to construct the suit property as the building was constructed in the year 1957 and it was not inhabitable. Further, it is necessary to point out that on the entire area of 100 Square Yards, there was only one builtup structure and it is no where the claim of the plaintiff that built up structure had exclusively fallen into her share or was ever partitioned before transfer of 50 Square Yards i.e. suit property to her.
10. Furthermore, the claim of the plaintiff for the relief of possession is based on a sale deed dated 09.10.2007 and as per said sale deed, the defendant No.1 i.e. erstwhile owner claimed the ownership on the basis of 'Will' dated 08.02.2002 in respect of which letter of administration dated 12.07.2006 was issued in his favour by the Court of Sh V K Gupta, the then learned ADJ on the basis of the judgment dated 12.07.2006 passed by said court in probate No.150/06/02. However, the said letter of administration as on date has already been revoked by the subsequent judgment dated 03.02.2012 passed by the Court of Ms.Neelam Singh, the then learned Addl. District Judge in LA No.110/11. Though, the FAO is pending before the Hon'ble High Court of Delhi against the said judgment of CS No.46/2014 Swati Kachhap v Shiv Ram & Ors Page 8 of 9 revocation of letter of administration, but till date no stay has been granted in favour of the defendant No.1 herein. Considering the said facts, plaintiff's claim of ownership in suit land as on date, has no legs to stand upon especially in view of finding of learned ADJ in judgment dated 03.02.2012 vide which letter of administration issued in favour of defendant No.1 (through whom plaintiff is claimed to have purchased the suit property) has been revoked.
11. Perusal of the judgment dated 03.02.2012 vide which the letter of administration issued in favour of defendant No.1 was revoked by the Court, it was observed that execution of the subsequent registered Will dated 22.06.2002 by Smt.Rewti Devi amounts to revocation of her previous will dated 08.02.2002. It is a well settled provision of law that no one can transfer a better title than he himself has. In this case, defendant No.1 was claiming ownership on the basis of the will dated 08.02.2002 of Smt.Rewati Devi, but in view of the judgment of the aforementioned Court in LA No. 110/11, the said 'Will' stood revoked in view of the subsequent will of late Smt.Rewati Devi executed on 22.06.2002 in favour of defendant No.2. In view thereof, defendant No.1 was having no tile in the suit property at the time of execution of the sale deed in favour of plaintiff on 09.01.2007. As per said sale deed dated 09.01.2007, defendant No.1 was delivering title in suit land by virtue of a 'Will' dated 08.02.2002 of late Smt.Rewati Devi, which as per judgment dated 03.02.2012 stood already revoked in view of subsequent will of Smt. Rewati Devi executed by her in favour of defendant CS No.46/2014 Swati Kachhap v Shiv Ram & Ors Page 9 of 9 No.2 on 22.06.2002.
12. Having regard to the aforementioned discussion, I am of the view that plaintiff has no prima facie case in her favour. Hence, I feel no necessity to discuss the other two essential ingredients viz balance of convenience and irreparable loss.
13. I find no merit in the instant application. Accordingly, application stands dismissed.
14. Before parting with instant order it is made clear that nothing observed herein shall tantamount to an expression on the merits of this case.
(Sunena Sharma) Addl. Distt Judge04/SouthEast Saket Courts Complex, New Delhi Announced & dictated in the Open Court on 18.10.2014.
CS No.46/2014 Swati Kachhap v Shiv Ram & Ors